Two conceptions of emotion in risk regulation

University of Pennsylvania Law Review

Volumn 156, Issue 3, 2008, Pages 741-766

  Kahan, Dan M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 41149168580     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (112)

1. See generally JON ELSTER, ALCHEMIES OF THE MIND: RATIONALITY AND THE EMOTIONS 283-328 (1999) (canvassing positions on both sides);
2. MARTHA C. NUSSBAUM, THE THERAPY OF DESIRE: THEORY AND PRACTICE IN HELLENISTIC ETHICS 79-96 (1994) (developing an Aristotelian rejoinder to the separation of emotion and reason);
3. MICHAEL STOCKER WITH ELIZABETH HEGEMAN, VALUING EMOTIONS 91-121 (1996) (describing and attacking the position that sees emotion as opposed to reason).
4. See, for example, James Madison's statement that: As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?
5. THE FEDERALIST No. 63, at 371 (James Madison) (Isaac Kramnick ed., 1987). Contrast this with the following statement of Justice Brennan: "In our own time, attention to experience may signal that the greatest threat to due process principles is formal reason severed from the insights of passion."
6. William J. Brennan, Jr., Reason, Passion, and "The Progress ofthe Law," 10 CARDOZO L. REV. 3, 17 (1988).
7. See generally Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269 (1996) (exploring the disparate treatment of emotions and reason within criminal law).
8. See generally Paul Slovic et al., Affect, Risk, and Decision Making, 24 HEALTH PSYCHOL. S35 (supp. 2005) (examining recent developments in psychology and cognitive neuroscience regarding risk as feelings and its influence on decision making).
9. See George F. Loewenstein et al., Risk as Feelings, 127 PSYCHOL. BULL. 267, 280 (2001) ("[P]eople often experience a discrepancy between the fear they experience in connection with a particular risk and their cognitive evaluation of the threat posed by that risk.").
10. CASS R. SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE 126 (2005).
11. See Dan M. Kahan et al., Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 HARV. L. REV. 1071, 1083-88 (2006) (reviewing SUNSTEIN, supra note 5) (discussing how cultural values shape risk perception).
12. See, e.g., PAUL SLOVIC, THE PERCEPTION OF RISK 117-18 (2000) (dread);
13. Valerie Curtis & Adam Biran, Dirt, Disgust, and Disease: Is Hygiene in Our Genes?, 44 PERSP. BIOLOGY & MED. 17 (2001) (disgust);
14. Ellen M. Peters et al., An Emotion-Based Model of Risk Perception and Stigma Susceptibility: Cognitive Appraisals of Emotion, Affective Reactivity, Worldviews, and Risk Perceptions in the Generation of Technological Stigma, 24 RISK ANALYSIS 1349 (2004) (fear and anger).
15. See generally Ellen Peters & Paul Slovic, Affective Asynchrony and the Measurement of the Affective Attitude Component, 21 COGNITION & EMOTION 300 (2007) (evaluating emotions as constructed through imagery or holistic evaluations).
16. See Ali Siddiq Alhakami & Paul Slovic, A Psychological Study of the Inverse Relationship Between Perceived Risk and Perceived Benefit, 14 RISK ANALYSIS 1085, 1090-91 (1994) (revealing an inverse correlation between perceived risk and perceived benefit for several items, including pesticides).
17. See Michael Siegrist et al., Perception of Mobile Phone and Base Station Risks, 25 RISK ANALYSIS 1253 (2005).
18. See Mariëtte Berndsen & Joop van der Pligt, Risks of Meat: The Relative Impact of Cognitive, Affective and Moral Concerns, 44 APPETITE 195, 203-04 (2005).
19. See Slovic et al., supra note 3, at S39 (discussing affective impulses risk perception and the decision to smoke cigarettes).
20. See, e.g., W. KIP VISCUSI, RISK BY CHOICE: REGULATING HEALTH AND SAFETY IN THE WORKPLACE 3 (1983) ("If workers understand the risks they face on hazardous jobs, they will demand additional compensation to take such jobs.").
