Matthew B. Kugler

People believe they have more free will than others

Four experiments identify a tendency for people to believe that their own lives are more guided by the tenets of free will than are the lives of their peers. These tenets involve the a priori unpredictability of personal action, the presence of multiple possible paths in a persons future, and the causal power of ones personal desires and intentions in guiding ones actions. In experiment 1, participants viewed their own pasts and futures as less predictable a priori than those of their peers. In experiments 2 and 3, participants thought there were more possible paths (whether good or bad) in their own futures than their peers’ futures. In experiment 4, participants viewed their own future behavior, compared with that of their peers, as uniquely driven by intentions and desires (rather than personality, random features of the situation, or history). Implications for the classic actor–observer bias, for debates about free will, and for perceptions of personal responsibility are discussed.

Actual Expectations of Privacy, Fourth Amendment Doctrine, And The Mosaic Theory

In the landmark case of United States v. Jones, as many as five Supreme Court justices indicated that tracking the geolocation of a car for a month would be a Fourth Amendment search even though tracking the same car for a day would not be. This duration distinction is based on an influential theory of the Fourth Amendment, dubbed the mosaic theory, which posits that the aggregation of several nonsearches of the same person might amount to a search. Jurists have justified the mosaic theory’s duration-sensitivity by grounding it in their sense of “popular attitudes” regarding privacy expectations. Through an empirical examination of survey responses from three large nationally representative samples totaling over 2800 US citizens, we show that Americans’ actual privacy expectations run directly counter to the mosaic theory. Where the mosaic theory says that tracking duration affects citizens’ expectations of privacy, ordinary Americans overwhelmingly say it does not. Our data also reveal that younger Americans and those Americans holding the most firmly anti-authoritarian views have significantly greater expectations of privacy in geolocation information than their fellow citizens. Americans do say that longer duration surveillance is more intrusive than shorter duration surveillance, but the magnitude of this effect remains small. We explore the implications of these findings for the mosaic theory by considering the role of public opinion data in Fourth Amendment doctrine more generally. We ultimately propose a clarified approach to the classic Katz v. United States “reasonable expectations of privacy” framework that formalizes the role of public opinion by reframing the first prong of Katz to ask whether people in general expect privacy in a given context, and the question of what “society is prepared to recognize as reasonable” in Katz as one for which the perceived intrusiveness of a search is germane. To show how survey data could shed light on current Fourth Amendment controversies, we also provide contemporary data about American citizens’ privacy expectations when faced with various scenarios. The paper presents new data on popular expectations of privacy with regard to police use of stingray devices, cell tower geolocation, email content analysis, hotel guest registry searches, and various sorts of surveillance cameras. * Law Clerk to the Honorable Richard Posner, U.S. Court of Appeals, Seventh Circuit, 2015-2016; JD University of Chicago Law School, 2015; PhD in Psychology, Princeton University, 2010. ** Sidley Austin Professor of Law, University of Chicago. The authors thank Paul Crane, Katerina Linos, and Peter Winn for helpful discussions, Adam Chilton, Adam Feibelman, Jancy Hoeffel, Chris Hoofnagle, Orin Kerr, Richard McAdams, Pamela Metzger, Paul Ohm, Eric Posner, Christopher Slobogin, Geoffrey Stone, and Matt Tokson as well as workshop participants at Tulane Law School and the University of Chicago Law School for constructive comments on earlier drafts, Michelle Hayner and Adam Woffinden for research assistance, plus the Russell J. Parsons and Bernard Sang Faculty Research Funds and the Coase-Sandor Institute for Law & Economics, for generous research support.

Is Privacy Policy Language Irrelevant to Consumers

This article reports the results of two experiments in which large, census-weighted samples of Americans read short excerpts from Facebook’s, Yahoo’s, and Google’s privacy policies, which are at issue in high-stakes privacy class-action lawsuits. Subjects were randomly assigned to read language from either vague policies, some of which had been adjudicated insufficient to notify consumers about the companies’ practices, or explicit policies. Though many experimental subjects read these privacy policy excerpts closely, subjects who saw the explicit policies did not differ from those who saw vague policies in their assessment of whether their assent to the policies would permit the corporate practices at issue. Subjects generally stated that agreement to either vague or explicit language authorized companies to collect or use their personal information, even though consumers regarded these corporate practices as intrusive. These experiments show that courts and laypeople can understand the same privacy policy language quite differently.

Trait-Focused Spin in Presidential Debates: Surviving the Kisses of Death

In the context of presidential debates, 2 experiments explored the impact of “trait-focused spin”—messages interpreting potentially negative personality traits in terms of broader, positive frameworks—in comparison to unfocused spin—messages simply predicting positive performance. Of interest were differences between high and low Need for Cognition (NFC) participants in their willingness to accept these messages. In Experiment 1, high NFC participants responded well to trait-focused spin but found unfocused spin unpersuasive. Low NFC participants responded equally well to both. In Experiment 2, high NFC participants again rated the target candidate more positively after trait-focused but not after unfocused spin, whereas low NFC participants did the opposite. Thus trait-focused spin can influence even those suspicious of unfocused spin.

Community Perceptions of Theft Seriousness: A Challenge to Model Penal Code and English Theft Act Consolidation

In the middle of the 20th century, criminal law reformers helped pass laws that consolidated previously distinct common-law offenses such as larceny, embezzlement, false pretenses, extortion, blackmail, and receiving stolen property into a unified offense of theft, imposing uniform punishments for a diversity of methods of stealing and a diversity of types of property that could be stolen. The result was a “consolidated” scheme of theft, with a single, broad definition of property (typically, “anything of value”) and a single scheme of grading (based, roughly, on the value of the thing stolen). In this study, participants were given two sets of scenarios - one involving variations in the means by which a theft was committed, the other involving variations in the type of property stolen—and asked to rate these thefts in terms of blameworthiness and punishment deserved. They drew sharp distinctions across both means of theft and type of property, not adopting a consolidated view. Under the principle of fair labeling - the idea that criminal law offenses should be divided and labeled so as to represent widely felt views about the nature and magnitude of law breaking—such data provide the basis for a significant challenge to modern theft law.

Grant “Blinked”: Appraising Presidential Leadership

Frequently during the first six years of Ulysses S. Grant’s presidency (1869–1877), white Southerners in the former Confederate states attempted to reassert their total control over black citizens. Grant responded very forcefully on several occasions, crushing the newly formed Ku Klux Klan in South Carolina in 1872 and, that same year, sending troops to support the recently elected Republican governor of Louisiana against a militia mutiny and mob riots. But support for Grant’s actions in defense of blacks grew increasingly unpopular in the North and within the Republican Party. Defending blacks when their own state governments failed to do so represented an unprecedented expansion of federal power. Maintaining troops in the South was also very expensive. Grant steadily lost political support. After three rapid interventions, Louisiana in September 1874, Mississippi that December, and Louisiana again the following January, even Grant’s pro-Reconstruction vice president described him as “the mill-stone around the neck of our party that would sink it out of sight” (Garfield, 1981, p. 6). When the governor of Mississippi asked Grant to send in more federal troops to stop the harassment of blacks later in 1875, Grant initially refused. In a 2002 American Experience television production, historian Don Carter summarized Grant’s refusal at this moment by saying “in the end, he blinked” (Bosh & Deane, 2002). This statement clearly characterizes Grant’s behavior in this particular instance as a failure to protect black rights and black lives and also as a turning point that led to the subjugation of blacks in the South that lasted until the 1960s.