Behavioral Ethics: Toward a Deeper Understanding of Moral Judgment and Dishonesty

LS08CH05-Bazerman ARI 5 October 2012 8:36

Behavioral Ethics: Toward aDeeper Understanding ofMoral Judgment andDishonestyMax H. Bazerman and Francesca GinoHarvard Business School, Boston, Massachusetts 02163;email: [email protected], [email protected]

Annu. Rev. Law Soc. Sci. 2012. 8:85–104

First published online as a Review in Advance onJuly 12, 2012

The Annual Review of Law and Social Science isonline at lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev-lawsocsci-102811-173815

Copyright c© 2012 by Annual Reviews.All rights reserved

1550-3585/12/1201-0085$20.00

Keywords

morality, ethical decision making, corruption, behavioral decisionresearch, unethical behavior

Abstract

Early research and teaching on ethics focused either on a moral develop-ment perspective or on philosophical approaches and used a normativeapproach by focusing on the question of how people should act whenresolving ethical dilemmas. In this article, we briefly describe the tra-ditional approach to ethics and then present a (biased) review of thebehavioral approach to ethics. We define behavioral ethics as the studyof systematic and predictable ways in which individuals make ethicaldecisions and judge the ethical decisions of others when these decisionsare at odds with intuition and the benefits of the broader society. Byfocusing on a descriptive rather than a normative approach to ethics,behavioral ethics is better suited than traditional approaches to address-ing the increasing demand from society for a deeper understanding ofwhat causes even good people to cross ethical boundaries.

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INTRODUCTION

Professionals across industries sometimes en-gage in unethical action, as demonstrated byscandals at Enron and other major corporationsin the early 2000s, the Ponzi scheme of BernardMadoff, the worldwide financial crisis of 2008–2010, and, even more recently, the Murdochnewspaper scandal in mid-2011. Owing in partto the significant costs that these behaviors in-flicted on a large number of individuals, theseand related cases of organizational corruptionand dishonest behavior have led society to de-mand action from professional schools. Thesedemands started to increase exponentially withthe Enron debacle, and the growth continues.As business school professors, we are disap-pointed with what academics have offered todate in response to these increasingly frequentdemands. More importantly, we believe that thestrategies used by academics thus far have lim-itations and that more effective techniques canhelp reduce ethical failures in business and insociety more broadly in the future.

In this review, we first define business ethicsand then provide our (biased) history of the at-tempts of professional schools to address ethicsas a subject of both teaching and research. Wethen present a short summary of the emergenceof the field of behavioral ethics over the pasttwo decades. Next, we turn to recent researchfindings in behavioral ethics that we believe canprovide helpful directions for a social scienceperspective to ethics. We suggest that these newfindings on both intentional and unintentionalunethical behavior can inform new courses onethics, provide guidance in the policy forma-tion process, and suggest new research direc-tions. Such new directions can meet society’sdemands more effectively than past attemptshave, and they can produce meaningful and sig-nificant change in the behavior of both businessschool students and professionals.

PRE–BEHAVIORAL BUSINESSETHICS

Before the 1990s, professional schools rarelyfocused significantly on the area of ethics

(or business ethics more specifically) in theircourses. Ethics was not well accepted by profes-sional schools as a core topic for teaching andresearch and fell into the bucket of other topicssuch as international business and the naturalenvironment, topics explored by a few isolatedprofessors. For those schools that did haveethics courses or scholars doing research in thisdomain, the topic was typically in the hands ofphilosophers. The information conveyed in theclassroom often took the approach of helpingstudents recognize different philosophicaltraditions for understanding what constitutedan ethical decision, and the delivery was mainlyinformational rather than experiential.

Scholars largely adopted a prescriptive ornormative approach that used insights fromphilosophy to describe how moral and ethicalpeople should behave (Trevino & Weaver1994). Ethics generally focused on the eval-uation of actions from a moral point of viewin an attempt to answer how people shouldbehave. Similarly, business ethics focusedon the evaluation of practices of employees,managers, and their organizations from a moralstandpoint (Ferrell et al. 2008). This approachstressed the role of cognitive development andprocess stages involved in moral deliberation.For instance, expanding upon Piaget’s three-stage framework of cognitive development,Kohlberg (1981) suggested that ethical behav-ior is determined by the sophistication of aperson’s moral reasoning. Kohlberg proposedthat moral judgment develops through asequence of three levels, which are composedof two stages at each level, resulting in sixstages. Although individuals who have reachedadvanced stages may occasionally reason at alower level, the central tenet of Kohlberg’smodel is that people at more developed stagesmake superior moral decisions than thoseat earlier stages (Gibbs et al. 1992, Rest &Navarez 1994). Similarly, another commonlydiscussed process was proposed by Rest (1986)and consisted of four steps: awareness, judg-ment, intention, and behavior. In this model,success at one stage does not imply success atsubsequent stages. Thus, according to Rest’s

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Figure 1The trolley problem.

(1986) theorizing, decision makers may possessmoral judgment, but, because they fail to estab-lish moral intent in one context, they engage inunethical behavior. Thus, across these variousmodels, the moral development approach toethics we have discussed highlights the role andimpact of individual traits in explaining uneth-ical behavior by suggesting that morality is arather stable personality trait that individualsdevelop by going through different phases ofdevelopment.

In addition to learning about these cog-nitive approaches to moral development, stu-dents were often taught the various distinctionsand debates that had existed in philosophy forcenturies and that were still unresolved. For ex-ample, one such distinction was between twodifferent normative approaches to ethical de-cision making: a utilitarian and a deontolog-ical approach. Utilitarianism examines moralactions from the perspective of the results thatflow from ethical decisions and is often de-scribed by the phrase “the greatest good forthe greatest number of people.” In contrast,the philosopher Immanuel Kant (1724–1804)argued for the use of a deontological approach,according to which the morality of an action is

judged based on the action’s adherence to rulesor principles. In this view, judgments of rightor wrong are determined by the motives of theperson who acts, not by the consequences ofthe person’s actions. To demonstrate the dis-tinction between these two approaches and ex-amine when people tend to use them, scholarsoften employ the so-called trolley/footbridgeproblems. The trolley problem is commonlydescribed as follows (see Figure 1 for a depic-tion of this problem):

A runaway trolley is headed for five railwayworkmen who will be killed if it proceeds onits present course. The only way to save thesepeople is to hit a switch that will turn the trol-ley onto a sidetrack where it will run over andkill one workman instead of five. Ignoring le-gal concerns, is it ethically okay to turn thetrolley in order to save five people at the ex-pense of one?

When facing this problem, most people reportthat it is okay to switch and explain their choicesby reasoning that having five people die is worsethan having one person die (Greene 2012). Thisanswer follows directly from a standard utilitar-ian analysis.

www.annualreviews.org • Behavioral Ethics 87

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Figure 2The footbridge problem.

The footbridge problem is a variation of thetrolley problem, and it is commonly describedas follows (see Figure 2 for a depiction of thisproblem):

A runaway trolley threatens to kill five people.You are standing on a footbridge spanning thetracks between the oncoming trolley and thefive people. Next to you is a railway workerwho is wearing a large backpack. The only wayto save the five people is to push this worker offthe bridge and onto the tracks below. The manwill die as a result, but his body will stop thetrolley from reaching the others. (You can’tjump yourself because you don’t have enoughweight on you to stop the trolley, and there’sno time to put the backpack on.) Ignoring legalconcerns, is it okay to save the five people bypushing this stranger to his death?

