VIDEO: Meaning

This discussion of meaning led by Owen Flanagan at the Moving Naturalism Forward workshop, October 2012, has recently been uploaded to YouTube, so we wanted to share it here as well.

Participants include Sean Carroll, Jerry Coyne, Richard Dawkins, Terrence Deacon, Simon DeDeo, Daniel Dennett, Owen Flangan, Rebecca Goldstein, Janna Levin, David Poeppel, Massimo Pigliucci, Nicholas Pritzker, Alex Rosenberg, Don Ross, and Steven Weinberg.


Owen Flanagan is James B. Duke University Professor of Philosophy at Duke University. He works in philosophy of mind, ethics, and comparative philosophy. His book, The Geography of Morals: Varieties of Moral Possibility was published in 2016 from Oxford University Press. Flanagan is a scholar with the project Virtue, Happiness, & the Meaning of Life.

Empathy and Shifting Perspectives

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Photo by Chris Smith.

 

Note: This is part 2 of a 3-part series “Perspective-Taking, Empathy, and Self-Transcendence” based on a talk at the University of California, San Diego by Candace Vogler in June 2018 for WISDOM, COMPASSION, AND LONGEVITY.

 

Empathy and Shifting Perspectives

The term ‘empathy’ can cover a very wide range of our responses to another creature’s distress.  It can cover the rush of feeling that comes of seeing images of starving children or abused pets—the sort of responses that sometimes lead us to reach for our credit cards and donate to the Red Cross or one or another Society for the Prevention of Cruelty to Animals.  It can cover the sense that I might begin to have for one of my students who has suffered the loss of a loved one.  It can cover the slow, developing understanding I can have for the situation of parents struggling to raise their sons and daughters in my neighborhood on the South Side of Chicago, or the situation of my mother and her friends in the retirement home as they confront the varieties of loneliness and disappointment that come with challenges to mobility and cognitive functioning.  I will focus on the sort of empathy that grows out of cultivated capacities to track what is going on with others.

 

This sort of empathy requires having some understanding of what other creatures think, feel, suffer, enjoy, and want.  And although any sentient creature could be a focus of such empathy, most of the research I know concerns empathy for our fellow human beings.  And much of the research is predicated on the thought that if I am to empathize with you, I must have some capacity to understand your perspective on your situation.  Perspective-taking is key to this sort of empathy.  Nicholas Epley and Eugene Caruso describe things this way:

The ability to intuit another person’s thought, feelings, and inner mental states is surely among the most impressive of human mental faculties.  Adopting another’s perspective requires the ability to represent the self as distinct from others, the development of a theory of mind to realize that others have mental states in the first place…and explicit recognition that others’ mental states and perceptions could differ from one’s own.  Humans appear to be born with absolutely none of these capacities but instead develop them during the first few years of life.  Developing these perspective-taking abilities appears critical for many good things in social life, from empathy, to cooperation, to possible acts of altruism.  Not all humans develop these skills to equivalent degrees, and those who do not develop these skills to any degree are among the most puzzling (and occasionally horrifying) members of society as they look perfectly human but act completely unhuman.[i]

 

Like any of our capacities, our perspective-taking capacity can be underdeveloped or badly used.  We can fail to engage in perspective-taking when we ought to engage in it, and we can make many errors when we try to understand what is going on with others.  The empathy of interest to me depends upon perspective-taking.  And accurate perspective-taking, in turn, depends upon breaking free of egocentric bias.

 

There are two very different sorts of questions that researchers can ask when working to elicit empathy in their subjects.  They can ask subjects to think how they would feel if they found themselves in another person’s situation.  This sort of question, notice, leaves things entirely in the purview of the self.  Alternately, they can ask people to imagine how the other person feels.  This sort of question shifts the focus from the self to the other.  Daniel Batson calls efforts to imagine how things would be for me in your situation the ‘imagine-self perspective’ on your circumstances.  He calls the request to think how things are for you the ‘imagine-other’ perspective.[ii]  It turns out that these two forms of perspective-taking yield dramatically different results.  The difference is so dramatic that the self-perspective orientation may not count as empathetic at all.  Batson describes the difficulty with an example:

