Cultivating Conscience

Cultivating Conscience: How Good Laws Make Good People

Lynn Stout
Copyright Date: 2011
Pages: 328
https://www.jstor.org/stable/j.ctt7rrn9
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  • Book Info
    Cultivating Conscience
    Book Description:

    Contemporary law and public policy often treat human beings as selfish creatures who respond only to punishments and rewards. Yet every day we behave unselfishly--few of us mug the elderly or steal the paper from our neighbor's yard, and many of us go out of our way to help strangers. We nevertheless overlook our own good behavior and fixate on the bad things people do and how we can stop them. In this pathbreaking book, acclaimed law and economics scholar Lynn Stout argues that this focus neglects the crucial role our better impulses could play in society. Rather than lean on the power of greed to shape laws and human behavior, Stout contends that we should rely on the force of conscience.

    Stout makes the compelling case that conscience is neither a rare nor quirky phenomenon, but a vital force woven into our daily lives. Drawing from social psychology, behavioral economics, and evolutionary biology, Stout demonstrates how social cues--instructions from authorities, ideas about others' selfishness and unselfishness, and beliefs about benefits to others--have a powerful role in triggering unselfish behavior. Stout illustrates how our legal system can use these social cues to craft better laws that encourage more unselfish, ethical behavior in many realms, including politics and business. Stout also shows how our current emphasis on self-interest and incentives may have contributed to the catastrophic political missteps and financial scandals of recent memory by encouraging corrupt and selfish actions, and undermining society's collective moral compass.

    This book proves that if we care about effective laws and civilized society, the powers of conscience are simply too important for us to ignore.

    eISBN: 978-1-4008-3600-0
    Subjects: Law, Economics, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. ACKNOWLEDGMENTS
    (pp. vii-viii)
  4. PART ONE
    • CHAPTER ONE FRANCO’S CHOICE
      (pp. 3-22)

      On a quiet August evening in 2002, Franco Gonzales stood on the corner of Seventh Street and Grand Avenue in downtown Los Angeles, waiting for the bus. Los Angeles is a city of suburban commuters, and by nine p.m. the corner of Seventh and Grand was deserted. Suddenly an armored truck drove by. Its rear door swung open mysteriously, and a plastic bag fell out to land at Gonzales’ feet. Inside the bag was $203,000 in cash.

      Franco Gonzales took the money home. Gonzales, a plump, boyish man in his early twenties who worked as a dishwasher in a restaurant,...

    • CHAPTER TWO HOLMES’ FOLLY
      (pp. 23-44)

      If we want to see how the idea of conscience has dropped out of modern legal thinking, perhaps the best place to start is in Boston, on January 8, 1897. It was a bleak day in the city on the Charles River. The skies were overcast and snow was on the way. The unpleasant weather did not stop more than five hundred lawyers, judges, professors, and students from turning out to crowd into Isaac Rich Hall at Boston University. The occasion was the Hall’s dedication as the new home of the Boston University School of Law, and the dedication speaker...

    • CHAPTER THREE BLIND TO GOODNESS: WHY WE DON’T SEE CONSCIENCE
      (pp. 45-72)

      Many people probably find the notion that people sometimes act as if they care about more than themselves—that is, sometimes act as if they have a conscience—rather obvious. Yet it has become standard operating procedure for experts in a wide range of fields, including law, business, and public policy, to assume that the best way to predict and channel human behavior is to treat people as “rational maximizers” who relentlessly pursue their own material interests. This is puzzling, becausehomo economicusis—not to put too fine a point on it—a psychopath.

      Antisocial Personality Disorder (APD) is...

  5. PART TWO
    • CHAPTER FOUR GAMES PEOPLE PLAY: UNSELFISH PROSOCIAL BEHAVIOR IN EXPERIMENTAL GAMING
      (pp. 75-93)

      It can be hard to convince a skeptic that conscience exists. (And, as we have just seen, we are psychologically predisposed to be skeptics.) The problem is made particularly difficult by the fact that healthy societies tend to reward prosocial behavior and to punish antisocial behavior. As a result, it is nearly impossible to absolutely disprove the claim that external incentives alone explain the apparently unselfish acts we observe in daily life. Perhaps the traveler who left a tip in a restaurant in a strange city planned to return some day, and hoped to ensure good service. Perhaps the pedestrian...

