Unfair

by Adam Benforado

  Cheating by students is rampant: “A Cheating Crisis in America’s Schools,” ABC News, April 29, 2012, http://abcnews.go.com/​Primetime/story?id=132376&page=1; Richard Pérez-Peña, “Studies Find More Students Cheating, With High Achievers No Exception,” New York Times, September 7, 2012, http://www.nytimes.com/​2012/09/08/education​/studies-show-more-students-cheat-even-high-achievers.html; Amy Novotney, “Beat the Cheat,” Monitor on Psychology 42 (2011): 54, http://www.apa.org/​monitor/2011/06​/cheat.aspx. An analysis of 14,000 undergraduates found that two-thirds admitted to cheating on various tests and assignments. Novotney, “Beat the Cheat,” 54.

  Graduate students cheat, too: Researchers conducted a survey of 5,331 students at thirty-two graduate schools. Donald L. McCabe, Kenneth D. Butterfield, and Linda Klebe Treviño, “Academic Dishonesty in Graduate Business Programs: Prevalence, Causes, and Proposed Action,” Academy of Management Learning and Education 5 (2006): 299; Lucia Graves, “Which Types of Students Cheat Most?,” U.S. News and World Report, October 3, 2008, http://www.usnews.com/​education/articles​/2008/10/03/which-types-of-students-cheat-most?s_cid=related-links:TOP. It is possible that the lower percentage for law students may partially reflect the fact that law school exams are often essay exams that may be more difficult to cheat on. That said, there is no evidence to suggest that law students are somehow more ethically challenged than their peers in other disciplines.

  What’s more, top students appear: Pérez-Peña, “Studies Find More Students Cheating.”

  In recent years, significant cheating: Pérez-Peña, “Studies Find More Students Cheating.”

  If dishonesty doesn’t come down to: Dan Ariely, The (Honest) Truth About Dishonesty (New York: Harper Collins, 2012), 4, 14.

  Making it less likely that: Ariely, The (Honest) Truth About Dishonesty, 20–21.

  Indeed, when the researchers increased: Ariely, The (Honest) Truth About Dishonesty, 19–20.

  Lots and lots of people: The empirical research backs up the data from the real world on this point. Nina Mazar, O. Amir, and Dan Ariely, “The Dishonesty of Honest People: A Theory of Self-Concept Maintenance,” Journal of Marketing Research 45 (2008): 642.

  In one study documenting this: Nina Mazar and Dan Ariely, “Dishonesty in Everyday Life and Its Policy Implications,” Journal of Public Policy and Marketing 25, vol. 1 (2006): 7.

  And sure enough, a very large: Mazar and Ariely, “Dishonesty in Everyday Life,” 7.

  But each person cheated by: Mazar and Ariely, “Dishonesty in Everyday Life,” 7.

  According to researchers, that mechanism: Ariely, The (Honest) Truth About Dishonesty, 26–27.

  We are each strongly motivated: Lisa L. Shu, Francesca Gino, and Max H. Bazerman, “Dishonest Deeds, Clear Conscience: When Cheating Leads to Moral Diengagement and Motivated Forgetting,” Personality and Social Psychology Bulletin 37 (2001): 331.

  We want to believe that: Shu, Gino, Bazerman, “Dishonest Deeds, Clear Conscience,” 331.

  The more an instance of cheating: Christopher J. Bryan, Gabrielle S. Adams, and Benoît Monin, “When Cheating Would Make You a Cheater: Implicating the Self Prevents Unethical Behavior,” Journal of Experimental Psychology: General 142, no. 4 (2013): 1, doi: 10.1037/a0030655.

  In an interesting demonstration of this: Bryan, Adams, and Monin, “When Cheating Would Make You a Cheater,” 3–4.

  Although all participants were aware: Bryan, Adams, and Monin, “When Cheating Would Make You a Cheater,” 3–4.

  It’s hard to imagine that: Bryan, Adams, and Monin, “When Cheating Would Make You a Cheater,” 3–4.

