Some realism about punishment naturalism

University of Chicago Law Review

Volumn 77, Issue 4, 2010, Pages 1531-1609

  Braman, Donald ^a   Kahan, Dan M ^b   Hoffman, David A ^c  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

^c TEMPLE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78449239068     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (333)

1. Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 219 (Basic Books 1983).
2. Although this Article is limited to the specific application of naturalism to punishment theory, Punishment Naturalism partakes of a broader trend toward legal analyses drawing on research in the area of evolutionary psychology, much of which avoids the pitfalls we describe herein. See, for example, Owen D. Jones and Sarah F. Brosnan, Law, Biology, and Property: A New Theory of the Endowment Effect, 49 Wm & Mary L Rev 1935, 1953-54 (2008);
3. Rose McDermott, James H. Fowler, and Oleg Smirnov, On the Evolutionary Origin of Prospect Theory Preferences, 70 J Polit 335, 337-38 (2008);
4. Herbert Gintis, The Evolution of Private Property, 64 J Econ Behav & Org 1, 2-3 (2007);
5. Jeffrey E. Stake, The Property "Instinct," 359 Phil Transactions Royal Socy B: Bio Sci 1763, 1767 (2004);
6. Paul H. Rubin, Darwinian Politics: The Evolutionary Origin of Freedom 173 (Rutgers 2002).
7. The naturalism that we describe here is distinct from, and should not be confused with, the philosophical use of the term. See, for example, Keith Campbell, Naturalism, in Donald M. Borchert, ed, 6 Encyclopedia of Philosophy 492, 492 (Thomson 2d ed 2006) (defining naturalism in the philosophical context as representing the proposition that "the natural world is the only real one, and that the human race is not separate from it, but belongs to it as a part").
8. See generally Donald Braman and Dan M. Kahan, Legal Realism as Psychological and Cultural (Not Political) Realism, in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, eds, How Law Knows 93, 112-13 (Stanford 2007).
9. For further discussion of these terms, see note 35 and accompanying text.
10. See Joan G. Miller and David M. Bersoff, Culture and Moral Judgment, 62 J Personality & Soc Psych 541, 547 (1992) (reporting that 45 percent of American adults and 85 percent of Indian adults thought taking the ticket was appropriate, and that 43 percent of American third graders and 98 percent of Indian third graders thought that taking the ticket was appropriate).
11. Anne M. Tietjen and Lawrence J. Walker, Moral Reasoning and Leadership among Men in a Papua New Guinea Society, 21 Develop Psych 982, 989 (1985) (characterizing the tribe's conception of morality as emphasizing "community harmony").
12. See Patrik Jonsson, Is Self-Defense Law Vigilante Justice?, Christian Sci Monitor (Feb 24, 2006), online at http://www.csmonitor.com/2006/0224/p02s01- usju.html (visited May 1, 2010) (reporting on the national controversy over a newly enacted spate of "stand your ground" laws that permit the use of deadly force despite the possibility of retreat).
13. See also Dan M. Kahan and Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 Colum L Rev 269, 329-32 (1996) (describing the historical underpinnings of the dispute in competing cultural styles). (Pubitemid 126406319)
14. See Kahan and Nussbaum, 96 Colum L Rev at 332-33 (cited in note 7) (comparing how jurisdictions treat this issue to how they treat duty to flee under self-defense doctrine).
15. See generally Susan Estrich, Real Rape (Harvard 1987) (discussing the controversy over this issue).
16. See Kahan and Nussbaum, 96 Colum L Rev at 346-47 (cited in note 7) (noting contested and changing attitudes on this issue).
17. See Dan M. Kahan, The Secret Ambition of Deterrence, 113 Harv L Rev 413, 465-67 (1999) (describing the political conflict over whether such offenses should be graded as the aggravated "hate crime" form of murder or instead mitigated to voluntary manslaughter).
18. See John Hoeffel, Bid to Legalize Pot Advances: Initiative Backers Gather What Is Likely to Be Enough Signatures to Put Their Measure on the California Ballot in November, LA Times A14 (Jan 29, 2010
19. Consider also Gary Fields, Shorter Sentences Sought for Crack: Administration Tells Congress It Favors Ending Disparity with Powder Cocaine, Wall St J A3 (Apr 30, 2009) (detailing proposals by the Obama administration to eliminate the sentencing disparity between crack and powder cocaine offenses).
20. Paul H. Robinson and Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 Minn L Rev 1829, 1892 (2007).
21. Paul H. Robinson, Robert Kurzban, and Owen D. Jones, The Origins of Shared Intuitions of Justice, 60 Vand L Rev 1633, 1646, 1687 (2007).
22. Paul H. Robinson and John M. Darley, Intuitions of Justice: Implications for Criminal Law and Justice Policy, 81 S Cal L Rev 1, 51-52 (2007).
23. Id at 52.
24. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1688 (cited in note 14).
25. Robinson and Darley, 81 S Cal L Rev at 24 (cited in note 15). See also id at 23.
26. Id at 54.
27. See Robinson, Kurzban, and Jones, 60 Vand L Rev at 1688 (cited in note 14).
28. See generally Joshua Greene and Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 Phil Transactions Royal Socy B: Bio Sci 1775 (2004) (arguing that advances in neuroscience will create a shift in people's intuitions regarding free will and responsibility, resulting in a turn toward consequentialist punishment models).
29. Robinson and Darley, 81 S Cal L Rev at 52-53 (cited in note 15).
30. Orin Kerr, The Intuition of Retribution (Feb 17, 2010), online at http://crim.jotwell.com/the-intuition-of-retribution (visited May 1, 2010).
31. For a description of the use of the term "moral organ," see note 28 and accompanying text.
32. While naturalism might seem like a more modest restatement of natural law, it is distinct in a number of ways. First and foremost, Punishment Naturalism makes no claims that these broadly shared sentiments are anything like a law. Nor does it claim that human intuitions are deontologically fair or materially useful; indeed, naturalists acknowledge that intuitions about the law may be unfair or counterproductive. On this account there is nothing "natural" about justice itself, there is only something "natural" about our intuitions about justice. Another way of saying this is that whereas the ambition of a theory of natural law is primarily normative, the ambition of Punishment Naturalism is primarily positive. Punishment Naturalists might derive practical implications from their research, but their goal is to tell us how humans actually do think, not how they should think, about crime and punishment. Punishment Naturalism thus dispenses with the philosophical debates of traditional legal theory by making claims that can be tested empirically and evaluated in terms of their practical value to policymakers and ordinary citizens. See Paul H. Robinson, Empirical Desert, in Paul H. Robinson, Stephen P. Garvey, and Kimberly Kessler Ferzan, eds, Criminal Law Conversations 29, 38 (Oxford 2009).
33. Marc Hauser, Moral Minds: How Nature Designed Our Universal Sense of Right and Wrong xvii (HarperCollins 2006).
34. See Noam Chomsky, Knowledge of Language: Its Nature, Origin, and Use 12-13 (Praeger 1986).
35. See also Noam Chomsky, Syntactic Structures (Mouton 1975).
36. See, for example, Marc D. Hauser, The Liver and the Moral Organ, 1 Soc Cog & Affective Neurosci 214, 214-15 (2006);
37. Susan Dwyer, How Good Is the Linguistic Analogy?, in Peter Carruthers, Stephen Laurence, and Stephen Stich, eds, 2 The Innate Mind: Culture and Cognition 237, 238 (Oxford 2006).
38. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1664 (cited in note 14).
39. See Robinson and Darley, 81 S Cal L Rev at 18 (cited in note 15) (arguing that "deviations [from humans' innate intuitions about punishment] can have undesirable consequences and unjustified costs that can ultimately hurt rather than help effective crime control").
40. Id at 11.
41. Hauser, Moral Minds at xx (cited in note 26).
42. See also Robinson and Darley, 81 S Cal L Rev at 11 (cited in note 15) ("This insulation [from culture] means that there may be serious limits on whether and how social engineers can manipulate intuitions of justice, at least those intuitions of justice about core wrongdoing upon which there is broad agreement.").
43. There are dozens of norms-based models of cognition. For a recent review and addition, see Chandra Sekhar Sripada and Stephen Stich, A Framework for the Psychology of Norms, in Carruthers, Laurence, and Stich, eds, The Innate Mind 280, 289-90 (cited in note 28) (arguing that the "acquisition mechanism" people use to observe the existence of a norm "is both automatic and involuntary").
44. See, for example, Dan M. Kahan and Donald Braman, The Self-Defensive Cognition of Self-Defense, 45 Am Crim L Rev 1, 6-8 (2008) (listing potentially clashing justifications for selfdefense doctrine).
45. Robinson and Kurzban, 91 Minn L Rev at 1892 (cited in note 13).
46. Id at 1869 (providing a table ranking behavior according to the amount of punishment the study's subjects believed was warranted).
47. Id at 1877-78.
48. Id at 1878 (noting that one-third of all deviations were "adjacent flip" deviations).
49. Robinson and Kurzban, 91 Minn L Rev at 1879 (cited in note 13).
50. Id.
51. Id at 1879 n 200.
52. Id at 1892.
53. Robinson and Kurzban, 91 Minn L Rev at 1867 (cited in note 13).
54. See generally Thorsten Sellin and Marvin E. Wolfgang, The Measurement of Delinquency 263-65 (Wiley 1964) (finding similar rankings among judges, police officers, and two groups of students, despite their positions in very "different sociocultural groups"). Several studies have since replicated and extended these findings in the United States.
55. See, for example, Don C. Gibbons, Crime and Punishment: A Study in Social Attitudes, 47 Soc Forces 391, 395 (1969) (studying proposed sentences among Californians and finding general agreement on which crimes should get severe versus more moderate punishment);
56. Peter H. Rossi, et al, The Seriousness of Crimes: Normative Structure and Individual Differences, 39 Am Soc Rev 224, 230-31 (1974) (finding broad agreement on assessments of crime seriousness among residents of Baltimore regardless of race, sex, or educational attainment);
57. Stephen D. Gottfredson, Kathy L. Young, and William S. Laufer, Additivity and Interactions in Offense Seriousness Scales, 17 J Rsrch Crime & Delinq 26, 29 (1980) (studying the relative-seriousness rankings of several criminal offenses by undergraduate and graduate students at Johns Hopkins University).
58. See also Monica A. Walker, Measuring the Seriousness of Crimes, 18 Brit J Criminol 348, 348-51 (1978). But see Parts II and III.
59. See Dogan D. Akman and Andre Normandeau, The Measurement of Crime and Delinquency in Canada, 7 Brit J Criminol 129, 147 (1967).
60. See Sandra S. Evans and Joseph E. Scott, The Seriousness of Crime Cross-Culturally, 22 Criminol 39, 48-49 (1980).
61. See Sergio Herzog, Public Perceptions of Crime Seriousness: A Comparison of Social Divisions in Israel, 39 Isr L Rev 57, 59, 66 (2006).
62. Robinson and Kurzban, 91 Minn L Rev at 1855 (cited in note 13).
63. Hauser develops this concept extensively. See Hauser, Moral Minds at 419-20 (cited in note 26).
64. Robinson and Kurzban, 91 Minn L Rev at 1867 (cited in note 13).
65. Id.
66. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1654 (cited in note 14).
67. Evans and Scott, 22 Criminol at 53 (cited in note 46).
68. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1638 (cited in note 14).
69. See also Robinson and Kurzban, 91 Minn L Rev at 1867-74 (cited in note 13).
70. Joss Whedon, dir, Dr. Horrible's Sing-Along Blog Act 2, 00:11:59 (2008), online at http://drhorrible.com (visited May 1, 2010) ("All the time that you beat me unconscious I forgive / ⋯ It's a brand new me / I got no remorse / Now the water's rising / ⋯ I'm gonna shock the world / Gonna show Bad Horse.").
71. Hauser, Moral Minds at xvii (cited in note 26).
72. Id at xviii (clarifying that the acquisition of moral norms does not occur through formal education).
73. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1646 (cited in note 14).
74. Naturalists provide other evidence, though in general it tends to be at a greater inferential remove. Brain imaging studies, for example, are cited quite often. While these studies do provide insight into which regions of the brain (it is usually multiple regions) are most active when individuals are attempting to resolve various problems, they do not provide much in the way of evidence about whether the content is innate or learned. There is, so far as we can discern, no evidence that moral decisions are made exclusively or even predominantly by regions of the brain that are responsive to only "innate," as opposed to "learned," intuitions. See id at 1659-64 (arguing, based on neurological studies, that "basic moral sentiments humans share are products of evolutionary processes"). See also id at 1655-59 (providing evidence from animal studies); id at 1664-74 (providing evidence from studies of child development).
75. Joseph Henrich, et al, "Economic Man" in Cross-Cultural Perspective: Behavioral Experiments in 15 Small-Scale Societies, 28 Behav & Brain Sci 795, 798 (2005).
76. Id at 801.
77. Id at 797 (characterizing the infrequent nature of low offers as demonstrative of fairness and concerns of reciprocity).
78. See, for example, James Konow, A Positive Theory of Economic Fairness, 31 J Econ Behav & Org 13, 32-33 (1996) (identifying accountability, altruism, and efficiency as important motivators);
79. Gary E. Bolton and Rami Zwick, Anonymity versus Punishment in Ultimatum Bargaining, 10 Games & Econ Behav 95, 113 (1995) (arguing that "punishment for unfair treatment" accounted for most of the variation from perfect equilibrium play in the study's results);
80. Colin Camerer and Richard H. Thaler, Anomalies: Ultimatums, Dictators and Manners, 9 J Econ Persp 209, 216 (1995) (explaining that etiquette and perceived norms of fairness often overcome income maximization as motives in the Ultimatum Game);
81. Alvin E. Roth, Bargaining Experiments, in John H. Kagel and Alvin E. Roth, eds, The Handbook of Experimental Economics 253, 264-65 (Princeton 1995) (detailing types of bargaining experiments and noting that some theorists have rallied around the explanatory power of fairness considerations).
82. See "Modern Morality: Inside the Brain," ABC News (ABC television broadcast, May 2, 2007).
83. Id.
84. Hauser, Moral Minds at 11 (cited in note 26).
85. Id at 85-86.
86. We have corrected a typo here; Hauser writes: "no culture will ever reject offers under 15 percent," id at 85, but that cannot be what he means because most do. But see notes 119-29 and accompanying text (critiquing this form of hypothesizing in general and describing experiments among the Sukuma in Mahenge, Tanzania that exceed Hauser's hypothesized bounds on fairness).