When the other’s situation is familiar or clear, imagining how you would feel in that situation may not be needed for sensitive understanding and may even inhibit it.  Hearing that a friend was recently ‘dumped’ by a romantic partner may remind you of your own experience last year when you suffered the same fate.  You may get so caught up reliving your own experience that you fail to appreciate your friend’s pain.  Especially if you found it easy to rebound, you may contrast your own experience to that of your friend, who is struggling.  Rather than sensitive understanding and empathetic concern, you may respond with impatience and judgment.  The role of an imagine-self perspective in evoking empathy is, then, indirect at best.[iii]

 

In Batson’s review of relevant research, there is significant evidence that subjects engaging in imagine-self perspective-taking show patterns of neurological activity importantly different from the sort characteristic of subjects engaging in imagine-other perspective-taking.  The two groups think differently, feel differently, and exhibit different patterns of neurological activity.  In effect, imagine-self perspective taking does nothing to disturb the egocentric bias so characteristic of our kind.

 

[i] Nicholas Epley and Eugene Caruso, “Perspective-Taking: Misstepping Into Others’ Shoes,” in Keith Markman, William Klein, and Julie Suhr, editors, Handbook of Imagination and Mental Simulation, (New York: Taylor & Francis Group, 2009), p. 297.

[ii] Daniel Batson, “Two Forms of Perspective-Taking: Imagining How Another Feels and Imagining How You Would Feel,” in Keith Markman, William Klein, and Julie Suhr, editors, Handbook of Imagination and Mental Simulation, (New York: Taylor & Francis Group, 2009), pp. 267-279.

[iii] Daniel Batson, “Two Forms of Perspective-Taking: Imagining How Another Feels and Imagining How You Would Feel,” p. 268.

 

Tomorrow, June 7: Barriers to Empathy


 

Candace Vogler is Professor of Philosophy at the University of Chicago and a Principal Investigator on ‘Virtue, Happiness, and the Meaning of Life’, a project funded by the John Templeton Foundation. She is also the Chair in Virtue Theory, a joint appointment with the Jubilee Centre and the Royal Institute of Philosophy. 

Empathy and Self-Transcendence

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“Empathy” | Photo by Sarah Barker.

Note: This is part 1 of a 3-part series “Perspective-Taking, Empathy, and Self-Transcendence” based on a talk at the University of California, San Diego by Candace Vogler in June 2018 for WISDOM, COMPASSION, AND LONGEVITY.

 

Introduction

Some colleagues and I are in the process of bringing a grant project to a close.  The project has given all of us a chance to think together about the relationship between working to be a good person, leading a meaningful life, and being happy.  These three need not coincide.  I could be working hard to deliver medical supplies, food, and drinking water to refugees in desperate circumstances.  I am helping set up a clinic in their camp, say.  New people keep arriving, fleeing the genocidal violence across the border.

 

Chances are that I have a strong sense of purpose.  There is meaning in the life I’m leading.  Chances are that I am a reasonably good person.  On some understandings of the term ‘happiness’—the sort associated with having a happy birthday, say, or a happy holiday—I am probably not particularly happy. But there is a kind of happiness I might have even in the camp.  I might get a profound sense of satisfaction from my work.  I might be exultant if we are able to save the lives of people who are half-dead when they arrive.  And I might be cheerful.  If profound satisfaction and the ability to maintain some balance and some capacity for joy amid immense struggle is what we mean by ‘happiness,’ then I am happy.

 

Our grant project was not explicitly directed to the situation of humanitarian aid workers and those who need the help they bring. We were mostly thinking about ordinary people who understand themselves as belonging to a middle class in places like North America.  We wanted to understand what might be involved in finding meaning and real satisfaction in leading ordinary lives in the kinds of extraordinarily fortunate circumstances middle class people around these parts enjoy.  We argued—in various ways, across various academic disciplines—that the key to bringing together efforts to be a good person, deep satisfaction, and a strong sense of meaning in one’s ordinary life was to be oriented to some good larger than one’s own success and the welfare of members of one’s circle.  Being entirely oriented to my own success, my own pleasures, my own comfort, my own prospects, is not a recipe for leading a good life.  It does not become a recipe for leading a good life even if I extend the sphere of my primary concern to cover the pleasures, comfort, security and prospects of my friends and family.  Finding meaning in my life, finding my life profoundly satisfying, putting my efforts to be a good person in their proper place—these things require being alive to participating in a good that goes beyond me and mine.

