Bilz Nadler Lawmoralattitudespageproofs
Bilz Nadler Lawmoralattitudespageproofs
CH APTER 10
L AW, MOR A L AT T I T U DE S , A N D
BE H AV IOR A L C H A NGE
1 Introduction
Classically, the ambition of legal regulation is to change behaviors. Laws might aim
to increase or decrease various activities, such as owning a gun, or taking a work leave
to care for a sick family member, or polluting, or hiring a minority job candidate. They
might aim to get people or institutions to substitute one activity for another, such as
buying diet soda instead of sugared, or using chewing tobacco instead of smoking, or
using solar energy instead of conventional sources. Legal regulation can accomplish
its goals directly, through fear of sanctions or desire for rewards. But it can also do so
indirectly, by changing attitudes about the regulated behaviors. Ironically, this indirect
path can be the most efficient one, particularly if the regulation changes attitudes about
the underlying morality of the behaviors. This is because if laws change moral attitudes,
we reduce—maybe drastically—the need for the state to act on or even monitor regulated
players.
What does regulation designed to affect moral attitudes look like? It can be obvious,
such as an information campaign. But less obvious (and even unintentional) approaches
are more common, and probably more effective. Legal regulation might seek to link a
behavior that the public already thinks is bad or objectionable to a behavior it currently
finds inoffensive. For instance, regulators might wish to reduce abortions generally by
stigmatizing a rarely performed, but particularly distasteful, version of it (“partial birth”
abortions), with the idea that highlighting—and outlawing—a repugnant version of the
procedure will ineluctably associate it with the more common, and more innocuous one.
Or legal regulation might recharacterize behavior generally thought of as harmless, or as
harmful only to the one who engages in it, into behavior with costs. The regulation of ciga-
rettes is a good example of this phenomenon (Lessig 1995). Or, regulation might tax or sub-
sidize with the hope not only of immediately changing the frequency of behavior, but also
242 Kenworthey Bilz and Janice Nadler
either normalizing or demonizing it. Cigarettes (and “sin taxes” generally) are examples
of law imposing a tax on behavior to both discourage and discredit it. On the other hand,
law can both encourage and signal approval. For example, to encourage breastfeeding, the
law could mandate accommodations that normalize the behavior as natural, and not a
shameful activity to be hidden away. In line with this, in the United States, Section 207 of
the Patient Protection and Affordable Care Act (29 U.S.C.A. § 207 (West 2011)) requires
employers to permit employees who are nursing mothers to take breaks to express breast
milk, in a place other than a bathroom.
Any one of these methods could either succeed or fail. They can also have unintended
and even perverse effects, including backlashes. The aim of this chapter is to sketch out a
framework for understanding the conditions under which regulation succeeds or fails to
change underlying attitudes. To begin this chapter, consider two brief case studies in the
United States, each well funded and ambitious examples of attempts to change moral atti-
tudes. One was successful (sexual harassment) and another was not (gun control).
1 The federal law governing discrimination in the workplace is Title VII of the Civil Rights Act of
1964. The Iowa equivalent, under which the dental hygienist filed her own case, is the Iowa Civil Rights
Act, Iowa Code 216.6(1)(a). Iowa courts turn to federal law when interpreting their own discrimination
cases, Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009).
2 See, for example, Tenge v. Phillips Modern Ag Co., 446 F.3d 903 (8th Cir. 2006); Platner v. Cash &
uniformly, the decision was lambasted and ridiculed (Newcomb 2012; Politi 2012).
Many news outlets noted within the first sentence or two that the Iowa court was
“all male,” and that the court had used the term “irresistible” to describe the plaintiff
(Foley 2012; Associated Press 2012). Countless bloggers and commentators derided
the decision, in often colorful terms; editorialists have even called for reform to
close this “loophole” in the law of employment discrimination (Cassens Weiss 2013;
Fiedler 2013).
