Author:Hollander-Blumoff, Rebecca

TABLE OF CONTENTS INTRODUCTION 478 I. A BRIEF PRIMER ON SOCIAL VALUE ORIENTATION 484 A. What Is Social Value Orientation? 484 B. What Are the Effects of Social Value Orientation? 489 C. Social Value Orientation as More than a Personality Dimension: Social Value Orientation and Context 492 II. SOCIAL VALUE ORIENTATION IN THE LAW 496 A. Corporate Law 497 B. Contracts 503 C. Family Law 510 1. Doctrine 511 2. Rights and Theory 516 3. Family Law Practice 519 III. SOCIAL VALUE ORIENTATION AND DISPUTE RESOLUTION 521 A. Social Value Orientation, Procedural Justice, and Legitimacy 521 B. Negotiation Paradigms and Social Value Orientation 523 C. Lawyers, Clients, and Social Value Orientation 526 IV. IMPLICATIONS 528 A. Social Value Orientation as a Lens to Understand Doctrine 531 B. Social Value Orientation as a Challenge to the Utility Assumptions of Law and Economics 532 C. Social Value Orientation and the Function of the Law 534 D. Social Value Orientation Unmasks Choices 538 CONCLUSION 539 INTRODUCTION

Contemporary legal analysis often relies on the rational actor model--presuming an individual whose goal is to maximize utility--to understand how law is and should be crafted, and how individuals will respond to benefits and liabilities set forth by the legal system. (1) However, over the past two decades, the rational actor paradigm has increasingly faced challenges from psychological research on cognitive biases and heuristics. (2) The heuristics and biases research shows that individuals systematically fail to behave like rational actors in judgment and decision-making because of consistent errors in processing information. (3) In particular, research on the cognitive distortions that occur because of the human propensity to evaluate different options as deviations from a current frame of reference--prospect theory--has achieved a significant degree of prominence. (4) Although this research poses a challenge to the predictions of the rational actor model, at its heart, it does not truly threaten the model, because it suggests that deviations in real behavior from predictions of the rational actor model are explicable as systematic human error. (5) People want to maximize their utility--they just make predictable mistakes along the way. (6)

However, other strands of research in psychology simultaneously challenge the assumption of the rational utility-maximizer from a host of different angles. (7) Research on the psychology of justice, for example, suggests that individuals may be motivated by concerns that are not fully represented by traditional economic conceptions of utility. (8) These noninstrumental concerns (9) include a desire for dignity, respect, fair treatment, and legitimacy. (10) Similarly, as another example, research on extrinsic and intrinsic motivation challenges the primacy of economic incentives and sanctions. (11) And research on temporal construal suggests that the conceptualization of events in the near and long term can differ significantly and in ways that make a difference for decision-making. (12)

From a variety of perspectives, psychological research makes clear that sanctions and incentives--sticks and carrots--are not, alone, responsible for individuals' behavior. Nor are they in an obvious way the only guiding star for the design of the legal system. Values play a critical role in influencing actions and in shaping the structure and content of the law. (13) Values may refer to moral, ideological, philosophical, or religious beliefs, and they may also reflect internalized social norms. (14) However defined, values typically encompass principles that may be orthogonal or even oppositional to pure economic utility, (15) a point certainly made by critics of law and economics, (16) although Ronald Dworkin notably argued that the embrace of economic utility provides its own moral approach. (17) Looking at human values is another way to understand how law has been and should be crafted, and how individuals may respond to particular tenets of legal doctrine and process. (18) Philosophical and jurisprudential inquiries have long considered this a fundamental way to approach the study of the legal system. (19)

