The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [72]
It would be reassuring if we could guard against bad decisions through reflection and analysis. But even there, we are immensely fallible. Marriages are notoriously unsuccessful in the United States these days, but no one I know enters those arrangements lightly. The war in Iraq was an extraordinarily poor decision, but it was not made on the spur of the moment. The Supreme Court is insulated from the hottest part of the political kitchen to allow it space to deliberate and reflect, but the history of the Court contains massive mistakes. (My own list of worst Supreme Court cases ever would include Dred Scott, upholding slavery; Korematsu, upholding the Japanese internment during World War II; and Bush v. Gore, deciding the 2000 presidential election.)
Maybe we can guard against bad decisions by involving others. There is something to the notion of the “wisdom of crowds,” and some studies show that groups can be better at making decisions than even the smartest individuals in the group.13 But here too, we are human—we err. Individuals in groups are often swayed by the opinions of others in the group—even if clearly wrong. Sometimes this influence causes individuals to squelch their own opinions, and sometimes it results in individuals’ changing their opinions even without realizing it.14 Peer pressure is a real phenomenon. Remember how the subjects in Milgram’s study were most willing to punish the “learners” when others in the room went along, and were most willing to object when others objected.
Groups also can fall into habits of thought that reinforce members’ assumptions and insulate them from contrary notions. This is called group-think, and it can be dangerous.15 For example, at the beginning of this century most of the finance industry believed that housing prices would never, ever fall. They bet the farm—our farm, in fact—on this assumption. We are all still paying the price of that piece of groupthink.
The persistence of error, regardless of our decision making technique, is a symptom of the human condition. It is as certain as death and taxes.
We are therefore faced, on a personal and social level, with a choice about bad choices. Do we blame the people who stayed in their homes in the face of Katrina? Do we allow an obese Big Mac eater to sue McDonald’s? Do we allow someone injured at work to sue his employer when the injury came from a known and accepted risk? Do we seek to understand the situation of the guards at Abu Ghraib as we allocate moral and legal blame for torture and mistreatment of prisoners?
In our personal lives as well as our legal system, we are required to figure out what to do about bad choices and poor decisions. We have to choose when we give or take a “do over.” We have to choose whether to punish. We have to choose when to forgive or, as Armando Galarraga did, simply smile and get back to work. We have to make choices about our own bad choices and others’.
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The bad choice choice is, in a sense, a central question of law. Much of law is the establishment of rules, and much of it is the establishment and implementation of punishments for when rules are broken. Both rules and punishments depend on the choice we make about bad choices.
Sometimes rules can be clear and clean. The speed limit is 55 miles per hour. The drinking age is twenty-one. You have to be thirty-five to be president. It is easy for police, judges, or juries to determine whether such sharply defined rules have been broken. They check the radar gun, the driver’s license, or the birth certificate. In those situations, the legal decision maker has an easy task. He or she simply compares the legal requirement to what was done.
Non-lawyers are often surprised to learn how few laws are this clear. Sometimes,