This overwhelming reaction is a strong sign of the success of antidiscrimination law
in shaping the moral attitudes of the general public about sexual harassment. Though
“Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer
does not violate them by treating an employee unfairly so long as the employer does
not engage in discrimination based upon the employee’s protected status” (Nelson
at p. 9), citizens’ expectations about how they are entitled to be treated at work have
clearly changed over the last three decades, ever since courts began recognizing sex-
ual harassment as discrimination. Arguably, Title VII played a causal role in this pro-
cess (Sunstein 1996). It is hard to imagine op-eds like the following being published by
the right-leaning Chicago Tribune in the seventies, the eighties, or possibly even the
nineties:
If Knight wasn’t guilty of illegal discrimination, he was certainly guilty of being a
creep and a boor—not to mention a tightwad, having rewarded Nelson’s years of
stellar work with a single month’s severance pay. About the best that can be hoped
is that the publicity surrounding the poor treatment Nelson received will attract the
interest of dentists at another practice who would place a high value on her excellent
skills and performance—and pay no attention to her looks. And Knight? Maybe he
needs to find a new place to apply his Novocain. (“You’re Irresistible. You’re Fired.”
2012)
A woman working outside the home in the sixties would have had to expect the pos-
sibility of “flirtation” (or predation) as a condition of employment, plus strongly gen-
dered expectations about appearance and the propriety of romantic relationships in
the office (Farley 1980). But today, the norms of professionalism have moved towards
not just equality, but altogether away from such sexualization in the workplace. Simply
put, when evaluated in terms of shifting public attitudes, sexual harassment law is an
almost unvarnished success. This does not mean sexual harassment has been elimi-
nated, of course—but it has certainly been marginalized. Behavior and attitudes that
would have not only acceptable, but normal, just a couple of decades ago, are now
anathema.
Americans (Winkler 2011). Over this period, attitudes about guns have remained
remarkably stable. A 1972 empirical review of various public opinions polls from the
1930s until the article’s publication revealed that a relatively consistent three-quarters
of Americans have supported limited forms of gun control, such as registration
(Erskine 1972).3 More recent reviews have shown the same: around three-quarters sup-
port regulations like regulation and background checks (Smith 2007; Stinchcombe
1980). Opposition to making laws covering the sale of firearms more strict has been
stable as well (Gallup 2012).
This is striking, given the pattern of gun laws tightening and then loosening over the
past century in the United States (Kopel 2012). In other words, activists on both sides of
the gun control debate have invested decades of time, and millions of dollars, investing
in lobbying efforts to change Americans’ relationship to guns. They have something
to show for their efforts, in that gun laws have changed quite a bit, in both directions,
over the last one hundred years. Empirical evidence suggests that lobbying activities do
directly influence whether particular gun laws get passed (Langbein and Lotwis 1990;
Langbein 1993), but there is little evidence that gun attitudes have changed in response
to interest groups’ efforts. One targeted study examined attitudes about a particular
proposed reform in Virginia, and found that public attitudes in the period before the
legislative vote were the same as those measured by a different pollster six months
after the legislative vote was done (Kauder 1993). Though there are spikes in support
for gun control policies in the wake of highly publicized shootings, attitudes quickly
revert (Newport 2012). Given the prominence of the gun debate, and the stakes each
side asserts, this equilibration is astonishing.
Simply put, we argue in this chapter that laws themselves sometimes seem to affect
moral attitudes in the intended ways, and sometimes not. Can we make any generaliza-
tions—or better yet, predictions—about when it will do which? We think so. We argue
that the success of legal regulation in changing moral attitudes will depend on a num-
ber of variables. The ones we focus on in this chapter are (1) whether the regulation aims
to change attitudes which are important to individuals’ cultural identities; (2) whether
there is underlying dissensus about the behavior or attitude; and (3) whether the law
is attempting to change the underlying meaning of behaviors rather than trying to
change the behaviors itself.
We begin by briefly reviewing the literature on the influence of law and legal institu-
tions as a whole on moral attitudes and behaviors. We examine the idea that the legal
system can promote compliance with law and cooperation with legal actors and insti-
tutions when it is perceived as legitimate and furthering the aims of justice. We then
turn to the ability of specific laws and legal regulations to influence moral attitudes
and behaviors. We examine the influence of law through various mechanisms, includ-
ing physical architecture, social meaning, attitude change, and consensus. Throughout
3 The percentages fluctuated from a brief high of 84% in one poll in 1969 to an equally brief low of
the discussion of these mechanisms, we focus on factors that lead to success, failure, or
even perverse effects.