21. See, e.g., TOMAS J. PHILIPSON & RICHARD A. POSNER, PRIVATE CHOICES AND PUBLIC HEALTH: THE AIDS EPIDEMIC IN AN ECONOMIC PERSPECTIVE 4-10 (1993) (modeling the rational choice between safe and risky sexual activity) ;
22. W. KIP VISCUSI, SMOKE-FILLED ROOMS: A POSTMORTEM ON THE TOBACCO DEAL 136 (2002) (finding that, despite assumptions to the contrary, "available evidence demonstrates that people are aware that smoking is in fact quite risky for one's health").
23. See, e.g, RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY 23-25 (2006) (arguing that the Supreme Court evaluates constitutional challenges to national security policies by weighing their costs and benefits).
24. See, e.g., RICHARDA. POSNER, CATASTROPHE: RISKAND RESPONSE 14 (2004) (advocating the use of cost-benefit analysis by regulators when shaping responses to catastrophic risk).
25. See Loewenstein et al., supra note 4, at 276-78 (discussing the impact of risk probability on emotions).
26. See generally Christine Jolis et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1477-78 (1998) (explaining "bounded rationality," which theorizes that even when aware of our own cognitive limitations, human behavior differs from that expected by entirely rational actors).
27. See, e.g., Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683 (1998) (analyzing the correlation between an idea's perceived credibility and its availability in public discourse).
28. See, e.g., Cass R. Sunstein, Essay, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L.J. 61 (2002) (discussing the tendency to focus on the attributes of an emotionally charged negative outcome, rather than its likelihood).
29. See, e.g., Baruch Fischhoff et al., Knowing with Certainty: The Appropriateness of Extreme Confidence, 3 J. EXPERIMENTAL PSYCHOL.: HUMAN PERCEPTION & PERFORMANCE 552 (1977) (discussing the tendency to overestimate degrees of certainty).
30. See, e.g., Daniel Kahneman et al., The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. ECON. PERSP. 193, 197-99 (1991) (discussing the tendency to prefer the current state of affairs, even in the face of advantageous alternatives).
31. See Paul Slovic et al., Risk as Analysis and Risk as Feelings: Some Thoughts About Affect, Reason, Risk, and Rationality, 24 RISK ANALYSIS 311, 313-14 (2004) ("Although analysis is certainly important in some decision-making circumstances, reliance on affect and emotion is a quicker, easier, and more efficient way to navigate in a complex, uncertain, and sometimes dangerous world.").
32. See generally Loewenstein et al., supra note 4, at 269-70 ("Research on anxiety, for example, shows that emotional reactions to a risky situation often diverge from cognitive evaluations of risk severity.").
33. Daniel Kahneman, Maps of Bounded Rationality: Psychology for Behavioral Economics, 93 AM. ECON. REV. 1449, 1451 (2003).
34. Id.
35. Shane Frederick, Cognitive Reflection and Decision Making, 19 J. ECON. PERSP. 25, 26 (2005). The "System 1 "/"System 2" distinction is one of a family of "dual-process" reasoning theories that contrast heuristic reasoning, typically emotional in nature, with more systematic, deductive forms of reasoning.
36. See generally Shelly Chaiken & Yaakov Trope, Preface to DUAL-PROCESS THEORIES IN SOCIAL PSYCHOLOGY, at ix, ix (Shelly Chaiken & Yaacov Trope eds., 1999) (introducing the distinction between "dual-process models").
37. SUNSTEIN, supra note 5, at 68.
38. Loewenstein et al., supra note 4, at 271.
39. See, e.g., SUNSTEIN, supra note 5, at 38-39, 41, 64 (explaining how availability effect, status quo bias, and probability neglect influence decision making) ;
40. Loewenstein et al., supra note 4, at 271, 275-76 (detailing how overconfidence, vividness/availability, and insensitivity to probability affect perceptions of risk).
41. But see discussion infra Part II.A-B (describing and critiquing the irrational weigher theory).
42. See generally ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993) (proposing a theory of rational action that defines such as action that "adequately expresses . . . rational attitudes toward people and other intrinsically valuable things").
43. See generally Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995) (arguing that social meanings exist as a general societal backdrop and exert influence over action and decision making).
