Smoking “Externalities”: David Henderson rejoins the debate with Benjamin Alamar and Stanton Glantz on smoking bans in restaurants. Alamar and Glantz reply.
This is the second article in a multi-part series. In the first part, The Great Attributional Divide, the authors suggested that a major rift runs across many of our major policy debates based on contrasting attributional tendencies (dispositionist and situationist). This article explores how dispositionism maintains its dominance despite the fact that it misses so much of what actually moves us. It argues that the answer lies in a subordinate dynamic and discourse, naïve cynicism: the basic subconscious mechanism by which dispositionists discredit and dismiss situationist insights and their proponents. Without it, the dominant person schema — dispositionism — would be far more vulnerable to challenge and change, and the more accurate person schema — situationism — would be less easily and effectively attacked. Naïve cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day. (To download a copy, click here.)
Via a terrific blog (the latest addition to our blogroll), Sociological Images, here is a remarkable video from a recent television episode of This American Life.
Lisa from Sociological Images writes: “This clip . . . shows what happens when (mostly) black women and (mostly) white men living in racially-segregated Chicago are brought together and the social rules of decorum are suspended. It is highly, highly disturbing.” She then calls for some comments from social psychologists. To read those comments, click here. We urge our readers to join that discussion.
Cultural Cognition refers to the disposition to conform one’s beliefs about societal risks to one’s preferences for how society should be organized. Based on surveys and experiments involving some 5,000 Americans, the Second National Risk and Culture Study presents empirical evidence of the effect of this dynamic in generating conflict about global warming, school shootings, domestic terrorism, nanotechnology, and the mandatory vaccination of school-age girls against HPV, among other issues. The Study also presents evidence of risk-communication strategies that counteract cultural cognition. Because nuclear power affirms rather than threatens the identity of persons who hold individualist values, for example, proposing it as a solution to global warming makes persons who hold such values more willing to consider evidence that climate change is a serious risk. Because people tend to impute credibility to people who share their values, persons who hold hierarchical and egalitarian values are less likely to polarize when they observe people who hold their values advocating unexpected positions on the vaccination of young girls against HPV. Such techniques can help society to create a deliberative climate in which citizens converge on policies that are both instrumentally sound and expressively congenial to persons of diverse values.
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For related posts, click on the “Cultural Cognition” category in the right margin.
Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect well-documented supply side disparities between groups in human capital development, qualifications, and behavior. These patterns are not most effectively addressed by focusing on unconscious processes, but rather by scrutinizing neutral practices for efficiency and social usefulness and also by attempting to eliminate underlying group differences in the ability to compete for social rewards.
Likewise, allegations of unconsciously motivated disparate treatment, which are based on the contention that race or sex plays a causal role in social outcomes, should be scrutinized for alternative, non-discriminatory explanations for observed disparities, including supply side differences between groups. In addition, some disparities attributed to unconscious bias could just as well be explained by old-fashioned statistical or rational discrimination, which is also fueled by real, average, observable differences in performance by race or sex. In general, sweeping and categorical claims of unconscious discrimination are unwarranted without specific evidence that this process is actually operating in a given case. Such evidence is hard to come by. In many cases, supporting such claims requires excluding alternative explanations - including supply side explanations for observed disparities in group success.
Since the 1970’s, American inner cities, particularly in the northeast, have undergone significant economic, structural and aesthetic changes. Many cities with predominantly blue collar work forces have found it difficult to adjust to the changing demands of the market place. An economic conversion took place during the 1970’s which led to a decrease in the demand for blue collar workers and increased the need for better educated and technologically literate workers. Some cities understood the historical cyclical changes inherent in their economies and were prepared to address these changes. Those cities which were ill prepared for these structural changes in market demands realized record unemployment rates, pervasive poverty and urban flight. In recent years, cities have engaged in extensive urban renewal and revitalization of downtown areas in order to attract the middle-class citizens back to the inner city. This process, often referred to as gentrification often displaces and marginalizes poor inner city residents. This paper examines the impact of gentrification on the social and economic progress of low income citizens in urban areas. The primary goal of this paper is to determine if gentrification adversely impacts the economic growth rate of poor persons by displacing them to areas with decreased opportunities for upward mobility and by segregating them to areas with limited access to essential public and private sector services.
