Unleashed

“IT’S REALLY NOT A PROBLEM”

In the late 1980s, when I was a visiting professor at Columbia Law School, I happened to pass, in the hallway near my office, a law student (female) speaking to an older law professor (male). To my amazement, the professor was stroking the student’s hair. I thought I saw, very briefly, a grimace on her face. It was a quick flash. When he left, I said to her, “That was completely inappropriate. He shouldn’t have done that.” Her response was dismissive: “It’s fine. He’s an old man. It’s really not a problem.”

Thirty minutes later, I heard a knock on my door. It was the student. She was in tears. She said, “He does this all the time. It’s horrible. My boyfriend thinks I should make a formal complaint, but I don’t want to do that. Please—I don’t want to make a fuss. Do not talk to him about it and do not tell anyone.”

Social norms imposed constraints on what the law student could say or do. She hated what the professor was doing; she felt harassed. But because of existing norms, she did not want to say or do anything. After hearing my comment, she felt free to tell me what she actually thought. (What I did in response, to discourage the professor from continuing to harass students, is a tale for another occasion.)

I am interested here in two different propositions. The first of these is that the erosion of social norms often unleashes people, in the sense that it allows people to reveal what they believe and prefer, and to act as they wish. New norms, and laws that entrench or fortify them, lead to the discovery of preexisting beliefs, preferences, and values. The discovery can be startling. The second is that revisions of norms can construct preferences and values. New norms, and laws that entrench or fortify them, can give rise to beliefs, preferences, and values that did not exist before.

Begin with the phenomenon of unleashing: when certain norms are in force, people falsify their preferences or are silent about them, and as a result, strangers and even friends and family members may not be able to know about them (Kuran 1998). Once norms are revised, people will reveal preexisting preferences and values, which norms had successfully suppressed. What was once unsayable is said, and what was once unthinkable is done.¹

In the context of sexual harassment, something like this account is broadly correct: women disliked being harassed, or even hated it, and revision of the preexisting norm, which authorized harassment, was necessary to spur expression of their feelings and beliefs. (Of course, revision of norms with respect to sexual harassment remains a work in progress, and we can expect surprises.) Law often plays a significant role in fortifying existing norms or in spurring their revision (Lessig 1995). Part of the importance of judicial rulings that forbid sexual harassment is that they revised norms and unleashed preexisting preferences and values. Whenever a new leader is elected, and whenever new legislation is enacted, there may be a crucial and even transformative signaling effect, offering people information about what other people think, or about what it is appropriate to think. If people hear the signal, norms may shift, because people are influenced by what they think other people think. Under certain circumstances, the shift in norms will unleash people.

But some revisions of norms, and some laws that accelerate or entrench those revisions, do not liberate anything. As norms begin to be altered, people come to hold, or to act as if they hold, preferences and values that they never held before. No one is unleashed. Revisions of norms, and resulting legal reforms, do not uncover suppressed desires; they produce new ones, or at least statements and actions that are consistent with new ones. With respect to men who sexually harassed women, that is a pretty good account, but it is incomplete, and I will complicate it.

Consider in this regard the idea of “political correctness,” which is standardly...