44. See generally Kahan et al., supra note 6, at 1087-88 (explaining that individuals conform their perceptions of an activity to "positive or negative social meanings," which are governed by cultural norms).
45. See MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS 19 (2001) ("Emotions . . . involve judgments about important things ... in which, appraising an external object as salient for our own well-being, we acknowledge our own neediness and incompleteness before parts of the world that we do not fully control.").
46. See id. at 19-77 (explaining and defending the neo-Stoic view of emotions as judgment, which holds emotions are the second step in a two-step process by which people accept, reject, or ignore perceptions as accurate depictions of reality).
47. See id. at 93-119 (summarizing the historical response to the study of emotions and more recent research in the fields of philosophy, psychology, and neuroscience);
48. see also STOCKER WITH HEGEMAN, supra note 1, at 105-21 (linking the cultural evaluator theory to a myriad of sources, including psychoanalytic scholarship).
49. See ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 173-83 (1994) (discussing the way rational thoughts about bad out-comes are preceded by an "unpleasant gut feeling" produced by a neural system in the prefrontal cortex).
50. See id. at 34-79 (detailing the case study of Elliot, a man whose emotions and personality changed due to a brain tumor compressing his frontal lobes upwards, indicating the connection between brain regions, reasoning, and decision making).
51. STOCKER WITH HEGEMAN, supra note 1, at 105.
52. See generally ELSTER, supra note 1, at 139-238 (discussing the historical development of various emotions' normative force);
53. NUSSBAUM, supra note 33, at 139-44, 157-65 (outlining various culturally "appropriate" responses to death, and their manifestations and psychological underpinnings).
54. See, e.g., MARY DOUGLAS, PURITY AND DANGER: AN ANALYSIS OF CONCEPTS OF POLLUTION AND TABOO (1966) (explaining how various "primitive" and "advanced" civilizations have dealt with contagion and pollution) ;
55. Karl Dake, Orienting Dispositions in the Perception of Risk: An Analysis of Contemporary Worldviews and Cultural Biases, 22 J. CROSS-CULTURAL PSYCHOL. 61 (1991) (analyzing the industrialized world's response to risks and opportunities associated with technological development);
56. Aaron Wildavsky & Karl Dake, Theories of Risk Perception: Who Fears What and Why?, 119 DAEDALUS 41, 44-45 (1990) (exploring various explanatory models for why certain groups fear technology while others revere it).
57. See generally Dan M. Kahan et al., Culture and Identity-Protective Cognition: Explaining the White-Male Effect in Risk Perception, 4 J. EMPIRICAL LEGAL STUD. 465, 474-75 (2007) (expanding on the theory that white men fear gun control because their hierarchical cultural orientation causes them to associate gun possession with the role of father and protector).
58. See Wildavsky & Dake, supra note 40, at 46 ("Due to the emphasis placed on obedience to authority within hierarchy, its supporters scorn deviant behavior.");
59. Dan M. Kahan et al., The Second National Risk and Culture Study: Making Sense of - and Making Progress in-the American Culture War of Fact 3-15 (George Wash. Univ. Legal Studies Research Paper No. 370), available at http://ssrn.com/abstract=1017189 (exploring Americans' views on several contemporary issues, including the "hierarchical" view on each);
60. The Cultural Cognition Project at Yale Law School, National Risk and Culture Survey, http://research.yale.edu/culturalcognition/index.php?option= content&task=view&id=45 (last visited Jan. 20, 2008) ("[A]n 1800-person national survey. . . found that cultural worldviews better predicted perceptions of various risks than did any other individual characteristic" ).
61. See Alhakami & Slovic, supra note 9, at 1095 (finding affective evaluation to be a strong predictor of perceived risk and benefit);
62. Melissa L. Finucane et al., The Affect Heuristic in Judgments of Risks and Benefits, 13 J. BEHAV. DECISION MAKING 1, 3 (2000) (proposing that individuals make judgments using associations with positive and negative affective feelings);
63. Ellen M. Peters et al., An Emotion-Based Model of Risk Perception and Stigma Susceptibility: Cognitive Appraisals of Emotion, Affective Reactivity, Worldviews, and Risk Perceptions in the Generation of Technological Stigma, 24 RISK ANALYSIS 1349, 1350 (2004) ("[R]isk perceptions are primarily emotional phenomena with the emotions inextricably linked to how we think about technologies and what is communicated to us about those technologies.").