This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people’s dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas - in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law. (To download a copy, click here.)
Posted by The Situationist Staff on April 26, 2008
Nancy Levit and Douglas Linder posted their article, “Happy Law Students, Happy Lawyers” (forthcoming 58 Syracuse Law ReviewSSRN. We’ve pasted the abstract below.
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This article draws on research into the science of happiness and asks a series of interrelated questions: Whether law schools can make law students happier? Whether making happier law students will translate into making them happier lawyers, and the accompanying question of whether making law students happier would create better lawyers? After covering the limitations of genetic determinants of happiness and happiness set-points, the article addresses those qualities that happiness research indicates are paramount in creating satisfaction: control, connections, creative challenge (or flow), and comparisons (preferably downward). Those qualities are then applied to legal education, while addressing the larger philosophical question, What if happiness were a goal of law schools?
The authors believe that making law students happier does translate, at least in part, into making them both happier and better lawyers because there is an interplay among happiness, collaboration and professionalism. As just one example: The people who are happier in life are those who give back. There is a distinction between feeling good, the pursuit of pleasure, and doing good, which can lead to more lasting happiness, and a life with meaning. People who have a richer sense of happiness aren’t those who work on their narcissistic personal needs, but those who embrace a larger sense of civic engagement. Happily, that dovetails with pro bono obligations in law. A recent ABA survey reported that only 46% of lawyers met the ABA’s goal of 50 hours of free pro bono services. Those who did meet the aspirational goal reported a direct correlation between that form of giving back and their own satisfaction.
The article concludes with some concrete suggestions about maximizing student happiness, through addressing some of the career reasons why law students become unhappy lawyers. One of these is, as Daniel Gilbert observed in his book Stumbling on Happiness, that people are bad at forecasting what will make their future selves happy. If law schools address this phenomenon of poor prediction by offering better information on not only paths of career decision-making, salary expectations, and non-practice options but also decision theory and psychological constraints on decision making, this will increase the likelihood that students will more accurately choose how to make their future selves happy.
Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context.
The paradoxical psychological bias known as the endowment effect puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at present no satisfying explanations for why it manifests when and how it does. Drawing on evolutionary biology, this Article provides a new theory of the endowment effect. Briefly, we hypothesize that the endowment effect is an evolved propensity of humans and, further, that the degree to which an item is evolutionarily relevant will affect the strength of the endowment effect. The theory generates a novel combination of three predictions. These are: (1) the effect is likely to be observable in many other species, including close primate relatives; (2) the prevalence of the effect in other species is likely to vary across items; and (3) the prevalence of the endowment effect will increase or decrease, respectively, with the increasing or decreasing evolutionary salience of the item in question.
The authors tested these predictions in a chimpanzee (Pan troglodytes) experiment, recently published in Current Biology. The data, further explored here, are consistent with each of the three predictions. Consequently, this theory may explain why the endowment effect exists in humans and other species. It may also help both to predict and to explain some of the variability in the effect when it does manifest. And, more broadly, the results of the experiment suggest that combining life science and social science perspectives could lead to a more coherent framework for understanding the wider variety of other cognitive heuristics and biases relevant to law.
The reasonable man has been replaced by the reasonable person, but that person still functions within legal doctrines conceived by men and interpreted to fit the facts of men’s lives. To understand why it is sometimes reasonable for an abused woman to kill her abuser while he is asleep or otherwise incapacitated, basic criminal law doctrines do not have to be changed. They do, however, have to be applied to the facts of abused women’s lives.
The issue of exit - why didn’t she leave - must be explained. Concepts of time - immediate, imminent, and cyclical - must be reassessed. Discredited theories that label abused women who kill their abusers as suffering from insanity, a syndrome, or learned-helplessness, must be rejected. Only then can reasonableness under either the common law or the Model Penal Code be applied to the case of an abused woman who kills her sleeping abuser.
