--- Draft ---
Regulating Calculated vs. Situational Wrong Doers: A Behavioural Ethics Perspective
[Chapter in Progress] from The Law of Good People: Challenging States Ability to Regulate Human
Behaviour (Forthcoming from Cambridge U Press, 2016)
Yuval Feldman1
Contents
--- Draft --- .......................................................................................................................................... 1
Regulating Calculated vs. Situational Wrong Doers: A Behavioural Ethics Perspective ................... 1
Introduction ......................................................................................................................................... 2
The structure of the paper ............................................................................................................... 3
Traditional accounts of regulating misconducts: Deterrence vs. Fairness ............................ 5
The non-deliberate challenge to law ............................................................................................. 8
The power of the situation and behavioural ethics ................................................................... 10
The non-deliberative Challenge for Policy Making .................................................................... 11
Differences between deliberative and non-deliberative misconducts ................................................... 13
Inter-relationship among the different individual difference scales: .................................. 16
Demographic factors: ................................................................................................................. 17
Rule conditionality.......................................................................................................................... 19
Tentative conclusion:.................................................................................................................. 21
Understanding the challenges: ..................................................................................................... 21
Implications – how to deal with calculated and situational wrong-doers at the same time. 22
Can states deal with both calculated and situation wrong-doer at the same time?............. 23
Demonstration of the treatment of good and bad people in two case studies implicit
discrimination and implicit corruption: ........................................................................................... 25
Implicit vs. Explicit Corruption .................................................................................................... 25
Corruption of good/bad people – some tentative solutions:] ................................................. 27
Employment Discrimination .......................................................................................................... 28
Normative Solutions:...................................................................................................................... 30
Limitations and future research [to be completed] ................................................................... 32
References ............................................................................................ Error! Bookmark not defined.
1
Professor of Law, Bar-Ilan University
Introduction
Traditionally, states have been using their powers to prevent people from engaging
in wrongful conducts, breaching contracts, and eschewing their duties. The assumption of
most theoretical accounts of law has been that people have chosen to engage in these
behaviours, and that certain techniques, most notably incentives, can be used to change such
decisions. Most of the intervention mechanisms, used by various government agencies,
courts, and organisations have relied on these assumptions while increasing enforcement
efforts and creating incentive mechanisms and new regulations to enhance transparency. In
contrast, many theories of the behavioural approach to human judgment and decisionmaking have challenged the basic assumptions of the neo-classical economic doctrine of
rational choice2. Among these, the literature related to the rising role of non-deliberative
choice in people's behaviour, stands as a central and dominant alternative. This
“behavioural” approach has gained prominence in an increasing number of “applied” fields,
where discussion of automaticity, implicit vs. explicit attitudes, responsibility, selfawareness, paternalism, nudge theory, choices, and autonomy is ongoing. Surprisingly it
has not been as dominant in the development of the behavioural analysis of law.3 A
common theme in the paradigms under discussion is the possibility that many of the
undesirable behaviours, which we attempt to change using the rational choice theory
approach, have to do with “good” people who do not necessarily engage in any deliberative
process before engaging in “bad” actions. Therefore, the ability of current explicit
mechanisms to curb the unethical behaviour of most people may be limited. Thus, for
example, fines, damages or administrative sanctions will not cause people to stop doing
something they hardly recognise as an ethical problem. If indeed most unethical behaviour
is attributed to the behaviour of such people, it may be necessary to find new ways to change
people's behaviour and their implicit judgments.
This situation, where some of the violations of law are the product of “bad” people
who intentionally engage in bad behaviour and some are the product of “good” people who
are not necessarily aware of the unethical nature of their behaviour, creates various
2
For the best summary of this line of criticism in recent years see: DANIEL KAHNEMAN, THINKING, FAST AND
SLOW (2011).
3
for a discussion of neglected areas in psychology in the behavioural analysis of law see: Yuval Feldman &
Orly Lobel, Behavioral Trade-Offs: Beyond the Land of Nudges Spans the World of Law and Psychology, 14158 SAN DIEGO LEGAL STUD. (2015).
challenges for policy makers. This paper focuses on the ability of governments to deal with
these two types of wrongdoings at the same time.
The structure of the paper
The structure of the paper will be as follows:
We will first describe the literature on behavioural ethics to understand this concept
of people who might engage in wrong-doing without fully understanding the moral or legal
wrong doing in their behaviour due to various artefacts of the situation in which they
operate. Recognizing the role of non-deliberative choice in wrong doing of people requires
a completely new way of thinking on some of the basic questions of legal enforcement (e.g.
the wisdom of using incentives, the meaning of deterrence and questions related to
autonomy). The focus of the current paper is on the ability of states to deal with the wrongdoing of the people who plan on doing wrong and those who do wrong due to various
situational and contextual factors that trigger deliberative and not fully deliberative
justifications for engaging in the act.
We will further move to examine some of the paradigms which might explain what
kind of people are more likely to engage in situational wrong-doing4. Thus the variation is
not only in the level of intentionality and moral development as traditional behavioural law
and econ have assumed, but we argue for a variation between people in the likelihood that
the situation will affect their behaviour. With regard to the intentional wrong-doing, we will
start with the more familiar dimensions of the classical calculative wrong doer which are
related to risk, to respect for the law, to moral decision making.5
With regard to the variation in type of people that the situation is likely to affect, we
will then move to examine scales which carry the potential for some variation among people
with regard to the likelihood that they will engage in misconducts which could be attributed
to good people. Among these scales, We will discuss in short the following: IAT grade (e.g.
measuring people’s implicit attitudes); Propensity to morally disengage (people’s
likelihood of finding excuses for misbehaviours); CRT (cognitive reflection test, measuring
people ability to override their intuitive reasoning); the level of moral identity (people’s
4
For a more elaborative review of the processes see: Gino et al ; Shalvi et al, chou review of bounded ethicality
for a review with legal implications please see Yuval Feldman
5
See for example: JAMES R. REST, MORAL DEVELOPMENT: ADVANCES IN RESEARCH AND THEORY (1986); Linda
K. Trevino, Moral reasoning and business ethics: Implications for research, education, and management, 11 J.
BUS. & ETHICS 445-459 (1992).
level of accessibility to their morality) when making decisions, moral firmness (how
flexible people are in the usage of morality) and rule conditionality which is a new concept
developed by some of my co-authors. These scales represent various bodies of research all
attempting to understand whether there is some variation in people’s likelihood of behaving
in a certain way, which could be attributed to who are those people rather than to the power
of the situation. I will argue that in addition to more established scales such as risk attitudes,
self-control, level of moral development and level of deontological reasoning which all
focus on the likelihood of people choosing to engage in “wrong doing”, this added
dimension will help account for the likelihood of non-deliberative misconducts. v cc
Nonetheless, while we will show that there are some stable differences between the
levels of “goodness” of people that equals to the likelihood that they will engage in noncalculated misconducts, we would suggest that overall, with regard to those types of wrongdoing, the situational factor is much more dominant than the personal factor. Hence, from
states perspective the focus should be on traditional methods, with regard to the
misconducts which are likely to be conducted by calculative wrong-doers and also on the
situational factors with focus on shaping the situation in a way which will make most noncalculative wrong-doers less likely. In other words with regard to what has been sometimes
called ordinary unethicality,6 the existing scales do not seem to provide large enough
differences in a way, which will justify a differentiated approach regarding these
misconducts.
Instead, the approach advocated in the paper suggests that the differentiated
approach should be based on the type of likely misconducts. In contexts, where expected
misconducts are clearly calculative, the best approach through traditional instrument choice
of the most suitable enforcement mechanisms, were based on traditional considerations
(e.g. the limits of money, likelihood of detection, level of intrinsic motivations etc.).
However, in contexts where the expected harm is created by non-calculated
misconducts, which even the good people, who usually avoid calculated wrong-doing,
might engage in, the focus should be on designing the situation in a way which would
reduce the likelihood of people’s ability to maintain the self-perception of themselves as
good people. Such measures include reducing ambiguity, reducing excuses for wrongdoing,
increasing accountability, etc.
6
For example see: Francesca Gino, Understanding ordinary unethical behavior: why people who value morality
act immorally, 3 CURRENT OPINION IN BEHAVIORAL SCIENCES 107-111 (2015); MAX H. BAZERMAN & ANN E.
TENBRUNSEL, BLIND SPOTS: WHY WE FAIL TO DO WHAT'S RIGHT AND WHAT TO DO ABOUT IT (2011).
Such measures will be discussed in the last portion of the paper. We will discuss
some suggestions for what could be done and what should be taken into account in order to
enable policy makers to deal with this increased recognition of wrong doing associated with
limited deliberations across few main domains such as employment discrimination,
corruption, and consumer protection.
Traditional accounts of regulating misconducts: Deterrence vs. Fairness
As suggested above, the traditional approach to legal compliance by behavioural
scholars have focused on challenging the dominant perception of peoples’ motivation to the
fear of sanctions.7 Various highly influential works have been focusing on limited selfinterest, with emphasis on the role of fairness and morality in legal compliance such as the
work of Tyler, Darly & Robinson, and Paternoster & Simpson.8
In earlier works that focused mainly on curbing deliberative misconducts, I have
differentiated between various types of compliance motivation which exist in the literature
(e.g. Deterrence, Fairness, Citizenship, Social Norms), all of which assume an individual who
basically thinks deliberately on whether to obey the law.9 The first and most known
regulatory approach targets the calculative or the incentive-driven individual. According to
this model, the dominant motivation of the individual is based on a cost-benefit calculation;
hence, the approach of the regulator should focus on deterring the bad apples and providing
incentives to the good apples. On many accounts, the literature that discusses this approach is
the richest one, given the centrality of both deterrence and incentives within legal
scholarship.10
7
Gary S. Becker, Crime and Punishment: An Economic Approach, 76(2) J. POL. ECON. 169-217 (1968).
