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Tuesday, April 01, 2014

One More for the Road: The Knobe Effect

Although I've already signed off, I wanted to post one more thing.  I've been researching vicarious felony murder for Arnold Loewy's (interesting, enlightening, fun, well-run, excellent) annual upcoming criminal law symposium at Texas Tech, and came across the Knobe Effect, which hasn't, I think, been given the attention in the criminal law literature that it deserves.  Here's an excerpt from the paper I'm writing for the symposium:

Psychologist Joshua Knobe empirically demonstrated what has been called the Knobe Effect.  He examined the concept of “intentional action,” and found that "people’s intuitions as to whether or not a behavior was performed intentionally can sometimes be influenced by moral considerations.  That is to say, when people are wondering whether or not a given behavior was performed intentionally, they are sometimes influenced by their beliefs about whether the behavior itself was good or bad."

Knobe gave two questionnaires to two groups of people.  One group’s questionnaire involved a hypothetical CEO whose profit maximization plan would end up harming the environment, and the second group’s questionnaire involved a hypothetical CEO whose profit maximization plan would end up helping the environment.  In both hypothetical situations, neither CEO cared whether her plan would hurt or help the environment: she intended only to maximize profits.  82% of subjects who received the environment-harming situation thought the CEO harmed the environment intentionally, and only 23% of subjects who received the environment-helping situation thought the CEO helped the environment intentionally.

The Knobe Effect suggests that juries will have a perverted bias in favor of finding that a non-killing co-felon intended the killing; although most non-killing co-felons do not intend the killing, and would even probably prefer that the killing not occur, juries will impute intent because the killing is a bad outcome.  The principle of transferred intent emerges as, strictly speaking, a legal fiction.  The Knobe Effect furthermore suggests that the problem of transferred intent as a fiction is compounded by factfinders’ apparent compulsion to find that non-killing co-felons actually intended the killing.

Knobe's work can be found herehere, and here, among other places, and clearly has application throughout criminal law, and indeed in every area of law that involves blame and fault finding.

Posted by Steven R. Morrison on April 1, 2014 at 12:37 PM | Permalink

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Comments

Interesting finding! It seems that the groups are defining "intent" in different ways (As I did even reading the hypothetical). For the negative case, you could say that knowing something bad will happen and failing to prevent it is a type of "intent", whereas knowing something good will happen and allowing it to happen is not "intent". This seems to track the act / omission distinction in torts, but flipped.

Posted by: anonandoff | Apr 1, 2014 12:54:18 PM

Knobe actually tested whether subjects were using the term "intent" to mean something else like "blameworthiness" or "causation"--the idea being that, lacking a more nuanced vocabulary, subjects used "intent" as a proxy. Surprisingly, he concluded that they used "intent" as criminal law scholars do--i.e., when the outcome was bad, most people thought the actors did indeed intend the outcome.

Posted by: Steven R. Morrison | Apr 1, 2014 1:14:24 PM

For what it's worth, Joshua Knobe is a philosopher, not a psychologist- his Ph.D. is in philosophy (from Princeton), and his primary appointment is in the philosophy department at Yale. Not a big deal, I suppose, but philosophers don't need their credit going to psychologists!

Posted by: Matt | Apr 1, 2014 1:29:58 PM

Matt,
You're right--thanks for the correction. He's an experimental philosopher, which was the cause of the mistake. His work looks a lot like the work of psychologists.

Posted by: Steven R. Morrison | Apr 1, 2014 1:35:41 PM

There is some papers coming out in Law and Ethics of Human RIghts http://www.degruyter.com/view/j/lehr as part of a symposium they did on human rights and the mind sciences http://www.clb.ac.il/workshops/2014/ that concern what the Knobe effect and what it can and cannot help us understand or change in law. It may be that some of the authors would happily share their pre-publication drafts with you. You may also find Josh Greene's work in these areas interesting as well as critiques by Selim Berker and Frances Kamm as to its implications for ethics (and indirectly law).

Posted by: I. Glenn Cohen | Apr 1, 2014 2:43:31 PM

Knobe spoke at a Symposium hosted by my law school (Brooklyn) a few years ago. At page 517 of this document, http://www.brooklaw.edu/~/media/PDF/LawJournals/BLR_PDF/blr_v75ii.ashx, you can find a discussion by my colleague, Lawrence Solan, of the Knobe effect's implications for criminal law and tort.

Posted by: Miriam Baer | Apr 1, 2014 3:02:43 PM

Knobe was one of my favorite professors during undergrad. I remember a handful of walks around campus talking philosophy with him, about the Knobe Effect and other new ideas. It was sad to hear he left.

Posted by: Kyle McEntee | Apr 2, 2014 2:23:43 AM

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