Undoubtedly, laws are sometimes effective because they are backed by the threat of
punitive enforcement. This threat prompts individuals to make judgments about risk
and reward before deciding whether to engage in a prohibited activity. Accordingly,
standard economic analysis relies on the assumption that if the expected cost of behav-
ior—comprised of the severity and probability of punishment—exceeds its expected
benefit, then the actor will refrain from that behavior (Becker 1968). Indeed, standard
economic analysis assumes that questions about the effect of law on human behav-
ior both begin and end with the assumption that behavior responds to rewards and
punishments. At the same time and in parallel, law forthrightly attempts to shape citi-
zens’ moral beliefs. When the law forbids murder, this is because murder is evil, and
the language of the law sometimes makes explicit the moral implications of the pro-
hibited act. Thus, the criminal law traditionally grades an unintentional killing com-
mitted with a “depraved heart” or an “abandoned and malignant heart” as murder,
but other unintentional killings as merely manslaughter. Conversely, Good Samaritan
laws—although uncommon in the United States—are designed to shape beliefs about
the moral duty to rescue. In this section, we examine the claim that law can succeed
in changing moral attitudes through its general reputation for doing justice. We very
briefly explore two literatures that consider ways in which law’s general reputation
works to guide moral attitudes, and ultimately, behaviors governed by those attitudes.
Specifically, we first examine the argument that people defer to law because its content
is deemed generally consonant with popular morality. We then examine the argument
that legal agents promote cooperation by enacting principles of procedural justice.
consistently with lay intuitions of justice reinforce the notion that the law is a source
of moral guidance. Discrete laws that reflect the community’s sense of justice will
enhance the ability of the law to gain compliance in people’s everyday lives, in areas
unrelated to the law in question (Mullen and Nadler 2008).
The perceived legitimacy of the law can be undercut, and compliance undermined,
when the law fails to comport with citizens’ intuitions of justice. The mass incarcera-
tion of young African American males within communities, for example, is perceived
by many as evidence of the law imposing punishment in an unjust fashion (Alexander
2012). One possible consequence is that community members who perceive the law
as unjust are less likely to comply with the law themselves (Mullen and Nadler 2008;
Nadler 2005). Disaffected citizens might also resort to vigilantism, thereby opting
out of a legal system they perceive as deviating from the consensus of the commu-
nity. When there is community consensus about what justice requires of law, then it
is fairly straightforward, at least in theory, to implement this consensus and enact jus-
tice. When the legal system comports with justice, it gains legitimacy and compliance
because citizens look to law as a source of moral guidance.
A more difficult situation arises when there is no clear consensus about what jus-
tice requires, or worse, when there is clear dissensus. For example, no matter what the
position the law takes regarding abortion, a large contingent of citizens will believe the
law to be wrong and even immoral. Some individuals have a strong moral investment
in either permitting or prohibiting abortion, and for them abortion laws that permit
immoral outcomes can prompt strident protests and even vigilante action. For exam-
ple, in the United States, extremists who believe that the government abortion laws
sanction the murder of babies have bombed abortion clinics and murdered physicians
(Darley, Tyler, and Bilz 2003). Other examples of dissensus abound. People’s intuitions
differ, often along predictable cultural lines, about the morality of severe punish-
ment for abused women who kill their sleeping husbands, a man who kills another
man because he solicited sex, the possession of recreational drugs, among many other
examples (Braman, Kahan, and Hoffman 2010).
question when they see a police officer making a traffic stop or when they read about a
judge who approves a large employment discrimination award. But to the extent that
the opposite is true—that is, when people believe legal authorities lack legitimacy—
they will view authorities as exercising power improperly (Tyler 2009).