87. For early research in this area, see generally Larry P. Nucci and Elliot Turiel, Social Interactions and the Development of Social Concepts in Preschool Children, 49 Child Dev 400 (1978);
88. Judith G. Smetana, Preschool Children's Conceptions of Moral and Social Rules, 52 Child Dev 1333 (1981);
89. Larry P. Nucci and Maria Santiago Nucci, Children's Social Interactions in the Context of Moral and Conventional Transgressions, 53 Child Dev 403 (1982). Some, following Turiel, suggest a third category of "personal" wrongs.
90. See, for example, Jenny Yau and Judith G. Smetana, Conceptions of Moral, Social-Conventional, and Personal Events among Chinese Preschoolers in Hong Kong, 74 Child Dev 647 (2003).
91. Many legal scholars have argued that a context-independent distinction between the two is impossible. See, for example, Peter Alldridge, Making Criminal Law Known, in Stephen C. Shute and A.P. Simester, eds, Criminal Law Theory: Doctrines of the General Part 103, 106-10 (Oxford 2002) (discussing the difficulties of distinguishing these categories, particularly when applied to market situations where it is unclear whether the legal rule is simply "declaring the pre-legal public wrongfulness of the actions in question");
92. Nancy Travis Wolfe, Mala In Se: A Disappearing Doctrine?, 19 Criminol 131, 139-40 (1981) (arguing that mala prohibita offenses are different from mala in se offenses only in that the legislatures have labeled them as such).
93. See Larry P. Nucci, Conceptual Development in the Moral and Conventional Domains: Implications for Values Education, 52 Rev Educ Rsrch 93, 100 (1982) (describing early studies by Turiel, Nucci, and Smetana in which subjects evaluated less wrongful actions "in terms of their relation to the social order, social expectations, social institutions, and contextual or culturally specific regulations and standards of behavior" and more wrongful actions "in terms of the effects the actions had on the rights or well-being of others").
94. There are several good reviews of the literature. See, for example, Judith G. Smetana, Understanding of Social Rules, in Mark Bennett, ed, The Development of Social Cognition: The Child as Psychologist 111, 112-14 (Guilford 1993);
95. Marie S. Tisak, Domains of Social Reasoning and Beyond, in Ross Vasta, ed, 11 Annals of Child Development 95, 100-01 (Jessica Kingsley 1995);
96. Larry P. Nucci, Education in the Moral Domain 7-9 (Cambridge 2001).
97. See generally Larry P. Nucci, Elliot Turiel, and Gloria Encarnacion-Gawrych, Children's Social Interactions and Social Concepts: Analyses of Morality and Convention in the Virgin Islands, 14 J Cross-Cult Psych 469 (1983) (finding that adults and preschoolers from the Virgin Islands responded to "moral transgressions" by pointing out the hurtful or unjust consequences of the actions upon victims, but reacted to "conventional" transgressions by referring back to aspects of the social order);
98. Marida Hollos, Philip E. Leis, and Elliot Turiel, Social Reasoning in Ijo Children and Adolescents in Nigerian Communities, 17 J Cross-Cult Psych 352 (1986) (finding that Nigerian children's "moral" and "conventional" judgments can be distinguished along similar axes);
99. Yau and Smetana, 74 Child Dev 647 (cited in note 69) (finding that Chinese preschool children also treated "personal," "moral," and "conventional" events differently).
100. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1670 (cited in note 14).
101. This argument echoes Ernst Haeckel's fascinating recapitulation theory, which (incorrectly) held that "ontogeny recapitulated phylogeny"-that is, that the physical development of each human over the course of its lifetime parallels the evolutionary development of the species. See Stephen Jay Gould, Ontogeny and Phylogeny 7-9 (Belknap 1977) (discussing the origins of the recapitulation theory and arguing that it collapsed once "Mendelian genetics repudiated the generality of its two necessary principles-terminal addition and condensation").
102. See Nucci, Turiel, and Encarnacion-Gawrych, 14 J Cross-Cult Psych at 469 (cited in note 72) (studying Virgin Islands children and adults);
103. Hollos, Leis, and Turiel, 17 J Cross-Cult Psych at 352 (cited in note 72) (studying Nigerian children
104. Yau and Smetana, 74 Child Dev at 647 (cited in note 69) (studying Hong Kong preschoolers).
105. For reviews, see Smetana, Understanding of Social Rules at 126-33 (cited in note 72) (discussing research in various domestic contexts as well as in such countries as Japan and Zambia
106. Tisak, Domains of Social Reasoning at 103 (cited in note 72) (discussing results across age ranges);
107. Nucci, Education in the Moral Domain at 20-51, 94-106 (cited in note 72) (discussing results across a variety of religions and cultures).
108. Hauser, Moral Minds at 291 (cited in note 26).
109. Id at 292.
110. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1666 (cited in note 14) (finding collateral support for this explanation in evidence that "children everywhere progress through similar stages of moral reasoning about justice at roughly the same ages").
111. Id.
112. See generally Erica Roedder and Gilbert Harman, Grammar, in John M. Doris, Shaun Nichols, and Stephen Stich, eds, Empirical Moral Psychology (Oxford forthcoming 2010);
113. Ron Mallon, Reviving Rawls's Linguistic Analogy Inside and Out, in Walter Sinnott-Armstrong, ed, 2 Moral Psychology: The Cognitive Science of Morality: Intuition and Diversity 145 (MIT 2008
114. Jesse Prinz, Resisting the Linguistic Analogy: A Commentary on Hauser, Young, and Cushman, in Sinnott-Armstrong, ed, The Cognitive Science of Morality 157 (rejecting the analogy to Noam Chomsky's "universal grammar" by suggesting that "general-purpose emotion systems and socially transmitted rules" could be an alternate explanation for the empirical findings of Hauser and others);
115. Frances Myrna Kamm, Intricate Ethics: Rights, Responsibilities, and Permissible Harm (Oxford 2007
116. John Mikhail, Universal Moral Grammar: Theory, Evidence, and the Future, 11 Trends Cog Sci 143 (2007
117. Hauser, Moral Minds (cited in note 26).
118. See generally Robinson, Empirical Desert (cited in note 25) (describing the relative virtues of empirical conceptions of desert).
119. We do not mean to select Paul Robinson, Robert Kurzban, John Darley, and Owen Jones for special scrutiny; in fact, they are to be applauded for presenting claims in a manner that is amenable to critical examination and testing. Other naturalists who cite many of the same studies theorize a "universal moral grammar" that has, so far as we can tell, no rules that can actually be tested. As Michael Waldmann has noted, the notion of a universal moral grammar is developed without an explanation of what, exactly, distinguishes the rules from parameters in the proposed universal moral grammar: Findings that show that different cultures generate similar intuitions ⋯ are viewed as evidence for universal rules, whereas other studies showing huge cultural differences are interpreted as evidence for the role of parameters. This flexibility of the theory makes it hard to envision what could constitute a strict empirical test of the theory. Indeed, many of the empirical studies [cited] could even be taken as evidence against the moral grammar view.
120. Michael R. Waldmann, A Case for the Moral Organ?, 314 Sci 57, 57 (2006).
121. See note 43 and accompanying text.
122. Whether or not they are actually "victimless" is one of the points of contention.
123. See sources cited in note 91.
124. See Robert Mason and Lyle D. Calvin, A Study of Admitted Income Tax Evasion, 13 L & Socy Rev 73, 80-81 (1978) (reporting that 24.2 percent of survey respondents had either overstated deductions, underreported income, or failed to file altogether).