  When the verb “cheat” was used: Bryan, Adams, and Monin, “When Cheating Would Make You a Cheater,” 4.

  To feel good about ourselves: Ariely, The (Honest) Truth About Dishonesty, 26–27.

  Cheating on a few questions: Mazar, Amir, and Ariely, “The Dishonesty of Honest People,” 635–42.

  But there’s another way: Shu, Gino, and Bazerman, “Dishonest Deed, Clear Conscience,” 330–31; Ariely, The (Honest) Truth About Dishonesty, 26–27.

  So, although 51 percent: Josephson Institute of Ethics, “For the First Time in a Decade, Lying, Cheating and Stealing Among American Students Drops,” The Ethics of American Youth: 2012, November 20, 2012, http://charactercounts.org/​programs/reportcard/2012/index.html; Josephson Institute of Ethics, “2012 Report Card on the Ethics of American Youth,” November 20, 2012, http://charactercounts.org/​pdf/reportcard/2012​/ReportCard-2012-DataTables-HonestyIntegrityCheating.pdf. In addition, 99 percent of students agreed that “it is important for me to be a person with good character,” 92 percent agreed that “people should play by the rules even if it means they lose,” and 81 percent agreed that “when it comes to doing right, I am better than most people I know.” Josephson Institute of Ethics, “2012 Report Card.”

  Likewise, while taxpayers end up: Put differently, the government collects only about 83 percent of what it is owed each year, despite widespread disapproval of tax evasion. IRS Oversight Board, 2011 Taxpayer Attitude Survey (Washington, DC: IRS Oversight Board, 2012): 3, http://www.treasury.gov/​irsob/reports/2012​/IRSOB~Taxpayer%20Attitude%20Survey%202012.pdf; Internal Revenue Service, “Tax Gap”; Rebecca Jarvis, “America at Tax Time: What Cheaters Cost Us,” CBS News, April 16, 2012, http://www.cbsnews.com/​8301-3445_162-57414288/america-at-tax-time-what-cheaters-cost-us/; Kevin McCoy, “IRS Struggling to Combat Rise in Tax Fraud,” USA Today, April 15, 2012; Adam Davidson et al., “What’s the Easiest Way to Cheat on Your Taxes,” New York Times, April 3, 2012, http://www.nytimes.com/​2012/04/08/magazine​/whats-the-easiest-way-to-cheat-on-your-taxes.html?pagewanted=all&_r=0. When the IRS Oversight Board conducted a survey in 2011, 84 percent of participants reported that it was “not at all acceptable to cheat on one’s income taxes.” Jarvis, “What Cheaters Cost Us.” Tax cheating is so widespread that even those who are most likely to get caught and have the most to lose seem unable to resist. Right after President Obama first took office in 2009, for example, he immediately had to deal with the controversy related to three of his high-profile nominees acknowledging that they failed to pay certain income taxes. Jeff Zeleny, “Daschle Ends Bid for Post, Obama Concedes Mistake,” New York Times, February 3, 2009, http://www.nytimes.com/​2009/02/04​/us/politics/04obama.html​?adxnnl=1&adxnnlx=1358357494-69yNRPiCWFllvL3DdUjLxA.

  If we want to understand why: Ariely, The (Honest) Truth About Dishonesty, 39.

  When justifying our actions: Ariely, The (Honest) Truth About Dishonesty, 53.

  And therein lies the key: Some experts have theorized that deceiving ourselves is beneficial because it means that we are less likely to manifest to others that we are dishonest. Ariely, The (Honest) Truth About Dishonesty, 142.

  One of the most promising strategies: Ariely, The (Honest) Truth About Dishonesty, 184.

  And the greater the distance: Ariely, The (Honest) Truth About Dishonesty, 59.