64. See generally Loewenstein et al., supra note 4, at 270-71 (distinguishing the risk-as-feelings hypothesis from other theories proposing that "emotions often produce behavioral responses that depart from what individuals view as the best course of action").
65. See Loewenstein et al., supra note 4, at 267 (discussing the expected utility theory, which posits that individuals assess risk according to the severity and probability of possible outcomes before arriving at a decision using an expectation-based calculus).
66. See Loewenstein et al., supra note 4, at 276-78 (providing an overview of studies suggesting insensitivity to probability variations).
67. SUNSTEIN, supra note 5, at 64.
68. Id. at 41.
69. Id.
70. See Loewenstein et al., supra note 4, at 271 ("Numerous studies have found that people in good moods make optimistic judgments and choices and that people in bad moods make pessimistic judgments and choices.").
71. See The Cultural Cognition Project at Yale Law School, What Matters More-Consequences or Meanings?, http://research.yale.edu/ culturalcognition/index.php? option=content&task=view&id=104 (last visited Jan. 20, 2008) (finding that 87% of study participants who oppose more gun control agreed that even if gun control gready reduced crime, it would be wrong for the government to disallow law-abiding citizens from owning guns for self-protection).
72. MARY DOUGLAS & AARON WILDAVSKY, RISK AND CULTURE: AN ESSAY ON THE SELECTION OF TECHNICAL AND ENVIRONMENTAL DANGERS 6 (1982).
73. Joseph R. Gusfield, The Social Symbolism of Smoking and Health, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 49, 66 (Robert L. Rabin & Stephen D. Sugarman eds., 1993).
74. See generally FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2004) (advocating a holistic, values-based approach to risk regulation to contrast to a reductive cost-benefit analysis).
75. See, e.g., Alhakami & Slovic, supra note 9, at 1085 (finding that this inverse relationship indicates the confounding of risk and benefit in people's minds, which is correlated to a person's assessment of an activity).
76. See Loewenstein et al., supra note 4, at 271-72 (discussing the nature of emotional reactions to risk and their effects on behavior).
77. See id. at 274-75 (discussing vividness as a variable that plays only a minor role in cognitive reactions, but a significant rule in emotional reactions).
78. See Cass R. Sunstein, Essay, On the Divergent American Reactions to Terrorism and Climate Change, 107 COLUM. L. REV. 503, 507 (2007).
79. See id. at 535.
80. See Kahan et al., supra note 42, at 7-8 (examining this phenomenon in the aftermath of the Virginia Tech massacre);
81. see also Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291, 1314-15 (2003) (describing the interaction between the availability heuristic and cultural worldviews in assessing competing gun risks).
82. See Kahan et al., supra note 42, at 4, 14 (examining cultural predispositions on global warming and terrorism risks).
83. See Kuran & Sunstein, supra note 19, at 748 (arguing for policy judgments made on the basis of "the best possible understanding of reality rather than mass hysteria");
84. SUNSTEIN, supra note 5, at 94-98 (discussing the spread of "moral panics" because of the cascading effects of social band wagons).
85. Loewenstein et al., supra note 4, at 279.
86. See Geoffrey L. Cohen, Party over Policy: The Dominating Impact of Group Influence on Political Beliefs, 85 J. PERSONALITY & SOC. PSYCHOL. 808 (2003).
87. See Donald Braman, Dan M. Kahan & James Grimmelmann, Modeling Facts, Culture, and Cognition in the Gun Debate, 18 SOC. JUST. RES. 283, 285 (2005) ("Through an overlapping set of psychological and social mechanisms, individuals adopt the factual beliefs that are dominant among persons who share their cultural orientations.").
