The previous post showed how a public speech-chilling campaign, aimed at deterring criticism (and litigation, regulation or prohibition) of some product or industry, can work by deriding the critical alarm as ‘moral panic’.
This project is, naturally, often entrusted to a lawyer.
One legal scholar has also done much to develop and popularize a theoretical model of so-called moral panics and belief transmission.
Cass Sunstein lends fashionable respectability and intellectual heft with his research on ‘populist firestorms’, ‘intuitive toxicology’, ‘belief contagion’, ‘mass delusions’, ‘herding’, ‘availability cascades’ and the generation of collective false beliefs.
Sunstein has been a professor at University of Chicago and Harvard law schools. He now is the chief official in the Obama administration’s Office of Information and Regulatory Affairs.
In books like Risk and Reason (2002), The Laws of Fear: Beyond the Precautionary Principle (2005) and Worst-Case Scenarios (2007), Sunstein has critically discussed the emergence of ‘mass demand for regulation’ of putatively dangerous goods and services (e.g. faulty products or those to which exposure might be hazardous).
He has described how ‘public panic, based on an intense emotional reaction to a low-probability risk’, can lead to fear and hysteria about catastrophic rare occurrences such as aviation disasters, arsenic in the water supply and terrorist attacks, or dangers arising from toxic waste dumps, CJD-carrying beef, silicon gel breast implants, airborne particulate matter, GM food and nuclear power plants.
[Social] fears, of the sort I am emphasizing here, often amount to moral panics; and a principle of precaution often operations when a moral panic is occurring.
In an influential article written with Timur Kuran, Sunstein has described how ‘mass demand for regulation’ can emerge suddenly ‘whenever some people’s alarmist reactions instil fear in others, whose own reactions then sow fears in still more individuals.’
People facing incomplete or insufficient private information (e.g. due to the impossibility of direct observation or study of every single product they use) commonly adopt the beliefs of peers and neigbours as cues to what they should think themselves.
Decisions about risk assessment are made sequentially in populations organized into epistemic ‘neighbourhoods’. Individual cognitive bias (which for a single person may have been a small random or directional error) thus easily snowball.
This, worries Sunstein, can lead to calls for ‘swift, extensive, and costly government action’ such as the banning of some good or service. He frets that a legislature is especially vulnerable to influence, ‘partly because its members feel compelled to respond to mass demands for legislation simply to keep their seats’.
As such he hopes to ‘provide regulators with better insulation against sudden and intense mass calls for immediate action’.
This can be done by equipping public institutions with ‘circuit breakers’ that achieve the ‘desired filtering’ and prevent ‘mechanical reaction to citizen preferences’ i.e. reliable transmission of majority opinion into regulation or statute.
One such useful means of avoiding ‘cramped federal regulatory policy’ is product disparagement laws.
This research on information cascades and moral panic has seeped into the worldview of liberal Hollywood, as shown by Steven Soderbergh’s recent film Contagion.
There the greatest threat to humanity is not transmitted by pathogens. The chief problem is dumb ideas, originating from ‘availability entrepreneurs’ in the blogosphere and circulating throughout the population, leading to mob violence and a breakdown in social order.
Note the resemblance to anti-democratic, late-nineteenth-century ideas about crowd psychology.
This grande peur (the fear of the alarmed mob, whipped into frenzy, resistant to wise counsel, disdainful of the old citizen-state relationship, and immune to the suasion of the priestly castes) motivates much academic and journalistic thinking on fear and panic.
In Sunstein’s version, Madisonian principles of elite governance (erection of buffers between polity and government to provide the ‘requisite stability’ for property rights) mingle with technocracy:
A principal point of the original Constitution was to ensure that representatives “refine and enlarge” popular sentiment, rather than automatically translate it into law. The key institutions of the American system of government were designed to promote the desired filtering. The second and more modem theme is that policy choices should rest on sound knowledge of relevant evidence. In the context of risk regulation, this objective requires a measure of deference to the purely factual judgments of scientific experts.
Paul Slovic, a psychologist whose research on risk assessment is cited heavily in various Sunstein papers, has described the lawyer’s policy program – subordinating the ‘uneducated opinions of ordinary citizens… to the reasoned judgments of politically insulated risk experts’ – as ‘Fear of Democracy.’
