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Archive for the ‘Abstracts’ Category

Corporate Aid to Governmental Authority – Abstract

Posted by The Situationist Staff on June 23, 2013

Corporate America

Situationist Contributor David Yosifon recently posted another thoughtful and provocative article on corporate law.  The article, titled “Corporate Aid to Governmental Authority: History and Analysis of an Obscure Power in Delaware Corporate Law” (forthcoming in University of St. Thomas Law Journal) can be downloaded for free on SSRN.  Here’s the abstract.

The Delaware General Corporation Law contains an obscure provision stating that all corporations have the power to “[t]ransact any lawful business which the corporation’s board of directors shall find to be in aid of governmental authority.” 8 DGCL §122(12). This oddly worded provision has never been applied, analyzed, or interpreted by any court. It has received almost no treatment by corporate law scholars. This lack of attention is surprising, given that by its own terms the provision seems to bear on fundamental corporate law themes, such as the purpose of corporations, the scope of directors’ fiduciary obligations and discretion, and the relationship between corporate law and corporate social responsibility. In this Article, I examine the history behind this strange provision and analyze its applicability to pressing social policy questions surrounding corporate law.

My analysis leads both to narrow and broad policy conclusions. The narrow conclusion is that §122 of the Delaware corporate code is a textual mess that should be amended at least for coherence and clarity. The broad conclusion is that the analysis herein contributes to the case for reforming corporate governance law to require directors to actively attend to the interests of multiple stakeholders, not just shareholders.

Download the article for free here.  See Yosifon’s SSRN page here.

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Contracting Blame

Posted by The Situationist Staff on March 9, 2013

complex contracts

Eric Zacks has a superb new situationist article, titled “Contracting Blame,” (forthcoming in the University of Pennsylvania Journal of Business Law, Vol. 15, 2012) available for free download on SSRN.  Here’s the abstract.

This Article explores the impact of the cognitive biases of judges and juries in the context of contract preparation and execution. From rental car contracts to mortgage forbearance agreements, contract preparers include provisions and formatting characteristics that appear to add little to the material terms or understanding of the agreement. These features, however, make perfect sense if one considers the implications of attribution theory, which is based on our tendency to attribute blame for an event to another’s disposition or personality. We are predisposed to blame the victim, which makes us susceptible to misjudgment when examining another’s actions. This Article makes a novel link between behavioral literature and contract preparation and suggests that contract preparers may be able to manipulate adjudicators’ cognitive biases systematically. Exclusive of the economic bargain, contract provisions can provide attributional ‘clues’ about the contracting context that inform and reassure judicial interpreters that a particular contracting party is more blameworthy than another. For example, multiple signature blocks, boldfaced or highlighted warnings, and recitals depicting a particular version of events all reinforce our tendency to perceive the contracting party as being able to act freely without being influenced by his or her situation. In counterproductive fashion, however, these features are often irrelevant to a party’s decisions in the contracting context. In light of the significant implications of the existence and prospective use of such attributional clues for contract law theory and judgment, this Article proposes a broader contextual and adjudicative focus when contemplating contract law reforms.

Download the article here.

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Tis Happier To Give Than To Receive

Posted by The Situationist Staff on March 5, 2013

aknin map 2013

From EurekaAlert:

Feeling good about spending money on someone else rather than for personal benefit may be a universal response among people in both impoverished countries and rich nations, according to new research published by the American Psychological Association.

“Our findings suggest that the psychological reward experienced from helping others may be deeply ingrained in human nature, emerging in diverse cultural and economic contexts,” said lead author Lara Aknin, PhD, of Simon Fraser University in Canada.

The findings provide the first empirical evidence that “the warm glow” of spending on someone else rather than on oneself may be a widespread component of human psychology, the authors reported in the study published online in APA’s Journal of Personality and Social Psychology.

Researchers found a positive relationship between personal well-being and spending on others in 120 of 136 countries covered in the 2006-2008 Gallup World Poll. The survey comprised 234,917 individuals, half of whom were male, with an average age of 38. The link between well-being and spending on others was significant in every region of the world, and it was not affected by other factors among those surveyed, such as income, social support, perceived freedom and perceived national corruption, the study said.