In this case, most people are against pushingthe person and explain their choices by pro-viding reasons that are consistent with a deon-tological approach (Kant). Thus, they attemptto apply rules to determine the morally ap-propriate act. In fact, when prompted to ex-plain their choices, people commonly mention

reasons such as “it’s murder!”, “the ends don’tjustify the means!”, or “people have rights!”(Greene 2012).

Through the use of these problems, philoso-phers demonstrated an apparent inconsistencyin the response people provide when facing eth-ical dilemmas (Foot 1978, Thomson 1976; fordetailed review, see Greene 2012). From a theo-retical perspective, traditional philosophers arestill debating whether a utilitarian or a deonto-logical logic is more appropriate to solve ethicaldilemmas such as these. From an empirical per-spective, the data allow scholars to move awayfrom this debate and toward the study of theconditions under which people are likely to useone approach rather than the other in solvingethical dilemmas.

When the utilitarian and the deontologicalapproaches are discussed in ethics courses, pro-fessors commonly highlight the distinction be-tween them and then have students discuss itand argue for their own view. As in the caseof classes focusing on cognitive approaches tomoral development, we believe that discussingthese theories is insufficient for helping stu-dents understand how they solve ethical dilem-mas, and it is also insufficient if we are interested

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in improving ethicality in professional organi-zations. This conclusion is shared not only bypsychologists and behavioral decision scientistslike us but also by philosophers who use an ex-perimental approach to study morality. Theseexperimental philosophers (often referred toas x-phi; e.g., Greene 2012, Knobe 2003; seealso Knobe & Nichols 2008) are viewed withgreat controversy in philosophy given that theyconduct experiments to learn about what peo-ple actually do and say when faced with moraldilemmas. We consider these philosophers tobe working in the field we define here as behav-ioral ethics.

Philosophers have argued that philosophi-cal thinking is central to moral education, willmake us better citizens, and will also provide thecourage to stand up for justice (Schwitzgebel2009). Yet Posner (1997) argues that thereis no empirical evidence in support of theseclaims. Experimental philosopher Schwitzgebel(2009) notes that most people expect ethiciststo behave more ethically because they devotetheir careers to studying and teaching moral-ity. Yet this belief is not supported by em-pirical evidence: If morality is equated withnot stealing, ethicists do not score very well(Schwitzgebel 2009). Using data from 31 lead-ing academic libraries in the United Statesand the United Kingdom, Schwitzgebel (2009)found that ethics books were more likely tobe missing than nonethics books in philoso-phy that were comparable in age and popu-larity. Further, obscure texts that were likelyto be borrowed only by advanced students andprofessors of ethics were about 50–100% morelikely to be missing, depending on the specificmeasure used in the analyses. Although theseresults may seem surprising, they can be easilyexplained if we consider that normative ethi-cists have primarily focused on examining howpeople should think about behavior in the ethicsdomain. We do not intend to minimize theirwork: From a normative perspective, ethicistshave made enormous contributions in clarify-ing answers to these types of questions. It isalso worth noting that the normative tone thatis inherent in this literature is reflected in most

codes of conduct and moral guidelines issuedby management in organizations (Adams et al.2001, Weaver 2001). However, as a result ofthe field’s approach, until recently little empir-ical attention has been given to how people ac-tually behave or to how their behavior can beimproved.

This focus on how human beings actuallybehave in moral contexts is where the new be-havioral ethicists have found their niche. Be-havioral ethicists describe the actual behaviorof people and how situational and social forcesinfluence it, and they study how decisions can benudged in a more ethical direction through sim-ple interventions. This new approach to ethicsrequires understanding and explaining moraland immoral behavior in systematic ways. It re-quires understanding the antecedents and con-sequences of both ethical and unethical actions.Finally, it requires identifying levers at both theindividual and institutional levels to change eth-ically questionable behaviors when individualsare acting in unethical ways that, with greaterreflection, they would not endorse. In the re-mainder of this paper, we review these recentapproaches to ethics. Throughout the review,we use the words immoral, unethical, and dis-honest interchangeably.

THE EMERGENCE OFBEHAVIORAL ETHICS

Scholars in behavioral ethics define their fieldof study differently (see Table 1 for definitionsof behavioral ethics and ethical behavior bydifferent authors doing research on the topic).At a very broad level, many social scientistshave been developing knowledge about thedeterminants of ethical and unethical behaviorand have started from the assumption that evengood people sometimes do bad things (seeBersoff 1999). Scholars such as Brief (e.g., Brief& Motowidlo 1986) and Trevino (1986) startedworking on this topic long before others like ustook up the task. We note that an often separatestream of research, born out of the traditionalphilosophical approaches to ethics, has fo-cused on understanding how people form moral


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Table 1 Definitions of ethical behavior or behavioral ethics provided in the literature

Construct Definition SourceBehavioral ethics The study of individual behavior that is subject to or judged

according to generally accepted moral norms of behaviorTrevino et al. (2006, p. 952)

Behavioral ethics A field that is primarily concerned with explaining individualbehavior that occurs in the context of larger socialprescriptions

Tenbrunsel & Smith-Crowe (2008, p. 548)

Moral behavior Acts that are intended to produce kind and/or fair outcomes Schulman (2002, p. 500)Moral behavior Actions that demonstrate social responsiveness to the needs

and interests of othersAquino et al. (2009, p. 124)

Ethical decision A decision that is both legally and morally acceptable to thelarger community

Jones (1991, p. 387)

Moral and amoraldecision making

• Within each class of decisions, one can make ethical orunethical decisions

• Social scientists should not be in the business of tellingpeople what they should do—that is, define what is ethicaland what is not—but the criteria by which decisions areplaced into a typology for analytical purposes should bedefined

Tenbrunsel & Smith-Crowe (2008)

Ethical fading The process by which the moral colors of an ethical decisionfade into bleached hues that are void of moral implications

Tenbrunsel & Messick (2004, p. 224)

judgments and what factors influence them (see,for instance, Cushman & Young 2011, Haidt2001, Pizarro et al. 2011, Uhlmann et al. 2009).

Although we do not dispute the existing def-initions for behavioral ethics, we seek to pro-vide a definition that focuses more closely onthe psychology of individuals and the biaseddecisions and judgments they make systemat-ically. Because of its focus on individuals’ ac-tual judgments and behavior, behavioral ethicsdraws heavily from psychology and behavioraldecision research and advocates a descriptiverather than a normative approach to the studyof ethics.

With this in mind, we define behavioralethics as the study of systematic and pre-dictable ways in which individuals make ethicaldecisions and judge the ethical decisions ofothers, ways that are at odds with intuitionand the benefits of the broader society. Asthis definition suggests, we are interested inexamining not only the decisions that peoplemake but also their judgments of the decisionsof others. We are also interested in examiningthe systematic ways that we humans depart

from our intuitive expectations and the goalsof the broader society.

