How Change Happens

by Cass R Sunstein

  Feuds and Strife

  Group polarization is at work in feuds of all kinds. One of the characteristic features of feuds is that members of feuding groups tend to talk only to one another, fueling and amplifying their outrage and solidifying their impression of the relevant events. Informational and reputational forces are very much at work here, typically producing cascade effects, and group polarization can lead members to increasingly extreme positions.

  It is not too much of a leap to suggest that these effects are sometimes present within ethnic groups and even nations, notwithstanding the usually high degree of national heterogeneity. In the United States, sharp divergences between whites and African-Americans, on particular salient events or more generally, can be explained by reference to group polarization. Often people are speaking or listening mostly to like-minded others. Racial and ethnic strife, or hostility amid “multiculturalism,” is often affected by the same process.

  The economist Timur Kuran has explored the broader international phenomenon of ethnification.29 Kuran’s basic claim is that in many nations, including Turkey and the former Yugoslavia, ethnic strife is not a reawakening of long-suppressed resentments, but instead a product of reputational cascades. In this process, a failure to engage in ethnically identified activity produces reputational sanctions, which grow in intensity over time as increasing numbers of people join the cascade. Initially people may be asked to dress in an ethnically identifiable way; later people who shared their ethnic identify may ask them to engage in certain celebrations and to participate in meetings; still later they may be asked to segregate themselves. Hence “the fears and antagonisms that accompany high levels of ethnic activity may be a result of ethnification rather than its root cause.”30

  Kuran does not refer to group polarization. But an understanding of this phenomenon would much fortify his analysis, by showing how within-group discussion (which is, under conditions of ethnification, an increasingly large percentage of total discussion) can ensure that ethnic groups, and individual members of ethnic groups, end up with a far stronger ethnic identification than the median member held before discussions began. Informational and reputational pressures have undoubtedly had effects in the Middle East. In the extreme case, the result might be war. And when a war begins, group polarization, if it operates at the national level, can help ensure continued hostility and antagonism.

  Enclave Deliberation and Suppressed Voices

  I have mentioned but not yet explored the potential vices of heterogeneity and the potentially good effects of deliberating “enclaves” consisting of groups of like-minded individuals. It seems obvious that such groups can be extremely important in a heterogeneous society, not least because members of some demographic groups tend to be especially quiet when participating in broader deliberative bodies. In this light, a special advantage of “enclave deliberation” is that it promotes the development of positions that would otherwise be invisible, silenced, or squelched in general debate.

  In numerous contexts, this is a great advantage. Many social movements have been made possible through this route (consider feminism, the civil rights movement, Reaganism, environmentalism, and the movement for LBGT rights). The efforts of marginalized groups to exclude outsiders, and even of political parties to limit their primaries to party members, can be justified in similar terms. Even if group polarization is at work—perhaps because group polarization is at work—enclaves can provide a wide range of social benefits, not least because they greatly enrich the social “argument pool.”

  The central empirical point here is that in deliberating bodies, high-status members tend to initiate communication more than others and their ideas are more influential—partly because low-status members lack confidence in their own abilities, partly because they fear retribution.31 For example, women’s ideas are often less influential and are sometimes “suppressed altogether in mixed-gender groups,”32 and in ordinary circumstances, cultural minorities have disproportionately little influence on decisions by culturally mixed groups.33 It makes sense to promote deliberating enclaves in which members of multiple groups may speak with one another and develop their views—a point that bears on the constitution of multicultural societies.

  But there is a serious danger in such enclaves. The danger is that through the mechanisms of social influence and persuasive arguments, members will move to positions that lack merit but are predictable consequences of the particular circumstances of enclave deliberation. In the extreme case, enclave deliberation may even put social stability at risk (for better or for worse). And it is impossible to say, in the abstract, that those who sort themselves into enclaves will move generally in a direction that is desirable for society at large or even for its own members. It is easy to think of examples to the contrary—for example, in the rise of Nazism, hate groups, and numerous “cults” of various sorts.