Empirically, perceptions of legitimacy turn on the quality of treatment people
receive from and observe on the part of legal actors and institutions (Tyler and Fagan
2008). Examples of poor quality of treatment by legal actors and institutions include
judges who convey a lack of concern toward citizens who appear in their courtroom
as litigants or jurors; police officers who convey an attitude of disrespect toward peo-
ple they stop or question; police department policies and practices that signal surveil-
lance, suspicion, and mistrust, leading people to feel that their communities are being
harassed rather than served. These types of perceptions determine the extent to which
people see the actions of judges and police as moral and legitimate (Tyler and Wakslak
2004; Tyler 2006b). Legal authorities and institutions that are perceived as legitimate
are likely to prompt community members to perceive cooperation and compliance as
moral imperatives. Conversely, legal authorities and institutions lacking legitimacy are
less likely to prompt people to feel morally obligated to cooperate, and thus less likely to
take voluntary actions like calling 911 to report suspicious activity; coming to the police
station to identify a criminal; coming to court to testify; accepting the decision of a
family court regarding custody; showing up for jury duty and doing a conscientious
job when serving; paying fines for traffic tickets; paying income taxes and declaring all
income. In sum, a legal system that lacks legitimacy produces community members
less likely to feel morally obligated to defer to legal decisions and to cooperate with legal
actors and institutions (Tyler 2006b; Tyler and Huo 2002).
3 Mechanisms of Influence
In this section, we review how specific attempts to regulate can succeed or fail to bring
about change in people’s moral attitude about the behavior in question. Previous schol-
arship on expressive law has emphasized that law can express values, which in turn can
influence behavior (see, e.g., Cooter 1998; McAdams 2000a; Sunstein 1996). Some of the
prior research on expressive law explores various mechanisms by which law influences
behavior expressively, such as by leveraging people’s motivation to maintain the esteem
of others (McAdams 1997), or by providing a focal point in situations where coordina-
tion is required (McAdams 2000b). We begin by reviewing how law can use physical
architecture to change behavior and possibly moral attitudes, by making the targeted
behavior either more convenient (e.g., recycling) or less convenient (e.g., smoking). We
then consider how legislation or regulation can change the social meaning of a behav-
ior, rendering what was formerly considered to be moral or amoral to be now mor-
ally problematic (e.g., discrimination), or vice versa (homosexuality). Next, we briefly
review some classic literature in the social psychology of attitude change to highlight
248 Kenworthey Bilz and Janice Nadler
factors that make it less likely that law will successfully influence moral attitudes. We
also consider the effects of perceived democratic consensus of law on moral attitudes.
a more salient moral dimension, and legal restrictions on smoking behavior became
a real possibility. By the early 1970s, laws imposing bans on smoking in certain public
places began to slowly proliferate. In 1986, the US surgeon general released a report
that found that secondhand smoke causes cancer, and later reports found that second-
hand smoke causes lung and heart disease (“The Health Consequences of Involuntary
Smoking” 1986). In children, secondhand smoke is associated with asthma, ear infec-
tions, and respiratory infections (“The Respiratory Health Effects of Passive Smoking”
1992). Conventional economics would predict that the largest effects on smoking
behavior would stem from effects on the smoker herself. Instead, as elaborated below,
the largest effects emerged from realizations about its effects on others.
Following the release of these reports, local smoking bans proliferated in some parts
of the United States followed by statewide bans in some states (Jacobson, Wasserman,
and Anderson 1997). California enacted strong statewide smoking regulations in 1994
that banned smoking in offices, and later restaurants (Cal. Lab. Code § 6404.5 (Act of
July 21, 1994, § 1, 1994 Cal. Stat. 310)). In New York, local bans were followed by a strict
statewide regulation in 2003 that prohibited smoking in all restaurants (N.Y. Pub.
Health Law 1399-n to -x). In many localities, smoking is now prohibited even in pro-
totypical places for smoking like bars and casinos (see e.g., Colo. Rev. Stat. § 25-14-204
(casinos); Smoke Free Illinois Act, 410 ILCS 82 (bars, restaurants, and casinos); N.Y.