One of the early efforts in the behavioralethics movement was the publication of anedited volume by Messick & Tenbrunsel(1996). This was the earliest example of a pub-lication that clearly organized and beautifullyexplained what we knew about the psychologyof ethics. Many of the papers in this volumehighlighted counterintuitive ways in whichpeople make decisions and form judgments inthe domain of ethics. One that is particularlyrelevant for the approach we are proposingis Loewenstein’s (1996) chapter on howbehavioral decision theory helps us understandethical decisions. Behavioral decision theoryis commonly defined as the study of trade-offsthat people make when deciding what to chooseamong the options available to them. For ex-ample, a person choosing which car to buy maytrade off a low price for one car against thewell-respected brand name of the second car.Ethical decisions commonly involve trade-offsbetween the decision maker’s well-being (e.g.,not risking losing a job for blowing the whistle)

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and that of others (e.g., creating harm to poten-tial consumers by not stopping the productionof an unsafe product). Thus, as suggestedby Loewenstein (1996), by using behavioraldecision theory we can better understand howpeople resolve ethical dilemmas and make eth-ical decisions. Similar to Loewenstein’s (1996)arguments, Bazerman & Banaji (2004, p. 115)noted “that efforts to improve ethical decisionmaking are better aimed at understanding ourpsychological tendencies.” We concur withthese views and suggest that understanding peo-ple’s psychology when they face decisions in theethics domain is fundamental to understandingwhy good people sometimes do bad things.

In a paper related to this research, Messick &Bazerman (1996) organized some of this earlyknowledge by identifying three types of the-ories that individuals use in making decisions:theories about the world, theories about otherpeople, and theories about ourselves. Theo-ries of the world deal with the beliefs we holdabout the way the world works, expectationsabout causal networks in which we live, and be-liefs about how our choices influence the worldaround us. Theories of other people refer to be-liefs we have about how we are different fromthem. Finally, theories of ourselves deal with theerroneous or unrealistic beliefs we have aboutourselves that may cause us to take more thanour fair share of the credit for success or too lit-tle blame for failure. These theories also discusshow we are often too confident that our the-ory of the world is the correct one. Using thisframework, Messick & Bazerman (1996) iden-tified research from social psychology that caninform us about these theories as we attempt tounderstand ethical decision making.

This early work by Messick and colleaguesreviewed various specific findings in socialpsychology and behavioral decision researchand explained their relevance to the study ofethics. Its core contribution was to focus earlybehavioral ethics on the psychological tenden-cies that lead good people to use informationand make decisions in ways that lead them tobehave unethically, even when they would notexpect to behave that way in advance. Messick

and colleagues also were critical to broadeningthe focus of the field to include descriptive workand, more importantly, aspects of behaviorthat were not the result of deliberative action.

In the remainder of this review, we retainthis focus on psychological aspects that leadpeople astray in the ethics domain. Using thisfocus, we describe two recent streams of re-search in behavioral ethics in detail. First, weexplore the predictable situational and socialforces that can lead people to engage in uneth-ical behavior. In this section of the review, wefocus on behaviors that the actors know to bewrong, but they are unaware of the forces thatare leading them to cross ethical boundaries (in-tentional unethical behavior). Second, we turnto the recent work on bounded ethicality, whichdescribes the tendency of individuals to engagein unethical action without even knowing thatthey are doing so (unintentional unethical be-havior).

Departing from the belief that unethical be-havior can be explained by the stage of moral de-velopment that the decision maker has reachedand by focusing on a descriptive rather than anormative approach to ethics, these streams ofbehavioral ethics research share two empiricallysupported assumptions. First, they propose thatmorality is dynamic and malleable, rather thana stable trait characterizing individuals. Second,they argue that most of the unethical behaviorwe observe in organizations and society morebroadly is the result of the actions of severalindividuals who, although they value moralityand want to be seen as ethical people, regularlyfail to resist the temptation to act dishonestlyor even fail to recognize that there is a moralissue at stake in the decision they are making.

Intentional Dishonesty: Predictablebut Surprising Unethical Behavior

Scholars interested in the study of intentionalunethical behavior argue that situational andsocial forces overwhelm individual differencesin explaining ethical behavior. Early well-known experiments support this argument.For instance, in Milgram’s famous experiment


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(Milgram 1974), an experimental assistant(an accomplice) asked each study participantto play the role of a teacher and administerelectric shocks to another participant, the“learner” (who was actually a confederate orexperimental assistant), each time the learnermade a mistake on a word-learning exercise.After each mistake, the participant was askedto administer a shock of higher voltage, whichbegan to result in apparent, audibly increasingdistress from the learner. More than 60% ofthe study participants shocked the participant-accomplices through to the highest voltage,which was clearly marked as potentially dan-gerous (Milgram 1974). However, only a fewpeople predicted they would behave in such amanner when asked to imagine the situationand predict their behavior. These resultssuggest that it is not individual character thatcauses one to inflict great pain on an innocentperson but rather the situation in which anauthority demands obedience.

Similarly, in another well-known exper-iment, the Stanford Prison Experiment (seeZimbardo 1969), Stanford undergraduateswere randomly assigned to be either guards orprisoners in a mock prison setting for a two-week experiment. After less than a week, theexperiment was abruptly stopped because theguards were engaging in sadism and brutalityand the prisoners were suffering from de-pression and extreme stress. Normal Stanfordstudents had been transformed merely bythe situational conditions created for theexperiment.

Both of these studies stress the role ofsituational influences in producing unethicalbehavior and suggest that morality is malleableand dynamic (e.g., Monin & Jordan 2009):Individuals with certain moral traits, evenwhen they strongly value morality, may notbehave consistently across different situations,and they may cross ethical boundaries undersituational pressures.

Additional evidence for the malleability ofmorality comes from more recent research ex-amining what people do when they are placedin situations in which they have the opportunity

to behave unethically (e.g., by lying about theirperformance on a task) (see Ayal & Gino 2011,Mazar et al. 2008). Rather than focusing onthe trade-off between the decision maker’s well-being and that of others, this research focuseson a different type of trade-off that involves anintertemporal component and is focused on theself: the long-term desire to be a good and ethi-cal person and be seen as such by others to gainsocial acceptance versus a more short-term de-sire to behave in a way that would advance one’sself-interest (Mead et al. 2009, Gino et al. 2011).

To make this trade-off salient to individuals,the paradigms used in laboratory studies inthe research on intentional unethical behaviorcommonly involve anonymity and no proba-bility of being caught. For instance, in one ofthe paradigms used in this research (see Ginoet al. 2009a), participants are invited to the laband asked to complete a problem-solving taskunder time pressure. The task involves solving20 different add-to-ten problems like the onedepicted in Figure 3. For each problem, theparticipants’ task is to find the two numbersthat sum up to ten, circle them, and then moveonto the next problem. For each correctlysolved problem, participants receive a financialbonus, such as 50 cents or a dollar. In thesimplest version of this paradigm, participantsin one condition are given four or five minutesto work on 20 problems (all variations of theproblem depicted in Figure 3). Once the timeis over, they fill out a collection slip on whichthey report their performance and then havethe experimenter check their work (controlcondition). In the shredder condition, partici-pants are asked to self-report their performance

8.19 6.46 1.628.29 2.91 2.032.73 7.89 9.866.21 3.54 3.18Found it

Figure 3An example of the add-to-ten problem-solving task.

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on the collection slip and then shred their testsheet using a real shredder. Participants inthe shredder condition generally self-report aperformance that is much higher than that re-ported in the control condition, suggesting thatparticipants cheated by lying about their perfor-mance on the problem-solving task so that theywould receive a higher payment (see Gino et al.2009a). Scholars have also used variations ofthis paradigm so that they could track whethereach participant cheated and by how much inthe shredder condition. Alternatively, scholarshave used other types of ability-based tasks inwhich they gave participants the opportunityto cheat by overstating their performance (e.g.,Schweitzer et al. 2004, Gino & Pierce 2009).