 

There are many ways that this can happen.  I can understand my life in the context of a multigenerational family that began long before I was born and will, with any luck, continue long after I die.  I inherited the benefits of the struggles of my ancestors.  I want to carry the good forward for my descendants—people I will never meet, whose names I will not know, but whose lives grow out of the life I lead.  Or perhaps it is like this—I work toward environmental sustainability, or I am devoted to social justice, or my religious faith animates my sense of my world and our place in it.  Lots of roads are made of good larger than the worldly gains of me and mine.  Following any of those roads can amount to living a life where ordinary things are meaningful, where life is deeply satisfying even when it is not much fun, and where the ordinary ethical struggles I face are worth the courage and effort it takes to begin to remedy my own failings.

 

One way of putting the central insight that animated our grant project, then, is this—to lead a life that is good in three senses—successful, satisfying, and ethically sound—we must break the spell of selfishness.  Breaking the spell of selfishness is not easy.  I will focus on one of the ways that we can loosen the hold of what Immanuel Kant called ‘the dear self’ today.  I will talk about the variety of compassion at issue in empathy.

 

Tomorrow, June 6: Empathy and Shifting Perspectives


Candace Vogler is Professor of Philosophy at the University of Chicago and a Principal Investigator on ‘Virtue, Happiness, and the Meaning of Life’, a project funded by the John Templeton Foundation. She is also the Chair in Virtue Theory, a joint appointment with the Jubilee Centre and the Royal Institute of Philosophy. 

Cultivating virtue & living wisely

On the desktop are: a clean white sheet of paper, a simple pencil, old books, pocket watch on a gold chain and a kerosene lamp. Retro stylized photo.This post is an excerpt of “Living Within Reason” on the blog “Virtue Insight”, of the Jubilee Centre for Character and Virtue, available here.

 

Cultivating virtue helps us to live well within reason. But how are we to understand the kind of guardrails reason provides? Why suppose that reason can govern action and emotion in the way that neo-Aristotelian theorists of virtue seem to suggest that it can?

 

After all, there is an impressive body of empirical research suggesting that people frequently fail to live up to their own ideals. Worse, there is a lot of evidence that resentments, strong and unwelcome desires, and emotional scarring from old psychological injuries—aspects of our inner lives that rarely occupy conscious attention—may have more influence on what we do in some areas of our lives than thinking about what to say or do. And spending a lot of time thinking out what to do can itself be a symptom of a failure of sound self-governance. One of the characters on a popular television series in the U.S. these days is a moral philosopher who is effectively paralyzed by treating all decisions—what sort of soup to order in a restaurant, for example, or what to name his dog—as situations requiring long and careful deliberation.

 

For all that, developing various habits of reflection is likely our best hope of living up to our own standards and leading lives that we find satisfying and meaningful. The very psychologists and philosophers whose work draws our attention to our tendencies to lose track of what we find most important when making concrete decisions at work or at home also provide some guidance on ways of counteracting these problems in practice.

 

TIBERIUS ON THE REFLECTIVE LIFE

In The Reflective Life: Living Wisely With Our Limits, Valerie Tiberius discusses the importance of developing a core and structured sense of the things that matter to us in life—family and friendship, for example, or health and an acceptable level of material security—that can provide some basic guidance in making major decisions. But Tiberius hopes to bring the study of major life choices down to earth in thinking about the more  mundane business of daily life.

Business cartoon of a wise businessman meditating on a cliff, his coworker is looking for 'some business wisdom'.

She argues that we need to work against tendencies to cynicism, to work toward realistic optimism, to be open to entertaining alternate perspectives on matters of conduct and policy, and to be mindful of our own tendencies to see ourselves in lights brighter and more favorable than will be strictly warranted. Humility and gratitude, she urges, are crucial to the kind of self-awareness we need if our own senses of what matters most to us are to shape our choices. Lively awareness of considerations of fairness can help to counteract our tendencies to acting on self-interested impulses (and to hide such tendencies from ourselves). Tiberius is not a Thomist and Aquinas did not have access to the empirical findings that inform Tiberius’s work on practical wisdom. Nevertheless, the thought that working to develop the habits associated with secondary virtues—cultivating fairness, humility, and gratitude, for instance, and thereby articulating and supporting cardinal virtues—alerts us to the ethically salient aspects of our circumstances and helps us to make wise decisions is in keeping with the spirit of Aquinas’s work on virtue. The job of virtue is to provide us with the frameworks that give us a good understanding of our situations and so guide our choices. Leading reflective lives gives reason the right role in self-governance, not through paralyzing, rigid, and frequently deluded insistence on planning every aspect of daily life—as though it was in our power to prevent the world from confronting us with situations that demand a different response—but by helping us to pause and reflect when that is what we need to do.