This Article considers the intersection of values and the law from a different, and somewhat less grandiose, perspective. I search not for a grand unified theory of morals or values in law but instead consider the legal implications of psychological research on values--in particular, one area of research in the psychology of values called social value orientation, hereinafter referred to as SVO. For over fifty years, social psychologists have extensively studied SVO, which describes individual preferences in allocating resources between oneself and others. (20) SVO provides a framework for understanding one's stance toward outcomes that involve oneself and others. (21) In its simplest terms, SVO asks: Does a person prefer to gain the lion's share of resources for herself (proself-individualist), prefer to "win" relative to another person (proself-competitive), or prefer to equalize outcomes and expand the available "pie" to its largest potential (prosocial-cooperative)? (22) SVO implicates underlying values about the relative importance of collective versus individual outcomes, as well as about equity and inequity in resource distribution. (23)

SVO is a particularly useful place to start in looking at the role of the psychology of values in the law, because it takes as its central concern individuals' orientation regarding resource allocation. Resource allocation is the primary concern of the economic approach to law that has been widely influential over the last half-century. (24) Law and economics posits, as a fundamental underpinning, that "many of the doctrines and institutions of the legal system are best understood and explained as efforts to promote the efficient allocation of resources." (25) Efficiency is defined as an "allocation of resources in which value is maximized." (26) While law and economics makes the case for the primacy of efficiency in the allocation of resources, SVO provides a different perspective on what individuals want--what they value--when they think about these same resource allocation problems. (27) Because SVO begins from the same starting point--questions regarding what goals we have for resource allocation--it provides a useful lens through which to look at the law, especially running alongside the law and economics focus on utility maximization.

Problems regarding resource allocation, also called social dilemmas, are often researched in social science using relatively simple paradigms that distill the essence of many complex social problems, including how to get individuals to cooperate when doing so directly conflicts with their own personal utility. (28) Social dilemmas form the core of social problems, such as adherence to laws that may benefit society as a whole but will not yield much benefit to any one individual. (29) For example, complying with environmental regulations may be cumbersome for any one individual, who herself may never experience the potential benefit that stems from the burden. Studying social dilemmas is thus of great interest to scholars in a variety of disciplines, including psychology, economics, and law. While the field of social dilemmas encompasses many facets, SVO "is perhaps the most studied individual differences variable in social dilemmas." (30) However, SVO, per se, has not yet received any sustained attention from legal scholars. (31)

This Article has two overarching goals: first, to explicitly bring SVO research into the legal literature and conversation; and second, to explore how SVO may relate to critical questions about the way that legal doctrine both reflects and shapes norms and behavior. In addition, a sustained exploration of SVO also sheds light, as a collateral but not insignificant matter, on the question of the degree to which individuals may actually resemble rational utility maxi-mizers.

Part I offers a view of the landscape of SVO research in psychology, providing background and engaging in a deeper discussion of the distinctions between orientations, data about individual differences, demographic data about orientations, implications of orientations on real behavior, and contextual features that may activate orientations. Then, armed with a more nuanced psychological understanding of how and when individuals are oriented differently with respect to social value, and what effects might stem from different social value orientations, I consider in turn two broad areas of interest--legal doctrine and legal process. (32) Part II examines the potential intersection between SVO and doctrine in several areas of law, including contract, corporate, and family law. Part II explores the way each doctrinal area both makes assumptions about, and implicitly shapes, the regulated audience's SVO. I chose these particular doctrinal areas in an effort to consider fields of law in which a lay perspective might imagine, perhaps stereotypically, a strong SVO: proself-individualist or proself-competitive in the case of contract or business law, and prosocial-cooperative in the case of family law. Part III explores the relationship between SVO and legal dispute resolution processes, offering an opportunity to understand how the behavior of parties during the resolution of disputes is, and could be, shaped by different orientations toward resource allocation. I suggest ways in which SVO may provide a basis for thinking differently about both the role of the law and the design of the legal system in dispute resolution, especially in light of the research surrounding SVO and perceptions of fairness. Part IV considers the broader implications of SVO research and the role of different SVOs in doctrine and process. These implications reveal the tremendous potential of the SVO paradigm in the law, as well as the...

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