TOM R. TYLER, WHY PEOPLE OBEY THE LAW: PROCEDURAL JUSTICE, LEGITIMACY, AND COMPLIANCE (1990);
Raymond Paternoster & Sally Simpson, Sanction threats and appeals to morality: Testing a rational choice
model of corporate crime, 30(3) LAW & SOC'Y REV. 549-583 (1996); Paul H. Robinson & John M. Darley, The
utility of desert, 91 NW. U. L. REV. 453-499 (1997).
9 For a review see: Yuval Feldman, For Love Or Money? Defining Relationships In Law And Life: The
Complexity of Disentangling Intrinsic and Extrinsic Compliance Motivations: Theoretical and Empirical
Insights from the Behavioral Analysis of Law, 35 WASH. UJL & POL'Y 11-547 (2011).
10
See generally: FRANKLIN E. ZIMRING, GORDON J. HAWKINS & JAMES VORENBERG, DETERRENCE: THE LEGAL
THREAT IN CRIME CONTROL 189-190 (1973); CHARLES R. TITTLE, SANCTIONS AND SOCIAL DEVIANCE: THE
QUESTION OF DETERRENCE (1980).
8
The deterrence or cost-benefit model, has been criticized on numerous grounds. Some
have demonstrated empirically the limits of deterrence in explaining both self-reported and
actual compliance.11 Other scholars have suggested that deterrence does not really work,
simply due to the fact that people have little awareness of the law in the books.12
The main competition to the deterrence rationale probably comes from the research on
the limits of self-interest in accounting for people’s motivation. Various studies demonstrate
how fairness stands as a dominant factor in human motivation, at times overshadowing selfinterest largely than expected.13 In contrast to the previous line of research, this area holds
much greater success in mobilizing the limits of rationality found, to implementation in legal
policy. Research conducted by scholars like Tyler, Darly and Robinson, and to some extent
even Paternoster and Simpson's line of work, have shown the importance of fairness and
morality in legal compliance.14 In my personal research on this topic, I have examined how
fairness could shift the behaviour of people toward greater compliance and acceptance of
organizational rules in various legal contexts,15 more sensitive environmental compliance16 and
greater organizational enforcement.17
Very recently, De Pauiseau, Glockner and Towfigh18 have conducted a series of
experiments on both students and lay people in attempting to compare the relevancy of the
main theories of legal compliance. In a sense, they found evidence for the work of both types
of motivations. Furthermore, in their studies, they have accumulated the predictor, which seems
relevant according to the deterrence literature, the self-control literature and the
legitimacy/fairness literature.
11
See for example: John Braithwaite & Toni Makkai, Testing an expected utility model of corporate deterrence,
25 LAW & SOC'Y REV. 7-40 (1991).
12
Paul H. Robinson & John M. Darley, Does criminal law deter? A behavioural science investigation, 24(2)
OXFORD J. LEGAL STUD. 173-205 (2004).
13
See for example: Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, Fairness and the assumptions of
economics, J. BUS. S285-S300 (1986).
14
Tyler, supra note 8.
15
Yuval Feldman & Tom R. Tyler, Mandated justice: The potential promise and possible pitfalls of mandating
procedural justice in the workplace, 6(1) REGULATION & GOVERNANCE 46-65 (2012).
16
Yuval Feldman & Oren Perez, Motivating environmental action in a pluralistic regulatory environment: An
experimental study of framing, crowding out, and institutional effects in the context of recycling policies, 46(2)
LAW & SOC'Y REV. 405-442 (2012).
17
Yuval Feldman & Orly Lobel, Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities,
Duties, and Protections for Reporting Illegality, 88 THE. TEX. L. REV. 1151 (2009).
18
Comparing and Integrating Theories of Law Obedience: Deterrence, Self-Control and Legitimacy.
(unpublished on file with author) ) ‫חסרה הפניה לשמו של המאמר‬
They found that both detection probability and self-control were still significant,
while the effect of legitimacy has been reduced and became non-significant. Another
interesting findings to the purposes of this paper is related to the interaction effect which they
have found between legitimacy and detection probability. Those who were high on
legitimacy didn’t increase the probability to obey the law, when the probability to be detected
decreased.19 However when measured separately, self-control, legitimacy and probability of
detection were shown to affect people's self-reported intention to comply. Likelihood of
detection was much stronger than the size of punishment which was very small.20
While deterrence and legitimacy differ on various grounds in the type of motivation
they attempt to influence and the type of people they interact with, both approaches as well as
most of the other regulatory approaches still focus on people who are deliberative with regard
to the law and most of the variation is in the motivation. However, one might wonder whether
indeed people's behaviour with regard to the law is always as deliberative and planned as games
based methodology can inform us. Thus for example, in the work of Fishbacher et al.21 people’s
level of cooperativeness was measured by them making a choice to either cooperate or free
ride, where their choices between doing “good” or “bad” are clearly defined. However, the
argument, which I wish to push forward is that in many legally relevant situations, it is not
always clear to people that their action is indeed choosing to be cooperative or non-cooperative.
In such situations, the differences between people are not necessarily related to their
preferences in the orthodox meaning of the term. Rather there are other processes, situational
and personal, some deliberative and some not, which will affect the likelihood that people
might view their behaviour as being cooperative or not. This is true for much of the research
19
20
Compare with the work of Feldman and Lobel, supra note 16; Feldman and Perez, supra note 15.
Another important paradigm to consider when attempting to compare the effects of fairness and self-interest is
related to the seminal work of Frey and Schmidt and the follow up work on this area by Scott (2003) who
discuss (text near footnote 15) the fact that 40-60% of the people are motivated by self-interest and the rest on
reciprocal fairness Also this perception of heterogeneity of fairness and self-interest seems him as a major
explanation for why there are so many variations in the way that people use legal instruments. Also for why
situation have such an effect. Many people will change their behaviour based on what they think that others are
going to do. Compare with the work of Urs Fischbacher, Simon Gächter & Ernst Fehr, Are people conditionally
cooperative? Evidence from a public goods experiment, 71.3 ECONOMICS LETTERS 397-404 (2001). Their work
suggest that 50% of their sample were conditional cooperators. ‫חסרות הפניות ספציפיות לכל המקורות המוזכרים‬
.‫בהערת השוליים הנ"ל‬
21
Fischbacher et al., supra note 19.
claiming compliance motivation is explicit, where people are being given vignettes and
researchers are trying to assess what are the factors that interact with their decision to obey the
law. In that regard, the assumption is that people know when they are violating the law and the
question is just why they would do it. In the following sections, we will start to outline some
of the main mechanisms we believe should be taken into account, when states are interested in
dealing with diverse populations of situational wrong doers and calculative wrong doers.
The non-deliberate challenge to law
The variation among compliance motivation across people and situations becomes more
important and complex, when accounting for the role of non-deliberative choice in human
behaviour. In recent years, there has been an increase in the research and conceptualisation of
non-deliberative choices, and numerous experiments have grown into competing paradigms,
describing various aspects of behaviour that is not regulated by full consciousness.22 The
popularity of scholars such as Daniel Kahneman and Eldar Shafir in psychology, Richard
Thaler in economics, Cass Sunstein and Dan Kahan in law and government, and in
management demonstrates, in both applied and basic sciences, the importance of the nondeliberative aspects of human choice and behaviour. Indeed, various methods have been
used to study non-deliberative choice. One paradigm that gained popular recognition through
Kahneman’s book, Thinking, Fast and Slow, developed the concept of two systems of
reasoning, and now it stands at the core of much research in behavioural law and
economics.23 Thousands of papers have been published in this tradition with many collective
works.24 Kahneman differentiates between an automatic, intuitive, and mostly unconscious
process - System 1 - and a controlled and deliberative process - System 2.25 The recognition of
the role of automaticity in decision-making has played an important role in the emergence of
22
Jonathan Haidt, The emotional dog and its rational tail: a social intuitionist approach to moral judgment,
108(4) PSYCHOL. REV. 814 (2001).
23
Kahneman, supra note 1.
24
For the most recent collection of works in this area, see: Doron Teichman & Eyal Zamir, Judicial
Decisionmaking: A Behavioral Perspective, THE HANDBOOK OF BEHAVIORAL ECONOMICS AND THE LAW (Zamir
& Teichman eds., 2014).
25
J. S. B. Evans, Dual-processing accounts of reasoning, judgment, and social cognition, 59 ANNU. REV.
PSYCHOL. 255-278 (2008).
behavioural economics and behavioural law and economics.26 It should be known though that
this paradigm was criticised by many scholars.27
This literature has contributed already to the legal scholarship and to behavioural
economics.28 While indeed a large portion of the research on behavioural law and
economics is related to biases attributed to non-deliberative choice, this is done mainly with
regard to the effects of framing, perception of risk and probabilities with almost no focus
on compliance motivation.
Behavioural ethics replicates the focus of the biases and heuristics literature which
was the basis of behavioral law and economics and takes it to the area of ethics and morality.
It explores various contexts in which people either behaved unintentionally or without full
awareness to how they got to do wrong.29 Many of the paradigms of behavioural ethics are
based directly or indirectly on “motivated reasoning, where people’s various types of
motivations are affecting their understanding of reality”.30 It has been showed that decisions
are made based on implicit rather than explicit attitudes;31 the work of Haidt on moral
intuition suggests that people are making moral judgment on the basis of intuition, with
reasoning being post hoc.