 

 

EXAMPLES

Suppose, for example, that like most people I find that I tend to make foolish decisions when things that I take to be in my self-interest look to be at odds with things that I ought to do for the sake of my family or for the sake of my job. It’s not as though I will lose my job if I put my interests ahead of what the larger organization looks to need from me. Nor am I likely to alienate my family members if I seek to gratify myself now and then. But I want to be a better person, so I have decided to try to curb my more unattractive selfish side. Self-critical self-awareness is enough to let me know that some change is in order. Suppose that I start small, by reminding myself to step back and think about others. I could work on kindness and generosity, for example, starting small.

 

I decide to begin my self-improvement regime by getting into the habit of greeting everyone at work each morning—both the people with whom I work closely and the people who make our workplace run smoothly whom I tend not to notice as much—administrative staff, people on the cleaning crew, people at the lunch counter, and so on. I make a point of greeting everyone. This takes almost no time, but it helps me to be aware of my fellow human beings. A habit this small can have a profound effect on my decision-making. Through morning after morning of quiet, cheerful well-wishing, the reality of my fellow human beings begins to be part of my basic sense of myself and my world. Concerns about fairness, willingness to compromise, and more generally some sense for others’ interests can begin to inform my daily conduct at work. I have different material for reflection when faced with the tug of the dear self from one decision to the next on the job. And there is some evidence that even this kind of change in the behavior of one relatively highly-placed person in a busy office can begin to have a positive effect on the larger culture of the workplace. My colleagues might wonder what I’m up to, initially, and think that I might have some nefarious scheme afoot. But if I am cheerful, quiet, and steady in my efforts, my innovation can even begin to help my colleagues cooperate more effectively and productively. Reflective self-awareness taught me that I needed to change something about how I was living. Beginning to make the change began to give me better materials for reflective decision-making at work.

 

Working to become a better member of my own family can be at once more necessary and more difficult. Members of my intimate circle often know me better than I know myself, and if I have been as disappointing to my nearest and dearest as most of us have been, those closest to me will likely have developed healthy defenses against being too optimistic about the likelihood that I will improve much. Here, reflection advises me to be open to understanding the ways large and small in which those closest to me may have suffered from my selfish impulses, may have felt invisible to me, and may have had to adjust to a long history of experiencing me at my worst. I need to be able to see and take seriously the effects that my self-involvement has had on my loved ones. They have at least as strong an interest in seeing me change as I do. But they may not share my optimism. At home, I need to learn to listen very carefully to what my loved ones say, to notice and express genuine encouragement and support for them in their efforts at pursuing what matters most to them, to ask in detail about what they are doing and pay attention to what they say, to do my best to track their moods, and more generally to make each of them more vivid in my own mind. Kindness, patience, fairness, gratitude, generosity, and humility all are involved in becoming a better partner or parent or sibling, and the department of justice that demands that I keep my commitments faithfully—if only to give my loved ones a chance to experience a more reliable and trustworthy version of myself than they may have known in the past—all will conspire to guide me in making better choices at home. Among other things, these habits will help me respond better spontaneously to the demands of my home life and identify situations in which I need to pause and think carefully with others to decide how to respond to the challenges that we face.

 

For those of us interested in thinking about the ways that virtuous activity allows reason to effectively guide us in leading better and more fulfilling lives, work on cultivating virtuous habits is just work on learning to live wisely.

 


Candace Vogler is Professor of Philosophy at the University of Chicago and a Principal Investigator on ‘Virtue, Happiness, and the Meaning of Life’, a project funded by the John Templeton Foundation. She is also the Chair in Virtue Theory, a joint appointment with the Jubilee Centre and the Royal Institute of Philosophy. 

4 Philosophy Professors Weigh In on The Good Place

This article was originally published in POPSUGAR on February 28, 2018. LINK

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Kristen Bell as Eleanor, William Jackson Harper as Chidi, and Ted Danson as Michael.