  For example, scientists have found: Ariely, The (Honest) Truth About Dishonesty, 33–34. The experiment parallels the experience of the worker who steals office supplies but not cash, or the shopper who receives an unexpected “discount”: it’s easy to justify not returning to a department store to remedy a $20 undercharge on our credit card but very difficult to rationalize taking a $20 bill out of the cash register—despite the fact that the ultimate harm to the store is the same. In another study of this dynamic, when researchers asked golfers about how comfortable the average golfer would be cheating in different ways, participants reported that moving the ball with the club would be most comfortable, followed by kicking it with a shoe, followed by picking it up with the hand. Ariely, The (Honest) Truth About Dishonesty, 58–59. The more distance between the golfer (or customer, student, or employee) and the clearly impermissible act or undeniable harm, the easier to act dishonestly and maintain a positive self-view. Ariely, The (Honest) Truth About Dishonesty, 59.

  Since Thompson was on death row: Connick, 131 S
. Ct. at 1374 (Ginsburg, J., dissenting); Lithwick, “Cruel but Not Unusual.”

  Indeed, it was possible that: This aligns with one of Williams’s claims that the lab report did not qualify as Brady material “because [he] didn’t know what the blood type of Mr. Thompson was.” Connick, 131 S. Ct. at 1379 (Ginsburg, J., dissenting). The District Court, however, instructed the jury that the report did qualify as Brady material. Connick, 131 S. Ct. at 1379 (Ginsburg, J., dissenting).

  Although we can’t know for sure: Lithwick, “Cruel but Not Unusual.”

  Other common types of prosecutorial misconduct: Possley and Armstrong, “The Flip Side of a Fair Trial.”

  It can also feel like: Shu, Gino, and Bazerman, “Dishonest Deed, Clear Conscience,” 331.

  Researchers have begun to look more: Ariely, The (Honest) Truth About Dishonesty, 197–201; Francesca Gino, Shahar Ayal, and Dan Ariely, “Contagion and Differentiation in Unethical Behavior,” Psychological Science 20, no. 3 (2009): 393–98.

  In a recent study, psychologists had: Gino, Ayal, and Ariely, “Contagion and Differentiation,” 395.

  One of the “test-takers,” who was: Gino, Ayal, and Ariely, “Contagion and Differentiation,” 395.

  The question was whether: Ariely, The (Honest) Truth About Dishonesty, 197, 199; Gino, Ayal, and Ariely, “Contagion and Differentiation,” 395–96.

  It did, but only when: Ariely, The (Honest) Truth About Dishonesty, 204–06; Gino, Ayal, and Ariely, “Contagion and Differentiation,” 396.

  When he was wearing a rival: Ariely, The (Honest) Truth About Dishonesty, 204–06; Gino, Ayal, and Ariely, “Contagion and Differentiation,” 396.

  Responding to Justice Scalia’s characterization: Connick, 131 S. Ct. at 1366 (Scalia, J., concurring); Liptak, “$14 Million Jury Award to Ex-Inmate Is Dismissed.”

  As she described: Connick, 131 S. Ct. at 1370 (Ginsberg, J, dissenting).

  Bruce Whittaker, the prosecutor who had: Connick, 131 S. Ct. at 1372 (Ginsberg, J, dissenting); Connick, 131 S. Ct. at 1356.

  But neither man turned it over: Connick, 131 S. Ct. at 1356; Connick, 131 S. Ct. at 1372 (Ginsberg, J, dissenting).

  Then Deegan, who was working: Connick, 131 S. Ct. at 1356.

  Neither Williams nor Deegan mentioned: Connick, 131 S. Ct. at 1356.

  There were other critical materials: Connick, 131 S. Ct. at 1372 (Ginsberg, J, dissenting).

  Thompson’s attorneys might have seriously: Connick, 131 S. Ct. at 1374 (Ginsberg, J, dissenting).

  Likewise, the defense team might have: Connick, 131 S. Ct. at 1374 (Ginsberg, J, dissenting).

  And, critically, Thompson’s attorneys: Connick, 131 S. Ct. at 1374 (Ginsberg, J, dissenting).

  All of this suggests a culture: “Failure of Empathy and Justice,” New York Times, March 31, 2011, http://www.nytimes.com/​2011/04/01/opinion​/01fri2.html?_r=0.

