Neuroethics & Law Blog

Emotion and the Ultimatum Game (Blumenthal)

Most people, I think, are familiar with the two-person “ultimatum game.”  Briefly, one party is responsible for allocating a fixed sum (e.g., $10) between herself and another party, who may accept the proposed allocation (in which case it stands) or may reject it (in which neither party receives anything).  A purely utilitarian calculus would suggest that the offeror offer a penny and keep the remainder, as under those circumstances both parties are objectively better off.  Responding indignantly to perceived inequity, however, most receivers reject any offer less than 20% of the fixed sum, even though they themselves are consequently worse off.  E.g., Alan G. Sanfrey, et al., The Neural Basis of Economic Decision-Making in the Ultimatum Game, 300 Sci. 1755 (2003) (noting that neurological areas associated with “disgust” are activated in offerees who reject low offers).  As a result, offerors tend instead to offer approximately 40-50% of the “pot.”

Many, including myself, have talked about such findings in terms of (a) implications for fairness, “bounded self-interest,” altruism, etc.; and/or (b) links between emotions and moral reasoning/behavior.  So I was very interested in recent findings suggesting that such rejection may indeed reflect an offeree’s negative emotional response, but that an alternative opportunity to express that negative emotion leads to “ordinary” rational, self-interested responses.  That is, when an offeree is given another way to express her sense of unfairness—e.g., by writing a note to the offeror—that simple act of expression seems to dissipate the emotion and yield a more utilitarian calculus.  (Incidentally, there were a couple interesting conference presentations associating more "automatic"--that is, more default--moral judgments with more utilitarian judgments, and more "conscious"--that is, longer, more consciously reasoned, more emotional--moral judgments with more deontological judgments.  Very interesting.)

I think those findings have some interesting broader implications: (1) setting some boundary conditions on the ultimatum game itself; (2) setting similar conditions on the inferences to be drawn from previous ultimatum game findings; (3) “procedural justice” implications, in terms of potential dangers of giving people a “voice” in expressing their feelings about legal proceedings.

The findings were presented at the ISRE conference I mention in some previous blogs.  Erte Xiao (George Mason), Emotion Expression in Human Punishment Behavior.  A version may have been published in 2005, in Proceedings of the National Academy of Sciences.

Emotions and Legal Decision-Making Panel (Blumenthal)

Following up on my last post about next week's International Society for Research on Emotions conference, I wanted to highlight my co-panelists' presentations.  The Society is interdisciplinary, but I understand it has been relatively uncommon to have legal academics presenting at the conference on issues directly relevant to legal decision-making (I'll mention shortly a number of other presentations, though, that also have relevance for the law).  So I'm excited for the opportunity.

Our Panel consist of five presenters: myself (Syracuse); Terry Maroney (Vanderbilt); Peter Huang (Temple); Jennifer Robbennolt (Illinois); and Christina Wells (Missouri).  We have all published recently on topics incorporating empirical research on emotions into legal and policy issues.

My talk will be on a draft of my recent paper, "Emotional Paternalism."

Terry Maroney will present "Emotional Competence, 'Rational Understanding,' and the Criminal Defendant" (forthcoming, American Crim. L. Rev.):

The role of emotion is wrongly neglected in the legal standard for competence to stand trial.  After discussing emotion's role in decision making, I explore two illustrative contexts (severe psychiatric mood disorder and organic brain damage) in which a focus on emotion within the decision-making contexts relevant to adjudicative competence will yield results that a cognitive inquiry likely will not.  I conclude that a proper view of the competence standard requires that, when judging whether a defendant is competent to decide for herself how to navigate the shoals of criminal prosecution, we look to both her thought processes and emotional functioning.

Peter Huang will present "Happiness and Evaluating Financial Policy Affect":

I suggest that financial regulators proceed beyond cost-benefit analysis in rulemaking by analyzing the impact of regulation on people's happiness.  i examine positive affect (investor confidence, faith, and trust in securities markets) , and negative affect (depression, financial anxiety, and investment stress), both of which cost-benefit analysis fails to sufficiently address.  Securities regulation in many areas - mandatory disclosures; gun-jumping rules for publicly registered offerings; financial education; statutory or judicial default rules and menus; and statutes that provide for continual reassessment and revision of regulation - affects investor sentiment and so demonstrates the importance of incorporating happiness into financial regulation.

Jennifer Robbennolt will present "Emotions and Litigation Decision Making: Apologies and Settlement":

These studies examine the role of apologies in litigation, providing empirical data about whether, under what circumstances, and by what mechanisms apologies facilitate settlement.  The settlement decisions examined include decisions about one's bottom-line price, aspirations, and expectations about fair settlement values, and about whether to accept particular settlement offers.  The findings demonstrate that apologies can be beneficial in facilitating dispute settlement.  Apologies can improve the prospects for settlement by altering perceptions, attributions, and judgments.  The nature of the apology itself, however, as well as the factual circumstances surrounding the incident, may play important roles in how apologies are understood.

Christina Wells will present "Fear and Loathing in Constitutional Decision Making" (2005 Wisc. L. Rev. 115):

National security crises often generate oppressive government actions toward allegedly threatening groups or individuals.  Unfortunately, judges reviewing such actions remain subject to the same passions, fears, and prejudices that sweep the rest of the nation.  In fact, psychological research on heuristics and emotions suggests that in times of stress, people, including judges, exaggerate and react against the threats posed by disfavored groups.  Such effects can bias the judgments involved in the constitutional decision-making judges must undertake.  Building on an infamous Cold War case, United States v. Dennis, I show that both historical and modern constitutional law is susceptible to such bias, and may provide ineffective protection in time of national crisis.  I show the need for a constitutional doctrine to counteract the effects of such fear and prejudice, and make suggestions for reform.

Conference on Emotions Research (Blumenthal)

Beginning next Sunday, the International Society for Research on Emotions will hold its annual conference, in Atlanta.  The program is available here, and it looks like a variety of interesting presentations, many of which are relevant to the law.  I'm attending and presenting, chairing a Panel on "Emotions in the Legal System," with some terrific panelists (whom I'll say more about shortly).  I also hope to comment a bit from the conference, depending, of course, on web access.

Check it out!