Yet Slovic’s work, and that of others investigating decision-making under uncertainty, does support Sunstein’s claim that ‘predictable features of human cognition’ lead ordinary people to ‘deal poorly with the topic of risk’. The errors observed in popular judgements about fatality risks and the relative frequency of lethal events reveal, among other things, our shoddy epistemic standards and unsound inferential habits. Such errors are introduced, in part, by the mental shortcuts, rules of thumb and heuristics used to economize on scarce cognitive resources.
Sunstein goes on to suggest that ‘the persistent split between experts and ordinary people’ in matters of risk assessment comes down to the characteristic information-processing techniques practiced by members of the two groups. Here he invokes the two-process model of thinking explored, most influentially, by Daniel Kahneman (Thinking, Fast and Slow). According to Sunstein, ordinary people, more often than not, use System 1: quick and intuitive (‘affect-based’) thinking. Experts tend to use System 2: analytic (logical, evidence-based) thinking.
Then, with his next step, Sunstein leaves behind the evidentiary wires of experimental psychology. He leans on a concept borrowed from Howard Margolis, for whom laypeople can be distinguished from experts by the former’s neglect of ‘fungibility’. Sunstein:
A reasonable conjecture, then, is that when ordinary people diverge from experts, it is because ordinary people see the risks but not the benefits, whereas experts see both… It is unusual for people to think that a product with a high risk also has a high benefit. This finding strongly suggests that when ordinary people are more fearful than experts, it is often because ordinary people are not looking at the benefits that accompany the product at issue… [Many] of the disagreements between experts and ordinary people stem from the fact that experts have more information, and are also prepared to look at the benefits as well as the risks associated with controversial products and activities.
This ought to make clear the nature of Sunstein’s opposition, and that of others like him, to ‘junk science’-inspired moral panics.
Despite his pretensions, he isn’t engaged in quantitative risk analysis or investigations of dose-response relationships. He is setting regulatory policy and creating the ideological climate in which such policy is set.
What distinguishes him and his friends from the so-called moral panickers isn’t so much a different set of factual claims about the risks posed to consumers by various products and activities. Rather, it’s the evaluations made of those facts and the prescriptions that flow from them.
The matter in dispute isn’t the magnitude of expected harm arising from some activity but the appropriate weight to be attached when that harm is traded off against the flow of benefits.
In this accounting exercise, Sunstein has made clear where his sympathies lie:
[Dollar] figures should not be taken as meaningless abstractions or as reflecting lower profits for ‘companies.’ If the cost of regulation is high, it is likely to be translated into higher prices, lower wages, fewer jobs, greater poverty, or some combination of these things.
Unfortunately, says Sunstein, the man in the street tends to hold a ‘tradeoff taboo’, being reluctant to exchange an increment in human mortality for any monetary prize:
[When] people disapprove of trading of trading money for risks, they are generalizing from a set of moral principles that are generally sound, and even useful, but that work poorly in some cases… People disapprove, above all, of companies that cause death knowingly. The problem here is that it is not always unacceptable to cause death knowingly, at least if the deaths are relatively few and an unintended byproduct of generally desirable activity… Much of what is done, by industry and government, is likely to result in one or more deaths… The question is whether the stastistical risk is worthwhile.
Sunstein’s research on moral panics and risk regulation thus exhibits the kind of pro-business views needed to run a federal executive agency.
He has denounced ‘1970s-style regulation’ (e.g. the Clean Air Act and Nixon’s Environmental Protection Agency) for its ‘command-and-control regulation’, its promotion of the ‘widespread view that companies should be required to do “whatever they can” to reduce risks to safety and health’, its tendency to express ‘moral indignation against the behaviour of those who created pollution and other risks to safety and health’, and its indifference to, or lack of focus on, ‘the costs of achieving regulatory goals.’
The field of research into regulatory policy and product safety isn’t densely populated with disinterested scholars and benevolent maximizers of social welfare.
It’s filled instead by lobbyists with links to rent-seeking special-interest groups, captured bureaucrats and colluding lawyers chasing private benefits, and others with career ambition, partisan affiliations and ideological axes to grind.