125. Statistics for all crimes but murder taken from the Bureau of Justice Statistics' National Crime Victimization Survey for 2006. See Bureau of Justice Statistics, Criminal Victimization in the United States, 2006 Statistical Tables *14 table 1 (Aug 2008), online at http://bjs.ojp.usdoj.gov/content/pub/ pdf/cvus06.pdf (visited May 1, 2010).
126. Murder Statistics taken from the 2006 Uniform Crime Report. See Federal Bureau of Investigation, Uniform Crime Report: Crime in the United States, 2006: Murder *2 (Sept 2007), online at http://www.fbi.gov/ucr/cius2006/ documents/murdermain.pdf (visited May 1, 2010).
127. US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, 1 Results from the 2009 National Survey on Drug Use and Health: Summary of National Findings 13 (Sept 2010), online at http://www.oas.samhsa.gov/NSDUH/2k9NSDUH/2k9ResultsP.pdf (visited Sept 24, 2010).
128. Id at 35.
129. Mason and Calvin, 13 L & Socy Rev at 80-81 (cited in note 86) (reporting a tax evasion rate of 24.2 percent).
130. Robert T. Michael, et al, Sex in America: A Definitive Survey 63 (Little, Brown 1994).
131. See also ABC News Primetime Live, The American Sex Survey: A Peek beneath the Sheets 1 (Oct 21, 2004), online at http://abcnews.go.com/images/Politics/ 959a1AmericanSexSurvey.pdf (visited May 1, 2010) (indicating that 15 percent of all men report that they have "paid for sex"). Of course, given the continued illegality in the United States of all of the activities described in Table 3, it is likely that all of these numbers are underreported.
132. Consider also Andre Jeannin, et al, Patterns of Sex Work Contact among Men in the General Population of Switzerland, 1987-2000, 84 Sexually Transmitted Infections 556, 556 (2008) (indicating that 23 percent of Swiss men between the ages of 31 and 45 reported purchasing sex from a prostitute);
133. Theo Sandfort, et al, Sexual Behavior and HIV Risk: Common Patterns and Differences between European Countries, in Michel Hubert, Nathalie Bajos, and Theo Sandfort, eds, Sexual Behaviour and HIV/AIDS in Europe: Comparisons of National Surveys 403, 410 (UCL 1998) (indicating that 38.6 percent of adult men in Spain reported paying for sex in their lifetime).
134. Child pornography, narcotics use and distribution, public urination, and indecent exposure, to name just a few.
135. See, for example, Rachel K. Jones, et al, Abortion in the United States: Incidence and Access to Services, 2005, 40 Persp Sex & Repro Health 6, 9 (2008) (estimating that 1,206,200 abortions were performed in 2005);
136. Lawrence B. Finer and Stanley K. Henshaw, Estimates of U.S. Abortion Incidence, 2001-2003 *2 (Aug 3, 2006), online at http://www.guttmacher. org/pubs/2006/08/03/ab-incidence.pdf (visited Sept 25, 2010) (estimating that 1,287,000 abortions were performed in 2003).
137. See also Center for Disease Control and Prevention (CDC), Abortion Surveillance-United States, 2006 (Nov 27, 2009), online at http://www.cdc.gov/ mmwr/preview/mmwrhtml/ss5808a1.htm?s-cid=ss5808a1-e (visited Sept 25, 2010) (estimating that 846,181 abortions were performed in 2006).
138. But see Rachael K. Jones, et al, Trends in Abortion in the United States, 52 Clinical Obstetrics & Gynecology 119, 120 (2009) (criticizing the CDC data as unreliable due to underreporting).
139. See William D. Mosher, Anjani Chandra, and Jo Jones, Sexual Behavior and Selected Health Measures: Men and Women 15-44 Years of Age, United States, 2002, Adv Data Vital & Health Stats 25 (Sept 15, 2005), online at http://www.cdc.gov/nchs/data/ad/ad362.pdf (visited May 1, 2010) (indicating that 40 percent of men and 35 percent of women reported having had anal sex by age fortyfour).
140. See also William Saletan, Ass Backwards: The Media's Silence about Rampant Anal Sex, Slate (Sept 20, 2005), online at http://www.slate.com/id/ 2126643 (visited May 1, 2010).
141. ABC News Primetime Live, The American Sex Survey at 2 (cited in note 91) (indicating that one in five respondents reported having looked at pornography on the Internet).
142. See Stacy Finz, Killing of Girl, 7, in Casino Spurs Good Samaritan Bills, SF Chron A21 (Dec 9, 1998) (observing that the inability to charge a college student for his failure to either prevent or report the murder of a young girl prompted the legislative introduction of reporting requirements in California).
143. People engaging in sodomy per year (presumably some engage in it more than once a year). See Michael, et al, Sex in America at 140 (cited in note 91) (observing that 10 percent of men and 9 percent of women have engaged in anal sex within the past twelve months).
144. Jones, et al, 40 Persp Sex & Repro Health at 9 (cited in note 93).
145. People viewing online pornography per month. See Timothy Egan, Erotica Inc: A Special Report: Technology Sent Wall Street into Market for Pornography, NY Times A1 (Oct 23, 2000).
146. National Opinion Research Center, Report to the National Gambling Impact Study Commission 8 (Apr 1, 1999), online at http://www2.norc.org/new/gamb-fin. htm (visited May 1, 2010) (showing that 60 percent of women and 67 percent of men had gambled in the previous year).
147. Compare Nev Rev Stat § 244.345 with NY Penal Law § 230.00 (McKinney). Rhode Island only recently barred citizens from paying money for sex, but street solicitation and the operation of brothels were already prohibited. See Associated Press, Rhode Island: New Prostitution Law, NY Times A17 (Nov 4, 2009).
148. Compare NY Penal Law §§ 225.00, 225.05, 225.10 (McKinney) (regulating only certain gambling activities) with La Rev Stat Ann § 14:90.3 (West) (prohibiting Internet gambling). See also Julia Kollewe, Former Gambling Chief Dicks Is Freed in US, Independent (Sept 30, 2006), online at http://www.independent.co.uk/news/business/news/former-gambling-chief-dicks-is- freedin- us-418184.html (visited May 1, 2010) (noting that the governor of New York refused to sign an order to extradite an alleged Internet gambler to Louisiana).
149. Iowa Code Ann § 728.5 (West).
150. See Nunez v Holder, 594 F3d 1124, 1144-45 (9th Cir 2010) (Bybee dissenting) (discussing the application of Cal Penal Code § 314, which prohibits indecent exposure, to nude dancing at clubs).
151. Compare Cal Penal Code § 152.3 (West) (imposing the duty to report only in certain situations involving children) with 12 Vt Stat Ann § 519(a) (Equity) (mandating that a person who knows that another person is "exposed to grave physical harm" must, under certain circumstances, "give reasonable assistance to the exposed person unless that assistance or care is being provided by others"). Minnesota also has a statutory duty to assist. See Minn Stat Ann § 604A.01 (West).
152. Robinson and Kurzban, 91 Minn L Rev at 1883 (cited in note 13) ("[T]here are punishment- assignment issues on which people do indeed disagree.").