88. The nature of the study and the results are analyzed fully in Dan M. Kahan, Paul Slovic, Donald Braman, John Gastil & Geoffrey L. Cohen, Affect, Values, and Nanotechnology Risk Perceptions: An Experimental Investigation (George Wash. Univ. Law Sch. Pub. Law Research Paper No. 261, 2007), available at http://ssm.com/abstract=968652.
89. See, e.g., VISCUSI, supra note 13, at 114-35 (describing how to set health regulatory policy by balancing the cost to firms of compliance with the risk of noncompliance) ;
90. John Martin Gillroy, Environmental Risk and the Traditional Sector Approach: Market Efficiency at the Core of Environmental Law?, 10 RISK 139, 145 (1999) ("When the collective goods nature of public policy problems causes market failures and the true price of an item is not reflected in its market value, then the role of the government in an efficiency-based regime, is to mimic the market and allocate accordingly, maximizing social benefit over cost." (emphasis omitted) ).
91. See, e.g., George A. Akerlof & William T. Dickens, The Economic Consequences of Cognitive Dissonance, 72 AM. ECON. REV. 307 (1982) (challenging Viscusi's "risk premium" theory of wages and safety precautions by using evidence of cognitive dissonance to show that people do not always behave the way economists assume they will).
92. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 33-51 (1993) (analyzing data displaying the difference between the public's actual perception of risk and expert projections);
93. SUNSTEIN, supra note 5, at 25-26 (discussing the popular view of risk and its disparity from the purely economic view).
94. SUNSTEIN, supra note 5, at 7.
95. Id. at 126, 1.
96. See SLOVIC, supra note 7, at 409 (describing data suggesting that "affective and sociopolitical factors appear to influence scientists' risk evaluations in much the same way as they influence the public's perceptions").
97. See generally DOUGLAS & WILDAVSKY, supra note 51, at 80-81 ("Science and risk assessment cannot tell us what we need to know about threats of danger since they explicitly try to exclude moral ideas about the good life. Where responsibility starts, they stop.").
98. See, e.g., ACKERMAN & HEINZERLING, supra note 53, at 11 (rejecting expert "economic thinking" in policymaking for a more "holistic" approach that restores a "sense of moral urgency to the protection of life, health, and the environment").
99. See DAMASIO, supra note 36, at 205-22 (describing results from studies on "emotion-free" patients who suffered damage to their "somatic markers").
100. See NUSSBAUM, supra note 33, at 47 (challenging the value assumptions in human emotion).
101. See Kahan & Nussbaum, supra note 2, at 286-87 (setting forth the ways that emotion can be evaluated as inappropriate).
102. See generally Phillip L. McIntosh, When the Surgeon Has HIV: What To Tell Patients About the Risk of Exposure and the Risk of Transmission, 44 U. KAN. L. REV. 315 (1996) (exploring the legal considerations and risk assessments in deciding whether to disclose a physician's HIV infection).
103. See Kahan et al., supra note 6, at 1087 (describing data supporting the conclusion that "hierarchists" worry more than "individualists" about contracting HIV).
104. See Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 134-36 (2007) (connecting the perception of handgun risks to a partisan cultural worldview).
105. See Kahan & Nussbaum, supra note 2, at 362-72 (discussing the emotional responses of judges and juries deciding manslaughter cases).
106. SUNSTEIN, supra note 5, at 125.
107. See NUSSBAUM, supra note 33, at 218-20, 233, 425-35 (exploring the methods and impact of moral education);
108. Kahan & Nussbaum, supra note 2, at 297-301 (contrasting mechanistic and evaluative views of moral education).
109. See Kahan et al., supra note 6, at 1096-1100 (defining and defending cultural identity affirmation);
110. Kahan, supra note 79, at 145-53 (defining and defending the strategy of expressive overdetermination for reducing cultural conflict).
111. See Kahan et al., supra note 42, at 4-6 (describing experimental results showing this effect).
112. See Donald Braman & Dan M. Kahan, Overcoming the Fear of Guns, the Fear of Gun Control, and the Fear of Cultural Politics: Constructing a Better Gun Debate, 55 EMORY L.J. 569, 588-95 (2006) (describing an example of the successful use of identity affirmation and expressive overdetermination to resolve a dispute between Native American groups and the scientific community).