  As Justice Ginsburg put it: Connick, 131 S. Ct. at 1370 (Ginsberg, J, dissenting).

  District Attorney Connick himself: Connick, 131 S. Ct. at 1378 (Ginsberg, J, dissenting); Emily Bazelon, “Playing Dirty in the Big Easy,” Slate, April 18, 2012, http://www.slate.com/​articles/news_and_politics​/crime/2012/04/new_orleans_district_attorney_leon_cannizzaro_is_being_questioned_for_his_ethics_in_pursuing_convictions_.html.

  But we also take cues: Ariely, The (Honest) Truth About Dishonesty, 122.

  This explains, in part, how: Ariely, The (Honest) Truth About Dishonesty, 137.

  Take a few steps down: Ariely, The (Honest) Truth About Dishonesty, 130–31.

  It is not just that small infractions: Ariely, The (Honest) Truth About Dishonesty, 123–30.

  In one of my favorite experiments: Ariely, The (Honest) Truth About Dishonesty, 123–24.

  You might expect that the fake: Ariely, The (Honest) Truth About Dishonesty, 125.

  According to the researchers: Ariely, The (Honest) Truth About Dishonesty, 126.

  And they also viewed: Ariely, The (Honest) Truth About Dishonesty, 132–34.

  It is easy to see how: Ariely, The (Honest) Truth About Dishonesty, 136.

  Initially, a colleague or superior: Ariely, The (Honest) Truth About Dishonesty, 136.

  Awareness of that transgression may: Ariely, The (Honest) Truth About Dishonesty, 136.

  After the initial breach of ethics: Ariely, The (Honest) Truth About Dishonesty, 136.

  Making matters worse, the research predicts: Ariely, The (Honest) Truth About Dishonesty, 132–34.

  As improbable as it sounds: Shu, Gino, and Bazerman, “Dishonest Deed, Clear Conscience,” 331.

  Indeed, research suggests that a major: Ariely, The (Honest) Truth About Dishonesty, 177–78.

  In one experiment, scientists looked: Ariely, The (Honest) Truth About Dishonesty, 177–78.

  Customers on the receiving end: Ariely, The (Honest) Truth About Dishonesty, 177–78.

  We might also imagine a new attorney: Ariely, The (Honest) Truth About Dishonesty, 136–37.

  Deegan was the least experienced: Connick, 131 S. Ct. at 1372 n. 3 (Ginsberg, J, dissenting).

  Along similar lines, one way: Shu, Gino, and Bazerman, “Dishonest Deed, Clear Conscience,” 331.

  If you speak with prosecutors candidly: Abbe Smith, “Can You Be a Good Person and a Good Prosecutor?,” Georgetown Journal of Legal Ethics 14 (2001): 376.

  In a startling finding: Ariely, The (Honest) Truth About Dishonesty, 232.

  If we are acting solely: Ariely, The (Honest) Truth About Dishonesty, 232.

  People who work for nonprofit: Ariely, The (Honest) Truth About Dishonesty, 232.

  Ironically, then, it is caring deeply: Ariely, The (Honest) Truth About Dishonesty, 232.

  Guilt-prone people, for example: Taya R. Cohen, A. T. Panter, and Nazli Turan, “Guilt Proneness and Moral Character,” Current Directions in Psychological Science 21 (2012): 355, doi: 10.1177/0963721412454874.

  Sparked by intriguing findings: David Salisbury, “Breakdown of White-Matter Pathways Affects Decisionmaking As We Age,” Research News @ Vanderbilt, April 11, 2012, http://news.vanderbilt.edu/​2012/04​/declining-decisionmaking/; Hikaru Takeuchi et al., “White Matter Structures Associated With Creativity: Evidence From Diffusion Tensor Imaging,” NeuroImage 51 (2010): 11–18; Ariely, The (Honest) Truth About Dishonesty, 170.

  Their hypothesis was that people: Ariely, The (Honest) Truth About Dishonesty, 172.