153. Id at 1887 table 8.
154. Evans and Scott, 22 Criminol at 48-49 table 3 (cited in note 46). Seriousness is ranked on a scale from one to thirty-seven.
155. While Maryland, for example, has explicitly excluded spousal infidelity as "adequate provocation" and potential grounds for mitigation of murder to manslaughter, most states have not. Compare, for example, Md Crim Code Ann § 2-207(b) with Commonwealth v Schnopps, 417 NE2d 1213, 1215-16 (Mass 1981) (holding that the killing of a spouse can be voluntary manslaughter when it immediately follows the victim's oral admission of adultery).
156. Daniel Kelly, et al, Harm, Affect, and the Moral/Conventional Distinction, 22 Mind & Lang 117, 121 (2007).
157. Id at 120. See also Nucci, Education in the Moral Domain at 52-75 (cited in note 72) (discussing these studies in detail).
158. Kelly, et al, 22 Mind & Lang at 123-24 (cited in note 110).
159. 2 = 79.01; p = 0.000). The bar graph on the right represents responses to the question: "How would you rate Mr. X's behavior?" (t(198) = 13.55; p = 0.000).
160. See id at 126-28.
161. See, for example, Alvin E. Roth, et al, Bargaining and Market Behavior in Jerusalem, Ljubljana, Pittsburgh, and Tokyo: An Experimental Study, 81 Am Econ Rev 1068, 1068-69 (1991).
162. See also generally Joseph Henrich, et al, Introduction and Guide to the Volume, in Joseph Henrich, et al, eds, Foundations of Human Sociality 1 (Oxford 2004) (describing an account of the origins of this research).
163. This does not mean that people necessarily conform their behavior to what is considered fair because they are intrinsically motivated to be fair. It might be the case that individuals adjust their behavior strategically in order not to be punished for what they believe others will perceive as unfair behavior.
164. Henrich, et al, 28 Behav & Brain Sci at 812-13 (cited in note 60).
165. Joseph Henrich, et al, "Economic Man" in Cross-Cultural Perspective: Behavioral Experiments in 15 Small-Scale Societies *54 figure 2 (working paper), online at http://www.som.yale.edu/Faculty/keith.chen/negot. %20papers/CamererEtAll-CrossCultUltimatum01.pdf (visited May 1, 2010). For the published version of this paper, see note 60. The box gives the interquartile range for offers in each society. The vertical line within each box, except for the Machiguenga, is the mean offer, not the median as in a standard box plot. The mean offer for the Machiguenga lies outside of the interquartile range and is represented by the vertical line just to the right of the box.
166. Sixty-three percent of Proposers divided the pie equally, and most who did not offered more than 50 percent. Henrich, et al, 28 Behav & Brain Sci at 811 (cited in note 60).
167. See also generally Michael S. Alvard and David A. Nolin, Rousseau's Whale Hunt? Coordination among Big Game Hunters, 43 Curr Anthro 533 (2002).
168. See Alvard and Nolin, 43 Curr Anthro at 540 (cited in note 119).
169. See Ethan Russo, Machiguenga: Peruvian Hunter-Gatherers, 1 Wise Traditions (Summer 2000), online at http://www.westonaprice.org/in-his- footsteps/236-machiguenga.html (visited Sept 21, 2010).
170. See Henrich, et al, 28 Behav & Brain Sci at 811-13 (cited in note 60).
171. Id at 811. Those who repeatedly fail to reciprocate are shunned and disparaged. Consider id at 812.
172. Id at 811. See also Herbert Gintis, et al, Explaining Altruistic Behavior in Humans, 24 Evol & Hum Behav 153, 159 (2003) ("[This] reflects Melanesian culture of status-seeking through gift giving. Making a large gift is a bid for social dominance in everyday life in these societies, and rejecting the gift is a rejection of being subordinate."). The hypothesis offered by Gintis and his coauthors is consistent with the extensive anthropological literature on reciprocal exchange in many societies, with "gifts" being thought of as conferring status on the giver and a burden on the recipient.
173. See, for example, Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies 65 (Routledge 1990) (W.D. Halls, trans) (originally published 1950) ("The unreciprocated gift still makes the person who has accepted it inferior, particularly when it has been accepted with no thought of returning it.").
174. Brian Paciotti and Craig Hadley, The Ultimatum Game in Southwestern Tanzania: Ethnic Variation and Institutional Scope, 44 Curr Anthro 427, 429-31 (2003).
175. Id at 431.
176. See, for example, Swee-Hoon Chuah, et al, An Economic Anatomy of Culture: Attitudes and Behaviour in Inter- and Intra-national Ultimatum Game Experiments, 30 J Econ Psych 732, 733 (2009);
177. Swee-Hoon Chuah, et al, Do Cultures Clash? Evidence from Cross-National Ultimatum Game Experiments, 64 J Econ Behav & Org 35, 36 (2007
178. Roth, et al, 81 Am Econ Rev at 1092 (cited in note 115).
179. See Chuah, et al, 30 J Econ Psych at 742 (cited in note 127).
180. See note 68 and accompanying text.
181. Henrich, et al, "Economic Man" in Cross-Cultural Perspective at *45 (cited in note 118).
182. See also Kelly, et al, 22 Mind & Lang at 117-31 (cited in note 110).
183. Robinson and Kurzban, 91 Minn L Rev at 1892 (cited in note 13).
184. See generally Braman and Kahan, Legal Realism as Psychological and Cultural (Not Political) Realism (cited in note 3).
185. There are a number of accounts that might fit this description. For a comparison of the two main accounts, see Dan M. Kahan, "Ideology in" or "Cultural Cognition of" Judging: What Difference Does It Make?, 92 Marq L Rev 413, 422 (2009).
186. Consider Mary Douglas and Aaron Wildavsky, Risk and Culture 72-73 (California 1980) (making the analogous point that private individuals "choose not to be aware of every danger," and that when choosing between risks, "subjective values must take priority").
187. That our values are not universal or transcendental, but historically specific intuitions of our collective making, is a perspective well described by Stanley Fish: I intend [the title of the book Doing What Comes Naturally] to refer to the unreflective actions that follow from being embedded in a context of practice. This kind of action ⋯ is anything but natural in the sense of proceeding independently of historical and social formations; but once those formations are in place (and they always are), what you think to do will not be calculated in relation to a higher law or an overarching theory but will issue from you as naturally as breathing.
188. Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies ix (Duke 1989).
189. Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Melanie G. Wiber, The Properties of Property, in Franz Benda-Beckman, Keebet von Benda-Beckmann, and Melanie G. Wiber, eds, Changing Properties of Property 1, 15 (Berghahn 2006).
190. Anthropologists have come to view the notion of property as often contested: [P]eople have at any given moment a number of "languages" available to them for characterizing objects in circulation as commodified, gift-like, inalienable, and so on. These languages are often in tension; actors also have differential access to them. And they use these languages within a context that may constrain the use of some idioms and support the use of others. This perspective ⋯ helps us understand how multiple or hybrid forms of value occur simultaneously.
