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Tuesday, April 01, 2008

Out of Our Armchairs and Into the Lab

Greetings, and thanks to PrawfsBlawg for having me back for another go at the cyber-soapbox.  Last time, as I recall, I talked mostly about white collar crime.   This time, I plan to range a bit more widely.

One of the most intriguing books I’ve read in recent months is Kwame Anthony Appiah’s Experiments in Ethics, an engagingly-written exploration of how new findings in empirical psychology and neuroscience can illuminate age-old problems in moral philosophy.  Appiah’s writing is so good that he manages to breathe new life even into that old war-horse, the trolley problem – the thought experiment in which subjects are asked to decide whether it is morally permissibly (or even required) to flip a switch which would cause an out-of-control trolley heading toward five people tied to a track to change course and run down a different track with the result that just one person would be killed.  I have always been skeptical about the notion that we could learn anything interesting about the trolley problem by looking at MRI scans of experimental subjects thinking about it.  Appiah hasn’t necessarily convinced me otherwise, but he does do an excellent job of showing, more generally, how moral theorists can benefit from getting out of their armchairs and into the lab.  (Christopher Columbus Langdell notwithstanding, I suppose the same thing might be said about getting law professors out of the library.)

I’ve been thinking about what Appiah has to say in connection with a book I myself am writing, on the theory of theft law.  The book offers an argument as to why the mid-20th century consolidation of the various traditional common law offenses of larceny, false pretenses, embezzlement, extortion, receiving, finding, and the like, into a single undifferentiated offense of “theft” is misguided, in part because it fails to reflect the kind of moral distinctions that people intuitively make in their everyday lives.  Most of the book will consist of normative theorizing and policy arguments.  But, partly as a result of reading Appiah’s work, I’m also hoping to incorporate some empirical data on how real people (assuming undergraduate psychology majors qualify as such) would rate the relative seriousness of various theft scenarios.  To that end, I’ve been working with Kevin Grobman, a social psychologist here at LSU, to design a study that will test people’s intuitions about the wrongfulness of various forms of theft.  I’m also hoping to organize an AALS Criminal Justice Section mid-year meeting panel titled something like “Experiments in Criminal Justice Ethics.” I’d be interested in hearing about any new work of this sort that blog readers know about.

Posted by Stuart Green on April 1, 2008 at 12:20 PM in Books | Permalink

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Comments

Thanks for the comment, Jae. You're right that we're asking subjects to rank the seriousness of various theft scenarios in large part to see if they make the kinds of moral distinctions we think they ought to make among various forms of theft. And, yes, it’s quite possible that some scenarios (involving, say, embezzlement and false pretenses) will be ranked as equivalent in their seriousness. The fact that they are doesn’t allow one to make any inferences one way or the other about whether subjects are making the kinds of moral distinction we think they should be making. If one took seriously the requirement of fair labeling (see Ashworth), then one would want a code that distinguished between the two forms of theft despite their moral equivalence. (A lot of the book contains that kind of analysis.) But, from the perspective of law reform and real world applications, it is the differences in seriousness that will be the most significant. That is, if our subjects consistently rank X form of theft as more serious than Y form of theft and yet our criminal codes subject them to the same punishment, then we have identified a significant gap between law and morality. So that’s the main focus of the study.

Posted by: Stuart Green | Apr 2, 2008 1:12:07 PM

Stuart,

Interesting project. Two separate questions are raised by your observations. 1) Does the term "theft" cover different types of wrongdoing? (Your "people distinguish" point) 2) Are some forms of "theft" more serious than others? (ranking of seriousness)

It sounds like while you are interested in the first question, you are planning to get at it by answering the second. The problem with that is that different types of theft might be rated roughly equivalent once you are forced to translate them in terms of a unidimensional seriousness scale. (Also same type of wrongdoing might lead to different assessments of seriousness depending on the amount of harm caused - embezzlement in different amounts, for instance.)

If you could get at the first question somehow more directly through studies, that would be pretty interesting, although both would be very useful.

As to Alice's concerns, I think we can come up with an account of the government both reflecting and influencing perceptions of seriousness in a way that is entirely legitimate. But working out such an account is beyond the scope of this comment.