The results were similar in several experiments the researchers themselves conducted with participants in wealthy and poor countries. For one analysis, they compared responses from 820 individuals recruited mostly from universities in Canada and Uganda. The participants wrote about a time they had either spent money on themselves or on others, after which they were asked to report how happy they felt. They were also asked if they spent money on another person to build or strengthen a relationship. People who remembered spending money on someone else felt happier than those who recalled spending money on themselves, even when the researchers controlled for the extent to which people built or strengthened a relationship, according to the study.

The researchers obtained the same results when they conducted an online survey of 101 adults in India. Some respondents were asked to recall recently spending money on themselves or someone else, while others were tested for their happiness level without recalling past spending. Those who recalled spending on someone else said they had a greater feeling of well-being than those who remembered spending on themselves or those who weren’t asked about spending.

In another experiment, 207 university students in Canada and South Africa reported higher levels of well-being after purchasing a goody bag for a sick child rather than buying one for themselves. Both groups went to labs where they were given a small amount of money and told to buy a bag of treats for themselves or one for a child at a local hospital.

“From an evolutionary perspective, the emotional benefits that people experience when they help others acts to encourage generous behavior beneficial to long-term human survival,” said Aknin.

Download the pdf here.

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Trust and Reciprocity Situations Promote Social Common Goods

Posted by The Situationist Staff on January 2, 2013

we trust

In the emerging field of tax psychology, the focus on regulation and overcoming tax evasion recently shifted towards searching for situational cues that elicit common goals compliance. Following this innovative behavioral economics quest, Situationist Contributor Julia M. Puaschunder found evidence (download paper here) for trust and reciprocity steering social common goods contributions.

In experiments at the Harvard Decision Science Laboratory, the same participants played an economic trust game followed by a common goods game. The more trust and reciprocity were practiced and experienced by player duos, the stronger they supported common goals together.

The findings portray trust and reciprocity as interesting tax ethics antecedents and hold widespread implications for governmental-citizen relations. Shifting attention from prevailing ‘cops-and-robbers’ attempts to fight tax fraud, new public policy managers are advised to establish a service-oriented client atmosphere. In a socially-favorable societal climate breeding trust and reciprocity, common goals are likely to be reached.

Download the full paper ‘Trust and Reciprocity Drive Social Common Goods Contribution Norms’ for free here.

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The Situation of Intergenerational Equity

Posted by The Situationist Staff on December 17, 2012

Four Generations

In another outstanding study, Situationist Contributor Julia M. Puaschunder (with her collaborator Gary Schwarz at the University of Nottingham) suggests ways to implement intergenerational equity on a global scale. 

An international survey presented respondents with public policy choices and asked to allocate tax units to different policies in the domains of culture, economics, education, foreign aid, infrastructure and environment.

Evaluating two policies with different outcome times – one more imminently and one that would benefit future generations – at once elicited more intergenerationally equitable outcomes than when deciding over bills with different impact times one at a time. When individuals judge alternative choices, presenting the viewpoints of two generations concurrently balanced intergenerational contributions.

Finding this intergenerational equilibrium pattern in Asia and the U.S. leverages the joint decision making advantage into a human-imbued nudge to overcome global common goods dilemmas. Based on the results, policy makers are advised to consider a multi-faceted decision schema and set up age-differentiated global governance consortia.

Download the full paper ‘The Future is Now: How Joint Decision Making Curbs Hyperbolic Discounting but Blurs Social Responsibility in The Intergenerational Equity Public Policy Domain” for free here.

Situationist Contributor Julia M. Puaschunder  is an Associate of the Harvard University Faculty of Arts and Sciences Center for the Environment working on intergenerational equity constraints in the domains of environmental sustainability, overindebtedness and social welfare reform of an aging Western world population.

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Image from Flickr (by Will Barnet – Four Generations – Modern Art Galley of Vatican Museums)

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Social Status Loss Situations Drive Ethicality

Posted by The Situationist Staff on December 10, 2012

green crimson

In two recent, fascinating field experiments, Situationist Contributor Julia M. Puaschunder demonstrated how social conscientiousness can be “nudged” by social forces: Social status drops trigger social responsibility. 

In a field experiment in Harvard dormitories, social identity insignia (in the form of Harvard logo posters) connected to social norm cues (Sustainability at Harvard posters) promoting environmentalism fostered recycling compliance – once prior social status endowments were taken away.  Building on prospect theory, the paper argues looming social status losses are compensated with socially-favored ethicality.  Social status downs combined with social norm cues steer social responsibility.