When conducting this research, scholarshave often compared the predictions that wouldderive from a standard economic approach withthe predictions that would derive from a social-psychology perspective. For instance, in thesimple experiment described above (comparingperformance in the control and shredder con-ditions), standard economic theory would pre-dict cheating to the maximum extent by most ifnot all participants in the shredder condition: Infact, the cost of behaving unethically is very lowbecause there is no risk of being caught in thiscondition. A social-psychology perspective, incontrast, would predict little cheating becauseby lying about their performance only by a littlebit, participants in the shredder condition canstill benefit from cheating without the need forthem to revise their moral self-image (see Mazaret al. 2008). The results of recent research on in-tentional unethical behavior are consistent withthe social-psychology perspective rather thanthe standard economic one, providing furtherevidence for the importance of studying thepsychology of individuals in order to under-stand how they make ethical decisions.

Given the role individuals’ psychology playsin explaining unethical behavior, further workhas started examining the situational and socialforces that influence how people resolve ethicaldilemmas and make ethical decisions (for recentreviews, see Ayal & Gino 2011, Shu et al. 2011).Generally, this research has found that the more

room a situation provides for people to ratio-nalize their behavior, the more likely they areto behave unethically (e.g., Gino & Ariely 2012,Schweitzer & Hsee 2002, Shalvi et al. 2011).

The environment in which people operateactivates explicit or implicit norms that, in turn,influence the tendency to cross the ethical line.Cialdini et al. (1990), for example, found thatthe amount of litter in an environment activatesnorms prescribing appropriate or inappropri-ate littering behavior in a given setting and, as aresult, regulates littering behavior. Related re-search has found that the presence of graffitileads not only to more littering but actually tomore theft (Keizer et al. 2008), and an abun-dance of resources leads to increased unethicalbehavior (Gino & Pierce 2009). In fact, evenmore subtle situational factors, such as dark-ness in a room, have been found to lead to in-creased dishonesty (Zhong et al. 2010). Takentogether, these studies suggest that visual stim-ulation from the environment or its physicalfeatures can produce profound changes in be-havior surrounding ethical and social norms.Like the experiments by Milgram (1974) andZimbardo (1969), these studies focused on sit-uational factors leading people to cross ethicalboundaries and demonstrated that people failto predict the influence of such subtle factorson their behavior.

Related work focused on social rather thansituational factors and found that the actions ofother people can influence our own in the ethicsdomain. Gino and colleagues (Gino et al. 2009a,Gino & Galinsky 2012) have shown that ourmoral behavior is affected by the moral actionsof just one other person. Gino et al. (2009a)found that when people are exposed to an in-group member’s unethical behavior, they alignwith the behavior and behave dishonestly them-selves. Building on prior work on social norms(Cialdini et al. 1990, Cialdini & Trost 1998) andsocial identity (Tajfel & Turner 1986, Tajfel1982, Turner 1982), Gino et al. (2009a) ex-plained that the degree to which people are in-fluenced by social norms of dishonesty depends,to some extent, on the relationship betweenthe initiator and the follower. People tend to


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perceive questionable behaviors exhibited byin-group members (or people who are similar tothem) to be more acceptable than those exhib-ited by out-group members (or people whomthey perceive as dissimilar). Others’ behaviorcan influence our own even when the bondwe share is very labile or subtle. For instance,sharing the same birthday or first name of aperson who behaved dishonestly can lead us toact unethically as well (Gino & Galinsky 2012).

Together, these studies point to surprisinginconsistencies between (a) people’s desire tobe good and moral and be seen as such by othersand (b) their actual unethical behavior, and theyprovide evidence consistent with the argumentthat morality is malleable. In addition to thesefindings, research over the past decade has alsoidentified inconsistencies in moral behavior ofthe same person across time and in judgmentsof moral actions committed by the self versusothers. We describe the research conductedon these two types of inconsistencies next andthen turn to work on unintentional unethicalbehavior.

Moral Credentials, MoralResentment, and Moral Hypocrisy

Monin & Jordan (2009) suggested that atany given moment individuals may answerdifferently the question of how moral they are.In their own words (Monin & Jordan 2009,p. 347),

. . .people’s thoughts and behavior are oftenguided by a “working” level of moral self-regard that fluctuates from moment to mo-ment according to situational influences.. . .[W]e contend that situations actually can af-fect aspects of the self-concept and can there-fore influence behavior through this mediator,rather than moderate the link between self andbehavior.

When individuals decide whether or notto engage in unethical behavior, they considertheir previous moral and immoral actions; theykeep track of their moral balance between moralcredits (past good deeds) and moral debits (past

bad deeds) (Nisan 1991). More specifically,Nisan’s (1991) moral balance model suggeststhat people compute a personal moral balancebased on their actions that are morally relevantwithin a given time frame and do not go be-low their minimum. At any point, good deedsraise the balance and bad ones lower it. Consis-tent with Nisan’s (1991) moral balance model,Monin & Miller (2001) conducted experimentsin which they found that a prior moral act canlicense later morally questionable behavior. Inone study, participants were presented with job-selection tasks. In one such task, half the par-ticipants could select a stellar African Americanapplicant and thus establish nonracist creden-tials. The other half of the participants werein a control condition and were asked to pickfrom an all-White applicant pool. Comparedwith participants in the control condition, par-ticipants in the Black-candidate condition weremore likely to express that a second, unrelatedjob in a racist police force would be better suitedfor a White person. This second task was de-signed such that it was attractive for participantsto favor a White person. However, doing someant behaving in a way that felt unethical ina prejudice-conscious society; as a result, par-ticipants did not express this preference unlessthey had established their nonracist self-imageby the first choice—what Monin & Miller la-beled a “moral credential.” Across various stud-ies, Monin & Miller (2001) demonstrated thatbolstering people’s moral self-image can liber-ate them to act less ethically in the future. Re-cently, these results have also been extended toother moral domains ( Jordan et al. 2011).

Monin and colleagues have also examinedhow people react to the moral and immoral be-havior of others and found that learning aboutthe behavior of heroes or saints can threatenpeople’s moral self-regard. As a result, peopleexpress resentment for these superior others,even though their behavior is clearly stellarand exemplary (Monin 2007). In one experi-ment, Monin and colleagues (2008) examinedreactions to a target individual who refused toexpress opinions that contradicted her privatebeliefs. Although neutral judges appreciated

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this person and rated her positively on variousdimensions, participants who had earlierexpressed these ideas that contradicted theirbeliefs and who did so without complainingexpressed high levels of dislike for the target.In the eyes of participants who had willinglygone along with the problematic behavior, theexemplary behavior of the target was perceivedas a threat to their own moral self-image. Be-cause of this threat, participants derogated thesaint.

Finally, research has examined an inconsis-tency in the way we judge our own unethi-cal actions versus those of others, a tendencycalled “moral hypocrisy.” More precisely,moral hypocrisy refers to people’s desire to ap-pear moral without bearing the actual cost ofbeing moral (Batson et al. 1997, 1999, 2002).Several studies have found evidence for moralhypocrisy. In one experiment (Batson et al.’s1999 Study 1), participants could assign them-selves and another participant to one of two ex-perimental conditions. By assigning themselvesto a positive study condition (with the oppor-tunity to win $30), the other participant wasassigned to a neutral condition (no money) andvice versa (assigning themselves to the neutralcondition let the other participant be assignedto the positive condition). To make moral stan-dards salient, participants were told that mostpeople consider coin flipping the fairest way toassign conditions. Twenty-eight of the 40 par-ticipants chose to flip the coin. Of these, 4 as-signed the other individual to the positive studycondition, whereas the remaining 24 assignedthemselves to the positive study condition.Clearly they used the coin flip to justify theirself-serving decision. Indeed, those who flippedthe coin rated their behavior as highly moral,thus providing evidence of moral hypocrisy.More recently, Piovesan et al. (2012) exploredthe developmental nature of moral hypocrisy.Specifically, Piovesan et al. (2012) examinedwhether children become more concerned overthe course of development with behaving fairlytoward others or instead merely concerned withappearing fair. Using data from almost 600 chil-dren in the age range 6–11, and a paradigm

similar to that employed by Batson and col-leagues, Piovesan et al. found that older chil-dren were more likely to flip the coin than wereyounger children, but they were just as likely asyounger children to assign themselves the pos-itive condition by reporting winning the coinflip more than chance would dictate. These re-sults suggest that moral hypocrisy develops withage.