Pub. Health Law 1399-o (bars and restaurants); Cal. Lab. Code § 6404.5(f)(1)(a) (bars
and restaurants)). Arguably, the political will that made these state and local regula-
tions possible was a result of several things; here, we focus on two. The first is the notion
that smoking harms others besides the smoker, so that the smoker is imposing a real
cost on others against their will, and therefore others have the right to object. The sec-
ond is the increase in state and local taxes on cigarette purchases, which helped boost
the fortitude of those who wanted to quit smoking. As to the first factor, by prohibiting
smoking from most public places, legal regulation shapes behavior directly, by lever-
aging inertia. That is, when smoking is made difficult, it forces the smoker to wait to
smoke, to get up and move to a different location, possibly into bad weather; as a result,
smokers are likely to smoke less often. Further, those smokers already considering quit-
ting—perhaps because of fear of dreaded disease—are further encouraged to do so. As
to the second factor, increased cigarette prices obviously increase the will of smokers
to quit. But interestingly, the justification for the taxes also played on the third-party
effects of smoking—they were promoted as at least partially offsetting the public costs
of chronic illnesses caused by smoking (Santora 2008).
In addition to making use of architecture to discourage harmful behavior, law
can also encourage prosocial behavior. Consider recycling. As late as the early 1990s,
many communities in the United States, Canada, and Europe did not have manda-
tory recycling and curbside pickup programs. Municipal regulation that mandated
curbside recycling pickup increased dramatically in this period, and the availability
in the United States of curbside pickup of recycled materials was partly responsible
for an enormous increase in the amount of solid waste that was recycled (Kinnaman
2006). Local regulation making recycling easier and more convenient (by, for instance,
250 Kenworthey Bilz and Janice Nadler
picking it up at curbside along with the regular trash) encourages the target behavior,
even on a conventional law and economics analysis. But the removal of small barriers
can have disproportionately large effects. For example, separating items probably does
not take more than a total of a minute or two of time per day. But eliminating this bar-
rier increases recycling dramatically (Carlson 2001). It is interesting to note that unlike
in the example of smoking regulations, the regulations that provide the infrastructure
for recycling do not involve prohibiting or requiring anything on the part of citizens.
Yet even in the absence of mandatory recycling, making it easier makes it more preva-
lent. Once recycling becomes a behavioral regularity, positive attitudes toward recy-
cling follow, especially if the individual perceives her own commitment to recycling
as voluntary. When an individual perceives herself as the kind of person who recycles,
that self-concept leads to valuing the idea of recycling (Werner et al. 1995; Cialdini
2009).
Law reduced smoking by erecting barriers and increased recycling by removing
barriers. Again, one way law encourages prosocial behavior is through positive incen-
tives. For example, in Italy, national law provides that any employee who donates blood
is permitted to take one entire day off work with pay, per year (D.L. 21 Ottobre 2005,
n. 219, in G.U. October 27, 2005, n. 251(It)). This law induces employees to make an aver-
age of one extra blood donation per year—a seemingly straightforward response to
incentives, and an example of how law can accomplish its goals directly through fear
of sanctions or desire for rewards. But possibly, providing a day off of work for blood
donation also changes moral attitudes about blood donation. Specifically, when work-
ers begin donating blood in exchange for the day off, the behavior becomes regular-
ized, and people continue to donate at the same frequency even when they stop being
employed. And indeed, the facts bear this out: unemployed donors who later become
employees make about one extra donation per year, while there is almost no reduc-
tion in donation frequency by donors who cease to be employees—and who thereby
cease to receive the day-off benefit. Thus, people generally do not stop providing their
extra donation when they no longer receive the benefit the law provides. The donation
behavior incentivized by law appears to be transformed into a habit, and possibly even
internalized as morally good (Lacetera and Macis 2012; Werner et al. 1995).