A second study on energy conservation in Harvard libraries found a similar effect.  Tent card signage, featuring the Harvard logo, was placed in Harvard Law School’s Langdell Library in combination with social norm instructions asking students to turn off their task-light when finished studying.  When the social status endowing cards were removed, energy light consumption conscientiousness improved.  Situational social status losses related to social norm reminders nudged library visitors towards pro-social environmentalism.green harvard logo

Based on these findings, the Harvard Law School installed similar tent cards in Langdell Library study areas.  The results have attracted attention of British Prime Minister David Cameron’s Cabinet Team on Behavioral Insights.  The U.S. Association for the Advancement of Sustainability in Higher Education distributed the learning.  Follow-up studies in the organizational context have been inspired by the unprecedented idea to use social status endowments to gain social responsibility.

Here’s the abstract to the paper titled ‘Ethical Decision Making under Social Uncertainty’:

Decision making research has been revolutionized by prospect theory. In laboratory experiments, prospect theory captures human to code outcome perspectives as gains or losses relative to an individual reference point, by which decisions are anchored. Prospect theory’s core finding that monetary losses loom larger than gains has been generalized in many domains; yet not been tested for social status changes. Social status striving has been subject to social sciences’ research for a long time but until today we have no clear picture of how social status prospects relative to an individual reference point may influence our decision making and action. Understanding human cognition in the light of social status perspectives, however, could allow turning social status experiences into ethicality nudges. The perceived endowment through social status may drive social responsibility. Ethicality as a socially-appreciated, noble societal contribution offers the prospect of social status gains given the societal respect for altruism and pro-social acts. An Überethical filling of current legal gaps or outperforming legal regulations grant additional social status elevation opportunities. Building on prospect theory, two field observations of environmentally conscientious recycling behavior and sustainable energy consumption tested if social status losses are more likely to be answered with ethicality than social status gains. Social status losses are found as significant drivers of socially responsible environmental conscientiousness. Testing prospect theory for social status striving advances socio-economics and helps understanding the underlying mechanisms of social identity theories. Pegging social status to ethicality is an unprecedented approach to use social forces as a means for accomplishing positive societal change. Future studies may target at elucidating if ethicality in the wake of social status losses is more a cognitive, rational strategy or emotional compensation for feelings of unworthiness after social status drops.

Download the full paper, ‘Ethical Decision Making under Social Uncertainty,’ for free here.

Situationist Contributor Julia M. Puaschunder  is an Associate of the Harvard University Faculty of Arts and Sciences Center for the Environment working on intergenerational equity constraints in the domains of environmental sustainability, overindebtedness and social welfare reform of an aging Western world population.

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Revisiting Milgram and Zimbardo’s Studies

Posted by Adam Benforado on November 23, 2012

A new essay in PLOS Biology returns to the path-breaking research of Stanley Milgram and Situationist Contributor Phil  Zimbardo and asks whether the studies demonstrate the power of blind conformity or something else.  In particular, the authors, Alex Haslam and Stephen Reicher, are interested in the possibility that social identification might be driving the dynamic.  As Haslam explains, “Decent people participate in horrific acts not because they become passive, mindless functionaries who do not know what they are doing, but rather because they come to believe — typically under the influence of those in authority — that what they are doing is right.”

Here is the abstract of the paper:

Understanding of the psychology of tyranny is dominated by classic studies from the 1960s and 1970s: Milgram’s research on obedience to authority and Zimbardo’s Stanford Prison Experiment. Supporting popular notions of the banality of evil, this research has been taken to show that people conform passively and unthinkingly to both the instructions and the roles that authorities provide, however malevolent these may be. Recently, though, this consensus has been challenged by empirical work informed by social identity theorizing. This suggests that individuals’ willingness to follow authorities is conditional on identification with the authority in question and an associated belief that the authority is right.

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Posted in Abstracts, Ideology, Morality, Situationist Contributors, Social Psychology | 3 Comments »

Happiness or Meaningfulness – But Not Both

Posted by The Situationist Staff on November 13, 2012

Roy Baumeister, Kathleen Vohs, Jennifer Lynn Aaker, and Emily N. Garbinsky have just posted their excellent paper, titled “Some Key Differences between a Happy Life and a Meaningful Life” on SSRN.  Here’s the abstract:

Being happy and finding life meaningful overlap, but there are important differences. A large survey revealed multiple differing predictors of happiness (controlling for meaning) and meaningfulness (controlling for happiness). Satisfying one’s needs and wants increased happiness but was largely irrelevant to meaningfulness. Happiness was largely present-oriented, whereas meaningfulness involves integrating past, present, and future. For example, thinking about future and past was associated with high meaningfulness but low happiness. Happiness was linked to being a taker rather than a giver, whereas meaningfulness went with being a giver rather than a taker. Higher levels of worry, stress, and anxiety were linked to higher meaningfulness but lower happiness. Concerns with personal identity and expressing the self-contributed to meaning but not happiness. We offer brief composite sketches of the unhappy but meaningful life and of the happy but meaningless life.