In contrast to behavioural law and economics, behavioural ethics, focused on
people’s inability to fully recognise their wrongdoings, seems to create the greatest
challenge for policy makers who are interested in curbing misconducts in a given society.
This inability is explained either as the higher involvement of automatic reasoning through
unconscious self-deception (in our terminology, non-deliberative32), or as post hoc
rationalisation justifying one’s unethical behaviour (in our terminology, deliberative).
26
Gerd Gigerenzer & Daniel G. Goldstein, Reasoning the fast and frugal way: models of bounded rationality,
103(4) PSYCHOL. REV. 650 (1996).
27
Arie W. Kruglanski & Gerd Gigerenzer, Intuitive and deliberate judgments are based on common principles,
118(1) PSYCHOL. REV. 97 (2011).
28
Russell B. Korobkin & Thomas S. Ulen, Law and behavioral science: Removing the rationality assumption
from law and economics, 88 CAL. L. REV. 1051-1144 (2000).
29
For a recent review, see Gino, supra note 5.
30
Ziva Kunda, The case for motivated reasoning, 108(3) PSYCHOLOGICAL BULLETIN 480 (1990); Anna C.
Merritt, Daniel A. Effron & Benoît Monin, Moral self‐licensing: When being good frees us to be bad, 4(5)
SOCIAL AND PERSONALITY PSYCHOLOGY COMPASS 344-357 (2010).
31
Nicki Marquardt & Rainer Hoeger, The effect of implicit moral attitudes on managerial decision-making: An
implicit social cognition approach, 85(2) J. BUS. & ETHICS 157-171 (2009).
32
As I will make clear in the Methodology part, this dichotomy is a bit simplistic, but seems to be the least
controversial relative to other existing taxonomies.
In the area of post hoc deliberative self-serving justification, Bandura’s theory of
moral disengagement produced a taxonomy of how people come to rationalise their
unethical behaviour.33 These outcomes show the complexity of the motivations that affect
the ethical decision-making process. At the same time, in contrast to the extensive work in
the first two areas, legal scholarship has yet to apply the findings in the field of behavioural
ethics in ways that would influence legal policy.34
Research created and summarized in recent books shows that much of the harm to
society comes from non-deliberative misconducts.35 These scholars and many others
emphasize the role of automaticity and the repeated focus on good people36 attest to the
growing recognition of the fact that many unethical decisions are not based on the deliberate
intention to act wrong, but are consequential to the situation.
The power of the situation and behavioural ethics
The recognition of people’s limited ability to monitor their own behaviour gives the situation
a different and presumably larger role. In a sense much of the now famous nudge approach
suggest that given the growing recognition in people’s non-deliberative reasoning, the
situation should be modified in various subtle ways to improve people’s behaviour.
However, in a sense, behavioural ethics simply exacerbate an already growing recognition in
33
Albert Bandura, Moral disengagement in the perpetration of inhumanities, 3(3) PERSONALITY AND SOCIAL
193-209 (1999).
34
Yuval Feldman, Behavioral Ethics Meets Behavioral Law and Economics, HANDBOOK OF BEHAVIORAL
ECONOMICS AND THE LAW (Zamir & Teichman eds., 2014)
35
Mahzarin R. Banaji & Curtis D. Hardin, Automatic stereotyping, 7(3) PSYCHOLOGICAL SCIENCE 136141(1996); Nina Mazar, On Amir & Dan Ariely, The dishonesty of honest people: A theory of self-concept
maintenance, 45(6) JOURNAL OF MARKETING RESEARCH 633-644 (2008); MAX BAZERMAN & DON A. MOORE,
JUDGMENT IN MANAGERIAL DECISION MAKING (2012); FJames Weber, Lance B. Kurke & David W. Pentico,
Why do employees steal? Assessing differences in ethical and unethical employee behavior using ethical work
climates, 42(3) BUSINESS & SOCIETY 359-380 (2003); Gino, supra note 5.
36
For example see: Mazar, Amir & Ariely, supra note 34; David M. Bersoff, Why Good People Sometimes Do
Bad Things: Motivated Reasoning and Unethical Behaviour, 25(1), PERSONALITY AND SOCIAL PSYCHOLOGY
BULLETIN 28–39 (1999); RUSHWORTH M. KIDDER, HOW GOOD PEOPLE MAKE TOUGH CHOICES: RESOLVING THE
DILEMMAS OF ETHICAL LIVING. (2009); Madan M. Pillutla, When Good People Do Wrong: Morality, Social
Identity, and Ethical Behaviour, In SOCIAL PSYCHOLOGY AND ORGANIZATIONS 353-369 (David De Cremer,
Rene van Dijk, & J. Keith Murnighan eds., 2011); James Hollis, Why Good People Do Bad Things:
Understanding our Darker Selves (2008); MAHZARIN R. BANAJI & ANTHONY G. GREENWALD, BLINDSPOT:
HIDDEN BIASES OF GOOD PEOPLE (2013). Note that the “good people” scholarship is usually different from the
type of research conducted by Zimbardo on the Lucifer effect, see: PHILIP ZIMBARDO, THE LUCIFER EFFECT:
UNDERSTANDING HOW GOOD PEOPLE TURN EVIL (2007). These works generally try to explain how ordinary
people end up doing evil or at least engage in gross criminal behaviours.
PSYCHOLOGY REVIEW
the legal enforcement literature that the source of wrong-doing is not necessarily the bad
apples but rather the environment in which they operate.
Various behavioural ethics scholars have attempted to understand the implications of
behavioural ethics to the need to pay closer attention to the situation.
Tenrunsel and Smith-Crowe37 discuss the situational factors which affect the
likelihood of moral awareness and conclude that ethical infra structure is much more
important for the likelihood of moral awareness relative to the individual factors. Along,
those lines, Tenbrunsel and messick38 argue that formal systems, informal systems and
organizational climate are responsible for much of the unethical behaviour, especially
because of the process of ethical fading which is trigged due to euphemism.39
A different perspective could be seen in Boles and Messick research on the ultimatum game,
which proved that the way people view the situation have affected their behaviour.40 For
example, when people first got the money and then the instructions they behaved more fairly
than when they were given the instructions and only then got the money. Other studies show
that using frames such as claim vs. accept or reject, supervisor vs. leader, made a huge impact
on people’s fairness level. Along those lines, Messick have argued that in many situations
people don’t know what are the processes which instruct their behaviour.41 They suggest that
people perceive the situation in relation to “shallow rules, habitual rules and other process,
that generate decision heuristics that is being used in many moral and ethical situations”.
The Non-Deliberative Challenge for Policy Making
The changing perception of people’s cognitive and motivational mechanisms presented
above requires an extensive revision and adjustment of current knowledge before it can be
applied to important questions of policy. Two of the leading scholars of ethical decisionmaking, argue that incentives and similar concepts fail to correct a large portion of unethical
behaviours, because “such measures simply bypass the vast majority of unethical
behaviours that occur without the conscious awareness of the actors, who engage in
37
Ann E. Tenbrunsel & Kristin Smith‐Crowe, 13 Ethical Decision Making: Where We’ve Been and Where
We’re Going, 2.1 THE ACADEMY OF MANAGEMENT ANNALS 545-607 (2008).
38
Ann E. Tenbrunsel & David M. Messick, Ethical fading: The role of self-deception in unethical behavior,
17.2 SOCIAL JUSTICE RESEARCH 223-236 (2004).
39
Based on Bandura, supra note 32.
40
TERRY L. BOLES & DAVID M. MESSICK, ACCEPTING UNFAIRNESS: TEMPORAL INFLUENCE ON CHOICE (1990).
41
David M. Messick, Alternative logics for decision making in social settings, 39.1 JOURNAL OF ECONOMIC
BEHAVIOR & ORGANIZATION 11-28 (1999).
them”.42 This recognition lies at the heart of the paper. Indeed, many of the psychologists
who study ethical decision-making challenge the assumption held by most legal scholars
about self-control, autonomy, and responsibility for action. These assumptions are at the
basis of most external measures, in particular, incentives.
Indeed, law cares about preventing these bad deeds, but for the most part assumes
that people are calculative (i.e. 'bad' in the terminology of the chapter), either when the law
focuses on deterrence or when it focuses on legitimacy, etc. The only serious attempt to
deal with non-deliberative choice is the nudge approach but as I suggested it is very limited
in its treatment of both the law and psychology and doesn’t really offer a discussion on
concepts of morality and ethics. While I do discuss some personality (i.e individual
differences) perspectives, I will not be focusing on creating a separation based on
personality traits between good and bad people. I too, tend to think that for the misconducts
which are less deliberative, the situationist approach is more appropriate and the same
people might be more calculative in some legal domains (e.g. tax evasion) but less
calculative in other. (e.g. employment discrimination).
However, the important point from a policy perspective is this - If someone does
not think that she is being corrupt -- biased by self-interest or discriminatory – biased by a
stereotype, command and control approach are less likely to work, at least not without
proper modifications that will be discussed in the paper. To manage and curb these types of
implicit misconducts, the optimal combination of new and traditional enforcement
mechanisms which will be tailored toward both calculated and non-calculated misconducts
is necessary.
Current research on non-deliberative choices presents a variety of challenges.
However, the focus of the current paper attempts to examine whether there is any way to plan
a differentiated approach to people based on the likelihood of engaging in calculated vs. not
calculated behaviours. At a second level the paper will examine whether there are any scales
which might suggest who are the people who might be more likely to engage in nondeliberative wrong-doing. Such knowledge is needed for coherent implementation of the
differentiated approach suggested in this paper. Hence, the core focus of this paper is on the
implication of the literature on behavioural ethics to the ability of governments and
organizations to deal in a differentiated way with people who are likely to commit bad
42
Max H. Bazerman & Mahzarin R. Banaji, The social psychology of ordinary ethical failures, 17(2) SOCIAL
JUSTICE RESEARCH 111-115 (2004).
actions under the framework of behavioural ethics and those who are likely to commit bad
action under the traditional calculative and intentional model.
While even according to the behavioural literature we have discussed in the past, we
focused mainly on bad people who intend to do wrong and we could have said that there are
minority the people (e.g. the bad apples argument) who are calculative wrong doers from
whom we can protect ourselves as society. The rest of the people were supposed to be treated
with the combination of procedural fairness, legitimacy and social norms.
Behavioural ethics brings to the table the option that many of the bad deeds we are
doing are the process of either intuitive wrong-doing or post hoc self-justified wrong.
Behavioural ethics also brings to the table the power of the situation to a much greater extent,
relative to the traditional behavioural perspective on compliance. If before we have discussed
bad people who will do everything in their power to overcome the constrains of the
government, with behavioural ethics we speak about people who were either unaware or
partially aware of the wrong-doing of their behaviour. One of the dominant voices in the
attempt to differentiate between people based on their willingness to engage in wrong-doing
is Raskolnikov, who focuses mainly on tax evasion.43 In this typology he speaks about
“gamers”44 who would do everything in their power to pay less taxes and in that sense are not
operating as reacting to the situations but are rather planning to do bad things.45 The “gamer”
type discussed by Raskolnikov is similar to the calculated wrong doer model used in classical
deterrence theory. However, what Raskolnikov fails to account for is the fact that even the
people who are not calculative could engage in either intentional or unintentional wrongdoing. Nowadays we are speaking about people who mostly react to a situation that allows
them to do bad things without worrying too much on the consequences of the act on their
consciousness or on their standing in society.
Differences between deliberative and non-deliberative misconducts
An additional important aspect, which needs to be taken into account, is related to the
difference between the type of misconducts created by people intentionally and situationally.
43
ALEX RASKOLNIKOV, REVEALING CHOICES: USING TAXPAYER CHOICE TO TARGET TAX ENFORCEMENT
(2009).
44
See also: Alex Raskolnikov, Crime and Punishment in Taxation: Deceit, Deterrence, and the Self-Adjusting
Penalty, 106(3) COLUM. L. REV. 569-642 (2006).
45
Linda K. Trevino & Stuart A. Youngblood, Bad apples in bad barrels: A causal analysis of ethical decisionmaking behavior, 75(4) JOURNAL OF APPLIED PSYCHOLOGY 378 (1990).
In other words, the difference is not just in the type of people, but also in the circumstances
that allow for these two types. In that regard Kish Gegphart et al.46 have discussed the
difference between the two types of misconducts described by them as Ethical impulse vs.
ethical calculus. In impulse, they suggests, various mechanisms, which are non-deliberative
in nature, operate and enable peoples’ unethical activity. Nonetheless, the exact nature of
non-deliberation always remains somewhat unclear. Their overall model toward compliance
is a combined and consists of three main aspects: the individualistic aspect, the nature of the
moral issue aspect and environment aspect. In the individualistic aspect, they refer mainly to
three sub-aspects: cognitive moral development (Kohlberg), locus of control and propensity
to morally disengage (Bandura). In the moral development issue, they review characteristics
such as moral intensity,47 proximity, social consensus regarding the immorality of the act.
With regard to environment, they review concepts such as moral climate, social norms,
organizational norms and code of conduct enforcement.
Differences from previous research
This approach is very different from the classical treatment of morality in legal
enforcement that can be seen for example in the work of Rest,48 which represents the
traditional, deliberative approach to ethical decision making, where certain people are simply
more likely to be seen as bad people if they basically choose to do bad things.
In a way, this perspective is in direct attack on Tyler’s scenario-based research where
people are being told in a sense what is the situation and they need to ask explicitly what is
the likelihood that they will obey the law in a certain way. If indeed people are unable to
understand their ethical behaviour which is mostly affected by situational heuristics, can
people actually tell us something about their future ethical behaviour.49
Jones was the creator of one of the original views who climes people need to
recognize the moral issue in order to use moral rules.50 One of the new lines of their research
is what has been termed unintended unethicality, where people do believe that their decisions
46
Jennifer J. Kish-Gephart, David A. Harrison & Linda K. Treviño, Bad apples, bad cases, and bad barrels:
meta-analytic evidence about sources of unethical decisions at work, 95.1 JOURNAL OF APPLIED PSYCHOLOGY
(2010).
47
(e.g. Jones 1991)
48
Rest, supra note 4.
49
This ability is being challenged in other parts of the book on various other grounds, related to people inability
to recognize the wrong-doing of their own behaviour. See for example: Mazar et al., supra note 34.
50
Jones, supra note 46.
are moral. They basically create a typology of dependent variables, where decision outcome
is unethical and the process could be either intentional or unintentional.
A more modern approach will combine deliberative and non-deliberative
characteristics of the moral person. For example combining the Kohlberg model of morality
which would suggest that people who are low in the cognitive moral development are likely
to obey authority figures or act merely to avoid punishment51 and combine that with a
measure of Maciavelism – people's ability to manipulate others for their needs. The
distinction we present between intentional and situational measures gets an interesting
interaction with the individual measure, which was shown to affect people’s likelihood of
engaging in unethical behaviour: Their locus of control. According to this dimension, people
who are high on external locus of control , are more likely to see their action as a choice of
the circumstances and hence are more likely to view their ethical choices as beyond their
likely to engage in unethical choices above others. Another important observation is that
those measures do not substitute for another in multiple regressions which means that they
have an independent effect on people’s likelihood of engaging in unethical behaviour.
They also offer a rich account of the self which is far beyond what rational choice
approaches usually account for. While in rational choice, the classical account focuses on
self-gain, in social psychology there are others self-related mechanism, which are not less
important, such as self-perseveration.
What is important for our argument about the ability to connect the automaticity of
ethicality and individual differences, is related to the discussion on the role of automatic
behaviour in ethical decision making – what has been called by Renyold an ‘ethical impulse’
perspective which focus on ways that individuals use prototypes to match ethical situations.52
Thus, according to this perspective, there is something in the situation which needs to trigger
people’s reflexive judgment for them to avoid from engaging in their automatic processing.
What is emerging from this accumulation of growing research on automaticity in moral
reasoning are the limitations of the current usage of moral reasoning in law53. This is
especially true with regard to the self-reported scenarios’ line of research which has been
highly influential on the current behavioural analysis of law research. Under that line of
research one can only capture the motivation of people with regard to behaviours that they
51
(Kohlberg, 1969
Ranyold (2006) ‫חסרה הפנייה לשם המאמר ולכן לא הצלחתי למצוא את המאמר הרלוונטי‬
53
For an excellent review of much of the current research on morality and law, see: EYAL ZAMIR & BARAK
MEDINA. LAW, ECONOMICS, AND MORALITY (Oxford University Press, 2010)
52
fully recognized as being in violation of the law. As the behavioural ethics research suggests
this leaves outside, the behaviours which are not seen as fully illegal.
Inter-relationship among the different individual difference scales:
Tenrunsel and Smith-Crowe54 examine the possible connections between individual
differences which might account for the likelihood that a certain individual will engage in
wrong doing. First, they suggest that uncertainty avoidance is positively related to ethical
sensitivity.55 In addition utilitarians are less ethically sensitive relative to formalists
(individuals who employ deontological or principal based ethics). Finally they suggest that
Values orientation, ethical experience and moral disengagement are more likely to be related
to moral awareness than to aspects such as gender or nationality.56
In attempting of find the relationship between the different possible scales, Raynold et al.
demonstrate that Propensity for morally disengagement is moderately correlated with other
traits such as Machiavelliasnism, moral identity and cognitive moral development.57 Their
overall argument is some sort of an interaction between the moral knowledge on the situation
and the propensity to morally disengage. Which is basically a mixture between the moral
development theory and the social cognition theory.
While, in an attempt to examine predictors for people being either calculative wrong
doers, or situational wrong doers with higher likelihood of engaging in wrong doing, an
important clarification is needed in the context of the interaction between differentiated
approach in law and individual differences. Difference between people from a legal
perspective could mean a different thing than the individual differences concept used in
psychology. For legal scholars, we sometimes need to know that in a given situation, the
reaction of people to a new regulation will vary but those are not necessarily the same. For
example the most classical example is high vs. low intrinsically motivated individuals. The
example of high and low commitment to the values of the law, could differ across different
laws where people with high commitment in the context of one law might not be with high
commitment in a context of a different law. At the same time, many of the individual
differences presented above, do suggest that for some people, there is greater likelihood
that they would violate the law.
