By Bob Needham
Michigan Law
The Society of Personality and Social Psychology has recognized Michigan Law Professor Roseanna Sommers for her interdisciplinary work examining legal concepts such as consent, autonomy, and moral responsibility.
The SAGE Early Career Trajectory Award recognizes outstanding achievements by early career scholars who, within six years of completing their doctorates, have made significant contributions to teaching, research, and/or service to the field of personality and social psychology. Sommers—the first law professor to receive the award since its inception in 2008—holds a JD and PhD in psychology from Yale University. Her work falls into the
growing interdisciplinary field of experimental jurisprudence, which uses empirical techniques to examine core concepts in the law.
For the past several years, Sommers’s work has focused on consent—specifically, when people feel free to refuse consent and how their consent is perceived by third-party legal actors. These questions arise in many areas of law, as her research reflects: police searches, consumer contracts, and sexual harassment and assault.
“This award is especially meaningful because it was chosen by my peers in social psychology,” Sommers said. “I always hoped that being an interdisciplinary scholar studying law and psychology would lead to interesting questions and new insights. We can translate psychological insights for lawyers, but I also think that what’s going on in the legal world can inform the questions we’re asking as social scientists. To have that work recognized within the scientific field as important and novel is more than I could have hoped for.”
Sommers recently answered five questions about her work:
1. How did you first get interested in researching the concept of consent?
Before I went to graduate school for my JD/PhD, I worked in bioethics at the National Institutes of Health (NIH) Department of Bioethics. In the clinical center at the NIH, the patients are not just there to receive care; they’re also part of clinical trials. So if a doctor or patient or family member has an ethical issue, they are allowed to page the bioethics team for a consultation on how to address the ethical dilemma.
Today, when I say I study consent, a lot of people assume I’m talking about sexual consent—which I often am. But my default mental template is still medical consent and biomedical research. Do the research subjects really understand? Are they really free, if they’re very sick or if the NIH is the only place they can get care? Are they competent? Have they been lied to?
I think that orientation is helpful. It’s bad to err on the side of assuming too much consent—saying someone has consented when they really haven’t. But it’s also bad to err on the side of not enough consent—saying someone can’t give consent when actually they can. That mistake can be damaging for medical and scientific progress. So I try to keep in mind an appreciation that both kinds of errors are costly.
2. What do you think is wrong with the way we as a society treat consent?
One of the main misconceptions about consent is that it is this tool that you can bring into any ethical situation to resolve the thorniest questions. If we don't know whether it’s okay that a professor has a relationship with a student, let’s ask whether it is consensual and then treat the answer to that as if it’s the end of the story.
When you start to really prod the question of what conditions are required for valid consent, you see that it often raises just as many questions as it answers: Should we take people’s preferences at face value, or question the social conditions that led them to prefer what they prefer? How free does someone have to be to not be coerced? What kinds of social or psychological pressure are the most difficult to resist, and are those the ones that we should say are coercive? If someone is a research participant in a medical trial, how much do they need to know about the specifics of the research protocol and what precisely is being injected into their body before we can say they give valid consent? With consent to sex, what information do you need to know about your partner, and what sorts of misinformation would invalidate your consent?
Once you probe those questions, you see that consent is a helpful tool for analyzing ethical challenges, but it doesn't exhaust the moral landscape of all the ethical considerations that might still matter—even if you could determine the consent question perfectly. Often, we still have to worry that someone is being mistreated or exploited, even if we can’t necessarily say their consent was violated.
3. What are a couple of the most important or interesting insights that you’ve drawn from your research into consent?
Some of my research dramatizes an idea that psychologists have been advocating for a while, which is the power of social influence. In my research with Vanessa Bohns on asking people to submit to searches of their phones, one takeaway is that it does not take overt threats or menacing behaviors to get extremely high compliance. People are very motivated socially to get along, to follow scripts of politeness and ordinary behavior. If you put them in a situation where the seemingly correct thing to do is to comply with an intrusive search request, you don’t need the threat of violence to get upwards of 90 percent of people doing something that they say, at least in the control group, that they don’t want to do.
