4 Bob Dylan, “Absolutely Sweet Marie” (1966), at https://www.bobdylan.com.
Introduction. The Power of Social Influences
1 See David Schkade et al., What Happened on Deliberation Day? 95 Calif. L. Rev. 915 (2007).
2 See David Schkade, Cass R. Sunstein, and Daniel Kahneman, Deliberating about Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2001).
3 The statements in this paragraph are based principally on William Landes et al., Rational Judicial Behavior: A Statistical Study, 1 J. Legal Analysis 775 (2009); Cass R. Sunstein et al., Are Judges Political? (2006); and Richard L. Revesz, Environmental Regulation, Ideology, and the DC Circuit, 83 Va. L. Rev. 1717, 1755 (1997). To the same general effect, see Frank Cross and Emerson Tiller, Judicial Partisanship and Obedience to Legal Doctrine, 107 Yale L.J. 2155 (1998). Cross and Tiller found that a panel of three Republican judges is far more likely to reject agency action, thus reaching a conclusion predicted of that panel on political grounds, than is a panel of two Republicans and one Democrat. The literature on panel effects is voluminous and offers a number of qualifications and refinements. A valuable discussion, with data, is Pauline Kim, Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, 157 U. Pa. L. Rev. 1319 (2009). Also valuable, with an overview and analysis of multiple studies, is Joshua Fischman, Interpreting Circuit Court Voting Patterns: A Social Interactions Framework, 31 J. Law, Economics, and Organization 808 (2015). Christina Boyd et al., Untangling the Causal Effects of Sex on Judging, 54 Am. J. Polit. Sci. 389 (2010), explores whether the presence of a female judge has an effect on how male judges vote—and finds that in sex discrimination cases, it does have an effect (increasing by 10 percent the likelihood that a judge decides in favor of a party alleging sex discrimination). Morgan Hazelton et al., Panel Effects in Administrative Law: A Study of Rules, Standards, and Judicial Whistleblowing, 71 S.M.U. L. Rev. 445 (2018), explores whether different areas of administrative law show more panel effects. Jonathan Kastellec, Panel Composition and Voting on the U.S. Courts of Appeals over Time, 64 Polit. Res. Q. 377 (2011), finds that panel composition has had an effect on judicial behavior only in relatively recent years. Lewis Wasserman and John Connolly, Unipolar Panel Effects and Ideological Commitment, 31 A.B.A. J. Lab. & Emp. Law 537 (2016), finds that in certain free speech cases, Democratic appointees are unaffected by panel composition, but Republican appointees are significantly affected.
4 See Luther Gulick, Administrative Reflections from World War II (1948).
5 See Harold H. Gardner, Nathan L. Kleinman, and Richard J. Butler, Workers’ Compensation and Family and Medical Leave Act Claim Contagion, 20 J. Risk and Uncertainty 89, 101–10 (2000).
6 See, for example, George A. Akerlof, Janet L. Yellen, and Michael L. Katz, An Analysis of Out-of-Wedlock Childbearing in the United States, 111 Q.J. Econ. 277 (1996).
7 See Edward Glaeser, E. Sacerdote, and Jose Scheinkman, Crime and Social Interactions, 111 Q.J. Econ. 507 (1996).
8 See Robert Kennedy, Strategy Fads and Strategic Positioning: An Empirical Test for Herd Behavior in Prime-Time Television Programming, 50 J. Industrial Econ. 57 (2002).
9 See Andrew F. Daughety and Jennifer F. Reinganum, Stampede to Judgment, 1 Am. L. & Econ. Rev. 158 (1999).
10 Hence Mill’s claim that “the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” John Stuart Mill, On Liberty, in Utilitarianism: On Liberty; Considerations on Representative Government 85 (H. B. Acton ed. 1972).
11 See Alan B. Krueger, What Makes a Terrorist? (10th anniversary edition, 2018).
12 See Timur Kuran, Ethnic Norms and Their Transformation through Reputational Cascades, 27 J. Legal Stud. 623, 648 (1998).
