ORDINARY PEOPLE AND THE RATIONALIZATION OF WRONGDOING.

• Author: Nadler, Janice

THE LAW OF GOOD PEOPLE: CHALLENGING STATES' ABILITY TO REGULATE HUMAN BEHAVIOR. By Yuval Feldman. Cambridge, UK: Cambridge University Press. 2018. Pp. xvii, 234. $34.99.

INTRODUCTION

In March 2019, over fifty people were criminally charged with participating in a scheme to gain fraudulent student admissions to various U.S. universities. The investigation--dubbed Operation Varsity Blues--uncovered fabricated athletic portfolios, bribes paid to athletic coaches and university administrators, money laundered through a fake charity, and impostors paid to cheat on standardized tests and take online courses to pad high school transcripts. (1) At the center of the scheme was an "admissions consultant" who acted as a fixer and whose clients consisted of dozens of wealthy parents who paid him to lie, cheat, bribe, and defraud their children's way into elite universities. (2) The parents included real estate developers, CEOs, investment executives, lawyers, doctors, and prominent Hollywood stars. (3)

How did these individuals end up engaging in plainly nefarious felony criminal offenses? There is no backstory here of economic, educational, or social deprivation; to the contrary, the parents were some of the most advantaged individuals in the nation, and yet they convinced themselves they needed more. Why did these occupants of society's highest professional and financial ranks decide to involve themselves in a criminal scheme when there was so much at risk for them? How did they overlook or simply ignore moral red flags when they decided to participate? Some of the perpetrators were likely fully aware of both the criminal and unethical nature of their behavior. But others seem to have participated by convincing themselves that this is how the "system" works. (4) How did they blind themselves to the moral meaning of their behavior?

It is tempting to explain events like these as the simple product of the behavior of a few bad apples. But in his comprehensive book The Law of Good People: Challenging States' Ability to Regulate Human Behavior, Yuval Feldman (5) counters this simplistic explanation with a more nuanced, evidence-based account of wrongdoing. Feldman's thesis is that misconduct is often the product of people who are more ordinary than they are evil, who slide unthinkingly into unethical and even criminal behavior by blinding themselves to the ethical implications of their actions.

Feldman's thesis is evidence based because it relies upon a body of empirical research in the emerging field of Behavioral Ethics. This research demonstrates--across a range of different contexts and across a wide variety of individuals--that wrongdoing is remarkably easy to provoke, in part because people fail to fully recognize the ethical implications of their actions. The perpetrators of everyday wrongs glide seamlessly into unethical behavior by constructing rationales that allow them to maintain a positive view of themselves. Thus, a city official who accepts a "gift" of expensive Super Bowl tickets from a contractor bidding on a city project can maintain his self-image as a good person by mentally separating the act of accepting tickets (which he just did) from the act of accepting cash (which he would never do), as if there were some meaningful difference. (6) In this context, these constructed categories (e.g., tickets versus cash) make it easier for actors to convince themselves that their acts are morally unproblematic.

The findings of Behavioral Ethics have received attention by organizational behavior scholars and now are being taught routinely in business schools, but they have yet to be taken up in a systematic way by legal scholars. The empirical Behavioral Ethics literature, though fairly new, has now developed sufficiently that there are some lessons that can be drawn from it, not only for business leaders managing organizations but also for legal institutions managing compliance with law.

In his book, Feldman argues that people's limited awareness of the unethical nature of their behavior requires redesigning legal rules to anticipate this aspect of human psychology. Indeed, there are domains in which government already seems to have designed systems to prevent inevitable unlawful behavior by ordinary people. For example, when given the opportunity many people underpay taxes legally owed, often because they convince themselves that others are behaving similarly and so underpaying is socially and ethically normative. But when the opportunity to underpay is removed (through, for example, mandatory withholding of tax from employee wages), compliance becomes highly likely. (7) In this way, the question of law's reach extends not only to punishing bad behavior and compensating victims after the fact but also to preventing people from committing wrongful conduct in the first place, through mechanisms other than threat of punishment.

Part I of this Review examines Feldman's synthesis of existing Behavioral Ethics research and his analysis of its implications for law. A central claim of the book is that law should devote more resources to regulating "ordinary unethicality"--contract breach, tortious conduct, property-rights violations, public corruption, tax cheating, and corporate misconduct (p. ix). Law currently is structured to best address serious harms carried out by individuals explicitly committed to advancing their material self-interests. But most wrongdoing is committed by individuals who see themselves as simply "bend[ing] the laws within the confines of their conscience" (p. x). Feldman's bottom line is that because people are often unaware of the moral meaning of their behavior, law must focus on identifying and regulating that behavior before the fact, rather than punishing it afterwards.

Part II explores an important category of wrongdoing for which the traditional regulatory approach of threats of punishment ex post might in many cases be suboptimal: corruption. This category provides examples of settings where actors are difficult to deter within standard enforcement frameworks because their motivations are complex. Concern for the well-being of others or of their organization can tempt people to cheat on behalf of others, especially when they themselves derive some benefit, but even sometimes when they do not. Thinking about the benefits to others makes cheating easier to rationalize because helping others does not feel selfish. Feelings of empathy exacerbate this temptation, and cheating in groups can also enhance this dynamic.

Even when people are acting solely on behalf of themselves, they can be more inclined to cheat depending on their relative position. Some corruption occurs in the context of power, whether it is economic, social, or contextual. An individual's high social class and power increase their likelihood of engaging in unethical behavior that benefits the self and is facilitated by euphemistic language. Corruption is also enabled by gray zones (such as university admissions advantages for important donors) that are constructed to benefit those in positions of social and economic power. The structure of these situations permits these actors to convince themselves that their acts are ethical (or simply outside the domain of morality).

Part III offers a regulatory approach that goes beyond traditional legal enforcement practices. Although I join Feldman in his call to consider approaches to legal regulation better suited to shaping behavior ex ante, it is my contention that this approach should not be limited to a discrete group of "good people" that, according to Feldman, regulators have overlooked. Instead, I will argue that the motivation to see oneself as ethical and to interpret one's own behavior in the most flattering light is pervasive. As a result, the power of denial undermines the deterrent power of law across a wide variety of people and situations. In the end, it is not clear that Feldman's central framework of three types of people (erroneous wrongdoers, situational wrongdoers, and bad people) is especially useful for the project of rethinking legal regulation. What is clear, however, is that law must broadly take account of the emerging Behavioral Ethics evidence. Regulation must be designed to shape environments to make it difficult to slide unconsciously into unethical behavior ex ante.

Building on my earlier work on expressive law and social norms, (8) I develop an alternative conception of compliance that supplements threatened sanctions with leveraging the expressive power of law to decrease the likelihood that people will deceive themselves about the social and ethical meaning of their behavior. Theories of expressive law posit that law can influence behavior through means that go beyond the legal sanctions threatened for violation. (9) I will specifically focus on informational expressive law: the idea that the state can deploy law to provide information that can change individual beliefs and social norms, which in turn can shape behavior (p. 172). By leveraging the informational function of expressive law, the state can identify situations in which individuals are likely to fail to fully appreciate the meaning of their behavior. Identifying and sorting "good people," I argue, is less important than identifying situations and structures that are amenable to legal interventions that leverage social norms.

The Law of Good People correctly points out that the more ordinary unethicality of "good people" (such as corporate misconduct, contract breach, and tax cheating) should be targeted for attention using a modified set of enforcement tools from those used to punish more serious misconduct (p. ix). At the same time, the general claim that the law should focus more attention on the bad behavior of "good people" glosses over the patterns of excess attention of law in the form of relentless criminalization of the common predicaments of poor people and...