  Sure enough, in their experiments: Francesca Gino and Dan Ariely, “The Dark Side of Creativity: Original Thinkers Can Be More Dishonest,” Journal of Personality and Social Psychology 102 (2011): 449, doi: 10.1037/a0026406; Ariely, The (Honest) Truth About Dishonesty, 176.

  Moreover, the researchers found that: Ariely, The (Honest) Truth About Dishonesty, 184–85; Gino and Ariely, “The Dark Side of Creativity,” 450–51.

  Interestingly, general intelligence doesn’t appear: Ariely, The (Honest) Truth About Dishonesty, 176.

  And with frequently vague: Ariely, The (Honest) Truth About Dishonesty, 172.

  Almost all of the most common: Dan Simon, In Doubt: The Psychology of the Criminal Justice System (Cambridge, MA: Harvard University Press, 2012), 231–32 n. 39.

  It made a difference that Deegan: Connick, 131 S. Ct. at 1356.

  It also mattered that the blood: Connick, 131 S. Ct. at 1356.

  We should worry, then: Possley and Armstrong, “The Flip Side of a Fair Trial.”

  In addition, research suggests that: Gino et al., “Unable to Resist Temptation,” 192.

  According to some psychologists: Ariely, The (Honest) Truth About Dishonesty, 101; Isaiah M. Zimmerman, “Stress and the Trial Lawyer,” Litigation 9 (1983): 37. For an overview of the more general research on “ego depletion,” see Steven Pinker, “The Sugary Secret of Self-Control,” review of Willpower: Rediscovering the Greatest Human Strength, by Roy F. Baumeister and John Tierney, New York Times, September 2, 2011, http://www.nytimes.com/​2011/09/04/books​/review/willpower-by-roy-f-baumeister-and-johntierney-book-review​.html?pag
ewanted=all; John Tierney, “Be It Resolved,” New York Times, January 5, 2012, http://www.nytimes.com/​2012/01/08/sunday-review​/new-years-resolutions-stick-when-willpower-is-reinforced​.html?pagewanted=all&_r=0. Outside of the dishonesty context, this depletion account of self-control is controversial and some researchers have offered evidence that contests it. See, e.g., Xiaomeng Xu et al., “Failure to Replicate Depletion of Self-Control,” PLOS ONE 9, no. 10 (2014): 1.

  But he may face other stresses: Zimmerman, “Stress and the Trial Lawyer,” 37.

  Figuring out how to please: Worse still, researchers have documented that the very act of refraining from engaging in unethical behavior may itself deplete self-regulatory resources—making even the most ethical of us more likely to subsequently engage in dishonest action. Ariely, The (Honest) Truth About Dishonesty, 101.

  Given the likely frequency: Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge, MA: Harvard University Press, 2011), 168; Adam Liptak, “THE NATION; Prosecutor Becomes Prosecuted,” New York Times, June 24, 2007, http://query.nytimes.com/​gst/fullpage.html?res​=9900E1DC1E3FF937A15755C0A9619C8B63#h; Bazelon, “Playing Dirty in the Big Easy.”

  Many of the cases over: Simon, In Doubt, 231–32 n. 39. Out of the first seventy-four exoneration cases involving DNA, there were thirty-three instances of prosecutorial misconduct. Simon, In Doubt, 231–32 n. 39.

  Concealing evidence, one of the most: Garrett, Convicting the Innocent, 168.

  Deegan eventually came to: Zoë Chance et al., “Temporal View of the Costs and Benefits of Self-Deception,” Proceedings of the National Academy of Sciences 108 (2011): 15657.

  In one set of experiments: Chance, “Temporal View,” 15657.

  Winning effectively wipes: Ariely, The (Honest) Truth About Dishonesty, 154.

  Our moral flexibility: Novotney, “Beat the Cheat,” 54.

  Research suggests that the more: Novotney, “Beat the Cheat,” 54.

  In one notorious example: Possley and Armstrong, “The Flip Side of a Fair Trial.”