13 See Cass R. Sunstein, Why They Hate Us: The Role of Social Dynamics, 25 Harv. J.L. & Pub. Pol’y 429 (2002).
14 See Russell Hardin, The Crippled Epistemology of Extremism, in Political Rationality and Extremism 3, 16 (Albert Breton et al. eds. 2002).
15 See Joseph Henrich et al., Group Report: What Is the Role of Culture in Bounded Rationality?, in Bounded Rationality: The Adaptive Toolbox 353–54 (Gerd Gigerenzer and Reinhard Selten eds. 2001), for an entertaining outline in connection with food choice decisions. For example, “Many Germans believe that drinking water after eating cherries is deadly; they also believe that putting ice in soft drinks is unhealthy. The English, however, rather enjoy a cold drink of water after some cherries; and Americans love icy refreshments.” Id. at 353. See also Paul Omerod, Butterfly Economics (1993), for a popular account.
16 Mathew Adler, Expressivist Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363 (2000); see also Deborah Hellman, Symposium: The Expressive Dimension of Governmental Action: Philosophical and Legal Perspectives, 60 Md. L. Rev. 465 (2001).
17 See Robert Kagan and Jerome Skolnick, Banning Smoking: Compliance without Enforcement, in Smoking Policy: Law, Politics, and Culture 78 (Robert L. Rabin ed. 1999).
Chapter 1. How Conformity Works
1 See Dominic Abrams et al., Knowing What to Think by Knowing Who You Are: Self-Categorization and the Nature of Norm Formation, Conformity, and Group Polarization, 29 British J. Soc. Psychol. 97 (1990). Group membership and self-categorization are emphasized in John Turner et al., Rediscovering the Social Group: A Self-Categorization Theory 42–67 (1987).
2 See Muzafer Sherif, An Experimental Approach to the Study of Attitudes, 1 Sociometry 90 (1937). A good outline can be found in Lee Ross and Richard Nisbet, The Person and the Situation 28–30 (1991).
3 See Ross and Nisbet, supra note 2, at 29.
4 See id.
5 Id.
6 See id. at 29–30.
7 Jonathan Thomas and Ruth McFadyen, The Confidence Heuristic: A Game-Theoretic Approach, 16 J. Econ. Psych. 97 (1995); Paul Price and Eric Stone, Intuitive Evaluation of Likelihood Judgment Producers: Evidence for a Confidence Heuristic, 17 J. Behav. Decision Making 39 (2004); Dan Bang et al., Does Interaction Matter? Testing Whether a Confidence Heuristic Can Replace Interaction in Collective Decision-Making, 26 Consciousness and Cognition 13 (2014).
8 See the discussion of authority in Robert Cialdini, Influence: The Psychology of Persuasion 208–36 (1993). For evidence that minority views can be influential if they are held by consistent, confident people, see Robert Bray et al., Social Influence by Group Members with Minority Opinions, 43 J. Personality and Soc. Psychol. 78 (1982).
9 See Abrams, supra note 1, at 99–104.
10 See the overview in Solomon Asch, Opinions and Social Pressure, in Readings about the Social Animal 13 (Elliott Aronson ed. 1995).
11 Solomon Asch, Social Psychology 453 (1952).
12 Asch, Opinions and Social Pressure, supra note 10, at 13.
13 See id. at 16.
14 See id.
15 See Rod Bond and Peter Smith, Culture and Conformity: A Meta-Analysis of Studies Using Asch’s Line Judgment Task, 119 Psychol. Bulletin 111, 116 (1996).
16 See id. at 118.
17 See id. at 128.
18 See Ronald Friend et al., A Puzzling Misinterpretation of the Asch “Conformity” Study, 20 Eur. J. of Soc. Psychol. 29, 37 (1990). Also valuable is Richard Griggs et al., The Disappearance of Independence in Textbook Coverage of Asch’s Social Pressure Experiments, 42 Teaching of Psych. 137 (2015).
19 Asch, Social Psychology, supra note 11, at 457–58.
20 Id. at 466.
21 See id. at 470.
22 See id.
23 It would be possible to question this explanation, however, on the ground that some of these conformists might have been embarrassed to admit they w
ere vulnerable to peer influence, entirely apart from a belief that the peers might have been right.
