| Probability Neglect: Emotions, Worst Cases, and Law |
| Cass R. Sunstein [View as PDF] |
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112 Yale L.J. 61 (2002) In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and behavior are to be expected. The general phenomenon helps to explain public overreaction to highly publicized, low-probability risks, including those posed by abandoned hazardous waste dumps, nuclear waste disposal, and anthrax. Because rational people focus on the probability as well as the severity of harm, probability neglect is a form of quasi-rationality. I have also suggested that people try to avoid cognitive dissonance, sometimes by thinking that they are "safe" and by treating a low-level risk as if it were zero. This too is a form of probability neglect, one that can lead people to subject themselves to risks that, over time, have significant cumulative effects. The problem can be still more serious for governments, which deal with large populations and which should therefore address risks that are statistically small at the individual level. It follows that if a private or public actor is seeking to produce public attention to a neglected risk, it is best to provide vivid, even visual, images of the worst that might happen. It also follows that government regulation, affected as it is by the public demand for law, may well neglect probability too. If so, there are likely to be serious legal questions. An agency that neglects probability may be unable to establish a significant risk; such an agency will certainly have difficulty in demonstrating that the benefits of regulation outweigh its costs. If a statute requires an agency to establish that regulation is "requisite to protect the public health" or welfare, that agency might be required to investigate the issue of probability to establish that regulation is indeed "requisite." An understanding of probability neglect therefore illuminates some embryonic developments in administrative law; it might also pave the way toward more definitive developments in the future. There are larger normative issues in the background. If the public is neglecting a real risk, and wrongly believing itself to be "safe," surely government should respond. At first glance, however, the government should not respond if the public is demanding attention to a statistically miniscule risk, and doing so simply because people are visualizing the worst that can happen. The best response is information and education. But public fear is itself an independent concern, and it can represent a high cost in itself and lead to serious associated costs. If public fear cannot be alleviated without risk reduction, then government can reasonably engage in risk reduction, at least if the relevant steps are justified by an assessment of costs and benefits. |