The University of Pennsylvania Law Review's PENNumbra site has published a response by Visiting Professor of Law Susan Bandes to "Two Conceptions of Emotion in Risk Regulation," a recent article by Dan M. Kahan. Kahan's article is itself part of a longer debate with Cass Sunstein; with this response, Bandes enters the discussion. She writes:
Are emotions subversive of reason or essential constituents of it? This is the broad question posed by Dan M. Kahan in Two Conceptions of Emotion in Risk Regulation, a welcome addition to his ongoing inquiry into how emotional appraisals of value influence decision making. Much of Kahan’s recent work has focused on a particular aspect of policymaking: the study of risk perception. Two Conceptions continues a useful exchange between Kahan and Cass Sunstein about the differences between their prominent approaches to risk regulation: Kahan’s cultural cognition approach and Sunstein’s heuristics and biases approach, which focuses on the cognitive mechanisms that shape perceptions about risk. Kahan illuminates the issues at stake with his customary passion and clarity.
A major contribution of Kahan’s work has been its insight into the pervasiveness of emotional influences on the decision-making process. The recognition that emotion pervades decision making raises a difficult normative question: how to distinguish the influences that contribute to good judgment from those that distort judgment. This normative question in turn gives rise to a difficult practical question: how to address the influences that cause distortion. In this brief Response, I argue that tackling this evaluative task requires avoiding mirror impulses: emotions should neither be privileged as inherently desirable nor marginalized as inherently irrational. They should be judged based on what they contribute to the cognitive task at hand.
The task at hand, as the Kahan/Sunstein debate defines it, is determining how government should regulate risk. In exploring the question of how this task is best approached, I will also raise a question about how it is defined. I suggest that the very act of framing issues of government policy in terms of risk regulation reflects certain assumptions about how issues present themselves and what sorts of cognitive processes might be required to address them.