24 See Robert Shiller, Irrational Exuberance 149–50 (2000).
25 See Bond and Smith, supra note 15, at 124.
26 See Asch, Opinions and Social Pressure, supra note 10, at 23–24.
27 See Robert Baron et al., Group Process, Group Decision, Group Action 66 (2d ed. 1999).
28 Asch, Opinions and Social Pressure, supra note 10, at 21.
29 Id.
30 See Sophie Sowden et al., Quantifying Compliance and Acceptance through Public and Private Social Conformity, Consciousness and Cognition 65 Conscious Cogn. 359 (2018).
31 Id.
32 B. Douglas Bernheim and Christine Exley, Understanding Conformity: An Experimental Investigation (2015), at https://www.hbs.edu.
33 See B. Douglas Bernheim, A Theory of Conformity, 102 J. Polit. Econ. 841 (1994).
34 Spee Kosloff et al., Assessing Relationships between Conformity and Meta-Traits in an Asch-Like Paradigm, 12 J. Influence 90 (2017).
35 See Kees Van Den Bos et al., Reminders of Behavioral Disinhibition Increase Public Conformity in the Asch Paradigm and Behavioral Affiliation with Ingroup Members, Front. Psych. (2015), at https://www.frontiersin.org.
36 John Stuart Mill, On Liberty, in Utilitarianism: On Liberty; Considerations on Representative Government 73 (H. B. Acton ed. 1972).
37 See Baron et al., Group Process, supra note 27.
38 See id.
39 See Robert Baron et al., The Forgotten Variable in Conformity Research: Impact of Task Importance on Social Influence, 71 J. Personality and Social Psychol. 915 (1996).
40 See id. at 923.
41 See id.
42 See Daniel Goldstein et al., Why and When Do Simple Heuristics Work?, in Bounded Rationality: The Adaptive Toolbox 174 (Gerd Gigerenzer and Reinhard Selten eds. 2001).
43 See id.
44 Baron et al., Forgotten Variable, supra note 39, at 925.
45 Id.
46 See Asch, Opinions and Social Pressure, supra note 10.
47 See Baron et al., Group Process, supra note 27, at 119–20.
48 See id. at 18. The finding here is reminiscent of the tale of “The Emperor’s New Clothes,” in which a single voice of sanity was necessary and sufficient to expose the truth. See Hans Christian Anderson, The Emperor’s New Suit, in Shorter Tales (Jean Hersholt trans. 1948; originally published 1837).
49 See Brooke Harrington, Pop Finance: Investor Clubs and New Investor Populism (2008).
50 See id.
51 See Abrams et al., supra note 1, at 104–10.
52 See Baron et al., Group Process, supra note 27, at 66. The point is stressed at various places in Turner, supra note 1; see, for example, pp. 151–70.
53 See Abrams et al., supra note 1, at 106–8.
54 See id.
55 See id. at 108. By contrast, people who thought they were members of a different group actually gave more accurate, nonconforming answers when speaking publicly, which creates an interesting puzzle: why was there more accuracy in public than in private statements? The puzzle is solved if we consider the likelihood that subjects could consider it an affirmative good to disagree with people from another group (even if they secretly suspected that those people might be right). In the real world, this effect may be heightened when people are asked whether they agree with opponents or antagonists; they might say no even when the answer is yes, simply because agreement carries costs, either to reputation or to self-conception.
There is a noteworthy finding about the nature of minority influences: they have a larger impact on people’s privately expressed views than on their publicly expressed views. See Baron et al., Group Process, supra note 27, at 79–80. For example, minority members who express enthusiasm for gay rights, or opposition to gay rights, affect anonymous opinions more than publicly stated opinions. See id. at 80. This point has obvious implications for the effects of secret votes and ballots.
56 Consider the fact that the least conformity, and the greatest accuracy, was found when people who thought of themselves in a different group were speaking publicly. At the same time, the largest number of conforming, inaccurate responses came when people thought of themselves in the same group and were speaking publicly—even though the number of inaccurate private responses in that experimental condition was not notably higher than in other conditions. See Abrams et al., supra note 1, at 108.