Guns are also associated with individualistic cultural symbols, such as self-reliance,
courage, honor, and prowess (Kahan et al. 2007). As a result, hierarchical individualists
tend to be skeptical of risk perceptions that would justify such regulations. People who
identify with guns include hunters and other outdoor sports enthusiasts who view gun
education as a integral part of rural living (Barringer 2013). This helps to explain why
the identity of members of this group is undermined and their status is threatened by
gun regulation. Gun regulation is perceived by many as a threat to their way of life and
an implicit statement that they do not matter. At the same time, there is no discrete cul-
tural group whose identity hinges on members defining themselves by the absence of
guns. Thus, unlike the regulation of smoking, the regulation of guns is unlikely to have
straightforward influences in shaping behavior and moral attitudes.
did not collapse as they had expected, cognitive dissonance forces caused them to
soften their attitudes toward busing (Maniloff 1979). Timur Kuran (1995) argued that,
if the goal is attitude change, the reason citizens comply with a legal mandate is less
important than that they comply and that citizens see others complying. Eventually,
citizens assume others are complying not because they must, but because they want
to—and this perception contributes to a shift in social norms.
This is also consistent with more modern findings that sources that espouse views
that are contrary to the source’s usual positions, or which are counter to the source’s
own or their group’s interest, are more influential than those who act in line with
expectations. Consider, for example, Republican governor George Ryan’s decision to
place a moratorium on capital punishment in Illinois. The fact that a Republican gov-
ernor was an unlikely source of deep skepticism about the death penalty undoubtedly
moved the death penalty abolitionist’s position forward more than would the same
move would have if made by a Democratic governor (Gross and Ellsworth 2001; Visser
and Mirabile 2004). Failures caused by source characteristics are more likely to result
in simple failures than in backlashes or perverse effects. They will simply be seen as
hamhanded, self-interested, incompetent, or silly—and rejected outright by their
intended audience.
4 For instance, when asked the following poll question, “Some people think the government
should promote traditional values in our society. Others think the government should not favor any
particular view. Which comes closer to your own view?” 50% of Americans agreed with the latter
statement, and fewer than half with the former (Opinion Research Corporation 2011).
256 Kenworthey Bilz and Janice Nadler
Another element of the attitude object that can undermine successful attempts to
change it is how discrepant the legal regulation is from what citizens currently think
it should be. The further apart they are, the more resistant to change people will be
(Hovland, Harvey, and Sherif 1957). Although in some sense this is obvious, more than
one attempted legal regulation has foundered on the shoals of being “too extreme” for
the public to accept. Dan Kahan has written about the difference between what he calls
“gentle nudges” versus “hard shoves” in legal regulation, arguing that the latter not
only tend to fail, but can actually cause backlashes (Kahan 2000) (or, in the terms of
early attitude research in social psychology, “boomerang effects” [Sherif, Sherif, and
Nebergall 1982]).
Kahan uses the example of date rape. Date rape became a cause célèbre of feminists
in the 1980s, especially on college campuses. Activists wished to change the notion
that rapes that occurred between acquaintances, where perhaps the issue was confu-
sion about consent (does “no” really always mean “no”?), were somehow less bad than
stranger rapes (Viki, Abrams, and Masser 2004). Their solution was to urge that date
rape be treated by the legal system and all its actors (police, prosecutors, judges, and
juries as fact-finders) as equally bad, by being punished equally (Clemens 1982; Taslitz
2005). Kahan argued that in so doing, activists were actually doing more harm than
good. Because most of the public thought date rape was bad, but not as bad as stranger
rape, insisting that they be treated identically would result in police who were reluctant
to arrest, prosecutors who were reluctant to charge, and judges and juries who were
reluctant to convict at all. This very reluctance would serve as social evidence that, in
fact, date rape was not only not as bad as stranger rape, but perhaps was not a crime at
all (Kahan 2000). Though research showing the law (or at least, the attempts to change
the law) directly caused a backlash is lacking here, plenty have argued that the law is
impotent to impose a change in attitudes about date rape through dramatic redefini-
tion of the crime (Schulhofer 2000; Pierce Wells 1996), and the phenomenon of “date
rape backlash” itself is accepted enough to have spurred considerable commentary and
research (Woods and Bower 2001; Clarke, Moran-Ellis, and Sleney 2002) and even a
documentary film (Media Education Foundation and FAIR (Firm) 1994).