191. Elizabeth Emma Ferry, Not Ours Alone: Patrimony, Value, and Collectivity in Contemporary Mexico 18 (Columbia 2005).
192. David Graeber and Maurice Godelier provide two recent and influential general accounts of the way value and property vary across time and place. See generally David Graeber, Toward an Anthropological Theory of Value: The False Coin of Our Own Dreams (Palgrave 2001);
193. Maurice Godelier, The Enigma of the Gift (Chicago 1999) (Nora Scott, trans).
194. Compare, for example, Liam Murphy and Thomas Nagel, The Myth of Ownership 8 (Oxford 2002) (arguing that private property is a legal convention defined in part by the tax system
195. with Stephen Moore, In Their Own Words, Natl Rev Online (Apr 23, 2002), online at http://www.nationalreview.com/moore/moore042302.asp (visited May 1, 2010) (critiquing Murphy and Nagel's book).
196. As Janice Nadler and Shari Diamond have found in their research, variable concepts like "subjective attachment to property" are paramount in shaping "the perceived justice of a taking." Janice Nadler and Shari Seidman Diamond, Eminent Domain and the Psychology of Property Rights, Proposed Use, Subjective Attachment, and Taker Identity, 5 J Empirical Legal Stud 713, 713 (2009).
197. See also, for example, Kelo v City of New London, 545 US 469 (2005), which provoked public debate over property rights and takings without consent.
198. Special thanks to Stephanie Stern for making this point to us.
199. See, for example, Richard C. Stedman, Toward a Social Psychology of Place, 34 Envir & Behav 561, 563 (2002).
200. See Jerry Fodor, The Mind Doesn't Work That Way 71-78 (MIT 2000) (describing the input problem).
201. Robinson and Darley, 81 S Cal L Rev at 58-59 (cited in note 15).
202. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1647-49 (cited in note 14).
203. See generally Kathleen D. Vohs, Roy F. Baumeister, and Jason Chin, Feeling Duped: Emotional, Motivational, and Cognitive Aspects of Being Exploited by Others, 11 Rev Gen Psych 127 (2007);
204. Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 Mich L Rev 71 (2003).
205. Many of the issues in puffery, such as questions of falsifiability in false advertising cases, are often resolved as matters of law rather than fact. See Jean W. Burns, Confused Jurisprudence: False Advertising under the Lanham Act, 79 BU L Rev 807, 867-71 (1999);
206. Ivan L. Preston, The Definition of Deceptiveness in Advertising and Other Commercial Speech, 39 Cath U L Rev 1035, 1040-41 (1990).
207. See David A. Hoffman, The Best Puffery Article Ever, 91 Iowa L Rev 1395, 1400-16 (2006) (defining the puffery defense in false advertising, securities, UCC warranty, and promissory estoppel cases).
208. See also Ivan L. Preston, Puffery and Other "Loophole" Claims: How the Law's "Don't Ask, Don't Tell" Policy Condones Fraudulent Falsity in Advertising, 18 J L & Commerce 49, 54-55 (1998) (noting that puffery may take a variety of forms, including claims that a product is the "best," "best possible," "better," and "specially good"). Hoffman provides a host of instances where intuitions vary on seemingly similar cases: Advil's claim that it, "like Tylenol," "doesn't upset the stomach" was found not to be immune puffery because a court believed that consumers would have viewed the statements to be a factual comparison with other brands. Similarly, a motor-oil company's claim to provide "longer engine life and better engine protection" was not held to be puffery. By contrast, a puffery defense succeeded with respect to Bayer's statement that it made the "the world's best aspirin" that "works wonders." And a videogame manufacturer escaped liability, despite claiming to have made "The Most Advanced Home Gaming System in the Universe." ⋯ The claim that yogurt is "nature's perfect food" apparently may be falsified and is not puffery. But, to enthusiasts' chagrin, Nestlé's boast that it sells the "very best chocolate" is a meaningless puff. If, upon eating too much chocolate yogurt, one needed a diet, the makers of topical gel could be liable for claiming to "dramatically interfere with the process of converting calories to fat" and "inhibit the creation of new fat cells." But, the makers of a weight-loss pill trumpeting the drug's ability to cause you to "Lose Weight Fast" would be protected.
209. Hoffman, 91 Iowa L Rev at 1404 (alterations omitted).
210. See generally Hoffman, 91 Iowa L Rev 1395 (cited in note 147
211. Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L Rev 1 (2000).
212. Perry Haan and Cal Berkey, A Study of the Believability of the Forms of Puffery, 8 J Marketing Comm 243, 246 (2002) (citing studies).
213. See Hoffman, 91 Iowa L Rev at 1442 (cited in note 147).
214. Robinson and Darley, 81 S Cal L Rev at 58-59 (cited in note 15) (arguing for the "analogical closeness" of these categories).
215. See Tess Wilkinson-Ryan, Do Liquidated Damages Encourage Efficient Breach? A Psychological Experiment, 108 Mich L Rev 633, 654-64 (2010) (demonstrating that individuals' feelings of moral loss associated with contractual breach can be ameliorated by private law side agreements).
216. See also Tess Wilkinson-Ryan and David A. Hoffman, Breach Is for Suckers, 63 Vand L Rev 1003, 1022-33 (2010) (demonstrating that individuals' perceptions of loss of status due to breaches of reciprocity could be manipulated in various contractual scenarios).
217. See generally Susan Caringella, Addressing Rape Reform in Law and Practice 12-17 (Columbia 2009
218. Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 29-46 (Harvard 1998).
219. Compare, for example, Estrich, Real Rape at 102-03 (cited in note 9) (arguing for a "no means no" standard in the law
220. with D.N. Husak and G.C. Thomas, Date Rape, Social Convention, and Reasonable Mistakes, 11 L & Phil 95, 122-25 (1992) (arguing against a standard that treats a verbal "no" as sufficient).
221. See, for example, FRE 412.
222. See, for example, Schulhofer, Unwanted Sex at 30-33 (cited in note 153).
223. See generally Jody Clay-Warner and Callie Harbin Burt, Rape Reporting after Reforms: Have Times Really Changed?, 11 Violence Against Women 150 (2005).
224. See generally Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U Pa L Rev 729 (2010).
225. Robinson and Darley, 81 S Cal L Rev at 46-47 (cited in note 15).
226. Id at 52.
227. Robinson and Kurzban, 91 Minn L Rev at 1892 (cited in note 13).
228. See id at 1853 & n 100, 1856 & n 123, 1859 & nn 135, 138.
229. See id at 1885-88.
230. See id at 1890-91 & n 230.
231. See, for example, Michael W. Wiederman, The Gendered Nature of Sexual Scripts, 13 Fam J 496, 499 (2005
232. Martha R. Burt, Cultural Myths and Supports for Rape, 38 J Personality & Soc Psych 217, 225 (1980).
233. 641 A2d 1161 (Pa 1994).
234. See Kahan, 158 U Pa L Rev at 734 (cited in note 158).
235. See Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal L Rev 827, 917 (1999).
236. See id at 917-20.
237. See Bureau of Justice Statistics, Key Facts at a Glance: National Crime Victimization Survey Violent Crime Trends, 1973-2008, online at http://bjs.ojp.usdoj.gov/content/glance/tables/viortrdtab.cfm (visited Oct 22, 2010) (reporting a drop in the incidence of rape from 2.8 per 1,000 to 0.4 per 1,000 between 1979 and 2004).
238. Clay-Warner and Burt, 11 Violence Against Women at 167 (cited in note 157) (concluding that the incidence of reporting of "simple" or acquaintance rape, as opposed to "aggravated" or stranger rape, has not changed since the 1970s).