Download the paper for free here.

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Seduction by Contract

Posted by The Situationist Staff on October 20, 2012

Oren Bar-Gill recently posted his introductory chapter for his intriguing new book, “Seduction by Contract: Law, Economics and Psychology in Consumer Markets” on SSRN.   Here’s the abstract.

Consumers routinely enter into contracts with providers of goods and services. These contracts are designed by sophisticated sellers to exploit the psychological biases of consumers. They provide short-term benefits, while imposing long-term costs – because consumers are myopic and optimistic. They are excessively complex – because complexity allows sellers to hide the true cost of the product or service from the imperfectly rational consumer. Using both general theory and detailed case studies, this book explains the costs – to consumers and society at large – imposed by seductive contracts, and outlines a promising legal policy solution: Disclosure mandates. Simple, aggregate disclosures can help consumers make better choice. Comprehensive disclosures can facilitate the work of intermediaries, enabling them to better advise consumers. Effective disclosure would expose the seductive nature of consumer contracts and, as a result, reduce sellers’ incentives to write inefficient contracts.

Download the introduction for free here.

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One of the very first legal-academic articles (part of  a trilogy) devoted to the way sellers manipulate consumers is Taking Behavioralism Seriously: The Problem of Market Manipulation (74 N.Y.U.L. Rev. 363 (1999)) available for free download on SSRN.

Posted in Abstracts, Book, Choice Myth, Marketing, Public Policy | 3 Comments »

The Implicit Situation of Criminal Justice

Posted by The Situationist Staff on October 5, 2012

Robert Smith, Charles Ogletree, and Johanna Wald hare recently posted a synopsis of their chapter, titled “Coloring Punishment: Implicit Social Cognition and Criminal Justice” (in Justin D. Levinson and Robert J. Smith (eds), Implicit Racial Bias Across the Law, 2012) on SSRN.  Here’s the synopsis:

The United States has become the world’s leader in incarceration. The size and pervasiveness of the criminal justice regime have no parallel in history. One in 100 citizens are locked away in prisons and jails – a figure that reflects a tenfold expansion in the corrections population in less than four decades. If we count those individuals who are currently on probation or parole, more than 7 million men and women are under legal supervision – a number equal to the population of Israel. This system of mass incarceration – which includes policing, corrections, and the courts – employs 2.2 million Americans – which exceeds the 1.7 million Americans employed in higher education and the 650,000 employed by the system of public welfare. At the turn of the millennium, approximately 1.5 million children had at least one parent in jail or prison, and 10 million have had a parent in jail at some time during their lives.

Racial disparities are a defining feature of this regime. One in eight black males between the ages of 20–29 are in prison or jail on any given day, as compared with 1 in 59 white males of the same age. At the beginning of the new millennium black males had almost a 1 in 3 chance of serving time in prison, as compared with 3 in 50 for white males. The Leadership Conference on Civil Rights has suggested that current criminal justice policies and practices “threaten to render irrelevant fifty years of hard-fought civil rights progress.”

There are varied explanations for these disparities. Most analyses point to a constellation of complex and interrelated structural and institutional factors that include poverty, high rates of joblessness, low levels of education, and the clustering of blacks and Latinos in concentrated urban areas that are more heavily policed than predominantly white suburban and rural areas. In this chapter, we put forth a complementary analysis, one intended to fill in gaps that we consider to be missing from these structural analyses. The ongoing racial disparities evidenced in every phase of the criminal justice system can be at least partly explained by the levels of implicit racial bias held by key actors in the system. Although we cannot yet offer “the smoking gun” that indisputably links the presence of implicit bias among decision-makers to harsher criminal sanctions for black Americans, our hypothesis is backed by a robust and fast-growing literature that has developed over the past decade. This scholarship demonstrates conclusively that Americans (whites and people of color alike) possess negative implicit biases against black citizens. These implicit race biases are held by liberals and conservatives; by young people and old; and by residents on the East Coast, the West Coast, the South, and the Midwest. They often coexist, unknowingly by the holder, alongside more overtly egalitarian views. What makes them so important in any discussion about race and the law is that these implicit biases frequently determine our actions and sway our decisions. In the criminal justice context, these biases lead, for example, to more arrests and harsher sentences for blacks than for whites who commit similar offenses.