This ecosystem nurtures a déformation professionelle favourable to contrarianism.
A representative example is the notorious paper on cigarette smoking published by Kip Viscusi, a Harvard professor of law and economics whom Sunstein regularly cites. Viscusi acknowledged that smoking was hazardous to health, yet argued against the imposition of a ‘sin tax’ to discourage the behaviour:
Detailed calculations of the financial externalities of smoking indicate that the financial savings from premature mortality in terms of lower nursing home costs and retirement pensions exceed the higher medical care and life insurance costs generated… In effect, smokers are already paying their own way in the sense that there is a net externality cost savings to society from their smoking because of the cost savings arising from their premature deaths.
In creating a model of belief transmission and risk perception grounded in the behavioural sciences, Sunstein’s theoretical work has encouraged many more people (i.e. not just students of media or sociology) to consider ‘moral panics’ as a plausible causal account of how various unfortunate aspects of contemporary society are generated.
Yet the theory has many drawbacks and rests on dubious foundations. Why then has it met with such favourable reception?
For at least a partial answer, observe an application of the theory to a slightly different domain: not hazardous products but terrorism.
In ‘Fear and Liberty‘, Sunstein described how, following terrible events such as the World Trade Center attacks of 2001, ‘public fear might well produce excessive reactions’ from political representatives, including state intrusions on civil liberties. President Bush’s advocacy of military tribunals for alleged terrorists provided, said Sunstein, ‘an illustration of the extent to which fear, and the thirst for vengeance, can lead to unjustified infringements of civil liberties.’
Sunstein hurriedly assurred readers that he did not support ‘flat bans on government action’ or ‘an aggressive judicial role in the protection of civil liberties, even when national security is threatened’:
Courts are not, to say the least, in a good position to know whether restrictions on civil liberty are defensible. They lack the fact-finding competence that would enable them to make accurate assessments of the dangers. They are hardly experts in the question whether the release of a dozen prisoners at Guantánamo would create a nontrivial risk of a terrorist attack. It is quite possible that an aggressive judicial posture in the protection of civil liberties, amid war, would make things far worse rather than better.
Nonetheless Sunstein suggested that ‘inadequately considered restrictions’ on civil liberties (without conceding that any such ‘error’ had actually occurred) might be ‘produced’ by a fearful citizenry, hysterical about terrorism.
Thus he implied that President Bush, driven mad by grief and worry, egged on by a petrified crowd, had (maybe overzealously?) lashed out.
This is how the term ‘moral panic’ works, and why it has found such an appreciative audience among members of the chattering classes. It allows them to practice a kind of sociodicy. When some feature of the prevailing order is evaluated and found to be deficient, its emergence (or its inadequacy) is attributed to the workings of (presumably transient) popular hysteria rather than to anything durably rotten in the institutional foundations of society.
Criticism of the status quo is displaced, and harmlessly absorbed, by criticism of popular ideas and voters’ preferences.
This is more sinister than it may look at first.
The emergence of ‘moral panic’ as a rhetorical item comes at an epochal moment when centuries-old procedural and institutional checks on executive power are being steadily removed. I have suggested before that ‘progressives’ habitually ascribe all the reactionary paraphernalia of this post-liberal age (arbitrary assassination and indefinite detention, wars of aggression, etc.) to the ‘pandering’ of politicians to the (seemingly exogenous) electoral preferences of a racist, backward, uncouth public.
The notion of moral panic supports this reflexive ‘progressive’ argument.
It thus allows professional ‘critics’ (I’m thinking of people like David Marr) to maintain, in good conscience, their image as subversives without calling into question their basic faith in the existing institutional setup or their solidarity with a portion of the state elite.
And, by suggesting that the ‘problem’ is public opinion, it gives another spur to the process itself: why not insulate benevolent decisionmakers from those who would only divert them from the right course?
Thus, as polyarchy slides into monarchy, the liberal-left’s remedy is to call for more of the same: state institutions should be fenced off from popular pressure.
Tags: behavioral law and economics, Cass Sunstein, cognitive bias, cost-benefit analysis, decision theory, dual processing, law and economics, moral panic, moral panics, product liability, prospect theory, psychology, risk, risk analysis, risk assessment