There’s a scene in the second season of The Good Place where, in order to illustrate the classic moral dilemma known as The Trolley Problem, the characters are forced to live it. The famous thought experiment, which asks different variations of whether you would steer an unstoppable trolley into one person to avoid killing five, has long been a go-to for ethics scholars — but watching the show’s hilariously gory take on it brought the lesson to life in a way Agnes Callard, an associate professor of philosophy at the University of Chicago, hadn’t considered before. “There’s something very violent about the thought experiment itself, like, we’re asking them to imagine murdering people,” Callard told POPSUGAR. “And the show just takes that really seriously, like, ‘OK, let’s really imagine it.'”

 

It’s just one of the ways tuning into the NBC sitcom has been a fun first for philosophy and ethics professors like Callard, who aren’t used to seeing their area of expertise at the center of a hit network comedy. Callard and the three other philosophy professors/The Good Place fans we talked to said that while pop culture has always reflected on philosophical themes, they don’t remember a show or movie ever examining specific theories and works this explicitly. The little Easter eggs creator Michael Schur has included in the series so far go beyond sneaky references to the Parks and Recuniverse. There are plenty of nods to the world of academic philosophy, too. Season one introduced the show’s philosophical foundation by way of actual mini lectures on how to be a good person from ethics professor Chidi (William Jackson Harper). But after the just-finished season two’s even deeper dive into questions of what it means to be good, the real-life philosophers said they can’t wait for season three.

 

Back in the fall of 2015, UCLA ethics professor Pamela Hieronymi says she got an email from Schur asking if she would be willing to discuss some ideas he had for a new project. “He wanted to pick my brain about ethics,” Hieronymi told POPSUGAR. “And I think that’s because he saw a paper on my website that sounded like the issues he was interested in about the motives for becoming a better person and whether it’s possible to become a better person.” The two spent about three hours chatting over coffee, Hieronymi said. About a year later, she spotted a billboard for The Good Place. After reaching back out to Schur to congratulate him, Hieronymi has occasionally served as a philosophical sounding board for the show’s writers, even visiting the studio at one point to teach them about The Trolley Problem and other lessons.

 

“The philosophy is working at two levels,” Hieronymi said of the show, which she’s watched from the beginning. “So, there’s the obvious level where Chidi is giving little lessons and namedropping both classic philosophers like Plato and Aristotle and Kierkegaard and contemporary philosophers, which is really kind of wild . . . but then there’s the actual more serious exploration of those issues that are taking place in the story line and with the characters.” Though the show is set in the afterlife — a topic that’s been examined by philosophers for centuries — all four professors said they don’t really see it as being about heaven or hell. Instead it’s about the kinds of questions philosophy aims to answer: What makes someone good or bad? What matters? How should we treat other people?

 

That last question comes up a lot, specifically in references to philosopher T.M. Scanlon’s book What We Owe to Each Other” (it’s even part of the clue to help Eleanor and Chidi reconnect after the season one twist). The idea that the show uses modern-day philosophers like Scanlon, a professor emeritus at Harvard, has been especially exciting for fans in the academic community. Jason Bridges, an associate professor at the University of Chicago who specializes in the philosophy of action and the philosophy of the mind, studied under Scanlon, and said that specificity has been one of the highlights of watching the show. “Certainly I’ve never seen a show where books that are on my shelf, and not just classic works, recent works of philosophical ethics, keep popping up as props,” Bridges said to POPSUGAR.

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Seeing the life of an ethics professor on the small screen is another treat, according to the professors, but they had mixed feelings on whether they identified with the neurotic Chidi. Bridges said he likes the character but doesn’t see a big connection between Chidi’s neuroses and his interest in philosophy (though he did admit “moral philosophers may be more prone to stomachaches than the average person.”). Callard, too, said the portrayal of Chidi as being nerdy and boring doesn’t represent the philosophers she knows. (“I much more identify with Eleanor,” Callard said.) But fellow University of Chicago professor Candace Vogler said the idea of a philosopher “actually taking ordinary choices fairly seriously” is familiar. And Hieronymi said she has seen other philosophy professors post joking warnings on Facebook for colleagues to strive not to be like Chidi. “The indecisiveness is a real phenomena,” Hieronymi said. No one took offense at the show’s running joke that everyone hates moral philosophy professors. Chidi’s portrayal also just gives average viewers a playful peek into the world of a philosophy academic, Hieronymi said. “This show is more of what [The] Big Bang [Theory] was for science graduate students.”