A final feature of the attitude object that will affect the ability of a law to change
attitudes is the level and quality of citizens’ involvement with the issue. The greater the
involvement, the more resistant to change people will be (Sherif and Hovland 1961).
Social psychological researchers have focused on a number of different ways one can be
“too involved” to allow a legal decision-maker to change your mind about something.
The issue being discussed could be particularly vivid or frightening to contemplate a
change in attitude about it (Leventhal, Meyer, and Nerenz 1980). Or, the issue could
have high levels of importance to citizens. Early on, Hovland and Sherif argued that
those with high “ego involvement” in an issue would be resistant to persuasion (Sherif
and Hovland 1961; Sherif, Sherif, and Nebergall 1982). Much more recently, Linda
Skitka has focused on “moral mandates.” Where people’s attitudes are strong, wrapped
up in their personal identity, and related to core moral values, they will be particularly
resistant to changing theme (Skitka and Houston 2001; Mullen and Skitka 2006). Since
Law, Moral Attitudes, and Behavioral Change 257
this chapter is particularly concerned with changing moral attitudes, Skitka’s lessons
are particularly important. Interestingly, high levels of self-interest play less of a role
in determining people’s attitudes than standard economic analysis would predict, and
so presumably whether or not the proposed legal regulation interferes with the direct,
material interests of the regulated parties is not a very good predictor of success for
attempted attitude change on an issue (Sears and Funk 1991; Miller and Ratner 1998;
Sanderson and Darley 2002). Note, however, that when proposed regulations would
have measurable, immediate, monetary effects on the regulated parties, people are
likely to oppose the regulation (Sears and Funk 1991).
persuasive than judicial opinions. Research directly testing the effects of legislation or
plebiscites on public opinion is rare (or nonexistent), but several studies have focused
on the power of Supreme Court decisions to change attitudes (Bartels and Mutz 2009;
Hoekstra 1995; Hoekstra 2000). There, the results have been mixed, and the best sum-
mation of the Court’s ability to move public opinion is that it is limited, depends heav-
ily on circumstances, and in any event is prone to inducing backlashes (Brickman and
Peterson 2006; Franklin and Kosaki 1989; Johnson and Martin 1998; Persily, Citrin,
and Egan 2008). Though this research is tantalizing, by referring directly to established
institutions (the Supreme Court, the US Congress) it conflates the source-credibility
issues discussed in the previous section5 with the procedural/manner effects we refer to
here, which have independent effects on the likelihood of failure of an official attempt
to change moral attitudes.
4 Conclusion
In this chapter, we started from the assumption that political actors primarily wish to
change behaviors, and that they often attempt to accomplish that goal—knowingly or
not—by trying to change attitudes. Sometimes this works, sometimes it doesn’t, and in
this chapter we tried to identify when and how.
However, our initial assumption that the goal of regulation is behavioral or attitudi-
nal change may be wrong, at least some of the time. Considerable research in political
psychology suggests that at least sometimes, the point of legal regulation may instead
be an attempt to co-opt the expressive capital of the law to advance a more symbolic
agenda (Lau and Heldman 2009; Kinder 1998; Sears and Funk 1991). As we have writ-
ten elsewhere, “Law is a form of cultural capital that can be captured by opposed
groups [who use it to] stick a flag in the dirt to mark public territory as their own” (Bilz
and Nadler 2009, p. 122). Social groups compete to establish laws that they perceive
as expressing high social standing for their group; likewise, they oppose laws that
symbolize low social standing for their group. Richard McAdams calls this view the
“expressive politics theory of law” (McAdams, forthcoming). In this chapter, we have
described a handful of regulations that could not credibly be described as anything
other than flags in the dirt, for instance, the “nuclear-free zones” established by munic-
ipalities across the country, or the handful of affirmative “Good Samaritan” laws estab-
lished in some states, which are virtually never enforced (Rosenbaum 2011, p. 248) and
entail tiny penalties even when they are.6
5
For instance, the Court has historically been held in high regard by the public (Caldeira and Gibson
1992), while the credibility of Congress has historically been lower (Hibbing and Theiss-Morse 1995).