Although different, all the studies describedin this section share a common message: Theydemonstrate the surprising ways in which we actworse than we would have anticipated when weface ethical dilemmas, and they demonstrate in-consistencies in how we judge unethical behav-ior depending on whether we or others engagedin it. In all these studies, people generally recog-nized that they were behaving unethically butfailed to understand why they perceived ethicalnorms differently or what caused them to actdishonestly. Furthermore, they applied differ-ent standards to judge their unethical behaviorand that of others.

In addition to these forms of intentional un-ethical behavior and inconsistencies in moraljudgment, recent research has also examinedunintentional unethical behavior. We turn tothis research next.

Unintentional Dishonesty:The Case of Bounded Ethicality

Imagine that you sell investments to retail cus-tomers. You work with a variety of funds toidentify investment opportunities for your cus-tomers. For years, one of these investments thatyou have sold to clients has outperformed themarket, with a substantial lack of risk—the fundhas performed consistently across years, evenyears when the market was down significantly.The fund is run by a well-respected individual,and your customers are delighted with their re-turns. How do you think about your decisionto recommend this fund? When thinking aboutthis decision, does ethics come to mind?

Maybe a few more details will help. What ifwe also mentioned that finance experts have ar-gued that you cannot significantly outperform


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the market with the low volatility of this fund?What if we also mentioned that the Securitiesand Exchange Commission (SEC) has been re-peatedly warned that there is a legal problemwith the fund? What if we add that the fundwas created and is run by Bernard Madoff?

Although some investment firms that soldMadoff ’s investments may have been crookswho knew that the fund had problems, we be-lieve that many others never considered themorality or legality of the fund. They had de-fined the problem as an investment decision,and ethics was not even on their radar screen.Thus, the need to assess the ethics of the situa-tion never arose.

As discussed above, ethics is often defined toinclude intentional deliberation. Rest’s (1986)first step is for an ethical problem to be assumedto exist, i.e., to be morally aware. But, as wesuggest in this example and as documented byTenbrunsel & Messick (2004), the assumptionthat people are making explicit trade-offs be-tween behaving ethically and self-interestedlyis not always met—even in cases in which welater learn that a set of unethical actions hasoccurred.

Over the past few years, researchers havebeen documenting the systematic patterns ofbehaviors in which people act unethically with-out their own awareness and fail to notice theunethical behavior around them (Bazerman &Tenbrunsel 2011, Chugh et al. 2005, Gino et al.2009b). People engage in behaviors that theywould condemn and consider unethical uponfurther reflection or awareness. That is, theyare boundedly ethical. Bounded ethicality takesvarious forms, including overclaiming credit forgroup work without realizing that you are do-ing so, engaging in implicit discrimination andin-group favoritism, overdiscounting the futureand harming the environment, and failing torealize that you hold overly positive views ofyourself (Bazerman & Moore 2008, Tenbrun-sel et al. 2010), to name just a few. The litera-ture on implicit attitudes and associations doc-uments how it is that people act in racist andsexist ways without being aware that they aredoing so (e.g., Chugh et al. 2005). We also favor

in-groups, without awareness of the impact thatthis will have on out-groups. For example, Mes-sick (1994) argues that mortgage loan discrim-ination against minorities is much more likelyto result from lenders’ unconscious favoritismtoward in-groups than from explicit hostilitytoward out-groups. In addition, we overly dis-count the future, increasing the debt burden ordestroying the planet, often without awarenessthat we are acting in ways that may harm futuregenerations (Wade-Benzoni 1999). More evi-dence of our ethical inconsistencies comes fromKern & Chugh (2009), who find that our ethicaldecisions are swayed by the framing of informa-tion. Specifically, they show that we are morelikely to behave unethically to avoid losses thanto obtain gains, even when the differences be-tween whether people are thinking about lossesversus gains is based on the framing of the sameobjective information.

This research has focused on how our ethi-cality is bounded when we face ethical choices.Related work has examined the many ways inwhich our ethicality is bounded when we eval-uate or judge the behaviors of others from amoral standpoint. This research documents thesurprising degree to which people ignore theunethical actions of others. For example, Mooreet al. (2006) show that although we recognizeothers’ conflicts of interest, we fail to recog-nize conflicts of interest that we ourselves facethat lead to corrupt behavior. Thus, when wehave a desire not to see the unethical actions ofothers, we do not, and we commit this failureoften without our own awareness. In a simi-lar vein, our joint research (Gino & Bazerman2009) demonstrates that people are more likelyto ignore the unethical behavior of others whenethical degradation occurs slowly rather than inone abrupt shift.

Research also shows that we are far morelikely to condemn unethical behavior when thebehavior leads to a bad rather than a goodoutcome—even when controlling for the actionof the actor being judged (Gino et al. 2010,2012). Cushman and colleagues (2009) askedstudy participants to choose between the fol-lowing two options:

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Option A: You roll a six-sided die. If it comesup 1–4, you get $10, and the other party gets$0. If it comes up a 5, you get $5, and the otherparty gets $5. If it comes up a 6, you get $0,and the other party gets $10.

Option B: You roll a six-sided die. If it comesup a 1, you get $10, and the other party gets$0. If it comes up 2–5, you get $5, and theother party gets $5. If it comes up a 6, you get$0, and the other party gets $10.

Option A is the greedier choice, as it offersyou more opportunities (four out of six, to beexact) to claim $10 for one. Option B is thefair choice, at least most of the time, as it of-fers four opportunities for the $10 to be splitevenly between you and the other party. Af-ter choosing, the die is rolled, and the money ispaid. The other player is then allowed to punishyou—the original decision maker—without in-curring any cost to herself. Consistent with ourown research on the topic (see Gino et al. 2010,2012), when allocating punishment, the otherparty paid more attention to the equality of theresult of the rolled die—a random outcome—than to your sense of fairness (as demonstratedby which option you chose). This research ex-plains our unfortunate tendency to blame peo-ple too harshly for making sensible decisionsthat have unlucky outcomes.

Another factor that leads us to ignore theunethical behavior of others is the presence ofintermediaries. Paharia et al. (2009) examinedindividuals’ tendency to ignore price gougingif the gouging occurs through an intermediary.Essentially, Paharia et al. (2009) found that peo-ple often ignore the unethical actions of oth-ers if the unethical actor has an intermediarydo the dirty work. This work was motivatedby a story about Merck selling the rights totwo less profitable cancer drugs to a smallerand lesser-known company, Ovation Pharma-ceuticals, while raising the price of the drug by1,000%. Paharia et al. (2009) reasoned that hadMerck raised the price directly, citizens wouldhave responded in a negative, emotional man-ner. They conducted a series of studies. In one

of these studies, Paharia et al. (2009) asked par-ticipants to consider the following situation:

A major pharmaceutical company, X, had acancer drug that was minimally profitable.The fixed costs were high and the market waslimited. But the patients who used the drug re-ally needed it. The pharmaceutical companywas making the drug for $2.50/pill (all costsincluded) and was selling it for only $3/pill.

