Academic journal article Stanford Law Review

Problematic Perhaps, but Not Irrational

Academic journal article Stanford Law Review

Problematic Perhaps, but Not Irrational

Article excerpt

I. INTRODUCTION

Predictably Incoherent Judgments (1) is an impressive work: It guides us both to rethink the acceptability of the processes by which we generate legislative punishments, punitive damages, and administrative sanctions and to reconsider our capacity as individuals to make stable, defensible comparative judgments about just how bad (or good) a particular outcome is.

In one quite significant respect, I am certain that Sunstein, Kahneman, Schkade, and Ritov's argument is right: Individuals asked either to describe or evaluate a trait or an outcome will do so differently depending on what other events or traits they are thinking about when they are making their descriptions or evaluations. As the authors recognize, this is in part simply a function of linguistic convention: (2) If asked to communicate to some interrogator how they would describe or evaluate a trait or event, individuals may well recognize that the interrogator is (implicitly) asking a category-bound question. Thus, the stand-alone question, "Is an eagle big?" may properly be understood to imply the more complete and tailored question, "Is an eagle big for a bird?" even though the speaker would recognize perfectly well that she could have been explicitly asked, "Is an eagle big compared to most dinosaurs?" or "... to trucks?" etc. (3) Sometimes, the slipperiness or opacity of usually settled linguistic implications are apparent to us. In the weeks after the September 11 terrorist bombings, the simple question calling for an evaluation of a state, "How are you?" was (transparently) opaque and indecipherable: Did it mean how were you setting aside the big event completely, solely in relationship to the big event, overall (including the big event), or "considering" the big event (but not letting the fact that we were all upset force an undifferentiated answer)? (4) One knew that one could readily get confused: The answer "fine"--meant to be "fine, considering"--could readily be misinterpreted as a signal of a dire, perverse lack of sensitivity.

But the authors are likely right to conclude that it is not simply the way we communicate our underlying judgments of traits and events, but the judgments themselves that are context-specific: For example, while people will typically not misassess the relative size of an eagle and a cabin once they recognize that (in conversational convention terms) they are being asked to compare them to one another (rather than to birds and homes respectively), it is also the case that when asked to judge the size of two identical circles, it is quite difficult not to judge the circle that is seen against a backdrop of smaller circles as bigger than the one that is placed amidst a backdrop of larger ones. (This is true even though there is no sense in which they believe they are being explicitly or implicitly asked to assess the size of either circle relative to the background ones.) Similarly, it appears that the authors are right that an event will seem "worse" (an evaluative, rather than purely descriptive, term) if evaluated against the backdrop of globally trivial bad events than if evaluated against more serious bad events. It is quite credible, too, that the "events" to which we typically compare the outcome we are asked to evaluate are events in (loosely conventionally defined) "similar categories," rather than the whole global range of events we might conceivably judge, at least unless we are explicitly forced to focus on extra-categorical comparison events. If that is true, of course, bad events that are conventionally members (or elements) of "minor harm" category sets will typically be "unduly devalued" and bad events that are members of "severe harm" category sets will be "not devalued enough"--at least so long as "unduly" and "not enough" are defined relative to the judgments that the evaluators would have made had they been comparing the events to a wider, more global range of events outside their "natural," local category. …

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