54 Tenbrunsel & Smith‐Crowe, supra note 36.
55
(based on Hofstede (198
56
It is interesting to note in that context the findings of Zamir Barak Koren and Ritov regarding the fact that
deontological people are more risk averse. ‫חסרה הפנייה לשם המאמר ולכן לא הצלחתי למצוא את המאמר הרלוונטי‬
57
Raynold et al supra note
Demographic factors:
While, regarding individual differences some argue against the wisdom of attempting to
focus on individual differences in law, due to the difficulty of assessing them ex ante58,
regarding demographic factors, the ability to regulate behaviour ex-ante is much larger. One
can much more easily engage in differentiated regulation, based on demographic relative to
individual differences. However, from the review done by Terbenusell et al., it seems that for
the most part, demographic factors, don’t carry a strong enough predictive value. They find
null to little relationship between factor such as gender, education level etc. Thus,
organizations can avoid picking up bad apples but demographic strategies are not likely to be
useful. With regard to gender, they report mixed findings about the relationship between
gender and unethicality. With regard to culture, there are conflicting studies and they don’t
seem to represent a clear picture. Terbunssel et al. report that while some studies find
relationship between Brazilians and Americans,59 this effect was not found in later studies.
Similar things could be said about some other factors such as age and education, where some
studies are more consistent than others.
Good vs. not so good people?
While the argument developed so far suggests that a whole set of new enforcement
techniques need to accompany the traditional ones with regard to misconducts that are
calculated and those which are not being calculated, the question is whether individual
differences play a role with regard to those types of misconducts. In other words, when we
focus on these types of non-calculated misconducts, can we really treat all of the good people
at the same way? Is it really the case as some of the nudge approach might imply that the
design of the situation is responsible for most of these type of misconducts?
58
Although, see: Ariel Porat & Lior J. Strahilevitz, Personalizing default rules and disclosure with big data, 112
MICH. L. REV. 1417 (2013), in the context of form contract; Omri Ben-Shahar & Ariel Porat, Foreword: Fault
in American Contract Law, MICH. L. REV. 1341-1348 (2009), in the context of personalized negligence. See
also Yuval Feldman & Henry E. Smith, Behavioral Equity, 170(1) JOURNAL OF INSTITUTIONAL AND
THEORETICAL ECONOMICS JITE 137-159 (2014). Their work focuses on how legal ambiguity could be used to
create an ex post acoustic separation between good and bad people.
59
For example, see: Jonathan Haidt, Silvia H. Koller & Maria G. Dias, Affect, culture, and morality, or is it
wrong to eat your dog?, 65.4 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 613 (1993).
In the two case studies that we focused on– employment discrimination and conflict
of interests – should we assume that all people are prone to these self-interests and various
stereotypical biases in a similar way? Is it really the case that all employers engage in implicit
levels of discrimination in the same way? Are all of them likely to use ambiguity to their own
advantage or will ignore cues from reality which contradict their self-interest?
The answers to these questions are somewhat elusive. On one hand as some of the
research we will shortly review suggest, we can definitely identify variation across people,
when it comes to various implicit measures. For example, research on the implicit attitudes
test and individual differences, which became the gold standard in the area of implicit
employment discrimination, suggests that people do differ.60 The IAT basically gives people
a score which predicts to some extent people’s explicit behaviour. For example, in a legal
context, research done in the area of judicial decision making has shown how IAT score of
judges affected their discriminatory behaviour against black defendants.61 Similarly, in the
controversy around IAT as a screening mechanism for employees in Walmart, much of the
discussion regards the ability of the IAT to serve as a screening mechanism which inform
employers about the future behaviour of job candidates.
Similarly, Frederick's CRT (cognitive reflective test) is another example for a
measure which could prove valuable for any interest in implicit misconducts.62 This scale
rates people based on the likelihood that they will use sys 2 to overcome sys 1. The main
focus of the studies done on the basis of this scale is related to the findings connection
between people’s CRT grades and various other behavioural measures.63
Two additional scales more directly related to implicit predictors of ethical behaviour
are propensity to morally disengage and moral identity. Based on Bandura's famous concept
related to moral disengagement, is a scale of propensity to morally disengage.64 Moore has
60
Anthony G. Greenwald, Debbie E. McGhee & Jordan L. Schwartz, Measuring individual differences in
implicit cognition: the implicit association test, 74(6) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY
1464 (1998); Anthony G. Greenwald, Andrew T. Poehlman, Eric L. Uhlmann & Mahzarin R. Banaji,
Understanding and using the Implicit Association Test: III. Meta-analysis of predictive validity, 97(1) JOURNAL
OF PERSONALITY AND SOCIAL PSYCHOLOGY 17 (2009).
61
Jeffrey J. Rachlinski, Sheri L. Johnson, Andrew J. Wistrich & Chris Guthrie, Does unconscious racial bias
affect trial judges?, 84(3) NOTRE DAME L. REV. 9-11 (2009).
62
Shane Frederick, Cognitive reflection and decision making, JOURNAL OF ECONOMIC PERSPECTIVES 25-42
(2005); Maggie E. Toplak, Richard F. West & Keith E. Stanovich, The Cognitive Reflection Test as a predictor
of performance on heuristics-and-biases tasks, 39(7) MEMORY & COGNITION 1275-1289 (2011).
63
Toplak, West & Stanovich, supra note 61; Joseph M. Paxton, Leo Ungar & Joshua D. Greene, Reflection and
reasoning in moral judgment, 36(1) COGNITIVE SCIENCE 163-177 (2012).
64
Bazerman & Moore, supra note 34.
attempted to use this concept to create a typology of people based on the likelihood that they
would engage in ordinary unethicality at the workplace. Focusing on the ability of people to
find excuses for imposing harm on others (e.g he had it coming, it would have happened
without me, etc.). A related concept is called moral firmness.65 This scale differentiates
between people’s likelihood of engaging in misconducts based on their likelihood of
exploiting some ambiguity. Finally, Moral identity of Aquino and the various researches that
are based on his measures, found that people’s likelihood of doing harm, even implicitly,
could be different across different situations based on their level of moral identity.66
Rule conditionality
In a paper in progress, I have collaborated with Fine and Von Rooji and others to
create a new individual difference which brings to the table many of the qualities of
behavioural ethics in a concept entitled, Rule Conditionality. The items which create this
scale were validated in a way which allowed us to understand what kind of people are more
likely to think about legal rule violation in grey terms (i.e., seeing more acceptable
conditions) and which people see violations in black and white terms (i.e., a rule is a rule and
there are no acceptable conditions to break it). Results from that paper indicate that the
distribution of scores of the Rule Conditionality variable follow a normal distribution,
suggesting that there is a spectrum of Rule Conditionality. In essence, there is likely variation
in “rule conditionality” that indicates how much one perceives general, acceptable
circumstances for violating the law.67 However in contrast to the procedural justice argument,
which represents an explicit measurement of people's evaluation of the different institutions,
Rule Conditionality is not necessarily tied to, and is not necessarily derived from, one’s
65
Shaul Shalvi & David Leiser, Moral firmness, 93 JOURNAL OF ECONOMIC BEHAVIOR & ORGANIZATION 400407 (2013).
66
Karl Aquino, Dan Freeman, Americus Reed II, Vivien K. Lim & Will Felps, Testing a social-cognitive model
of moral behavior: the interactive influence of situations and moral identity centrality, 97(1) JOURNAL OF
PERSONALITY AND SOCIAL PSYCHOLOGY 123 (2009).
67
In that paper which relied upon the work of Shalvie et al. on moral firmness (see Shalvie et al., supra note 64)
and that of Bandura on moral disengagement (see Bandura, supra note 32), it was shown that there is an
individual variation in how people view the morality of unethical behaviour. When we apply the concept of
moral variation in both firmness and disengagement to the legal realm, we also see that individuals may vary in
the extent to which they see circumstances under which violating legal rules would be acceptable
.
experiences with the justice system. For example, one is not expected to be more or less rule
conditioned based on he's perceptions of how the laws were created, whether they are enacted
fairly, or how he perceives the legitimacy of the legal system and its actors.
The accumulation of this knowledge raises the questions of whether even when we
focus on good people’s misconducts, we will need to account for variation among people.
However, the size of the effect of these scales as well as the fact that we need to be able to
predict the connection between them and the whole array of behaviours in order to have a
comprehensive difference between the way states treat people, creates a mixed response to
the need to expand the good/bad dichotomy to what could be called bad, good and ‘not so
good’ people. In other words, while there is variation even in the likelihood of people
engaging in misconducts who can be seen clearly without any calculation, it is not fully clear,
what is the legal implication of this variation.
Current research on behavioural ethics is not very clear on the level of awareness
associated with this ordinary unethicality. Some scholars differentiate between intentional
unethicality – where people know that their behaviour is bad but are unware of the reasons
that led them to engage in doing harm, and unintentional unethicality, where people are not
even aware of the fact that what they are doing is wrong.68 Others differentiate between
system 1 and system 2 mechanisms which are responsible for the wrong doing of people.69
Thus, it seems that even when it comes to ordinary unethicality we need to know more on
what leads people to engage in situational wrong-doing. This is needed for a few reasons.
First from a legal perspective, we are required to answer question of responsibility, not to
mention the criminal aspects of such behaviour, which naturally requires more knowledge on
people’s state of mind. Second, from a more practical perspective, knowledge on individual
difference is also important in order to examine whether here too we still need to have
tailored made enforcing mechanisms. If a certain design of tax is likely to cause 20% or 80%
of the people to evade taxes, this would naturally change legal policy makers need to use
additional enforcement mechanisms. Third, even the design of the situation itself is not cost
free (in a similar way to the crowding out argument, designing a situation without ambiguity
carries various costs as well). Orly Lobel and I have attempted to show that the nudge
68
69
Gino, supra note 3.
Shaul Shalvi & Yoella Bereby-Meyer (under revision).
approach associated with the work of Sunstein and Tahler70 on the topic carries with it
various procedural and motivational costs.71 Thus, understanding the variation in the response
of people to the situation is important not only to the design of enforcement approaches but
also to knowing in advance, the extent to which the situation needs to be designed in a way
which would minimize ordinary misconducts.