One group of participants assessed the ethical-ity of the following action:

A: The major pharmaceutical firm X raised theprice of the drug from $3/pill to $9/pill.

A second group assessed the ethicality of a dif-ferent course of action:

B: The major pharmaceutical firm X sold therights to a smaller pharmaceutical company,Y. In order to recoup costs, company Y in-creased the price of the drug to $15/pill.

As Paharia et al. (2009) predicted, participantsjudged Action A more harshly than those whoread Action B, despite the smaller negative im-pact of Action A on patients.

A very different and profound example ofhow we do not understand our own moralitycomes from the work of Haidt and colleagues(Haidt et al. 1993, Haidt 2001), who demon-strated that our intuitive, affective selves oftendrive our ethical behavior and judgments. Forexample, consider one of the scenarios used byHaidt (2001) in his research describing a sit-uation in which “a family’s dog was killed bya car in front of their house. They had heardthat dog meat was delicious, so they cut up thedog’s body and cooked it and ate it for din-ner.” Haidt and colleagues (Haidt et al. 1993,Haidt 2001) presented this scenario and oth-ers (involving cleaning with the American flagand sex between siblings that creates no harm,among others) to study participants, and thevast majority found the behavior described inthe story to be morally wrong. Yet they often


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cannot immediately tell you why they think itis wrong, responding instead with statementssuch as “I don’t know, I can’t explain it, I justknow” (Haidt 2001).

The results of this research suggest that af-fective reactions to these types of situations pre-cede moral judgment. Haidt (2001) argues thatour judgments are often driven by intuitive,emotional responses, and after such judgmentsare made, we engage in deliberate moral rea-soning to justify our immediate reaction. Thisargument is in direct contradiction to the as-sumption that unethical behaviors derive froma deliberative process.

Finally, experimental philosophers are animportant part of the existing work on boundedethicality. Consider a well-known examplefrom Knobe’s (2009) work:

The chairman of a company has to decidewhether to adopt a new program. It wouldincrease profits and help the environmenttoo. “I don’t care at all about helping theenvironment,” the chairman says. “I just wantto make as much profit as I can. Let’s startthe new program.”

Did the chairman intend to help the en-vironment? Now consider the followingsituation:

The chairman, who again doesn’t care aboutthe environment, authorizes the program toimprove profits. Profit goals are realized butthe environment is negatively impacted.

In this case, did the chairman harm the envi-ronment intentionally?

In both scenarios, the chairman’s only goalwas to make money. Yet we tend to judgehis intention differently based on the conse-quences his decision had. When improvementsto the environment occurred, only 23% ofrespondents in Knobe’s (2009) study said thatthe chairman had intentionally helped the en-vironment. In contrast, when harm occurred,82% of respondents believed that the chairmanhad intentionally harmed the environment.

Together, these studies on bounded ethicalityshow how, as human beings, we often do notrecognize the ethical issues involved in thedecisions we are facing and the judgments wemake about the behavior of others.

IMPROVING ETHICS BY USINGA BEHAVIORAL ETHICSPERSPECTIVE

The research reviewed in this paper has impli-cations for ethics training and for the policy for-mation process. We discuss each below.

Changing Individual Morality

Let us return to the trolley and footbridgeproblems mentioned above. As you may recall,study participants were much more likely toturn a switch (in the trolley problem) thanto push a person (in the footbridge problem)in order to save five lives at the expense ofone innocent bystander. The trolley probleminduced utilitarian thinking, whereas thefootbridge problem induced deontologicalthinking, for most people. What would morereflection on the problem lead to?

Cushman et al. (2012) have explored thisquestion by comparing how people make de-cisions either separately, evaluating one optionat a time, or jointly, evaluating both options to-gether (Bazerman et al. 1992, Hsee et al. 1999).Cushman et al. changed the switch problem sothat the participant would save three lives at thecost of one by choosing to switch. Still, 76% ofthe participants decided to switch. In the foot-bridge problem, in which five lives were beingsaved, only 41% of the participants decided topush. Thus, when presented with one of theseoptions, people were more willing to switch tosave three lives than to push to save five. ButCushman et al. (2012) went a step further andgave a separate group of study participants aproblem in which two trains were coming downtwo different tracks. On track A, three peo-ple were about to die. On track B, five peoplewere about to die. Participants could save thethree by switching, save the five by pushing,

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or do nothing and let all die. Now, study par-ticipants shifted toward being utilitarian. Only18% switched to save three lives, whereas 45%pushed to save five. With more information andmore clarity, utilitarian analyses became moredominant.

Similarly, Lee & Gino (2012) examined howpeople would respond to footbridge-type sce-narios when asked to suppress their emotionsprior to considering the ethical dilemmas. Sup-pression involves concealing emotions after theinitial emotional response has occurred. Lee& Gino (2012) argued that if moral decisionsare influenced by both affective and cognitiveforces, then the ability to regulate emotionalreactions amid moral dilemmas should be cru-cial in determining whether one is more or lesslikely to choose utilitarian options. Consistentwith their arguments, Lee & Gino (2012) foundthat study participants who were instructed tosuppress their emotions were more likely tochoose the utilitarian option when faced withan ethical dilemma similar to the footbridgeproblem. Their results also demonstrated thatthe relationship between emotion suppres-sion and utilitarian preference was strongerfor those participants who had low emotionalreactivity as assessed by psychophysiologicalresponses.

We acknowledge that these types of trol-ley and footbridge problems may seem too re-moved from reality. Thus, it is useful to examineif the same kind of shift occurs in more realisticsettings. Paharia et al. (2009), in their investi-gation of the drug price increase problem, pre-sented a third group of participants with bothpossible actions simultaneously (i.e., Options Aand B described above). They then asked thisgroup of participants to judge which of the twoactions was more unethical. In this case, prefer-ences reversed. When participants could com-pare the two scenarios, they judged an indirectprice increase to $15 as more unethical than adirect price increase to $9.

Why do these shifts occur? Behavioral de-cision research makes a distinction betweenSystem 1 and System 2 thinking that can beuseful in understanding these inconsistencies in

our moral preferences (Stanovich & West 2000,Kahneman & Frederick 2002). System 1 think-ing is our intuitive decision making in action. Itis fast, automatic, effortless, implicit, and emo-tional. System 1 is normal and efficient, and itis appropriate for the vast majority of decisionsthat we make on a daily basis. System 2 is whatwe do when we think in a systematic and orga-nized manner. This system is slower, conscious,effortful, explicit, and logical.

System 1 thinking is comparatively moreprevalent in separate, one-at-a-time decisions.In contrast, System 2 thinking is comparativelymore prevalent in joint, multiple-optiondecisions. People would like to trust their gut(System 1). And System 2 thinking is certainlynot required for every decision we make. Infact, System 1 is just fine for most decisions.For instance, it would not make sense to incurthe costs of System 2 for every choice we makewhile shopping for groceries. But System 2logic should be used for more important deci-sions and for decisions with ethical import. Yetthe frantic pace of many of our lives leads us torely on System 1 thinking, even when System 2thinking is warranted (Chugh 2004). Mead et al.(2009) found that cognitively busy study partic-ipants were more likely to behave unethicallythan were less cognitively busy study partic-ipants (for additional empirical support, seeGino et al. 2011). It takes cognitive energy to bereflective enough to stop the impulse to cheat.

