My Analysis of the "Puzzle"

Following up on my ethics puzzle below, I thought I’d say a few more words about why I think this situation is interesting and, in some ways, puzzling. 

I agree with the commenters who say that the "right" answer is to notify the landscaper about the billing omission.  I also think that many, if not most, people would give this as their answer.  (I'll note, though, that despite the unanimity in the comments, I have gotten a wide range of views when I have talked with people about this issue in private.) 

The interesting part of this scenario for me is not so much the answer to the question, but rather the gap that some of the comments reference between what we know to be the right answer and how people are likely to behave.  My own skepticism about how people are likely to behave stems from having spent a lot of time recently writing and thinking about the work of Stanley Milgram.  In one of the most famous social psychology experiments ever conducted, Milgram found that most people do what they are told to do, even if it means applying dangerous electric shocks (including a 450 volt shock) to a bound man with a heart condition who is begging to be let go. 

Social psychologists have offered many explanations for why people would administer such shocks, but an oft-cited one is that the morally troubling nature of the experiment only became apparent after the subjects had administered quite a few electric shocks.  The experiment began with a mild 15 volt shock, and the bound man (really an accomplice of the experimenter who was not, in fact, receiving shocks) had agreed to participate so that the experimenter could find out more about the “human learning process.”  The shocks progressed at 15 volt increments, and the accomplice increased his expressions of pain gradually and only began to ask to be released at the 150 volt mark. 

Although there are many other reasons for why people continued to apply the increasingly painful and dangerous electric shocks, the incremental nature of the experiment is consistently cited as important.  One reason it is considered to be significant is that people had already applied electric shocks to the person, so by stopping, people would have been admitting to themselves that they had done something wrong by applying the earlier shocks.

Obviously, that’s a very brief and incomplete sketch of one small aspect of a major experiment, but what does it have to do with the landscaper issue?  On one level, it shows that people will behave in ways that are completely inconsistent with what they know to be “right.” 

But I also think there is a more specific application of Milgram's work here.  Consider that the typical person in the landscaper scenario wouldn’t even realize that she hadn’t gotten a bill until about two months after the work was completed.  She might wait another few weeks to see if the bill arrives, and when it doesn’t, she might start thinking that the landscaper had somehow lost track of her.  She thinks, “well, why don’t I just wait another couple of weeks.  I’m sure the landscaper will catch up with me eventually.” More time passes.  At the six month mark, she reasons that, if waiting for the bill at the three month mark was ok, why isn’t it ok at the 6 month mark?  Or at a year?  Just like the gradually increasing electric shocks, the homeowner justifies her past failure to notify by continuing to wait it out, well beyond the point where we might think that the landscaper will realize the error and send a bill.

That’s not a justification for not notifying.  It’s an explanation for why I think it would happen more often than we would expect.  In my mind, that's why this hypo is a puzzle.  It’s a puzzle about why many people would agree as to the right answer but fail to act on that belief if actually put in that situation.  The answer, in my view, turns on interesting features of human psychology that apply to both ordinary ethical issues as well as legal ones.

Ultimately, my claim is speculative.  Maybe most people would, in fact, notify the landscaper, but I can tell you that a number of people told me to "wait."  And the impulse to wait at least some period of time was very strong.  I should know, because I was the homeowner in question.  I waited about four months and then sent the landscaper a note to tell him that I hadn’t received a bill.  He sent me a bill a few days later, and I promptly paid it. How long would you have waited?  Two months?  A year?  Longer?  At what point precisely does the duty to notify kick in?

Another reason that I find the scenario interesting is that it implicates some notable differences between legal ethics and ordinary ethics/morality.  The initial comment to the hypo suggested that legal ethicists should certainly know how to respond in my example (i.e., notify).  But in reality, legal ethics is not particularly helpful here.  Remember that it is perfectly permissible as a matter of legal ethics for lawyers to take advantage of an adversary’s mistakes, whether those mistakes involve blowing the statute of limitations or (in some jurisdictions) sending a privileged document by mistake.  Put differently, legal ethicists are not going to be better positioned to think about the landscaper scenario, because the landscaper is not an adversary and, unlike the lawyering situation, where a client is the agent, the homeowner is the ultimate decisionmaker.  As the homeowner, I can’t rely on notions such as role differentiated morality to justify taking an adversarial posture; I have to decide what I think is right.

Happy New Year to you all!

Comments

[Anon]

I had this happen to me with a plumber who installed a faucet -- probably a $150 job. After a while, I realized I had not been billed. Since we usually pay the plumber when he does the work, I went back through my checkbook -- no payment made. Called the plumber's office, told the receptionist the story. They couldn't seem to find any record and despite two calls to them, they never sent a bill. At that point I figured I could enjoy my free faucet without guilt.