Another strand of my research looks at how non-lawyers think about written consent forms. Written consent is supposed to be this empowering tool that helps people understand the risks and think really hard about whether they want to do something, but because consent forms resemble these very legalistic contractual instruments, they can make people feel less empowered and less able to back out. Who is drafting the forms? Who controls the terms of the consent? It becomes not a tool for individual choice, but a tool for securing compliance. That is an important insight about consent: It really matters how it is presented and used in practice.
4. Are there specific ways that the law needs to change to account for our evolving understanding of consent?
Whether consent is present is often a factual question for a jury to decide, and that makes a lot of sense. In many cases, it is too difficult for the law to specify exactly what conditions need to be met for consent to be valid.
However, more clear guidance for juries could be helpful. I’ve studied what ordinary people hear when they are given the word “consent.” My research suggests that they often think that if someone says “yes” to something on the basis of being deceived, that is still consent. So juries might be applying that commonsense notion as opposed to the more classic legal notion, which is that it is not really consent if it has been induced by fraud. If you’re going to delegate to ordinary people the power to decide consent, and you have a specific concept of consent you want them to apply, maybe it makes sense to give more specific instructions or to dispel some popular misconceptions about the legal notion of consent. Be specific and have clear guidance; I think that would be a helpful reform.
5. How has the Law School community supported your work, particularly your interdisciplinary approach?
I feel very supported here. My colleagues—even though they are not themselves social psychologists—have been really encouraging about my research. They have been very receptive when I’ve done internal presentations to our faculty, such as a project on how people judge sexual assault victims. That project doesn’t really have a legal conclusion; it is an exploration of the psychology of victim blaming. You would think that maybe a law faculty wouldn’t be interested or wouldn’t see the value in purely social psychological research, but it has been totally the opposite in my experience.
I feel support from my students, too. It has been really fun to bring psychological concepts into my torts class. My students have always been extremely inquisitive, extremely curious. They think psychology is a valuable tool in their analytic toolkit. And when I presented some of my research to our alumni during Reunion, they were really receptive there, too. This entire community has been open-minded and welcoming to interdisciplinary research. It is a great place for this kind of work.
Michigan Law
The Society of Personality and Social Psychology has recognized Michigan Law Professor Roseanna Sommers for her interdisciplinary work examining legal concepts such as consent, autonomy, and moral responsibility.
The SAGE Early Career Trajectory Award recognizes outstanding achievements by early career scholars who, within six years of completing their doctorates, have made significant contributions to teaching, research, and/or service to the field of personality and social psychology. Sommers—the first law professor to receive the award since its inception in 2008—holds a JD and PhD in psychology from Yale University. Her work falls into the
growing interdisciplinary field of experimental jurisprudence, which uses empirical techniques to examine core concepts in the law.
For the past several years, Sommers’s work has focused on consent—specifically, when people feel free to refuse consent and how their consent is perceived by third-party legal actors. These questions arise in many areas of law, as her research reflects: police searches, consumer contracts, and sexual harassment and assault.
“This award is especially meaningful because it was chosen by my peers in social psychology,” Sommers said. “I always hoped that being an interdisciplinary scholar studying law and psychology would lead to interesting questions and new insights. We can translate psychological insights for lawyers, but I also think that what’s going on in the legal world can inform the questions we’re asking as social scientists. To have that work recognized within the scientific field as important and novel is more than I could have hoped for.”
Sommers recently answered five questions about her work:
1. How did you first get interested in researching the concept of consent?
Before I went to graduate school for my JD/PhD, I worked in bioethics at the National Institutes of Health (NIH) Department of Bioethics. In the clinical center at the NIH, the patients are not just there to receive care; they’re also part of clinical trials. So if a doctor or patient or family member has an ethical issue, they are allowed to page the bioethics team for a consultation on how to address the ethical dilemma.
Today, when I say I study consent, a lot of people assume I’m talking about sexual consent—which I often am. But my default mental template is still medical consent and biomedical research. Do the research subjects really understand? Are they really free, if they’re very sick or if the NIH is the only place they can get care? Are they competent? Have they been lied to?
