Flouting the Law

What happens when a person’s common sense view of justice diverges from the sense of justice he or she sees enshrined in particular laws? In particular, does the perception of one particular law as unjust make an individual less likely to comply with unrelated laws? This Article advances the Flouting Thesis – the idea that the perceived legitimacy of one law can influence one’s willingness to comply with unrelated laws – and provides original experimental evidence to support this thesis. This Article presents new, original evidence that one’s willingness to disobey the law can extend far beyond the particular unjust law in question, to the flouting of unrelated laws commonly encountered in everyday life (such as traffic violations, petty theft, and copyright restrictions). A second experiment demonstrated that when exposure to a perceived unjust outcome made gender salient by highlighting an instance in which the law fails to punish a male perpetrator involved in a crime of violence against a female victim, the relationship between perceived injustice and compliance was affected by group identity. Finally, the Article explores the relationship between perceived injustice and flouting and offers several possible explanations, including the role of law in American popular culture, and the expressive function of the law in producing compliance

Legal Negotiation and Communication Technology: How Small Talk Can Facilitate E-mail Dealmaking

E-mail recently has become a popular mode of communication for lawyers negotiating deals and conducting settlement discussions. But the obvious conveniences of e-mail as a negotiation medium can blind users to its pitfalls. The impoverished nature of the e-mail medium can lead to misunderstandings, sinister attributions, and ultimately, negotiation impasse. How can lawyers make use of the advantages of e-mail for negotiation while overcoming its disadvantages? One solution consists of a very simple insurance measure: small talk. In the empirical demonstration described in this Article, law students each negotiated a commercial transaction with another law student at a different university using e-mail as the mode of communication. Negotiators who engaged in a brief, getting-to-know-you phone conversation built substantial rapport that resulted in positive social and economic benefits for both parties. This initial small talk by telephone made subsequent e-mail interaction proceed more smoothly because the early creation of rapport helped the negotiators approach the negotiation with a more cooperative mental model, thereby trusting in each other\u27s good intentions. This, in turn, led to a successful negotiation that concluded with a contract, and engendered positive feelings about one another and expectations of successful dealings in the future. By contrast, negotiators who did not engage in small talk were over four times more likely to reach an impasse, and ended up feeling resentful and angry about the negotiation. The Article concludes by discussing implications and recommendations for lawyers who use e-mail to negotiate

Blaming as a Social Process: The Influence of Character and Moral Emotion on Blame

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor\u27s mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our emotional reactions are not only a product of the act and the outcome, but also a product of inferences about the general virtuousness of the person who performed the act that caused the harm. Remarkably, this result holds true even though the mental state of the actor was clearly specified. As observers, we give the benefit of the doubt to a person with a virtuous character who causes harm; we perceive his actions as less intentional and perhaps even less causal, and the harm less foreseeable than if his character is flawed. Remarkably, it seems that we do not deliberately use character information to inform responsibility judgments, for when differences in character are made explicit, we moderate our judgments so that we hold the virtuous harmdoer equally responsible as the ignoble harmdoer

Law, Psychology & Morality

In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay sodomy laws, abortion laws, and Prohibition. In this Chapter, we explore the possible mechanisms by which law can influence attitudes and behavior. To this end, we consider informational and group influence of law on attitudes, as well as the effects of salience, coordination, and social meaning on behavior, and the behavioral backlash that can result from a mismatch between law and community attitudes. Finally, we describe two lines of psychological research—symbolic politics and group identity— that can help explain how people use the law, or the legal system, to effect expressive goals

Moral Spillovers: The Effect of Moral Violations on Deviant Behavior

Two experiments investigated whether outcomes that violate people\u27s moral standards increase their deviant behavior (the moral spillover effect). In Study 1, participants read about a legal trial in which the outcome supported, opposed or was unrelated to their moral convictions. Relative to when outcomes supported moral convictions, when outcomes opposed moral convictions people judged the outcome to be less fair, were more angry, were less willing to accept the outcome, and were more likely to take a borrowed pen. In Study 2, participants who recalled another person\u27s moral violation were more likely to cheat on an experimental task relative to angry or neutral condition participants. Taken together, results provide evidence for moral spillover: outcomes that violate moral standards increase deviant behavior

The Law and Norms of File Sharing

This Article provides a survey of the current status of file sharing in the law. File sharing raises issues of copyright law, harm to sellers of media, and issues of morality (harming another financially) in general. The article addresses the effect that the perception of recording industry greed has on the decision to share files, as well as the perception of legality that the populous at large has about sharing files. The article thus takes both an introspective look at the status of the law regarding file sharing and gauges the current climate of motivations behind the behaviorally driven phenomenon. The authors of this article then take the next logical step and consider the effect that the law has had and is going to have on social norms, which define what acceptable behavior is. The discussion of the effect of law on social norms includes a consideration of empirical evidence for the skeptically minded. The second half of the article is a presentation of an empirical study that the authors themselves performed with 240 undergraduate students at a public university in the United States. The study was meant to provide some indication of the effect of law on student\u27s thought about file sharing. The students were not intended to be a representative sample but rather generate preliminary observations. All of the students were asked what they thought about how students in general were going to behave in the future regarding file sharing, and filled out a questionnaire on the subject. The control group answered the questionnaire without additional information. The Law only group (the test group) was asked to answer in light of the additional information provided by a copy of the university policy stating that file sharing was against the law. This test group then was further subdivided into three groups, first a group that answered with the information that formal sanctions may be imposed on university members (official warnings and suspensions), second into a group that answered in light of informal sanctions (posting names of offenders on website) and finally one that answered in light of moral duties (exhortation to refrain from the bad offense). The article next discusses the result that merely citing the university policy that file sharing was illegal did not have much effect to the test group, but adding to that the idea of formal or informal sanctions did encourage a negative view of file sharing. The third group that was issued a moral exhortation had the same answers and views as the control group, the moral exhortations did not have an effect. The article then considers policy implications, including the implication that shaming sanctions such as posting the names on the website are at least perceived by the students in this study to be effective, which is something that is contrary to the results of other studies. The other policy consideration is that the RIAA\u27s commercials where artists explain why they think that file sharing is wrong probably aren\u27t going to have the desired effect because it seems that students at least don\u27t buy into the theory of morality presented

Testing the Focal Point Theory of Legal Compliance: Expressive Influence in an Experimental Hawk/Dove Game

Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. The focal point theory makes three claims: (1) that the need for coordination is pervasive because mixed motive games involving coordination model common disputes; (2) that, in such games, any third-party cheap talk that calls the players\u27 attention to a particular equilibrium tends to produce that equilibrium; and (3) that law, by publicly endorsing a particular equilibrium, tends to call the players\u27 attention to that outcome. After explaining the first and third claim, we offer an experimental test of the second. Specifically, we investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players\u27 conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome