Abstract
Illegal and unethical conduct often proliferates around ethical blind spots—scenarios and situations in which ordinary law-abiding people find it difficult to identify the harmfulness of their own actions. Ideally, regulators should act to diffuse ethical blind spots by trying to improve ethical awareness of potential perpetrators, in order to reduce wrongdoing. In practice, however, regulators might have a distorted incentive to conserve ethical blind spots rather than diffuse them. Regulators seek to bolster their perceived effectiveness by demonstrating intensive and rapid enforcement activity. To do so, regulators might prefer to ignore the underlying cognitive causes of unethicality, and instead constantly sanction those wrongdoers who repeatedly fall into the same trap of unintentional wrongdoing. We explore the origins of this problem in common regulatory incentive structures and in the standard design of legal norms.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Feldman and Kaplan (2020a).
- 2.
- 3.
Horn (1995).
- 4.
Feldman and Kaplan (2020a).
- 5.
- 6.
Amir et al. (2016).
- 7.
- 8.
See for example, Gino et al. (2010).
- 9.
Miceli (2004), “The economic approach to law assumes that rational individuals view legal sanctions [monetary damages, prison] as implicit prices for certain kinds of behavior, and that these prices can be set to guide these behaviors in a socially desirable direction”; Hirsch (1988), “Laws are authoritative directives that impose costs and benefits on participants in a transaction and in process after incentives”; Shavell (2002), “It is evident that both law and morality serve to channel our behavior. Law accomplishes this primarily through the threat of sanctions if we disobey legal rules”.
- 10.
For a review see Bazerman and Gino (2012).
- 11.
Feldman (2018).
- 12.
Mazar et al. (2008).
- 13.
Mazar et al. (2008).
- 14.
Feldman and Kaplan (2020b).
- 15.
Feldman and Kaplan (2020b).
- 16.
Feldman and Kaplan (2020b).
- 17.
- 18.
Bazerman and Tenbrunsel (2011).
- 19.
Bazerman and Sezer (2016).
- 20.
Dana et al. (2007).
- 21.
Gino (2015).
- 22.
Amir et al. (2016).
- 23.
For a discussion of a more extensive list of causes of unethical behavior see Nicola and Cantarelli (2017).
- 24.
Kennedy (1976), p. 1685.
- 25.
Kennedy (1976), p. 1688.
- 26.
Kennedy (1976), p. 1688.
- 27.
Kaplow (1992), p. 557.
- 28.
Kennedy (1976), p. 1685.
- 29.
Kennedy (1976), p. 1689.
- 30.
Kennedy (1976), p. 1689.
- 31.
Horn (1995).
- 32.
Justice Policy Institute (2012), p. 24; Bronstein (2014–2015); Rose (2015); Veto 309 (2004).
- 33.
- 34.
Bronstein (2014–2015), p. 543, “But telling them that you want to arrest x number of people, you have to cite x number of people, it just encourages bad performance on the part of officers”, “If citizens believe that tickets are being issued or arrests are being made for reasons other than the goal of law enforcement, which is about public safety,” says Robinson, “then their trust in the legitimacy of the system is really eroded.” “Police department activity quotas reduce police officer discretion and promote the use of enforcement activity for reasons outside of law enforcement’s legitimate goals.”; p. 572, “When enforcement activity is used as currency, it creates a danger that police officers will take enforcement action for their own personal benefit rather than for one of law enforcement’s legitimate goals”; Veto 309 (2004), “When the summons procedure is utilized in questionable circumstances, suspicions are raised that revenue enhancement and not sound police methodology is the rational [sic].”; In Its Defense, Police Dept. cites Laziness of Its Officers (2013), “all in an effort to counter testimony from whistle-blower officers who say that commanders had created quotas that pressured them to make street stops without the proper grounds.”
- 35.
Justice Policy Institute (2012), p. 24, “With an emphasis on number of arrests rather than type or quality of arrest, it may be easier for police and multi-jurisdictional task forces to increase their numbers by focusing on the low hanging fruit—the people in possession of a small amount of drugs. As Harry Levine determined in his study about marijuana arrests in New York City, some police agencies conduct performance reviews of individual officers based on the number of arrests. Regardless of whether this is a de facto quota, police officers clearly have an incentive to make as many arrests as possible. Drug offenses, particularly marijuana possession, are typically seen as “safe” with little risk of injury to officers.”
- 36.
Bronstein (2014–2015), pp. 543, 563; Rose (2015), “So why does numbers-based policing seem to persist in some departments? Maybe because it’s an easy way to track officer productivity. Tim Dees, a retired Reno, Nev., police officer who has also taught criminal justice, says it’s the quality of police work that counts, not the quantity. “That’s a much more difficult metric to gauge,” says Dees. “The satisfaction of the citizen, very difficult to put a value on that. And it’s much easier for, frankly, lazy administrators to make it into a numbers game.”; Numbers Game, “Mississippi’s regional drug task force funding, contingent on the quantity of drug arrests, encourages the indiscriminate use of confidential informants to increase arrest numbers over the quality and public safety impact of the drug cases.”
- 37.
Harel and Klement (2007).
References
Amir A, Kogut T, Bereby-Meyer Y (2016) Careful cheating: people cheat groups rather than individuals. Front Psychol 7:371
Balcetis EE, Dunning D (2006) See what you want to see: motivational influences on visual perception. J Pers Soc Psychol 91:612–625
Bazerman MH, Gino F (2012) Behavioral ethics: toward a deeper understanding of moral judgment and dishonesty. Annu Rev Law Soc Sci 8:85–104
Bazerman MH, Sezer O (2016) Bounded awareness: implications for ethical decision making. Organ Behav Hum Decis Process 136:95–105
Bazerman MH, Tenbrunsel AE (2011) Blind spots: why we fail to do what’s right and what to do about it. Princeton University Press, New Jersey
Boussalis C, Feldman Y, Smith HE (2018) Experimental analysis of the effect of standards on compliance and performance. Regul Gov 12:277, 288
Breyer S (1993) Breaking the vicious circle: toward effective risk regulation
Bronstein N (2014–2015) Police management and quotas: governance in the CompStat era. Columbia J Law Soc Probl 48:543, 563, 572
Chugh D, Bazerman MH, Banaji MR (2005) Bounded ethicality as a psychological barrier to recognizing conflicts of interest. In: Moore DA, Cain DM, Loewenstein G, Bazerman MH (eds) Conflicts of interest: challenges and solutions in business, law, medicine, and public policy. Cambridge University Press, New York, pp 74–95
Dal Bó E (2006) Regulatory capture: a review. Oxf Rev Econ Policy 22:203–225
Dana J, Weber RA, Kuang JX (2007) Exploiting moral wiggle room: experiments demonstrating an illusory preference for fairness. Econ Theory 33:67–80
Feldman Y (2018) The law of good people: challenging states’ ability to regulate human behavior. Cambridge University Press
Feldman Y, Kaplan Y (2020a) Big data & bonded ethicality. Cornell J Law Public Policy
Feldman Y, Kaplan Y (2020b) Behavioral ethics as compliance
Feldman Y, Teichman D (2009) Are all legal probabilities created equal? N Y Univ Law Rev 84:980
Gifford DJ (1971) Communication of legal standards, policy development, and effective conduct regulation. Cornell Law Rev 56:409
Gino F (2015) Understanding ordinary unethical behavior: why people who value morality act immorally. Curr Opin Behav Sci 3:107–111
Gino F, Shu LL, Bazerman MH (2010) Nameless+ harmless= blameless: when seemingly irrelevant factors influence judgment of (un)ethical behavior. Organ Behav Hum Decis Process 111:93–101
Glaeser E, Shleifer A (2003) The rise of the regulatory state. J Econ Lit 41:401–425