- Jae

Posted by: Youngjae Lee | Apr 2, 2008 12:11:25 PM

Alice Ristroph suggests that if you ask people to rank the seriousness of crimes enough, eventually their rankings will come to reflect (nothing more than?) the rankings themselves (presumably in the sense that we rank the seriousness of crimes every time we assign punishments in a code). Of course, the reciprocal relation between law and morality has been noted for a long time (at least since Ball and Friedman’s 1965 paper in the Stanford Law Review). But the hypothesis I’m hoping to test in my study actually runs in the opposite direction.

Let me explain: the common law distinguished among various forms of theft – larceny, embezzlement, false pretenses, and the like. Each was treated separately and subject to different punishments. To some extent, the public viewed these offenses as distinct. The MPC and other modern codes consolidated these offenses into a single offense of “theft.” If the echo chamber/reciprocal relation thesis were true, one would expect that, as a result of consolidation, the public would begin to look at all forms of theft as essentially equal in seriousness. The hypothesis that I’m seeking to test in my study is exactly the opposite: I believe that, despite consolidation, people continue to distinguish among various forms of theft. Unfortunately, I have no pre-consolidation baseline from which to test the change longitudinally. Still, if I can show that popular morality does in fact continue to recognize certain key distinctions among theft offenses, I will at least have demonstrated that the “echo effect” is weaker than some might expect.

Posted by: Stuart Green | Apr 2, 2008 9:10:10 AM

Thanks for the link, Alice- I'll check out your paper. I wonder, though, if changes might not work the other way around here, with changes in beliefs about the seriousness of certain crimes leading to beliefs in the correctness of stronger penalties. (Certainly my recollection is that the study results _don't_ fully match changes in penalties, so people don't think that petty drug possession is more serious than some crimes that get lesser penalties. If I'm recalling correctly [I read the papers a few years ago] than _mere_ change in severity on penalty can't be doing all the work.)

Posted by: Matt Lister | Apr 1, 2008 11:57:41 PM

Matt, I can't say I'm up to speed on the very latest Robinson-Darley project. But the concerns I raised above are ones that arose *after* reading some of Robinson's work while I was writing Desert, Democracy, and Sentencing Reform (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948275). As far as I know, to the extent that Robinson has addressed longitudinal desert -- desert judgments over time -- he's confirmed my point above. He's noted, for example, that popular perceptions of the seriousness of drunk driving and domestic violence have evolved to match increasingly severe penalties imposed on such conduct.

Posted by: Alice Ristroph | Apr 1, 2008 10:05:20 PM

Those are real problems, Alice, but my impression was that the work done in Robinson's studies, especially the work done with Darley (who is obviously well aware of the problems of experimental design) avoid many of these problems. The differences between criminal law and popular sentiment is actually one of the things they are most interested in, for just the reason you give, and one of the main recommendations is that we should think about reducing many of our punishments for many crimes. It's really interesting work that I can't recommend highly enough. Obviously there are worries that can be raised about any study but I thought this work was really very well done and seems to avoid most of the questions you raise.

Posted by: Matt Lister | Apr 1, 2008 9:39:14 PM

I suspect that there are some similarities between asking individuals to rank the seriousness of crimes and asking law professors to rank law schools. With enough time, you'd get a considerable echo chamber effect. (I'm no good at html, but Jeffrey Stake's paper on the echo in law school ranking is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700862). That is, people will come to perceive the "best" law schools as those that U.S. News says are best, and people will come to perceive the "worst" crimes as those that are punished most harshly. Sure, there are limits to the degree to which law (or U.S. News) can manipulate perceptions. And radical discrepancies between the criminal law and popular sentiment (or between U.S. News and professorial sentiment) will lead people to question the authority of the criminal law (or of U.S. News). But in general, "empirical" studies of merit or desert need to recognize how much judgments of merit or desert are shaped by existing institutions.

Posted by: Alice Ristroph | Apr 1, 2008 9:09:57 PM

I was going to echo the Paul Robinson comment - I note that several of his SSRN papers might bear on your research. See these:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=678981
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=10195

Posted by: Jonathan | Apr 1, 2008 1:34:33 PM

Thanks, Matt. Robinson and Darley's most well known work is Justice, Liability, and Blame (1995) and they are continuing to work on these issues.

Posted by: Stuart Green | Apr 1, 2008 1:13:58 PM

Stuart- have you seen any of Paul Robinson's (fairly) recent work, often with John Darly, on intuitions of justice? (It involves having people rank the relative seriousness of various crimes presented in different situations.) I found it extremely interesting and it sounds like it might be along the lines of what you're up to. I'll look forward to seeing your work.

Posted by: matt Lister | Apr 1, 2008 12:31:55 PM

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