6 See Wisconsin Stat. Ann. § 940.34 (class C misdemeanor); Vermont Stat. Ann. tit. 12, § 519 (up to
a $100 fine); Ohio Rev. Code § 2921.22 (fourth-degree misdemeanor); Minnesota Stat. Ann. § 604A.01
Law, Moral Attitudes, and Behavioral Change 259
Even what might look like instrumentally motivated legal regulations are often,
perhaps even usually, either supported or opposed on the grounds of what they say
rather than because of what they do. For instance, residents of a rural town opposed
legal limits on using wood for heat to the extent they endorsed masculine pioneering
ideals, despite agreeing that old-fashioned wood-burning heaters cause air pollution
and health problems (Cupples, Guyatt, and Pearce 2007; Reeve et al. 2013). Support for
the regulation of novel “reduced tobacco” products was predicted most strongly by the
respondent’s general attitudes about the legitimate role of government society, even
when the respondent was a smoker (Kim, Stark, and Borgida 2011). Support for the
Vietnam War was better predicted by “feeling thermometers” toward the military and
antiwar protesters than it was by having an immediate family member serving there
(Lau, Brown, and Sears 1978). The list goes on, and new data points arrive frequently.
This is not to say, of course, that self-interest is never a factor in support for legal
regulations. Nor is it even to say that instrumental concerns are always swamped
by symbolic ones. Indeed, as research in the area has blossomed, we have learned
that the relationship among instrumental concerns, symbolic concerns, and politi-
cal attitudes is quite nuanced. For example, when the actual consequences of legal
regulations are immediate (Hunt et al. 2010) and clear (Sears and Funk 1991), conse-
quences tend to dominate symbolic concerns. There are also individual differences
in self-interestedness, and unsurprisingly, the more self-interested a person is in gen-
eral, the more self-interest will predict her political views (Crano 1997a; Crano 1997b).
The taste for self-interest might also be growing over time (Ratner and Miller 2001),
which would suggest that in the future, the role of symbolic politics might diminish.
Moreover, sometimes it’s hard to tell what is self-interest and what is “merely” sym-
bolic: is supporting a policy that favors the group with whom you strongly identity a
function of your self-interest, or of group solidarity (Luttmer 2001)?
Indeed, as the norm of self-interest grows—or rather, if it does—then this, too,
should be a factor that predicts the success or failure of legal interventions. We have
already noted that in Western societies built on principles of Enlightenment liberalism,
people bristle at attempts by the state to impose official moral orthodoxies. Some have
argued that self-interest might actually have become not just acceptable but normative.
One study found that even altruists were reluctant to explain their own behavior as
motivated by wanting to do the right thing, but instead consistently tried to describe
it as motivated by instrumentalist concerns (Wuthnow 1991). If self-interest becomes
the dominant grounds for why a citizen says she is endorsing or opposing a legal regu-
lation, successful attempts to regulate might eventually be more likely to depend on
whether they actually do improve a citizen’s “bottom line.”
That would be unfortunate. On the surface, in that world it would be easier to win
support for a legal regulation if all advocates had to do was make it economically (in the
broad sense) worthwhile to citizens. But it might be a lot more expensive to do so—not
(petty misdemeanor). The only exception would be Rhode Island, which assigns a fine of $500–$1,000
or up to six months in jail. R.I. Stat. §§ 11-1-5.1, 11-56-1.
260 Kenworthey Bilz and Janice Nadler
only in the sense of “buying” support (and constructing a regulation that gives the
highest material output to the largest numbers—or the most powerful numbers), but
also in the sense of maintaining compliance. Internalized support for or opposition to
a policy is stickier than support grounded in self-interest—but that stickiness is just as
often an advantage as it is a disadvantage. In the grand scheme, morally motivated citi-
zens will behave or believe as they do, almost no matter what the law tells or demands of
them. This can be frustrating to those who wish to upset entrenched bad norms, but it
can be a godsend to a legal regime with limited resources (both economic and political)
to police behavior.
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