  There is no simple solution to the dangers of enclave deliberation. Sometimes the threat to social stability is desirable. As Jefferson wrote, turbulence can be “productive of good. It prevents the degeneracy of government, and nourishes a general attention to … public affairs. I hold … that a little rebellion now and then is a good thing.”34 Turbulence aside, any judgments about enclave deliberation are hard to make without a sense of the underlying substance—of what it is that divides the enclave from the rest of society. From the standpoint of institutional design, the problem is that any effort to promote enclave deliberation will ensure group polarization among a wide range of groups, some necessary to the pursuit of justice, others likely to promote injustice, and some potentially quite dangerous.

  In this light we should be able to see more clearly the sense in which Edmund Burke’s conception of representation—rejecting “local purposes” and “local prejudices” in favor of “the general reason of the whole”35—is not accidentally but instead essentially conservative (speaking purely descriptively, as a safeguard of existing practices). The reason is that the submersion of “local purposes” and “local prejudices” into a heterogenous “deliberative assembly”36 will inevitably tend to weaken the resolve of groups—and particularly low-status or marginalized groups—whose purely internal deliberations would produce a high degree of polarization.

  Hence James Madison—with his fear of popular passions producing “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project”37—would naturally be drawn to a Burkean conception of representation, favoring large election districts and long length of service to counteract the forces of polarization. By contrast, those who believe that “destabilization” is an intrinsic good or that the status quo contains sufficient injustice that it is worthwhile to incur the risks of encouraging polarization on the part of diverse groups will, or should, be drawn to a system that enthusiastically promotes insular deliberation within enclaves.

  In a nation suffering from widespread injustice, or mistaken in various ways, enclave deliberation may be the only way to develop a sense of clarity or justice—at least for some. It may have large benefits for those within the enclave, precisely because it helps them to develop that sense. Enclaves may have different norms from those outside of them; people may feel unleashed, often for better. Civil rights movements have often needed enclaves. Although enclaves may reduce diversity among those within them, they may increase diversity throughout society—at least if there are plenty of enclaves. One advantage of multiple enclaves is that they may produce second-order diversity—that is, diversity across society—potentially to the benefit of all.38

  But even in such a nation, enclave deliberation is unlikely to produce change unless its members are eventually brought into contact with others. In constitutional democracies, the best response is to ensure that any such enclaves are not walled off from competing views and that, at certain points, there is an exchange of views between enclave members and those who disagree with them. It is total or near-total self-insulat
ion, rather than group deliberation as such, that carries with it the most serious dangers, often in the highly unfortunate (and sometimes deadly) combination of extremism with marginality.

  An appreciation of group polarization helps show why a constitutional democracy takes steps to protect deliberation within enclaves, to ensure that those inside enclaves hear alternative views, and to ensure as well that those outside of particular enclaves are exposed to what enclave members have to say. Above all, it is important to avoid a situation in which people are exposed to echoes of their own voices. In a diverse society, this form of self-insulation can create serious deliberative trouble, in the form of mutual incomprehension or much worse. Heterogeneity, far from being a source of social fragmentation, can operate as a creative force, helping to identify problems and even solutions that might otherwise escape notice.

  Notes

  1. See John Turner et al., Rediscovering the Social Group 142 (1987).

  2. See Roger Brown, Social Psychology 222 (2d ed. 1983). These include the United States, Canada, New Zealand, India, Bangladesh, Germany, and France. See, e.g., Johannes Zuber et al., Choice Shift and Group Polarization, 62 J. Personality & Social Psychol. 50 (1992); Dominic Abrams et al., Knowing What to Think by Knowing Who You Are, 29 British J. Soc. Psychol. 97, 112 (1990). Of course it is possible that some cultures would show a greater or lesser tendency toward polarization; this would be an extremely interesting area for empirical study.