Hahn RW (1996) Regulatory reform: what do the government’s numbers tell us? In: Hahn RW (ed) Risks, costs, and lives saved: getting better results from regulation. Oxford University Press, New York, p 208, 235–238
Hahn RW, Hird JA (1991) The costs and benefits of regulation: review and synthesis. Yale J Regul 8:233, 256
Hahn RW, Sunstein CR (2002) A new executive order for improving federal regulation? Deeper and wider cost-benefit analysis. Penn Law Rev 150:1489, 1519–1520
Harel A, Klement A (2007) The economics of stigma: why more detection of crime may result in less stigmatization. J Leg Stud 36(2):355–377
Hirsch WZ (1988) Law and economics: an introductory analysis 1
Horn MJ (1995) The political economy of public administration: institutional choice in the public sector. Cambridge University Press
In Its Defense, Police Dept (2013) Cites laziness of its officers. https://www.nytimes.com/2013/04/30/nyregion/to-defend-police-city-cites-officers-laziness.html
Justice Policy Institute (2012) Rethinking the blues: how we police in the U.S. and at what cost. p 24
Kaplow L (1992) Rules versus standards: an economic analysis. Duke Law J 42:557–629
Kennedy D (1976) Form and substance in private law adjudication. Harv Law Rev 89:1685
Laffont JJ, Tirole J (1991) The politics of government decision-making: a theory of regulatory capture. Q J Econ 106:1089–1127
Latin H (1991) Regulatory failure, administrative incentives, and the new Clean Air Act. Environ Law 21:1647
Mazar N, Amir O, Ariely D (2008) The dishonesty of honest people: a theory of self-concept maintenance. J Market Res 45:633–644
Merritt AC, Effron DA, Monin B (2010) Moral self-licensing: when being good frees us to be bad. Soc Pers Psychol Compass 4:344–357
Miceli TJ (2004) The economic approach to law 1
Nicola B, Cantarelli P (2017) What causes unethical behavior? A meta-analysis to set an agenda for public administration research. Public Adm Rev 77:327–339
Numbers Game, The Vicious Cycle of Incarceration in Mississippi’s Criminal Justice System
Parker RW (2003) Grading the government. Univ Chic Law Rev 70:1345, 1356
Richardson G, Ogus A, Burrows P (1982) Policing pollution. A study of regulation and enforcement. Oxf Socio-Leg Stud:34–35
Rose J (2015) Despite laws and lawsuits, Quota-based policing lingers. NPR. https://www.npr.org/2015/04/04/395061810/despite-laws-and-lawsuits-quota-based-policing-lingers
Self P (1993) Government by the market? The politics of public choice. Macmillan International Higher Education
Shavell S (1980) Strict liability versus negligence. J Leg Stud 9:1–25
Shavell S (1984a) Liability for harm versus regulation of safety. J Leg Stud 13:357–374
Shavell S (1984b) A model of the optimal use of liability and safety regulation. Rand J Econ 15:271–280
Shavell S (2002) Law versus morality as regulators of conduct. Am Law Econ Rev 4:227
Shu LL, Gino F, Bazerman MH (2011) Dishonest deed, clear conscience: when cheating leads to moral disengagement and motivated forgetting. Pers Soc Psychol Bull 37:330–349
Tengs TO, Graham JD (1996) The opportunity costs of haphazard social investments in life-saving. In: Hahn RW (ed) Risks, costs, and lives saved: getting better results from regulation. Oxford University Press, New York, p 167, 177
Tengs TO, Adams ME, Pliskin JS et al (1995) Five-hundred life-saving interventions and their cost-effectiveness. Risk Anal 15:369, 371–372
Veto 309 (2004) N.Y. Bill & Veto Jacket, 2004 S.B. 6478
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2021 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this paper
Cite this paper
Feldman, Y., Kaplan, Y. (2021). Ethical Blind Spots & Regulatory Traps: On Distorted Regulatory Incentives, Behavioral Ethics & Legal Design. In: Mathis, K., Tor, A. (eds) Law and Economics of Regulation. Economic Analysis of Law in European Legal Scholarship, vol 11. Springer, Cham. https://doi.org/10.1007/978-3-030-70530-5_3
Download citation
DOI: https://doi.org/10.1007/978-3-030-70530-5_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-70529-9
Online ISBN: 978-3-030-70530-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)