It is vital to understand and document more fully how and where implicit biases operate within the criminal justice system. Doing so will enable us to develop policies, practices, and strategies aimed at identifying and reducing their effects. In this chapter, we offer specific illustrations of how implicit racial bias influences the actions of key decision-makers at various phases of our criminal justice system. This chapter is not intended to be a comprehensive examination of the role of implicit bias within the criminal justice system; rather its objective is to match the literature on implicit bias with actual examples of its “real-world” effects. From the formulation of criminal justice policy, to the decision to target citizens of a particular race, to the selection of criminal petit juries, the impact of implicit race bias on decisions about arrests, sentences, and severity of punishment is broad and deep.

This chapter proceeds in five parts. Part I sets the stage for this analysis, introducing key implicit racial bias studies that demonstrate that the face of crime in America is black. More specifically, it documents that black citizens are considered to be more dangerous, hostile, and prone to criminality and also less fully human than white citizens. Building on this foundation, Part II examines the role that implicit racial bias plays in the formulation of crime policy. Part III examines why implicit racial bias might drive disparate outcomes in the enforcement of criminal laws. This part examines the phenomenon in two distinct contexts: (1) the decision to punish a student in the school discipline context and (2) the use of unnecessary force in police–citizen encounters. Part IV uses the example of discriminatory jury selection to explore how implicit racial bias might contribute to the exclusion of black citizens from the criminal justice decision-making process. Part V concludes the chapter.

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The Deeply Captured Situation of “Defensive Medicine”

Posted by The Situationist Staff on September 28, 2012

Sidney Shapiro, Thomas Owen McGarity, Nicholas Vidargas, and James Goodwin, have recently published their White Paper, titled “The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice ‘Reform’” on SSRN.  Here’s the abstract.

In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.

Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.

This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents.

The evidence reveals that “defensive medicine” is largely a myth, proffered by interests intent on limiting citizen access to the courts for deserving cases, leaving severely injured patients with no other recourse for obtaining the corrective justice they deserve. These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors. Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions. On the other hand, buying into this myth has very real and dangerous consequences. Allowing civil justice opponents to pretend that constraining the civil justice system equates to meaningful health care reform distracts us from doing the things that must be done to fix the system, including avoiding the 98,000 deaths caused by preventable medical errors every year and reducing the unacceptable number of uninsured Americans.

Download report for free here.

For a related recent briefing book assembled by the Center for Justice & Democracy click here

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The Situation of Libertarianism

Posted by The Situationist Staff on September 6, 2012

Situationist Contributor Peter Ditto and co-authors (Iyer, R., Koleva, S., Graham, J., & Haidt, J.) have recently published their article, “Understanding libertarian morality: The psychological dispositions of self-identified libertarians” on PLoS ONE.  Here’s the abstract:

Libertarians are an increasingly prominent ideological group in U.S. politics, yet they have been largely unstudied. Across 16 measures in a large web-based sample that included 11,994 self-identified libertarians, we sought to understand the moral and psychological characteristics of self-described libertarians. Based on an intuitionist view of moral judgment, we focused on the underlying affective and cognitive dispositions that accompany this unique worldview. Compared to self-identified liberals and conservatives, libertarians showed 1) stronger endorsement of individual liberty as their foremost guiding principle, and weaker endorsement of all other moral principles; 2) a relatively cerebral as opposed to emotional cognitive style; and 3) lower interdependence and social relatedness. As predicted by intuitionist theories concerning the origins of moral reasoning, libertarian values showed convergent relationships with libertarian emotional dispositions and social preferences. Our findings add to a growing recognition of the role of personality differences in the organization of political attitudes.

Download the pdf of the article here.

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Racial Bias Among Criminal Defense Lawyers

Posted by The Situationist Staff on August 31, 2012

Andrea Lyon recently posted her article, “Race Bias and the Importance of Consciousness for Criminal Defense Attorneys” (Seattle University Law Review, Vol. 35, p. 755, 2012) on SSRN. Here is the abstract.