Tentative conclusion:
Thus far, we have presented the differences between misconducts which were the
topic for research on enforcement motivation and lead to the variety of traditional
mechanisms (e.g. command and control, procedural fairness) and the type of misconduct that
even good people could engage in. With this recognition , that the second type of misconduct
could “happen to everyone” due to various behavioural ethics mechanisms, we have raised
the question whether indeed it is more likely to happen to some people relative to others. It
seems that indeed even with regard to the situational wrong doing, there are still some
paradigms which affect people’s propensity to engage in non-calculated misconducts. While
we believe this line of research to be highly promising and important, in the next paragraph
we will focus on how states and organizations should react to the larger distinction between
calculated and situational misconducts.
Understanding the challenges:
With that task in mind, we need to understand what are the challenges states are
facing when dealing with the ordinary unethicality, which the research we have reviewed
suggests, could happen to almost everyone.
First, the main implication of this line of research is that the percentage of people who we
need to worry about to curb those type of misconducts is greater. While the classical
approach in much of the deterrence literature speaks of the notion of bad apples, the
70
RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND
HAPPINESS (2008).
71
Lobel & Feldman, supra note 2.
behavioural ethics approach suggests (with the caveat on a variation within this literature)
that all or almost all people could do wrong, in the correct situation.
Second, with the expansion of the people whose misconduct we need to worry about,
comes the complementary observation. This wrongful behaviour is less stable and more
malleable, much more prone to changes in the situation. If in the classical approach, we speak
about people who might find other ways to do wrong, in the ordinary unethicality we might
be speaking on people who might cease to do wrong if their awareness is being challenged.
For example, let’s take the concept of tax evasion. There is a big difference between
situations where we try to close loop-holes, where people are expected to look for other
loopholes, and situations where we try to ask people to declare any uncertainty they might
have in their tax statement, to make it hard for them to use some moral wiggle room in their
advantage.72 In the second context, we want to prevent the ability of people to do wrongs and
still feel good about themselves. This malleability of behaviour imposes great responsibility
for policy makers, as they don’t just need to stop holes, they might end up altering the
behaviour of people from good to bad and vice versa. Creating it, rather than just shifting it
when dealing with calculated wrong doers.
Third, an additional challenge for states and organization is the need to change the
behaviour of good people who we know much less about. For example how much can we
know ex ante about the awareness to and controllability of bad behaviour of good people?
How can we know that the “goodness” is genuine rather than strategic? Are the traditional
enforcement practices, effective in curbing non-deliberative behaviour or implicit judgments?
Implications – how to deal with calculated and situational wrong-doers at the same time.
[This part is very preliminary]
In this part I will discuss the ability of policy makers to use the newer intervention
methods, designed with the view of people’s limited awareness and cognition. Among those
methods, one can list the various training methods which were designed to shape people's
cognitive schemas by exposing them to conflicting stimuli.73 One of the most famous and
72
Compare with Yuval Feldman, Amos Schurr & Doron Teichman, Reference points and contractual choices:
An experimental examination, 10(3) JOURNAL OF EMPIRICAL LEGAL STUDIES 512-541 (2013).
73
Patricia G. Devine, Patrick S. Forscher, Anthony J. Austin & William W. Cox, Long-term reduction in
implicit race bias: A prejudice habit-breaking intervention, 48(6) JOURNAL OF EXPERIMENTAL SOCIAL
PSYCHOLOGY 1267-1278 (2012).
central methods is the nudge- an intervention that changes individual's behaviour in an
anticipated way, without altering the economic incentives or banning any other possibilities.74
Nudges were also tested in the context of ethical behaviours.75 The de-biasing intervention is
a grouping of doctrines and methods that are applied in order to overcome biased thoughts.76
Reflection is one of the main aspects in cognitive behaviour therapy. Reflection helps to
identify and test thoughts and underlying assumptions. In the context of legal intervention,
reflection would refer to forcing individuals to consider for a few more seconds the meaning
of their action. This approach is also related to the concept of accountability, where
individuals are expected to explain why they made a certain decision after they make it.77
Some research suggests that accountability might curb some types of biases. An additional
non-traditional approach associated with behavioural economics is related to Framing and
context effects, where similar things can be seen differently just by a twist of the reference
point.78 Finally, another new regulatory approach is the a Targeted approach that
differentiates between people based on their motivational and cognitive styles. In my current
work, I have created the theoretical infrastructure for approaching the different segments of
the population based on their level of commitment to follow the law according to few
studies.79
Can states deal with both calculated and situation wrong-doer at the same time?
The research described above lead to few main recommendations for policy makers.
First, much of the behavioural research has shown the value of creating differentiated
regulation. The idea of no "one policy fits all" was discussed in earlier work of mine that
focused on the differences between intrinsic and extrinsic motivation of people and how to
create policies that fit both types of populations.80 Part of the rationales I discuss in these
papers, claims that financial instruments are highly effective for people with low intrinsic
74
Thaler & Sunstein, supra note 69.
Various studies have focused on what have been called ethical nudges – teddy bears, and babe anthems?.
[citations in other file]
76
Christine Jolls & Cass R. Sunstein, Debiasing through law, (No. w11738) NATIONAL BUREAU OF ECONOMIC
RESEARCH (2005).
77
Jennifer S. Lerner & Philip E. Tetlock, Accounting for the effects of accountability, 125(2) PSYCHOLOGICAL
BULLETIN 255 (1999).
78
Yuval Feldman, Amos Schurr & Doron Teichman, Anchoring Legal Standards (2014). Available at: SSRN
2408193.
79
Feldman &. Smith, supra note 57; Feldman & Perez, supra note 15.
80
Compare with Feldman & Lobel, supra note 16; Feldman & Perez, supra note 15.
75
motivation, but could be devastating for people with high intrinsic motivation because of the
crowding out phenomenon.81 In addition to the effect of variation regarding incentives, one
can think of the parallel move of variation in effect of morality, where some people are more
likely to react to moral language, relative to other approaches.82
Taking a different route, Henry Smith and I have proposed an acoustic separation
argument that is based on the usage of ambiguity.83 We have argued that different types of
people would react differently to legal ambiguity; where for some people ambiguity would
harm the ability to find loopholes, for others it might allow various self-deception
mechanisms associated with the moral wiggle room. A different approach to deal with the
two populations is related to the question whether to increase the focus on detection or
punishment. Presumably, with the good people who don’t feel that they are doing anything
wrong, the focus is on detection, since increasing punishment is not going to be highly
influential on them. However, for the calculated people the size of punishment is much more
important and they are even less likely to think they will be detected due to various
perceptual biases, even when they know their behaviour is either illegal or against
organizational rules.
Other general enforcement approaches that this line of research is leading to call to
add enforcement techniques which are aimed at good people but are less likely to affect or
crowd out the calculated wrong-dowers. For example, adding to a tax form, a requirement to
add a declaration of the uncertainty the individual taxpayer had faced, might cause some
situational wrong doer to be more careful in their reports but is not necessarily likely to
change the calculated wrong doer's behaviour. Similar things could be said on other ethical
nudges such as signing first on financial forms.84
Taxonomy of Legal Doctrines [To Be Completed]
Acoustic Separation Approach [ To Be completed]
81
Compare with Feldman, supra note 8.
Compare with Aquino, supra note 64.
83
Feldman & Smith, supra note 78.
84
Lisa L. Shu, Nina Mazar, Francesca Gino, Dan Ariely & Max H. Bazerman, When to Sign on the Dotted
Line?: Signing First Makes Ethics Salient and Decreases Dishonest Self-reports, HARVARD BUSINESS SCHOOL
(2011).
82
Approach developed in two different paper suggest that it is possible for states to use legal
ambiguity to separate between calculated and situational wrong doers.
In a work done with Lifshitz,85 I have examined the ability of legal uncertainty to reduce the
likelihood of people to intentionally use the law in such a way which would undermine its
purpose. The argument developed in this paper is that for people who focus on maximizing
the benefits they get from the law, legal uncertainty might create a mask which would force
them to base their decisions on economic and social factors, rather than on purely legal ones.
For example, we would like an employer to use different employment frameworks based on
economics consideration (e.g need for flexibility) rather than on legal ones. In a similar way
we discussed the advantage of causing corporations to take risks without knowing ex-ante in
what conditions will the government come to bail them out, or else they would rely on the
law to take excessive risks.
This idea was further developed with a joint work with Smith86 on….behavioral equity
Demonstration of the treatment of good and bad people in two case studies; implicit
discrimination and implicit corruption-
To put the above arguments in more concrete context, I will demonstrate the need to treat
different types of misconducts in two contexts, employment discrimination and corruption.
Implicit vs. Explicit Corruption
While some scholars have argued that moral judgments and decisions are the result of
reasoning and deliberation, others argued that self-interest is an automatic primary motive that
needs to be constrained by appropriate inhibitory mechanisms.87 It has been shown that people
truly believed their own biased judgments, with limited ability to recognize that their behaviour
85
Yuval Feldman & Shahar Lifshitz, Behind the Veil of Legal Uncertainty, 74 LAW & CONTEMP. PROBS. 133
(2011).