 

For viewers who’ve never taken a philosophy class, the professors agreed that the show is giving the field some potentially valuable exposure, even if Eleanor does complain about her ethics lessons being boring. Vogler said she’s recommended The Good Place to introductory-level students. Hieronymi’s heard about other professors using the show itself as a teaching tool. Though Callard, Hieronymi, Bridges, and Vogler recognize that Chidi’s teachings are extreme simplifications of the complicated, nuanced theories they teach, and some of them had picked up on small issues (Vogler wasn’t a fan of Chidi’s reading of Kant, for example), the bigger-picture questions the characters address show that philosophical thinking can be practical — and compelling — for everyone. “Philosophy seems like a rarified thing to study,” Bridges said. “It seems like perhaps an impractical thing to major in, but what it does, if you study it, is cultivate ways of thinking and writing and communicating that are of general value and of use to a whole range of careers and human endeavors, and so this show helps illustrate that.”

 

Bridges says he thinks the topic of free will would be a no-brainer for season three, which we can maybe expect in the Fall. Hieronymi would be interested in seeing the show dig deeper into the timely issue of people getting defensive and having trouble taking constructive criticism about their actions. Whatever direction the show’s writers take, the professors said they’ve loved seeing the creative team take the public’s growing interest in self-reflection and run with it in such imaginative, accessible ways.

 

“Just the fact that the central problem for the characters is to try to figure out how to be better people and the thought that selfishness and narcissism are huge obstacles that people have to overcome in order to become better people,” Vogler said. “That’s profound.”

Hyde Park Institute Sponsoring Two Spring Courses at the University of Chicago

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Our partner the Hyde Park Institute is sponsoring two courses at the University of Chicago. Registration opens Monday, February 19.

Read more about the Hyde Park Institute here.

Anselm Mueller, Candace Vogler, and John Yoon are the faculty members of the Hyde Park Institute. Read more about them here.

 

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PHIL 21504/31504. The Nature of Practical Reason. Practical reason can be distinguished from theoretical or speculative reason in many ways. Traditionally, some philosophers have distinguished the two by urging that speculative or theoretical reason aims at truth, whereas practical aims at good. More recently, some have urged that the two are best known by their fruits. The theoretical exercise of reason yields beliefs, or knowledge, or understanding whereas the practical exercise of reason yields action, or an intention to do something, or a decision about which action to choose or which policy to adopt. In this course, we will focus on practical reason, looking at dominant accounts of practical reason, discussions of the distinction between practical and theoretical reasons, accounts of rationality in general and with respect to practical reason, and related topics. Prerequisite: At least one course in philosophy. Anselm Mueller; Candace  Vogler. DOWNLOAD PDF OF FULL DESCRIPTION HERE

 

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CCTS 21005 / MED XXXXX . The Challenges of the Good Physician: Virtue Ethics, Clinical Wisdom, and Character Resilience in Medicine. This multi-disciplinary course draws insights from medicine, sociology, moral psychology, philosophy, ethics and theology to explore answers to the unique challenges that medicine faces in the context of late modernity: How does one become a “good physician” in an era of growing moral pluralism and health care complexity? John Yoon, MD and Michael Hawking, MD.  DOWNLOAD PDF OF FULL DESCRIPTION HERE

 

 

Clockwork Corporations: A Character Theory of Corporate Punishment

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The abstract and introduction below are from the paper published in the Iowa Law Review, Forthcoming; U Iowa Legal Studies Research Paper No. 2017-32.  Link

Abstract

Retribution and deterrence currently drive the politics and scholarship of corporate criminal law. Since the potential harms and private gains of corporate crime are so large, corporate punishment under these theories must be exacting…too exacting. In fact, it is difficult under current law to punish many corporations formally without killing them. Ironically, this fact leads to the under-punishment of corporations. Prosecutors — understandably hesitant to shutter some of the country’s largest economic engines — increasingly offer corporations deferred prosecution agreements in lieu of charges and trial.