The critical result from research on System1 versus System 2 thinking and on joint ver-sus separate preference reversals is that shift-ing the modes of thought can lead to profounddifferences in how we make ethical decisions.This has implications at the individual and atthe societal levels. The decisions we make cancreate great harm. We certainly believe thatthere were some greedy actors involved in cre-ating the recent financial crisis who engaged inclearly illegal and unethical behavior. But wealso need to address the behavior of thousandswho contributed to the problem without real-izing that they were doing anything wrong orwho did not understand what situational and so-cial pressures were leading them to move away


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from their moral compass. Greater awarenessof behavioral ethics can help on that front.

Changing Policy

The designers of our institutions, our organi-zations, and our government can intervene tochange the way we see and react to problems.Thaler & Sunstein (2008) outline a structureof how to change institutions that take into ac-count the most accurate expectations of howhumans behave. This has important implica-tions in policy formulation. We can requiresmart meters so that homeowners make wiserdecisions. We can change the labels about gasmileage in vehicles to make them more infor-mative to consumers at the point of purchase(Larrick & Soll 2008). By understanding howhumans behave unethically both intentionallyand unintentionally, we can intervene to designinstitutions and organizations that will lead tomore ethical decisions.

We demonstrate the relevance of behavioralethics to policy formulation by considering aspecific policy domain—the area of auditing—which draws on our prior writing (Bazerman &Tenbrunsel 2011, Bazerman & Moore 2011).The role of auditing is to provide outside partieswith an independent assessment of the finan-cial condition of firms. Without independence,there is no reason to have the institution of ex-ternal auditing. As former Chief Justice WarrenBurger noted in United States v. Arthur Young& Co. (1984):

The independent auditor assumes a publicresponsibility transcending any employmentrelationship with the client. The indepen-dent public accountant performing this spe-cial function owes ultimate allegiance to thecorporation’s creditors and stockholders, aswell as to [the] investing public. This “pub-lic watchdog” function demands that the ac-countant maintain total independence fromthe client at all times and requires completefidelity to the public trust.

Yet how auditing has emerged in our societymakes it clear that auditors were not, and still

are not, independent (Bazerman et al. 1997).The threats to independence include auditorsprofiting by being rehired by their clients, au-ditors selling other services to their clients,and specific audit employees taking jobs withtheir present and former clients. In each case,a conflict of interest is created in which audi-tors have a responsibility to be objective andhave financial interests in keeping the clienthappy. Consistent with decades of research insocial psychology, each of these three condi-tions makes independence a farce. When hu-man beings have a vested stake in seeing thedata in a particular manner, even honest peopleare not cognitively capable of making an un-biased or independent assessment (Babcock &Loewenstein 1997).

In contrast, consider what most people,including policy makers, think of when theyreflect on the issue of conflict of interest. Theythink of the intentional choice between doingwhat is right and doing what is in one’s self-interest. Back in 2000, before Enron collapsedand before Sarbanes-Oxley was enacted, theSEC held hearings on whether consultingwork by auditing firms compromised auditorindependence. CEOs of three of the five largeaudit firms (once known as the Big Five but nowas the Final Four after the collapse of ArthurAndersen) clarified that they were professionalswho could be trusted. They presented the issueof conflict of interest as one of integrity andargued that their need to maintain their reputa-tion provided society with protection. Althoughwe personally question the integrity of thesefirms, the important issue is that if society andthe SEC understand that conflict of interestmost commonly occurs implicitly, without theauditor even being aware that she is beingaffected by her incentives, we quickly see thatintegrity is no longer adequate protection. Justas we do not trust the most honest parent to as-sess the brilliance of his or her child, we shouldnot trust auditors to be independent whenthey have numerous psychological reasons tofail in their pursuit of objectivity. Rather, vastchanges to our current auditing institutions areneeded for auditors to provide the most basic

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requirement of their function—independence.A similar analysis applies to rating agencies,which played a critical role in the recentfinancial collapse.

More broadly, the analysis of public policieslooks fundamentally different when we under-stand some of the basic aspects of how humanbeings act in morally relevant domains. As theassumption that individuals have control overtheir behavior has dominated policy making,value-creating policy requires a more thoroughunderstanding of behavioral ethics.

The most important conclusion of the re-search on behavioral ethics, however, may beon how ethics is currently taught in professional

schools. Rather than teaching students howthey should behave when facing ethical dilem-mas, or informing them about what philoso-phers would recommend, the behavioral ethicsperspective suggests a different approach. Be-havioral ethics sees an opportunity in helpingstudents and professionals better understandtheir own behavior in the ethics domain andcompare it to how they would ideally like tobehave. We believe that only by reflecting ontheir ethical failures and the inconsistencies be-tween their desire to be moral and their actualbehavior can they rise to the actions (and eth-ical standards) that their more reflective selveswould recommend.

DISCLOSURE STATEMENT

The authors are not aware of any affiliations, memberships, funding, or financial holdings thatmight be perceived as affecting the objectivity of this review.

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LS08-Frontmatter ARI 5 October 2012 12:49

Annual Review ofLaw and SocialScience

Volume 8, 2012Contents

Legacies of Legal Realism: The Sociology of Criminal Law andCriminal JusticeJerome H. Skolnick � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1

Mass Imprisonment and Inequality in Health and Family LifeChristopher Wildeman and Christopher Muller � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �11

After Critical Legal History: Scope, Scale, StructureChristopher Tomlins � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �31

Paying Attention to What Judges Say: New Directions in the Studyof Judicial Decision MakingKeith J. Bybee � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �69

Behavioral Ethics: Toward a Deeper Understandingof Moral Judgment and DishonestyMax H. Bazerman and Francesca Gino � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �85

Varieties of Transition from Authoritarianism to DemocracyJirı Priban � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 105

Substance, Scale, and Salience: The Recent Historiographyof Human RightsSamuel Moyn � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 123

Immigration, Crime, and Victimization: Rhetoric and RealityMarjorie S. Zatz and Hilary Smith � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 141

Emotion and the LawSusan A. Bandes and Jeremy A. Blumenthal � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 161

Law, Environment, and the “Nondismal” Social SciencesWilliam Boyd, Douglas A. Kysar, and Jeffrey J. Rachlinski � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 183

BullyingEve M. Brank, Lori A. Hoetger, and Katherine P. Hazen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 213

Pro Se LitigationStephan Landsman � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 231

v

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LS08-Frontmatter ARI 5 October 2012 12:49

Regulating Sex Work: Heterogeneity in Legal StrategiesBill McCarthy, Cecilia Benoit, Mikael Jansson, and Kat Kolar � � � � � � � � � � � � � � � � � � � � � � � � � � 255

History Trials: Can Law Decide History?Costas Douzinas � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 273

Empirical Studies of ContractZev J. Eigen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 291

Sociolegal Studies on MexicoJulio Rıos-Figueroa � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 307

Mind the Gap: The Place of Gap Studies in Sociolegal ScholarshipJon B. Gould and Scott Barclay � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 323

Law’s ArchiveRenisa Mawani � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 337

International Human Rights Law and Social Movements: States’Resistance and Civil Society’s InsistenceKiyoteru Tsutsui, Claire Whitlinger, and Alwyn Lim � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 367

Law and Economics of Intellectual Property: In Searchof First PrinciplesDan L. Burk � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 397

Legal History of MoneyRoy Kreitner � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 415

The Force of Law and Lawyers: Pierre Bourdieu and the ReflexiveSociology of LawYves Dezalay and Mikael Rask Madsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 433

Rethinking Corruption in an Age of AmbiguityJanine R. Wedel � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 453

Indexes

Cumulative Index of Contributing Authors, Volumes 1–8 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 499

Cumulative Index of Chapter Titles, Volumes 1–8 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 502

Errata

An online log of corrections to Annual Review of Law and Social Science articles may befound at http://lawsocsci.annualreviews.org

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AnnuAl Reviewsit’s about time. Your time. it’s time well spent.