86
Feldman & Smith (2014)
87
For example: Don A. Moore & George Loewenstein, Self-interest, automaticity, and the psychology of
conflict of interest, 17(2) SOCIAL JUSTICE RESEARCH 189-202 (2004).
was affected by their own self-interest.88 A similar view showed that the level of control needed
to behave ethically is much higher than the level needed to behave unethically.89 While indeed
the literature in this area is still debated,90 clearly from an applied perspective, the behaviour
of “good people,” attest to the need of understanding implicit corruption.91
For example, in the medical field, we have described the fertile ground for conflicts of
interest, where even scientist who believe they are doing what’s is best for public health,
might end up, engaging in behaviours favoring the entities which pay them.92 A frequent
example is clinical studies financed by pharmaceutical companies, providing an incentive for
physician-researchers to reach certain results.93 An additional example is the transition of
professionals from the public to the private sector. This is a common phenomenon, which is
highly problematic for the ability of public sector employees to focus only on the interest of
the public.94 This process, referred to as the "revolving doors," presents a possible conflict of
interest if officials abuse their public position for the purpose of a personal benefit within the
private sector.95 However, the problem is much greater. A prime example of such concern is
the hypothesis that anticipation of future opportunities in regulated firms may cause
regulators to be less aggressive when administering regulatory policy, even without full
awareness to their actions or to the lack of them.96 In many other areas, including those of
lawyers vis-à-vis their clients, executives vis-à-vis shareholders, prosecutors in plea bargains,
and academics involved in the promotion of their colleagues, most good people may believe
The measurement of “private” evaluations was done by giving participants incentives to be accurate in their
predictions. See: Celia Moore, Colleen H. Stuart & Jo-Ellen Pozner, Avoiding the Consequences of Repeated
Misconduct: Stigma’s Licence and Stigma’s Transferability, INSTITUTE FOR RESEARCH ON LABOR AND
EMPLOYMENT (2010).
89
Gino et al., supra note 32.
90
For example: Fiery Cushman, Liane Young & Marc Hauser, The role of conscious reasoning and intuition in
moral judgment testing three principles of harm, 17(12) PSYCHOLOGICAL SCIENCE 1082-1089 (2006).
91
Lawrence Lessig, Republic, lost, TWELVE, NEW YORK (2011); Yuval Feldman, Rebecca Gauthier & Troy
Schuler, Curbing misconduct in the pharmaceutical industry: insights from behavioral ethics and the behavioral
approach to law, 41(3) THE JOURNAL OF LAW, MEDICINE & ETHICS 620-628 (2013).
92
Feldman et al., supra note 90.
93
For example: Marc A. Rodwin, Physicians' conflicts of interest: the limitations of disclosure (1989) Available
at: SSRN 1012156; Marc A. Rodwin, Conflicts of interest, institutional corruption, and Pharma: an agenda for
reform, 40(3) THE JOURNAL OF LAW, MEDICINE & ETHICS, 511-522 (2012); Mark Friedberg, Bernard Saffran,
Tammy J. Stinson, Wendy Nelson & Charles L. Bennett, Evaluation of conflict of interest in economic analyses
of new drugs used in oncology, 282(15) JAMA 1453-1457 (1999); Alan L. Hillman, Financial incentives for
physicians in HMOs. Is there a conflict of interest?, 317(27) THE NEW ENGLAND JOURNAL OF MEDICINE 17431748 (1987).
94
Yeon-Koo Che, Revolving doors and the optimal tolerance for agency collusion, 26(3) THE RAND JOURNAL
OF ECONOMICS 379 (1995).
95
General Motors Corp. v. City of New York, 5oi F.2d 639, 65o n.20 (2d Cir. I974).
96
For example see: Che, supra note 93.
88
that the option that promotes their self-interest is also the correct one. Thus, in such
situations, there is limited wisdom in threatening people with punishments for being corrupt,
when they do not view themselves as doing anything different from others.
Along those lines, Gutier Shuller and I have recently studied the ability of
governments to deal with the alleged corruption in the pharmaceutical industry through a
process of targeting in a differentiated way multiple audiences and examining the extent to
which the more likely misconduct of a particular audience is intentional. We argued that
states should treat differently marketing and labeling techniques which will enrich the
corporation, misconducts which is likely to be carried out by executives in pharmaceutical
companies, then motivated reasoning biases in conducting research which cause scientists
who work in these companies to find excessive evidence for the success of their companies’
drugs in clinical trials. While incentives are highly likely to affect the first type of population
and the first type of misconduct, the second type of misconducted is better targeted with an
accountability approach.
Corruption of good/bad people – some tentative solutions:
In some cases, different interests will have a differentiated effect on good vs. bad people, for
example: Non-monetary self-interest might have greater corrupting effect on good people
than on bad people. The reason is that it might be easier for good people to find excuses for
doing bad things for non-monetary rationales than for monetary ones. It might be easier for
good people (relative to bad) to block monetary influence as such influence is more easily
seen as being corrupt. Along those lines, while for calculated people, one might think that the
stronger the financial ties the greater the fear from such influence. For situational wrong
doers, partial dependency might have greater effect on good people relative to full
dependency and they might be less likely to recognize the wrong-doing, associated with that
influence. Furthermore, in such situations it might be easier to find room for justifiability and
for self-deception hence situational wrong doers might lower their guard against such
influence.
An additional context, where we might see effects in the opposite directions on
calculated vs. situational wrong-doers is related to the concept of corruption for the sake of
others.97 From a rational choice perspective a calculated wrong-doer is expected to do more
97
Francesca Gino, Shahar Ayal & Dan Ariely, Self-serving altruism? The lure of unethical actions that benefit
others, 93 JOURNAL OF ECONOMIC BEHAVIOR & ORGANIZATION 285-292 (2013).
wrongs, when he will personally gain more from the misconduct. However, from a
behavioural ethics perspective the situational wrong doer, is expected to do more when the
benefit from the harm is not going to oneself but to others, due to the various mechanisms he
can employ.98
Employment Discrimination
Relative to other areas of law, the incorporation of psychology in the area of employment
discrimination is one of the most advanced. It has been shown that conscious and
unconscious processes interact without an individual's full awareness of the fact that
discrimination even occurs. Krieger’s work laid the groundwork for the interaction between
law and psychology in the area of employment discrimination. Legal scholars, most notably
Krieger, have suggested that many biased employment decisions result not from
discriminatory motivation, but from a variety of unintentional judgment errors of
categorization.99
More recently, the importance of system 1 in discriminatory behaviour was
demonstrated in the work of Agerström and Rooth.100 In their study, participants’ likelihood
of hiring people who are overweight was affected by their implicit attitudes toward obesity.
Nonetheless, while the research on the power of implicit biases in employment discrimination
98
Anastasia Danilov, Torsten Biemann, Thorn Kring & Dirk Sliwka, The dark side of team incentives:
Experimental evidence on advice quality from financial service professionals, 93 JOURNAL OF ECONOMIC
BEHAVIOR & ORGANIZATION 266-272 (2013).
99
Anthony G. Greenwald & Linda H. Krieger, Implicit bias: Scientific foundations, CAL. L. REV. 945-967
(2006); Linda H. Krieger & Susan T. Fiske, Behavioral realism in employment discrimination law: Implicit bias
and disparate treatment, CAL. L. REV. 997-1062 (2006); Linda H. Krieger, The content of our categories: A
cognitive bias approach to discrimination and equal employment opportunity, STAN. L. REV. 1161-1248 (1995);
Linda H. Krieger, Foreword--backlash against the ADA: Interdisciplinary perspectives and implications for
social justice strategies, 21(1) BERKELEY JOURNAL OF EMPLOYMENT AND LABOR LAW (2000); Melissa Hart,
Subjective decisionmaking and unconscious discrimination, 56 ALA. L. REV. 741 (2005); Christine Jolls & Cass
R. Sunstein, The law of implicit bias, CAL. L. REV. 969-996 (2006); Stephen M. Rich, Against Prejudice, 80
GEO. WASH. L. REV. 1 (2011); Glenn D. Reeder & John B. Pryor, Dual psychological processes underlying
public stigma and the implications for reducing stigma, 6(1) MENS SANA MONOGRAPHS 175 (2008); Cara A.
Talaska, Susan T. Fiske & Shelly Chaiken, Legitimating racial discrimination: Emotions, not beliefs, best
predict discrimination in a meta-analysis, 21(3) SOCIAL JUSTICE RESEARCH 263-296 (2008); Eric L. Uhlmann,
Victoria L. Brescoll & Edouard Machery, The motives underlying stereotype-based discrimination against
members of stigmatized groups, 23(1) SOCIAL JUSTICE RESEARCH 1-16 (2010); Lisa R. Anderson, Roland G.
Fryer Jr & Charles A. Holt, Discrimination: evidence from psychology and economics experiments, HANDBOOK
ON ECONOMICS OF RACIAL DISCRIMINATION 97-115 (2006).
100
Jens Agerström & Dan-Olof Rooth, The role of automatic obesity stereotypes in real hiring discrimination,
96(4) JOURNAL OF APPLIED PSYCHOLOGY 790 (2011).
is overwhelming, its impact on law is relatively marginal. With the richness of the
behavioural findings on employment discrimination, the lack of responsiveness of the law is
indeed frustrating. Thus, while in our terminology, it seems that for the most part,
employment discrimination laws are much better suited to deal with calculated wrong-doers
than with situational wrong-doers. Along these lines, Krieger and Fiske discussed much of
the anachronistic nature of U.S laws in this area from both jurisprudential and practical
aspects, including the need to show intention, and to find evidence for what occurred in the
stage of the discrimination.101
To make the law more tailored to implicit discrimination, scholars have suggested
various ways through which the law could be more sensitive to uncovering employment
discrimination. For example, ways to make the litigation processes more tailored to uncover
implicit bias.102
Research on the non-rational aspects of discrimination is related to social and cognitive
psychology research on intergroup psychology.103 Over the years, social psychology focused
on the stereotyping processes as one of the central processes being in charge of implicit
discrimination.104 Fiske’s work is especially promising because it offers a more nuanced and
multi-dimensional approach to discrimination.105
Here too, while there is a recognition in the role of situational, implicit discrimination that
happens with the employer's limited awareness, clearly the inability of policy makers to deal
with this type of discrimination is evident. An even harsher problem is related to the need of
policy maker to deal with two types of employment discrimination, calculated and situational
at the same time. In the following paragraph we present some directions, which could help
mitigate some of the challenges associated with regulating discrimination processes which
operate on different level of intentionality and awareness.