57 There are other noteworthy findings about the Asch experiments. For example, cultures that are traditionally described as collectivist show greater conformity effects than cultures that are traditionally described as individualist. “On the basis of our discussion, we would expect differences in susceptibility to social influence between individualist and collectivist cultures to be even greater when the task was, for example, an opinion issue.” Bond and Smith, supra note 15, at 128. Since the 1950s, there has been a linear reduction in conformity, suggesting that over time people have become more willing to reject the views of the majority. See id. at 129. Women are more likely to conform than men. See id. at 130. The latter finding is worth emphasizing; it fits well with the general finding that members of low-status groups are less likely to speak out within heterogeneous organizations. See Caryn Christenson and Ann Abbott, Team Medical Decision Making, in Decision Making in Health Care 267, 273–76 (Gretchen Chapman and Frank Sonnenberg eds. 2000). This last point suggests the importance of creating mechanisms to ensure that low-status people speak and are heard.
58 This unconventional interpretation is set out in Thomas Blass, The Milgram Paradigm after 35 Years: Some Things We Now Know about Obedience to Authority, in Obedience to Authority: Critical Perspectives on the Milgram Paradigm 35, 38–44 (Thomas Blass ed. 1999). See also Shiller, supra note 24, at 150–51. Milgram’s experiments remain highly controversial, and the issue of how to interpret them continues to provoke discussion. Mel Slater et al., A Virtual Reprise of the Stanley Milgram Obedience Experiments, 4 PLoS ONE 1 (2006), studies the obedience experiments in a virtual setting; it finds that subjects responded as if the situation were real and also finds responses compatible with those in Milgram’s experiments. S. Alexander Haslam and Stephen Reicher, Contesting the “Nature” of Conformity: What Milgram and Zimbardo’s Studies Really Show, 10 PLoS Biology 1 (2012), emphasizes the subjects’ identification with the experimenter and a corresponding belief that the experimenter is likely to be right—an explanation that fits with what I offer in the text. Gina Perry, Behind the Shock Machine: The Untold Story of the Notorious Milgram Psychology Experiments (2013) is too provocative (I think), but it has some useful details and can be read to fit with the Asch-like explanation that Blass offers and on which I rely here. An alternative perspective, worth careful attention, suggests that Milgram’s studies should be seen “not as demonstrations of conformity or obedience, but as explorations of the power of social identity–based leadership to induce active and committed followership.” See Stephen Reicher et al., Working toward the Experimenter: Reconceptualizing Obedience within the Milgram Framework as Obedience-Based Followership, 7 Perspectives on Psychological Sci. 315 (2012).
59 See Stanley Milgram, Behavioral Study of Obedience, in Readings about the Social Animal 23 (7th ed. 1995).
60 Id. at 24.
61 See id. at 25.
62 Id. at 27.
63 Id. at 29.
64 Id. at 30.
65 See Stanley Milgram, Obedience to Authority 35 (1974).
66 See id. at 23.
67 Id. at 55.
68 See id. at 55–57.
69 See id. at 58.
70 Jerry Burger, Replicating Milgram: Would People Still Obey Today?, 64 Am. Psych. 1 (2009).
71 See id. at 34.
72 See Blass, supra note 58, at 42–44.
73 See Milgram, Obedience to Authority, supra note 65, at 113–22.
74 See id. at 119.
75 See id. at 118.
76 See id.<
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Chapter 2. Cascades
1 See Matthew J. Salganik, Peter Sheridan Dodds, and Duncan J. Watts, Experimental Study of Inequality and Unpredictability in an Artificial Cultural Market, 311 Science 854 (2006); see also Matthew Salganik and Duncan Watts, Leading the Herd Astray: An Experimental Study of Self-Fulfilling Prophecies in an Artificial Cultural Market, 71 Soc. Psychol. Q. 338 (2008); and Matthew Salganik and Duncan Watts, Web-Based Experiments for the Study of Collective Social Dynamics in Cultural Markets, 1 Topics in Cognitive Sci. 429 (2009).
2 Salganik and Watts, Leading the Herd Astray, supra note 1.
3 See Timur Kuran and Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683, 703–5 (1999).
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