 

This Article considers corporate punishment for the first time from the framework of a third major theory of punishment — character theory. Character theories of punishment focus first and foremost on instilling good character and civic virtue. Criminal law scholars have largely marginalized character theory because it struggles as a suitable framework for individual punishment. But the practical and moral problems character theory faces in the individual context do not arise with the same force for corporations. In fact, character theory offers the possibility of punishing corporations in a way that preserves and enhances the social value they create while removing the structural defects that lead to criminal conduct. Along the way, the Article defends some heterodox proposals, including abolishing the corporate fine and allowing sentencing judges to balance the need to punish against non-criminal aspects of a corporate defendants’ “character.”

 

“How about this new thing they’re talking about? How about this new like treatment that gets you out of prison in no time at all and makes sure that you never get back in again?” ~ Anthony Burgess, “A Clockwork Orange”

 

Introduction

 

It is actually not so new. Though unpopular for the last few decades, punishing criminals by reforming them was once the predominant approach. Anthony Burgess poignantly described one prominent concern that led to its demise: Coerced reform risks turning people into “clockwork toy[s] to be wound up by . . . the Almighty State.” Forcefully changing character and personality is an affront to the self-defining freedom that is the root of human dignity.

 

While generally marginalized today, punitive reform is undergoing a resurgence for a different kind of “person”—the large, publicly-traded corporate criminal. Prosecutors are at the forefront of the movement. In the deals they cut with corporate suspects, prosecutors often require programs of reform. Implicit in how prosecutors now treat corporate defendants is the recognition that their fundamentally different nature allows for a different approach to punishment. Burgess’ complaint loses all its force in the corporate context. Corporations are not, and cannot be, free, selfdefining loci of dignity.

 

Scholars and lawmakers are still behind the curve. While prosecutors have been experimenting with reform-as-punishment, the dominant academic and political discourses on corporate crime still focus on deterrence and retribution. There is the seed of a third path in what prosecutors are doing. This article seeks to uncover the implicit logic behind corporate prosecutors’ decisions. In its present form, prosecutorial practice is focused on reform and rehabilitation. Were the logic of the practice pushed and perfected as an approach the entire criminal justice system could take toward corporate punishment, an organizing theory that is different from deterrence and retribution emerges—character theory. As argued below, character theory opens new conceptual space for solving some of the most persistent problems in corporate criminal law.

 

One of those persistent problems is the dark and unjust underbelly to the way prosecutors handle corporate criminals—criminal justice is often softer on corporate criminals than on real people. On paper, the Department of Justice officially treats corporations as ordinary people. Somehow, though, corporations are much less likely to see criminal charges. Less than .03% of corporations faced prosecution in the last quarter century. To put this in perspective, 8.6% of the U.S. adult population has a felony conviction. There are many possible explanations for this discrepancy, including over-criminalization of some forms of individual conduct and over-enforcement against certain demographics. Another possibility is that the large, public corporations that are the focus of this article receive some of the lightest treatment.

 

The perception that large, public corporations routinely escape conviction is troublingly paradoxical. These corporations are among those most likely to commit crimes, and their conduct most deeply impacts society. They have an extremely wide base of liability. Under current doctrine, they are automatically liable for almost any crime any individual employee commits on the job. This adds up to a staggering degree of exposure for large corporations—the seventy-five largest corporations in the United States employ over 100,000 potential points of liability.  Though the de jure scope of corporate criminal liability has continued to expand since the early twentieth century, the chance of conviction for large public corporations continues to shrink. This is particularly puzzling in an environment where the outrage of Wall Street Occupiers over corporate unaccountability still reverberates in public sentiment. Failure to hold corporations accountable frustrates society’s effort to condemn corporate criminality and can cast a shadow on the broader legitimacy of criminal law.

 

This discrepancy between the scope of corporate criminal liability and the infrequency of conviction is in part to due to how prosecutors go about trying to reform corporations. For every conviction of a public corporation, and with increasing frequency, there is at least one other where prosecutors decline to take the corporate suspect to trial and instead enter into a specially negotiated deal: a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA). Unlike guilty pleas, these agreements do not result in a guilty verdict; they may not even require an admission of wrongdoing.  Corporate DPAs and NPAs are extremely controversial. They face a bevy of criticism from many perspectives: that they are too onerous, that they are too lenient, that they violate basic tenets of political morality, that they fail basic norms of transparency, and more. It is through these DPAs and NPAs that prosecutors frequently impose the reforms that interest this article. In addition to undermining corporate convictions, this article discusses below how poorly positioned prosecutors to be agents of corporate reform.