The problems of racial bias pervade the criminal justice system. In this paper a subject that is not much talked about — the issue of how racial bias affects defense attorneys and the need for defense attorneys to acknowledge implicit and explicit racial biases as a matter of practice — is examined. Specifically, the paper covers problems of racial bias when defense attorneys make assumptions about (1) their clients, and (2) veniremen during voir dire.

Download the paper for free here.

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Implicit Bias in the Law Conference – This Thursday

Posted in Abstracts, Implicit Associations, Law | Tagged: , , , | 1 Comment »

Law and Social Cognition – Abstract

Posted by The Situationist Staff on August 10, 2012

Barbara Spellman and Frederick Schauer recently posted their illuminating chapter, “Law and Social Cognition” on SSRN:

The body of research on law and psychology is vast, but the overwhelming proportion of it is on jury decision making, especially in criminal cases. In this chapter for the forthcoming Oxford Handbook on Social Cognition (D. Carlston ed.), we attempt to broaden this research agenda. We survey briefly the existing state of psychological research on jury decision making, but show that, even with respect to factual determinations, the jury is a less important decision maker than most psychologists appear to believe. Thus, further research on factual determination by judges, of which there is some but not much, could substantially enrich our understanding of the psychological dimensions of legal decision making. Moreover, the role of judges in finding, interpreting, and applying the law is itself a task necessarily involving social cognition, and we explain both this connection and how further research on the social cognition dimensions of legal reasoning and legal argument could be highly valuable. Finally, we explain how numerous issues of substantive law – questions of intent, reasonableness, and knowledge, to give just a few examples – are themselves dependent on assumptions about the social and cognitive psychological reasoning of the people affected and governed by the law. There is very little psychology research on such questions, and the agenda of law and psychology could usefully be expanded to include such themes.

Download the chapter for free here.

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Posted in Abstracts, Book, Law, Social Psychology | Tagged: , , , | 2 Comments »

Self-Control and Crime

Posted by The Situationist Staff on August 1, 2012

Rebecca E. Hollander-Blumoff has recently posted her excellent paper, “Crime, Punishment, and the Psychology of Self-Control” (Emory Law Journal, Vol. 61, No. 501, 2012) on SSRN.  Here’s the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

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The Historical Situation of Situationism at Harvard Law

Posted by The Situationist Staff on July 24, 2012

Tito Rendas has just posted his terrific paper, “Mind Sciences in the Harvard Law School Curriculum: Tracing the History, Proposing the Proliferation” on SSRN.  We hope to post excerpts from the paper in time.  Here’s the abstract.

This paper explores the contours of the relationship between the mind sciences and the Harvard Law School curriculum, in particular, and the law curriculum more generally. Rather than using a conceptual definition of “mind sciences”, the paper will be based on an illustrative and fairly loose definition thereof. Any discipline that delves into the mechanisms that explain the functioning of the human mind and the reasons behind human behavior is considered a mind science for purposes of this study. Psychology, psychiatry, cognitive science, and neuroscience are examples of the disciplines that fit under the scope of this definition. The paper is divided into three parts.

Part I discusses the ideological sources of the relatively recent law and mind sciences movement at Harvard. Particular consideration will be given to the role played by the legal realists in questioning assumptions that would otherwise prevent the mind sciences from permeating law and policy-making.

Part II conducts an extensive historical review of the law and mind sciences courses in the HLS curriculum from 1957 to 2013. Six trends, and a predicted future trend, were identified.

Part III is normative in its essence, making the case for the expansion of the law and mind sciences curriculum. This argument is predicated on the answers to two other questions: Who should decide whether this expansion should be carried out? And, assuming its desirability, how should we go about it?

You can download the paper for free here.

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Posted in Abstracts, Behavioral Economics, Education, History, Law, Legal Theory, Social Psychology | Tagged: , , , , , | Leave a Comment »

The Neuro-Situation of Altruism

Posted by The Situationist Staff on July 14, 2012

Situationist friend David Berreby has a post this week on a recent study suggesting a possible link between the brain and altruistic behavior. Here’s how it starts:

In pursuit of the biological basis of morality, researchers are interested in an area of the brain at the boundary of the right temporal lobe and the right parietal lobe (very roughly, it’s located maybe 2 inches above the midpoint of a line between your right eyebrow and your right ear, not that I recommend digging around for it). This right temporoparietal junction has been linked in various ways to moral judgments about the self and others. Now this paper, out today in the journal Neuron, supplies some striking new evidence for this area’s importance. In lab experiments, people with more brain cells in this region were more altruistic than people with fewer.