239. See Jones, 87 Cal L Rev at 918 (cited in note 168).
240. See Schulhofer, Unwanted Sex at 104-05 (cited in note 153
241. Kahan, 158 U Pa L Rev at 752 (cited in note 158).
242. See Kahan, 158 U Pa L Rev at 752-53 (cited in note 158).
243. Naturalists themselves agree with this prioritization of violence over other wrongs. See, for example, Robinson, Kurzban, and Jones, 60 Vand L Rev at 1635 n 5 (cited in note 14).
244. See text accompanying note 36.
245. Robinson and Kurzban, 91 Minn L Rev at 1897 (cited in note 13).
246. Id at 1894.
247. See Robinson, Kurzban, and Jones, 60 Vand L Rev at 1646-54 (cited in note 14) (arguing that human social impulses laid the foundation for a predisposition to acquire shared intuitions of justice, which provided evolutionary benefits to the individuals bearing them).
248. These are drawn from Kahan and Braman, 45 Am Crim L Rev at 3 n 2 (cited in note 34).
249. The traditional standard is couched in terms that are reflected in nearly every jurisdiction in the United States today: a person who has not otherwise provoked aggression is entitled to resort to deadly force against another (and hence is protected from criminal liability for doing so) when she honestly and reasonably believes that deadly force is necessary to prevent an imminent threat of death or great bodily harm to herself. See Wayne R. LaFave, 2 Substantive Criminal Law § 10.4(b) at 145-47 (West 2d ed 2003). If the threat is of some lesser magnitude, a person may repel it only with nonlethal force. See id.
250. See generally David B. Kopel, Paul Gallant, and Joanne D. Eisen, The Human Right of Self-Defense, 22 BYU J Pub L 43, 104-13 (2008) (describing which classes were able to use selfdefense under Greek, Jewish, and Roman law).
251. See, for example, A. Leon Higginbotham, Jr and Anne F. Jacobs, The "Law Only as an Enemy": The Legitimization of Racial Powerlessness through the Colonial and Antebellum Criminal Laws of Virginia, 70 NC L Rev 969, 1042 (1992): Despite the unrelenting punishments and beatings that a slave might receive at the hands of an overseer, an owner, or another white, there were only rare instances in which a slave might claim self-defense in the killing of a white person. Such cases generally involved whites of low socioeconomic background.
252. 481 US 279 (1987).
253. Id at 329 & n 8 (Brennan dissenting), citing A. Leon Higginbotham, Jr, In the Matter of Color: Race in the American Legal Process: The Colonial Period 253, 254 & n 90, 256 (Oxford 1978).
254. Similar status hierarchies can be found in many societies. Consider, for example, the Tokugawa administrative code in feudal Japan that granted Samurai the privilege of "kiri-sute-gomen, that is the privilege of a samurai to cut down a commoner with impunity." E. Herbert Norman, Japan's Emergence as a Modern State: Political and Economic Problems of the Meiji Period 18 (Institute of Pacific Relations 1940).
255. See also David B. Kopel, The Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun Controls of Other Democracies? 30 (Prometheus 1992) ("Any disrespectful member of the lower class could be executed by a Samurai's sword.").
256. See Richard E. Nisbett and Dov Cohen, Culture of Honor: The Psychology of Violence in the South 32 (Westview 1996) (arguing that the culture of the South included a tolerance for the use of violence for the protection of vital as well as what would now be considered nonvital interests).
257. William M. McKinney and Burdett A. Rich, eds, 13 Ruling Case Law 834 (Thompson 1916), citing Dabney v State, 21 So 211, 211-12 (Ala 1897); Drysdale v State, 10 SE 358, 358 (Ga 1889).
258. Nisbett and Cohen, Culture of Honor at 31 (cited in note 187).
259. Id.
260. Id.
261. Id at 32.
262. Nisbett and Cohen, Culture of Honor at 31 (cited in note 187).
263. See generally Dov Cohen, et al, Insult, Aggression, and the Southern Culture of Honor: An "Experimental Ethnography," 70 J Personality & Soc Psych 945, 945 (1996).
264. Id at 948, 950, 953.
265. Id at 948.
266. Id at 945.
267. Cohen, et al, 70 J Personality & Soc Psych at 952 (cited in note 194).
268. Id at 954, 956.
269. Id at 956-57. There are evolutionary explanations that we do not evaluate here. See, for example, Todd K. Shackelford, An Evolutionary Psychological Perspective on Cultures of Honor, 3 Evol Psych 381, 389 (2005) (arguing that these results can be explained via evolutionary psychology).
270. Pain often generates responses that are similar to those stemming from a perceived social threat, even when the pain is internal to, and completely independent of, the social circumstances. See Raymond W. Novaco, Anger, in Alan E. Kazdin, ed, 1 Encyclopedia of Psychology 170, 171 (Oxford 2000).
271. See Kahan and Braman, 45 Am Crim L Rev at 21-49 (cited in note 34) (detailing "neutral umpire," "political partisanship," and "self-defensive cognition" models of evaluating selfdefense evidence).
272. See People v Goetz, 68 NY2d 96 (1986). See also George P. Fletcher, A Crime of Self- Defense: Bernard Goetz and the Law on Trial 1-2, 198 (Free Press 1988).
273. See Kahan and Braman, 45 Am Crim L Rev at 26, 65 (cited in note 34).
274. See State v Norman, 378 SE2d 8, 13 (NC 1989) (affirming the conviction of Judy Norman for voluntary manslaughter because there was no evidence that she "reasonably believed that she was confronted by a threat of imminent death or great bodily harm").
275. Kahan and Braman, 45 Am Crim L Rev at 26, 79 (cited in note 34).
276. Robinson and Kurzban, 91 Minn L Rev at 1860 (cited in note 13).
277. Kahan and Braman, 45 Am Crim L Rev at 34 table 1 (cited in note 34).
278. See Part I.A.
279. Yes, these are the same folks made famous in a recent and brilliant article assessing the Supreme Court's decision in Scott v Harris, 550 US 372, 386 (2007) (finding that a law enforcement officer acted reasonably in terminating a car chase by taking an action that caused substantial injuries to the driver). See Dan M. Kahan, David A. Hoffman, and Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv L Rev 837, 895-99 (2009) (arguing that the Supreme Court's reasoning failed to connect perceptions of societal risk and contested visions of the ideal society, and invested the law with culturally partisan overtones that detract from the law's legitimacy).
280. See Kosuke Imai, Gary King and Olivia Lau, Toward a Common Framework for Statistical Analysis and Development, 17 J Computational & Graph Stats 892, 894 (2008). In conventional regression analysis, the influence of some set of explanatory variables on a dependent variable is expressed in a mathematical equation, the elements of which (regression coefficients, standard errors, p-values, and so forth) are reported in a table. Zelig is intended to generate data analyses that simultaneously extract more information and present it more intelligibly. Using Zelig, an analyst specifies values for the independent variables that form a regression model. The application then generates a predicted value for the dependent variable through a statistical simulation that takes account of the model's key parameters (including the standard errors for the regression coefficients). It then repeats that process. Then it repeats it again. Then it repeats it again and again and again-as many times as directed by the analyst (typically ten thousand times, or enough to give a reasonable approximation of the probability distribution for the dependent variable). The resulting array of values for that dependent variable can then be analyzed with techniques that are statistically equivalent to those used in survey sampling to determine an average predicted value, plus a precisely calculated margin of error. See id at 895-96.