 

Many people blame prosecutors for the pitfalls of DPAs and NPAs, but prosecutors are hard to fault. DPAs and NPAs are a reasonable response to the legal and practical constraints prosecutors face, including, most importantly, the effects a successful conviction can have on a large public corporation. In 2004, prosecutors learned a hard lesson—their shortlived courtroom success against Arthur Andersen, one of the largest U.S. accounting firms, turned into a long-lasting catastrophe that put the company and its 75,000 employees out of business.  For many firms, including Arthur Andersen, there are life-ending collateral consequences that automatically follow conviction, such as debarment or revocation of the privilege of doing business with the government. When a successful conviction could entail massive harm to the very social welfare prosecutors are supposed to protect, DPAs and NPAs are a natural choice.

 

There is a way to keep the good without the bad—to hold corporations accountable without destroying them and to reform corporations without relying on prosecutors to do all the work through DPAs and NPAs. This article argues that the stark choice that forces prosecutors to decline corporate prosecutions in favor of DPAs and NPAs is an unnecessary feature of corporate criminal law. It draws attention for the first time to punishment theory as a potential source of problems and solutions. The article argues that low conviction rates and a host of other familiar problems with corporate criminal law are, in large part, a consequence of the focus on deterrence in scholarship and retribution in public political discourse. These drive prosecutors and corporations out of the courtroom.

 

Though prosecutors are increasingly attentive to corporate reform, scholars and lawmakers have overlooked character theory as a framework for corporate punishment. While adopting a broadly consequentialist perspective,38 the Article points out that preventing corporate crime does not necessarily require deterring it. The Article does this by introducing character theory as a systematic approach for structuring corporate punishment. Character theory would refine the sorts of reform and rehabilitation that prosecutors currently pursue and make them the exclusive mode of corporate punishment. Character theory would avoid the need for DPAs and NPAs, and ultimately do more to prevent corporate wrongdoing than deterrent approaches can. It could also bring corporate criminal law into better alignment with the goals of retributive theorists. While various actors already attempt to reform corporations at various stages of the criminal justice system, their efforts are piecemeal and ineffective because they lack any coherent, coordinating theory. Poor execution and the distorting influences of deterrence and retribution continue to hamstring any chance of success. Fixing corporate character as the sole criterion for the extent and method of corporate punishment leads to some surprising, though ultimately beneficial, recommendations, such as abolishing the corporate criminal fine.

 

After detailing the problems retributivism (Part II) and deterrence theory (Parts III) bring to corporate criminal law (Part IV), the article introduces character theory (Part V) as an alternative. With the conceptual foundation set, the article shows the work character theory could do improving a diverse range of problems in corporate criminal law (Part VI). The article closes by addressing concerns that may arise from the perspective of other theories of punishment—the character approach proposed here performs well by their metrics too (Part VII).

 

One goal of this Article is to work so far as possible within the constraints of present legal and political realities. In theory, there may be ways to promote corporate reform and solve the problems discussed in this Article without turning to character theories of punishment. Some scholars think that scrapping corporate criminal law entirely and relying only on civil liability would improve things.41 But such proposals are fanciful in the current political climate. It is also far from clear whether the sorts of corporate reform that this Article advocates could be accomplished by using non-criminal fora. As such, abolishing corporate criminal law and other similarly radical options are outside this Article’s methodological ambit. It takes the basic contours of corporate criminal law as given and shows how they can function best. Character theory can do that work.

The full paper can be downloaded without charge from the Social Science Research Network electronic library here.


Mihailis Diamantis is an associate professor of law at the University of Iowa, in the College of Law and the Department of Philosophy.  He writes about criminal law, corporate responsibility, and the philosophy of action.  He holds a PhD in philosophy from NYU and his JD from Yale.  Prior to joining the faculty at Iowa, Mihailis was an instructor and researcher at Columbia Law School.  He clerked for Judge Alex Kozinski on the Ninth Circuit Court of Appeals and worked on white collar investigations as an attorney at Debevoise & Plimpton LLP.He attended the 2016 Summer Session “Virtue & Happiness” of the project Virtue, Happiness, & the Meaning of Life.