I think that orientation is helpful. It’s bad to err on the side of assuming too much consent—saying someone has consented when they really haven’t. But it’s also bad to err on the side of not enough consent—saying someone can’t give consent when actually they can. That mistake can be damaging for medical and scientific progress. So I try to keep in mind an appreciation that both kinds of errors are costly.
2. What do you think is wrong with the way we as a society treat consent?
One of the main misconceptions about consent is that it is this tool that you can bring into any ethical situation to resolve the thorniest questions. If we don't know whether it’s okay that a professor has a relationship with a student, let’s ask whether it is consensual and then treat the answer to that as if it’s the end of the story.
When you start to really prod the question of what conditions are required for valid consent, you see that it often raises just as many questions as it answers: Should we take people’s preferences at face value, or question the social conditions that led them to prefer what they prefer? How free does someone have to be to not be coerced? What kinds of social or psychological pressure are the most difficult to resist, and are those the ones that we should say are coercive? If someone is a research participant in a medical trial, how much do they need to know about the specifics of the research protocol and what precisely is being injected into their body before we can say they give valid consent? With consent to sex, what information do you need to know about your partner, and what sorts of misinformation would invalidate your consent?
Once you probe those questions, you see that consent is a helpful tool for analyzing ethical challenges, but it doesn't exhaust the moral landscape of all the ethical considerations that might still matter—even if you could determine the consent question perfectly. Often, we still have to worry that someone is being mistreated or exploited, even if we can’t necessarily say their consent was violated.
3. What are a couple of the most important or interesting insights that you’ve drawn from your research into consent?
Some of my research dramatizes an idea that psychologists have been advocating for a while, which is the power of social influence. In my research with Vanessa Bohns on asking people to submit to searches of their phones, one takeaway is that it does not take overt threats or menacing behaviors to get extremely high compliance. People are very motivated socially to get along, to follow scripts of politeness and ordinary behavior. If you put them in a situation where the seemingly correct thing to do is to comply with an intrusive search request, you don’t need the threat of violence to get upwards of 90 percent of people doing something that they say, at least in the control group, that they don’t want to do.
Another strand of my research looks at how non-lawyers think about written consent forms. Written consent is supposed to be this empowering tool that helps people understand the risks and think really hard about whether they want to do something, but because consent forms resemble these very legalistic contractual instruments, they can make people feel less empowered and less able to back out. Who is drafting the forms? Who controls the terms of the consent? It becomes not a tool for individual choice, but a tool for securing compliance. That is an important insight about consent: It really matters how it is presented and used in practice.
4. Are there specific ways that the law needs to change to account for our evolving understanding of consent?
Whether consent is present is often a factual question for a jury to decide, and that makes a lot of sense. In many cases, it is too difficult for the law to specify exactly what conditions need to be met for consent to be valid.
However, more clear guidance for juries could be helpful. I’ve studied what ordinary people hear when they are given the word “consent.” My research suggests that they often think that if someone says “yes” to something on the basis of being deceived, that is still consent. So juries might be applying that commonsense notion as opposed to the more classic legal notion, which is that it is not really consent if it has been induced by fraud. If you’re going to delegate to ordinary people the power to decide consent, and you have a specific concept of consent you want them to apply, maybe it makes sense to give more specific instructions or to dispel some popular misconceptions about the legal notion of consent. Be specific and have clear guidance; I think that would be a helpful reform.
5. How has the Law School community supported your work, particularly your interdisciplinary approach?
I feel very supported here. My colleagues—even though they are not themselves social psychologists—have been really encouraging about my research. They have been very receptive when I’ve done internal presentations to our faculty, such as a project on how people judge sexual assault victims. That project doesn’t really have a legal conclusion; it is an exploration of the psychology of victim blaming. You would think that maybe a law faculty wouldn’t be interested or wouldn’t see the value in purely social psychological research, but it has been totally the opposite in my experience.
I feel support from my students, too. It has been really fun to bring psychological concepts into my torts class. My students have always been extremely inquisitive, extremely curious. They think psychology is a valuable tool in their analytic toolkit. And when I presented some of my research to our alumni during Reunion, they were really receptive there, too. This entire community has been open-minded and welcoming to interdisciplinary research. It is a great place for this kind of work.
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