101
See also: Christopher Cerullo, Everyone's a Little Bit Racist: Reconciling Implicit Bias and Title VII, 82
FORDHAM L. REV. 127 (2013). For a review of U.S courts treatment of implicit biases, see Krieger & Fiske,
supra note, 98).
102
Natalie B. Pedersen, A Legal Framework for Uncovering Implicit Bias, 79 U. CIN. L. REV. 97 (2010).
103
Henri Tajfel, Social identity and intergroup relations, CAMBRIDGE UNIVERSITY PRESS (2010); Henri Tajfel &
John C. Turner, An integrative theory of intergroup conflict, 33(47) THE SOCIAL PSYCHOLOGY OF INTERGROUP
RELATIONS 74 (1979).
104
For reviews, see: Susan T. Fiske, Stereotyping, prejudice, and discrimination, THE HANDBOOK OF SOCIAL
PSYCHOLOGY 357–411 (DT Gilbert, ST Fiske, & G. Lindzey Eds., 1998); Brown, 1995;
105
Susan T. Fiske, Stereotyping, prejudice, and discrimination at the seam between the centuries: Evolution,
culture, mind, and brain, 30(3) EUROPEAN JOURNAL OF SOCIAL PSYCHOLOGY 299-322 (2000).
Normative Solutions:
Statistical enforcement: one of the ideas that should be pursued is the notion of
Statistical unethicality, which basically recognizes the difficulty in finding out the state of
mind of the individual wrong-doer. The basic idea is that while we cannot always tell if a
certain decision was done with ill intentions, we should focus, when possible, on the
aggregated pattern of those decisions. This is done for example in various employment
discrimination contexts, where a certain hiring or a promotion procedure could not be seen as
biased until one is looking at the aggregation of many decisions occurring in one workplace
over time.106 Work done by Porat and Posner on aggregation and the law, in the context of
normative aggregations, builds the theoretical framework for learning on people behaviour
based on aggregated data.107 Taking this concept to the area of regulating the bounded
ethicality of people might suggest that through aggregation it might be possible to better
understand various ethical biases of people, which might not even be clear to the person
making the decision. Such approach is especially important for dealing with situations when
people believe their behaviours are done solely by relevant and permissible consideration, but
only aggregated data could allow for a closer look at people full set of motives.
Masked applications: An additional approach which was used in other countries and
could be modified to deal with the situational wrong doer is the masked applications approach.
A relatively new approach taking into account that hiring managers might at least partially
discriminate against their own will and are prone to automatic biases through stereotype
information, calls for the removal of stereotypical information (i.e. gender, a potential migrant
background, marital status and age) from application files. In one of the classic studies on
masking personal information, Goldin and Rouse have shown that musicians who performed
auditions, when their gender was concealed were more likely to pass both the screening and
the hiring stage in a gender natural way.108 In the employment context, Lumb and Veil have
shown that an attempt to help non- European candidate to get accepted to medical school was
proved unsuccessful, possibly due to the ability of application evaluators to recognize one’s
origin.109 In a study conducted in Sweden by Åslund & Skans, it was found that anonymous
106
Compare with: Susan Sturm, Second generation employment discrimination: A structural approach, 101
COLUM. L. REV. 458-568 (2001).
107
Ariel Porat & Eric Posner, Offsetting Benefits, 100 VA. L. REV. 1165 (2014).
108
Claudia Goldin & Cecilia Rouse, Orchestrating impartiality: The impact of "blind" auditions on female
musicians, w5903 NATIONAL BUREAU OF ECONOMIC RESEARCH (1997).
109
Lumb and Veil (2000)
application have proved effective for both race and gender for getting people to come to
interviews.110 However, chances of being hired were improved only for gender related
discrimination and not for race based discrimination. In a study conducted in the Netherlands
by Bøg & Kranendonk, which focused mostly on ethnicity, a small effect was present in the
invitation for interview decision, which completely disappeared in the hiring process. 111 In a
European study on the market for economics PhDs, masking personal information was shown
to have a reversed effect in that fewer female applicants received invitations for interviews,
relative to the traditional approach.112 In a pilot project, raised by the German AntiDiscrimination Agency, recruiting departments received only depersonalized applications
where personal data was omitted. The results of the project were announced quite
enthusiastically as a successful potential change in hiring procedures. Managers as well as
applicants reported that they perceived the process as more fair and some applicants even stated
that they estimated that their chances of being invited to a job interview were higher in the
course of depersonalized procedures than in conventional ones.
Two tier expressive approach: An additional solution to deal with both implicit and explicit
discrimination is related to an idea which was first advocated by Krieger.113 The idea is to
come with different names for intentional explicit discrimination and implicit discrimination.
Such approach prevents a situation, where people who engage in situational wrong-doing and
those engaged in intentional wrong-doing will be treated in a similar way. Such similar
treatment undermines the social condemnation which intentional wrong-doers could receive.
Restructuring the hiring process:
An additional approach to employment discrimination is related to redesigning the hiring and
promotion procedures based on knowledge accumulated on how people make these decisions.
Among those changes to the hiring procedures which are supposed to deal with both implicit
and explicit discrimination, one can list the following:
110
Olof Åslund & Oskar N. Skans, Do anonymous job application procedures level the playing field?, Working
Paper No. 2007: 31., IFAU-INSTITUTE FOR LABOUR MARKET POLICY EVALUATION (2007).
111
Martin Bøg & Erik Kranendonk, Labor market discrimination of minorities? yes, but not in job offers,
MUNICH PERSONAL REPEC ARCHIVE (2011).
112
Annabelle Krause, Ulf Rinne & Klaus F. Zimmermann, Anonymous job applications of fresh Ph. D.
economists, 117.2 ECONOMICS LETTERS 441-444 (2012).
113
Krieger, supra note 98.
--Teams decision rather than individual ones (developing the idea teams are less prone
to some of the biases).
--Training against implicit biases.114
--Joint vs. separate evaluation.115
---Regulating the information employers are exposed to with regard to employees
--- Accountability through process of detailed explanation for decision to accept and
not to accept various candidates
Limitations and future research [to be completed]
 Very abstract experimental paradigms make it hard to draw direct practical
conclusions. (e.g. there is a difference between the conflict of interest used in labs and
the one people face, where they feel that their career is on the line).
 Good/bad alignment with individual differences is more limited than anticipated and
seems to vary across different behaviours and contexts.
 The nature of the unethical behaviour which is usually being studied in the lab is such
that people report a number from a dice, over-report the number of questions that they
have answered or give a different number from the screen. In real life, unethical
behaviours are more complex to be done without any deliberation which raises doubts
on the external validity of some of the lab studies involving unethical behaviour.
 Lack of consensus among researchers on basic concepts, limit the ability to base
policies on main effects. For example, would giving people more or less time when it
comes to situational misconduct increase or decrease the likelihood that they would
engaging in wrong-doing.116
114
Following line of research by: Sophie Lebrecht, Lara J. Pierce, Michael J. Tarr & James W. Tanaka,
Perceptual other-race training reduces implicit racial bias, 4(1) PLOS ONE e4215 (2009); Laurie A. Rudman,
Richard D. Ashmore & Melvin L. Gary, "Unlearning" automatic biases: the malleability of implicit prejudice
and stereotypes, 81(5) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 856 (2001).
115
Following Research by Bohnet, Bazerman & Van Geen. See: Iris Bohnet, Max H. Bazerman & Alexandra
Van Geen, When performance trumps gender bias: Joint versus separate evaluation, Working Paper Series
RWP12-009, HKS FACULTY RESEARCH (2012).
116
For example: good/bad intuition- dissenting views of David G. Rand, Joshua D. Greene & Martin A. Nowak,
Spontaneous giving and calculated greed, 489(7416) NATURE 427-430 (2012); Shaul Shalvi, Ori Eldar &
Yoella Bereby-Meyer, Honesty requires time (and lack of justifications), 23(10) PSYCHOLOGICAL SCIENCE
1264-1270 (2012).
 This lack of consensus is also evident with regard to importance of the methodology.
For example, the meaning of methods such as time pressure (how much time?) ego
depletion (how hard?), the Debate on the validity of methods such as IAT and fMRI
with regard to functions which are of high importance for policy making (e.g
consistency of measures, predictability of behaviour across situations).
Furthermore, there are some theoretical limitations in the ability of policy makers to
employ the knowledge accumulated in behavioural ethics into public policy. For
example, many of the effects studied with regard to priming and ethical nudges are
lab-based and short termed. Numerous problems could account for why some of these
effects may get diluted in the field. Similarly, much of the foundations for this claim
that call for a differentiated treatment of good and bad people, is related to how
genuine is the inability of good people to recognize the wrong doing of their
behaviour. However, there is very little research on that topic, a fact which limits the
ability to remove responsibility from those good people as it is very hard to rule out
the option of them playing it dumb to avoid punishment.