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Please join us on April 4, when Avani Mehta Sood will discuss "The Plasticity of Harm: An Experimental Demonstration of the Malleability of Judgments in the Service of Criminalization."
LEGS, or "Law-Engaged Graduate Students," meets during the academic year to discuss a work in progress by one of our Graduate Associates. Academic papers, dissertation proposals, and dissertation chapters have been presented at these meetings, to an audience of fellow graduate students.
Abstract: "The "harm principle," which suggests that the State should regulate individual conduct only if doing so is necessary to prevent harm to others, has long been at the center of debates about the legal enforcement of morality through criminal law. The present research investigates the malleability of the concept of harm in the context of criminalization. In the first study, we identified scenarios that induce defiance of the harm principle, such that participants wanted to criminalize the described conduct even if they did not think it caused harm to others. We then used these scenarios in a second, experimental study to explore how people would respond when they wanted to punish such conduct, but were told that the law requires findings of harm in order to impose criminal sanctions. As hypothesized, we found that respondents who had been presented with the necessity-of-harm constraint complied with it not by criminalizing less, but rather, by finding harms in cases in which harms were not previously reported. Our empirical demonstration that people recruit harms on an as-needed basis to serve their punishment goals highlights the limitations of the harm principle as a premise for arguments either for or against State regulation of conduct. More broadly, the motivated, outcome-driven perception shown by our results is at odds with the objective, perception-driven outcomes towards which our justice system strives. The legal implications of our findings will be discussed in relation to various realms, including criminal law, comparative sanctioning mechanisms, First Amendment protections, torts litigation, and jury decision-making.