AnnuAl Reviews | Connect with Our expertsTel: 800.523.8635 (us/can) | Tel: 650.493.4400 | Fax: 650.424.0910 | Email: [email protected]

New From Annual Reviews:Annual Review of Organizational Psychology and Organizational BehaviorVolume 1 • March 2014 • Online & In Print • http://orgpsych.annualreviews.org

Editor: Frederick P. Morgeson, The Eli Broad College of Business, Michigan State UniversityThe Annual Review of Organizational Psychology and Organizational Behavior is devoted to publishing reviews of the industrial and organizational psychology, human resource management, and organizational behavior literature. Topics for review include motivation, selection, teams, training and development, leadership, job performance, strategic HR, cross-cultural issues, work attitudes, entrepreneurship, affect and emotion, organizational change and development, gender and diversity, statistics and research methodologies, and other emerging topics.

Complimentary online access to the first volume will be available until March 2015.TAble oF CoNTeNTs:•An Ounce of Prevention Is Worth a Pound of Cure: Improving

Research Quality Before Data Collection, Herman Aguinis, Robert J. Vandenberg

•Burnout and Work Engagement: The JD-R Approach, Arnold B. Bakker, Evangelia Demerouti, Ana Isabel Sanz-Vergel

•Compassion at Work, Jane E. Dutton, Kristina M. Workman, Ashley E. Hardin

•ConstructivelyManagingConflictinOrganizations, Dean Tjosvold, Alfred S.H. Wong, Nancy Yi Feng Chen

•Coworkers Behaving Badly: The Impact of Coworker Deviant Behavior upon Individual Employees, Sandra L. Robinson, Wei Wang, Christian Kiewitz

•Delineating and Reviewing the Role of Newcomer Capital in Organizational Socialization, Talya N. Bauer, Berrin Erdogan

•Emotional Intelligence in Organizations, Stéphane Côté•Employee Voice and Silence, Elizabeth W. Morrison• Intercultural Competence, Kwok Leung, Soon Ang,

Mei Ling Tan•Learning in the Twenty-First-Century Workplace,

Raymond A. Noe, Alena D.M. Clarke, Howard J. Klein•Pay Dispersion, Jason D. Shaw•Personality and Cognitive Ability as Predictors of Effective

Performance at Work, Neal Schmitt

•Perspectives on Power in Organizations, Cameron Anderson, Sebastien Brion

•Psychological Safety: The History, Renaissance, and Future of an Interpersonal Construct, Amy C. Edmondson, Zhike Lei

•Research on Workplace Creativity: A Review and Redirection, Jing Zhou, Inga J. Hoever

•Talent Management: Conceptual Approaches and Practical Challenges, Peter Cappelli, JR Keller

•The Contemporary Career: A Work–Home Perspective, Jeffrey H. Greenhaus, Ellen Ernst Kossek

•The Fascinating Psychological Microfoundations of Strategy and Competitive Advantage, Robert E. Ployhart, Donald Hale, Jr.

•The Psychology of Entrepreneurship, Michael Frese, Michael M. Gielnik

•The Story of Why We Stay: A Review of Job Embeddedness, Thomas William Lee, Tyler C. Burch, Terence R. Mitchell

•What Was, What Is, and What May Be in OP/OB, Lyman W. Porter, Benjamin Schneider

•Where Global and Virtual Meet: The Value of Examining the Intersection of These Elements in Twenty-First-Century Teams, Cristina B. Gibson, Laura Huang, Bradley L. Kirkman, Debra L. Shapiro

•Work–Family Boundary Dynamics, Tammy D. Allen, Eunae Cho, Laurenz L. Meier

Access this and all other Annual Reviews journals via your institution at www.annualreviews.org.

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AnnuAl Reviewsit’s about time. Your time. it’s time well spent.

AnnuAl Reviews | Connect with Our expertsTel: 800.523.8635 (us/can) | Tel: 650.493.4400 | Fax: 650.424.0910 | Email: [email protected]

New From Annual Reviews:

Annual Review of Statistics and Its ApplicationVolume 1 • Online January 2014 • http://statistics.annualreviews.org

Editor: Stephen E. Fienberg, Carnegie Mellon UniversityAssociate Editors: Nancy Reid, University of Toronto

Stephen M. Stigler, University of ChicagoThe Annual Review of Statistics and Its Application aims to inform statisticians and quantitative methodologists, as well as all scientists and users of statistics about major methodological advances and the computational tools that allow for their implementation. It will include developments in the field of statistics, including theoretical statistical underpinnings of new methodology, as well as developments in specific application domains such as biostatistics and bioinformatics, economics, machine learning, psychology, sociology, and aspects of the physical sciences.

Complimentary online access to the first volume will be available until January 2015. table of contents:•What Is Statistics? Stephen E. Fienberg•A Systematic Statistical Approach to Evaluating Evidence

from Observational Studies, David Madigan, Paul E. Stang, Jesse A. Berlin, Martijn Schuemie, J. Marc Overhage, Marc A. Suchard, Bill Dumouchel, Abraham G. Hartzema, Patrick B. Ryan

•The Role of Statistics in the Discovery of a Higgs Boson, David A. van Dyk

•Brain Imaging Analysis, F. DuBois Bowman•Statistics and Climate, Peter Guttorp•Climate Simulators and Climate Projections,

Jonathan Rougier, Michael Goldstein•Probabilistic Forecasting, Tilmann Gneiting,

Matthias Katzfuss•Bayesian Computational Tools, Christian P. Robert•Bayesian Computation Via Markov Chain Monte Carlo,

Radu V. Craiu, Jeffrey S. Rosenthal•Build, Compute, Critique, Repeat: Data Analysis with Latent

Variable Models, David M. Blei•Structured Regularizers for High-Dimensional Problems:

Statistical and Computational Issues, Martin J. Wainwright

•High-Dimensional Statistics with a View Toward Applications in Biology, Peter Bühlmann, Markus Kalisch, Lukas Meier

•Next-Generation Statistical Genetics: Modeling, Penalization, and Optimization in High-Dimensional Data, Kenneth Lange, Jeanette C. Papp, Janet S. Sinsheimer, Eric M. Sobel

•Breaking Bad: Two Decades of Life-Course Data Analysis in Criminology, Developmental Psychology, and Beyond, Elena A. Erosheva, Ross L. Matsueda, Donatello Telesca

•Event History Analysis, Niels Keiding•StatisticalEvaluationofForensicDNAProfileEvidence,

Christopher D. Steele, David J. Balding•Using League Table Rankings in Public Policy Formation:

Statistical Issues, Harvey Goldstein•Statistical Ecology, Ruth King•Estimating the Number of Species in Microbial Diversity

Studies, John Bunge, Amy Willis, Fiona Walsh•Dynamic Treatment Regimes, Bibhas Chakraborty,

Susan A. Murphy•Statistics and Related Topics in Single-Molecule Biophysics,

Hong Qian, S.C. Kou•Statistics and Quantitative Risk Management for Banking

and Insurance, Paul Embrechts, Marius Hofert

Access this and all other Annual Reviews journals via your institution at www.annualreviews.org.

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