    • CHAPTER FIVE THE JEKYLL/HYDE SYNDROME: A THREE-FACTOR SOCIAL MODEL OF UNSELFISH PROSOCIAL BEHAVIOR
      (pp. 94-121)

      Experimental gaming proves we are a much nicer species than we often give ourselves credit for being. Whether or not most people really care about following the rules or helping others (are psychologically prosocial), they oftenact as if they care(are behaviorally prosocial). A half-century of research, including hundreds of experimental studies, demonstrates this beyond reasonable dispute.

      Nevertheless, proving that people often sacrifice their material interests to benefit others is not, by itself, terribly useful. At least, it is not useful if unselfish behavior is random and mercurial. Professionals who work in law and law enforcement—judges, regulators, police...

    • CHAPTER SIX ORIGINS
      (pp. 122-148)

      The previous chapter presented a three-factor model of social variables that trigger the internal constraints on selfish behavior we call “conscience.” Part Three (chapters 7, 8, and 9) will demonstrate how this model can be used both to predict behavior, and to change it. The reader with a practical bent accordingly can abandon any further inquiry into the nature of conscience and move on to Part Three and the instrumental question of how to best combine law and conscience to influence behavior.

      For the reader in less of a hurry, this chapter detours to explore the question: how, exactly, did...

  6. PART THREE
    • CHAPTER SEVEN MY BROTHER’S KEEPER: THE ROLE OF UNSELFISHNESS IN TORT LAW
      (pp. 151-174)

      On a warm July evening in Broward County, Florida, Flor Osterman made a fatal mistake. She agreed to walk with a friend to the local convenience store to buy milk. Osterman, a forty-one-year old nurse, was walking with her friend on the right side of the road in a quiet residential area when she was struck from behind by a speeding car driven by Arnold Dale. Dale, a twenty-six-year-old resident of Pompano Beach, had just left a bar called Durty Kurty’s where (Dale later admitted) he had downed several beers. Dale’s car struck Osterman with such force that her left...

    • CHAPTER EIGHT PICKING PROSOCIAL PARTNERS: THE STORY OF RELATIONAL CONTRACT
      (pp. 175-199)

      Lynn Joy was a business consultant. In 1996, she was hired by the Chicago office of the Hay Group, an international management consulting firm. By 2001, Joy was earning an annual base salary of $210,000. By 2002, she was fired.¹

      According to the Hay Group, Joy was fired because she failed to meet her annual quota in client billings. Hay claimed this meant Joy’s employment had been terminated for cause. The meaning of the word “cause” was important, because Joy’s employment contract with Hay provided that if she were terminated without cause she was entitled to one year’s salary in...

    • CHAPTER NINE CRIME, PUNISHMENT, AND COMMUNITY
      (pp. 200-230)

      Robert DiBlasi was an unlucky man. An unemployed father of two, he had a history of depression and drug abuse and also had been diagnosed with AIDS. July 13, 1998, proved an especially unlucky day for DiBlasi. He strolled into a supermarket in Pomona, California, put a $5.69 package of Duracell batteries into his pocket, and picked up a coconut cream pie. DiBlasi then went to a cash register, where he paid for the pie, but not the batteries. DiBlasi was caught, convicted of shoplifting, and sentenced to thirty-one years to life in prison.¹

      DiBlasi’s case illustrates how our criminal...

  7. PART FOUR
    • CONCLUSION CHARIOTS OF THE SUN
      (pp. 233-254)

      On June 19, 2008, a sober-faced, forty-three-year-old banker named Bradley Birkenfeld stood before the bench of federal judge William Zloch in the U.S. District Court in Fort Lauderdale, Florida. Birkenfeld was a U.S. citizen who had been raised in the Boston area. He had spent much of his adult life, however, in Europe, working for various banks including the Swiss bank UBS. On Birkenfeld’s most recent trip back to the United States to attend a high school reunion, he had been arrested at Logan Airport by federal authorities. Now he was in the courthouse in Fort Lauderdale to plead guilty...

  8. NOTES
    (pp. 255-280)
  9. WORKS CITED
    (pp. 281-298)
  10. INDEX
    (pp. 299-310)