Yosuke Morishima and his co-authors ran a functional MRI scan of their volunteers at the University of Zurich as they allocated a sum of money between themselves and an anonymous second person. (By the way, “Yosuke,” for an altruism researcher, is an aptonym. It’s a name that means “to give help” or “great support.”) Some of the participants were quite selfish, while others were much more altruistic, giving up a meaningful amount of cash for another person whom they did not know. And it turned out the volunteer’s degree of altruism correlated with the amount of gray matter they possessed at the right temporoparietal junction (“gray matter” consists of neurons (the cells whose activity makes brains brains) as well as the glial cells that support them and their blood supply).

Read the entire post here.

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Implicit Bias in Employment Discrimination Litigation

Posted by The Situationist Staff on July 5, 2012

Judge Nancy Gertner and Melissa Hart have recently posted their chapter, titled “Implicit Bias in Employment Discrimination Litigation,” (in Implicit Racial Bias Across the Law, Cambridge University Press, 2012) on SSRN.  Here is the abstract.

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.

Download the chapter for free here.

Related Situationist posts:

Posted in Abstracts, Implicit Associations, Law | Tagged: , , , | Leave a Comment »

Fear of Flying and NBA Players

Posted by The Situationist Staff on July 1, 2012

Michael McCann recently posted his article, “Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Phobias” (to be published in the Pepperdine Law Review, Vol. 41, 20103) on SSRN.  The article is about Royce White, who will be entering the NBA next season, and what impact his severe fear of flying will have on his NBA career. The article also considers the legal mechanisms that may be available to White under the Americans with Disabilities Act.

Here is an excerpt:

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If fear of flying constitutes a disability for White under the ADA, he could argue that the NBA or his team should accept any reasonable request for accommodation. They may disagree about what constitutes “reasonable”. Allowing White to take a train from Boston to New York City, or even a ship to Europe, would probably be reasonable so long as White does not miss meetings, practices or games. Then again, White as a rookie traveling alone, might not gain valuable insight from conversations with coaches and teammates or develop camaraderie with them.

Seemingly less reasonable would be allowing White to miss a road trip. Unless he is injured, suspended or assigned to the D-League (the NBA’s minor league), White will be contractually obligated to play 82 regular season games, along with four to six pre-season games, up to 28 postseason games, and possibly a handful of summer league games. No player signs a standard contract to play in “some games.” Consider the impact of such an arrangement on White’s coach: if White’s only an occasional player, his coach might struggle to set his rotation. On the other hand, professional leagues have carved out exceptions for players to miss road games. This has been true of NBA players recovering from injury. Gilbert Arenas, returning from a knee injury in 2009, was allowed a flexible schedule whereby he would play in all home games but only some road games. Other circumstances have led to similar arrangements. Last year the Central Hockey League allowed Rapid City Rush forward Brett Nylander, a second lieutenant in the Air Force, to only play home games because his military service limited travel.

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To read the rest, click here.

Sample of related Situationist posts:

Posted in Abstracts, Law, Situationist Sports | Tagged: , , , , , , , , , , , , , , , , | Leave a Comment »

The Situation of the Self

Posted by The Situationist Staff on June 28, 2012

Rebecca Hollander-Blumoff recently posted her intriguing article, “Law and the Stable Self”  (published in the St. Louis University Law Journal, Vol. 54, No. 1173, 2010) on SSRN.  Here is the abstract.

In this Article, I examine several findings in social psychology related to individuals’ preferences, and I explore how those findings subvert the Enlightenment vision of a stable and knowable self in ways that are quite relevant to law. I first explore one well-known finding in the cognitive bias literature, the status quo bias, and marshal some of the research suggesting ways in which this bias may affect individuals’ behavior vis-a-vis legal systems. Second, I discuss the potential ways in which temporal construal research-research on the way in which individuals see things differently depending on the time frame in which the events will occur-may relate to legal systems. Finally, I address how well some of the fundamental premises of our litigation system dovetail with psychological research on what individuals want. Our civil legal system is predicated on the recovery of money for harm done, but research suggests that money damages may be inadequate to meet some basic human desires.

Download the article for free here.

Sample of related Situationist posts:

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Posted in Abstracts, Law, Legal Theory, Social Psychology | Tagged: , , , , | Leave a Comment »

 
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