  3. See D. G. Myers, Discussion-Induced Attitude Polarization, 28 Hum. Rel. 699 (1975).

  4. Brown, supra note 2, at 224.

  5. D. G. Myers & G. D. Bishop, The Enhancement of Dominant Attitudes in Group Discussion, 20 J. Personality & Soc. Psychol. 286 (1976).

  6. Id.

  7. See J. A. F. Stoner, A Comparison of Individual and Group Decisions Including Risk, unpublished master’s thesis, Sloan School of Management, Massachusetts Institute of Technology (1961), available as J. A. F. Stoner, Risky and Cautious Shifts in Group Decisions: The Influence of Widely Held Values (2017); J. A. F. Stoner, Risky and Cautious Shifts in Group Decisions: The Influence of Widely Held Values, 4 J. Experimental Soc. Psychol. 442 (1968).

  8. See Brown, supra note 2, at 208–210, for an overview.

  9. Paul Cromwell et al., Group Effects on Decision-Making by Burglars, 69 Psychol. Rep. 579, 586 (1991).

  10. Brown, supra note 2, at 211.

  11. Most of the work was done with Daniel Kahneman and David Schkade. For a collection, see Cass R. Sunstein et al., Punitive Damages: How Juries Decide (2007).

  12. See David Schkade et al., Deliberating About Dollars: The Severity Shifts 100 Colum. L. Rev. 1139 (2000).

  13. Brown, supra note 2, at 210–225, reviews this literature; see also Turner et al., supra note 1, at 142–170, for an overview and an attempt to generate a new synthesis.

  14. A. I. Teger & D. G. Pruitt, Components of Group Risk-Taking, 3 J. Experimental Soc. Psychol. 189 (1967).

  15. See Robert S. Baron et al., Social Corroboration and Opinion Extremity, 32 J. Experimental Soc. Psychol. 537–560 (1996); Chip Heath & Richard Gonzales, Interaction with Others Increases Decision Confidence but Not Decision Quality: Evidence against Information Collection Views of Interactive Decision Making, 61 Org. Behav. & Hum. Decision Processes 305–326 (1997).

  16. See Hans Brandstatter, Social Emotions in Discussion Groups, in Dynamics of Group Decisions (Hans Brandstatter et al. ed. 1978). Turner et al., supra note 1, at 154–159, attempt to use this evidence as a basis for a new synthesis, one that they call “a self-categorization theory of group polarization” (id. at 154). In this account, “persuasion is dependent upon self-categorizations which create a common identity within a group,” and polarization occurs “because group members adjust their opinion in line with their image of the group position (conform) and more extreme, already polarized, prototypical responses determine this image” (id. at 156). The key point here is that when a group is tending in a certain direction, the perceived “prototype” is determined by where the group is leaning, and this is where individuals will shift (id. at 156). As Turner et al. suggest, their account shows “overlap with many aspects of social comparison and persuasive arguments models”; because of the overlap, I do not discuss it as a separate account here. For possible differences in predictions, and supporting evidence, see id. at 158–170. An especially interesting implication is that a group of comparative extremists will show a comparatively greater shift toward extremism (id. at 158).

  17. See Turner et al., supra note 1, at 153.

  18. See Russell Spears, Martin Lee, & Stephen Lee, De-Individuation and Group Polarization in Computer-Mediated Communication, 29 British J. Soc. Psychol. 121 (1990); Dominic Abrams et al., Knowing What to Think by Knowing Who You Are, 29 British J. Soc. Psychol. 97, 112 (1990); Patricia Wallace, The Psychology of the Internet 73–76 (1999).

  19. See Lee Roy Beach, The Psychology of Decision Making in Organizations (1997).

  20. See H. Burnstein, Persuasion as Argument Processing, in Group Decision Making (H. Brandstetter, J. H. Davis, & G. Stocker-Kreichgauer eds. 1982).

  21. Brown, supra note 2, at 225.

  22. Amiram Vinokur & Eugene Burnstein, The Effects of Partially Shared Persuasive Arguments on Group-Induced Shifts, 29 J. Personality & Soc. Psychol. 305 (1974).