281. With 95 percent confidence intervals.
282. With 95 percent confidence intervals.
283. See David Hume, 3 A Treatise of Human Nature 455 (Clarendon 1896) (L.A. Selby- Bigge, ed) (originally published 1739-1740).
284. Jones, 87 Cal L Rev at 855 (cited in note 168).
285. Robinson and Darley, 81 S Cal L Rev at 51 (cited in note 15).
286. Id at 28.
287. Id.
288. Id at 54.
289. Robinson and Darley, 81 S Cal L Rev at 24 (cited in note 15).
290. Id at 52-53.
291. Id at 52.
292. See id at 58 (citing "Joshua Greene's neuroscience studies" as support for the observation that the "core of wrongdoing seems to start with direct personal action"). But see Jonathan McGuire, et al, A Reanalysis of the Personal/Impersonal Distinction in Moral Psychology Research, 45 J Exp Soc Psych 577 (2009) (showing that reanalysis of Greene's data does not support a "direct/personal" distinction);
293. Joshua D. Greene, Dual-Process Morality and the Personal/Impersonal Distinction: A Reply to McGuire, Langdon, Coltheart, and Mackenzie, 45 J Exp Soc Psych 581 (2009) (acknowledging flaws in the Greene study but noting that additional studies support a more fundamental "dual process" neural theory of moral reasoning).
294. See generally Joshua D. Greene, et al, The Neural Bases of Cognitive Conflict and Control in Moral Judgment, 44 Neuron 389 (2004
295. Joshua D. Greene, et al, An fMRI Investigation of Emotional Engagement in Moral Judgment, 293 Sci 2105 (2001).
296. See Greene and Cohen, 359 Phil Transactions Royal Socy B: Bio Sci at 1782 (cited in note 21
297. Joshua Greene, From Neural "Is" to Moral "Ought": What Are the Moral Implications of Neuroscientific Moral Psychology?, 4 Nature Reviews Neurosci 847, 848-49 (2003).
298. See, for example, Joshua D. Greene, The Secret Joke of Kant's Soul, in Walter Sinnott- Armstrong, ed, 3 Moral Psychology: The Neuroscience of Morality: Emotion, Brain Disorders, and Development 35, 60-63 (MIT 2008).
299. Id at 71.
300. Greene and Cohen, 359 Phil Transactions Royal Socy B: Bio Sci at 1776 (cited in note 21).
301. Robinson and Darley, 81 S Cal L Rev at 11 (cited in note 15).
302. Hauser, Moral Minds at xx (cited in note 26).
303. Robinson and Darley, 81 S Cal L Rev at 53 (cited in note 15). To drive home the point of how difficult any reform efforts (even those outside of the core of wrongdoing) will be, they describe the failures of various indoctrination campaigns, including the immense effort required for, and relatively short-term effects of, the brainwashing of POWs during the Korean war, the impossibly strained conditions that produce Stockholm Syndrome, and the failure of Prohibition to reform intuitions about alcohol consumption-and these involved efforts aimed at offenses outside of the "core"!
304. See Kerr, The Intuition of Retribution (cited in note 23).
305. Analogously, individuals disagree about whether and when omitting information in an exchange is a form of lying or no wrong at all. See Richard Craswell, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 Va L Rev 565, 574-75 (2006).
306. See Kahan, 158 U Pa L Rev at 805 (cited in note 158).
307. One judge, Robert E. Cahill, famously quoted by Cynthia Lee in her book, Murder and the Reasonable Man, lamented his duty to impose any sentence at all on a man who shot and killed his wife after discovering her infidelity, saying "I seriously wonder how many men [on discovering spousal infidelity] would have the strength to walk away without inflicting some corporal punishment."
308. Cynthia Lee, Murder and the Reasonable Man 41 (NYU 2003).
309. See Kahan, 158 U Pa L Rev at 805 (cited in note 158) (discussing the problem of disagreement over the core offense in the acquaintance rape context).
310. See generally Dan M. Kahan and Donald Braman, Cultural Cognition and Public Policy, 24 Yale L & Pol Rev 147 (2006).
311. See generally Kahan, 113 Harv L Rev 413 (cited in note 11).
312. See generally Dan M. Kahan, The Cognitively Illiberal State, 60 Stan L Rev 115 (2007).
313. See Lee Ross and Andrew Ward, Implications for Social Conflict and Misunderstanding, in Edward S. Reed, Elliot Turiel, and Terrance Brown, eds, Values and Knowledge 103, 110-11 (Lawrence Erlbaum 1996).
314. See generally Lee Ross, The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process, in Leonard Berkowitz, ed, 10 Advances in Experimental Social Psychology 173 (Academic 1977).
315. See generally Bertram F. Malle, The Actor-Observer Asymmetry in Attribution: A (Surprising) Meta-Analysis, 132 Psych Bull 895 (2006).
316. What research does exist in this area suggests that those who view human nature as largely set and inflexible are also more likely to look upon outgroup members as less likely to be cooperative, and are thus less likely to actually cooperate with them; the inverse is true for those who view human nature to be more malleable. See generally, for example, Sheri R. Levy, Chi-yue Chiu and Ying-yi Hong, Lay Theories and Intergroup Relations, 9 Group Processes Intergroup Rel 5 (2006) (describing how various lay theories about human attributes and cognition affect intergroup relations
317. Nick Haslam, et al, Psychological Essentialism, Implicit Theories, and Intergroup Relations, 9 Group Processes Intergroup Rel 63 (2006) (finding that the belief that human attributes are malleable increases intergroup cooperation
318. Giulio Boccato, et al, The Automaticity of Infra-humanization, 37 Eur J Soc Psych 987 (2007) (finding support for the infrahumanization hypothesis that uniquely human emotions are automatically more linked in memory with the ingroup than with the outgroup).
319. See Nick Haslam, Dehumanization: An Integrative Review, 10 Personality & Soc Psych Rev 252, 252 (2006) (noting the tendency to treat outgroup members "as animal-like" and to represent them as "objects or automata").
320. Robinson and Kurzban, 91 Minn L Rev at 1892 (cited in note 13).
321. Robinson, Kurzban, and Jones, 60 Vand L Rev at 1646, 1687 (cited in note 14).
322. Robinson and Darley, 81 S Cal L Rev at 52 (cited in note 15).
323. Id at 54-55.
324. Id at 51.
325. Id at 24.
326. See, for example, Robinson and Kurzban, 91 Minn L Rev at 1892 (cited in note 13) ("[I]t may be unrealistic to expect the population to all 'rise above' its desire to punish wrongdoers, or to expect the government to 'reeducate' people away from their interest in punishing wrongdoers, as is urged by some reformers.").
327. See also Robinson, Kurzban, and Jones, 60 Vand L Rev at 1688 (cited in note 14).
328. See Part IV.A.
329. Robinson and Darley, 81 S Cal L Rev at 52-53 (cited in note 15).
330. Id.
331. See Kerr, The Intuition of Retribution (cited in note 23).
332. See Kahan and Nussbaum, 96 Colum L Rev at 346-50 (cited in note 7).
333. Reproduced from Robinson and Kurzban, 91 Minn L Rev at 1894-98 (cited in note 13).