  23. Id.

  24. See David G. Myers, Polarizing Effects of Social Interaction, in Group Decision Making 125, 137–138 (Hermann Barndstatter et al. eds 1982).

  25. See R. T Riley & T. F. Pettigrew, Dramatic Events and Attitude Change, 34 J. Personality & Soc. Psychol 1004, (1976).

  26. Myers, supra note 24, at 135.

  27. See Lois Marie Gibbs, Love Canal: The Story Continues 26–124 (1998).

  28. See Callahan v. US, 364 US 487, 493–494 (1961) (“Concerted action … decreases the probability that the individuals will depart from their path of criminality”). I am grateful to Dan Kahan for pressing this point.

  29. See Timur Kuran, Ethnic Norms and Their Transformation through Reputational Cascades, 27 J. Legal Stud. 623, 648 (1998).

  30. Id.

  31. See Caryn Christensen & Ann S. Abbott, Team Medical Decision Making, in Decision Making in Health Care 267, 273–276 (Gretchen Chapman & Frank Sonnenberg eds. 2000).

  32. Id. at 274.

  33. C. Kirchmeyer and A. Cohen, Multicultural Groups: Their Performance and Reactions with Constructive Conflict, 17 Group & Org. Mgmt. 153 (1992).

  34. See Letter to Madison (January 30, 1798), reprinted in The Portable Thomas Jefferson 882 (M. Peterson ed. 1975).

  35. See Speech to the Electors (November 3, 1774), reprinted in Burke’s Politics 116 (R. Hoffman & P. Levack eds. 1949).

  36. Id.

  37. See The Federalist No. 10.

  38. See Heather Gerken, Second-Order Diversity, 118 Harv. L. Rev. 1099 (2005).

  3

  The Expressive Function of Law

  Actions are expressive; they carry meanings. This is true for nearly everything we do, from the most mundane to the most significant. A lawyer who wears a loud tie to court signals something distinctive about his self-conception and his attitude toward others; so too a professor who teaches in blue jeans; so too a student who comes to class in a business suit. What can be said for nonverbal acts applies to purely verbal statements as well. A bank president who uses the terms Miss and Mrs., or who refers to African Americans as Negroes, shows a wide range of things about his attitudes on matters of gender and race.

  In these and other cases, what the agent communicates, or will be taken to mean, may or may not have a great deal to do with his intentions. In this sense, the meanings of actions are not fully within the agent’s control. Indeed, some agents may not even be aware of the relevant meanings. Consider a foreigner whose very foreignness is often signaled by obliviousness to the social meanings of his actions. What he says may be very different from what
he means.

  The social meanings of actions are very much a function of existing social norms. When a social norm tells people not to smoke in public places, the social meaning of smoking is obtuseness, discourtesy, or worse. When a social norm requires people to dress casually for dinner, formal attire “means” something bad, like a desire to seem superior or a manifestation of an odd social rigidity. And when social norms change, social meaning changes too. Thus the social meanings of lighting up a cigarette, engaging in an act of sexual harassment, using a condom, or refusing to eat meat are very different now from what they were in 1961 because of dramatic shifts in underlying norms.

  What can be said for actions can also be said for law. Many people support law because of the statements made by law, and disagreements about law are frequently debates over the expressive content of law, rather than its consequences. Much of the debate over school segregation, for example, was about the meaning of laws calling for segregation. Plessy v. Ferguson asserted that such laws did not “mean” black inferiority;1 Brown v. Board of Education2 tried to respond to this assertion with empirical work suggesting the contrary.

  So too debates over immigration may not be mostly about economic growth and employment. They have a large expressive dimension. Those who seek to reduce immigration want to make a statement: It is our country, not theirs. Those who seek to increase immigration want to make a statement: We are open to outsiders. Of course both sides also care about consequences, but the expressive content of immigration policy looms very large.