North Carolina v. Judy Ann Laws Norman provides the facts of one abused woman who killed a sleeping man. The overwhelming number of abused women who kill their abusers do so in normal confrontation cases. The abused woman who kills a sleeping or otherwise incapacitated abuser presents the most dramatic and challenging situation. Norman is the case which is included in most basic first year criminal law books. I hope this short essay will assist both teachers and students in their examination of woman abuse, and specifically Judy Norman’s case.
Russell Robinson posted his interesting new article, “Perceptual Segregation” on SSRN (forthcoming Columbia Law Review, Vol. 108, 2008). We’ve pasted the abstract below.
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This Article argues that outsiders and insiders tend to perceive allegations of discrimination through fundamentally different psychological frameworks. These previously unrecognized differences have profound legal consequences. A workplace may be spatially integrated and yet employees who work side by side may perceive an allegation of discrimination through very different lenses because of their disparate racial and gender identities. Most implicit bias legal scholarship has focused on the cognitive processes of insiders (whites and men) in assessing and evaluating outsiders (people of color and women). This Article opens a new field of legal scholarship, and complements the implicit bias literature, by drawing on empirical studies to explicate the cognitive processes of outsiders in interpreting potential incidents of discrimination. Studies show that blacks and whites are likely to differ substantially in how they conceive of and define discrimination. White people tend to believe that widespread expressions of a commitment to racial equality and the reduction in overt expressions of racist attitudes reflect reductions in racism, whereas black people tend to believe that racist attitudes and behaviors have simply become more difficult to detect. While many whites expect evidence of discrimination to be explicit, and assume that people are colorblind when such evidence is lacking, many blacks perceive bias to be prevalent and primarily implicit. Studies have also revealed that men and women differ significantly in assessing incidents of sexual harassment. Differences in perception have profound implications for how our judicial machinery, which consists predominantly of white male judges, resolves antidiscrimination claims. Judges are likely to impose their own contingent conceptions of discrimination, with little or no awareness of the perceptual limitations shaping their judgments. This Article explores reforms in the judicial system and in workplaces that could help sensitize both insiders and outsiders to the other perspective and break down the rigidity in these clashing mindsets.
Law schools are in a crisis of confidence in the abilities and motivations of their students. Conferences on law school teaching feature presentations such as “The Challenges of Connecting with 21st Century Students.” Journal articles lament “The Happy Charade” that constitutes the learning and motivation of law students today. Professor Maranville of the Association of American Law Schools (”AALS”) Section on Teaching Methods summarized these sentiments:
“Many law students are so bored by the second year that their attendance, preparation, and participation decline precipitously; by graduation they have lost much of the passion for justice and the enthusiasm for helping other people that were their strongest initial motivations for wanting to become lawyers. And even in the first year, when most students remain engaged, many fail to learn even the black-letter law at a level that faculty consider satisfactory.”
Proposed solutions to these widespread concerns often focus on changing curriculum, teaching methods, or materials.
To improve learning in law schools, however, faculty may need a change of mind. A basic principle of good teaching is that of maintaining high expectations: “Expect more and you will get [more].” Nearly a century of research has established that teachers’ expectations of their students can become self-fulfilling prophecies: high expectations are correlated with high achievement, low expectations with low achievement. Moreover, once expectations are established, they tend to be self-sustaining for both students and teachers.
This Article explores the research on expectation effects in education and offers suggestions for putting the research into practice. This Article also suggests that faculty can improve legal education by critically examining their assumptions and attitudes. Finally, this Article addresses high-expectation teaching methodologies. The Article concludes by addressing concerns about institutional resistance to raising expectations. The conclusion addresses the role of student expectations and teacher evaluations, along with suggestions for addressing the emotional dimensions of teaching and learning.
Over the last several years law school classrooms have seen an explosion of student laptop use. Law professors have allowed this by default, generally under the pretense that laptops make note-taking easier. However, many professors complain that students use their laptops to play games, watch movies, or if they have an Internet connection, to do web surfing and e-mailing during class. This paper presents my experience in banning laptops from my classroom in the Fall of 2006, the first time it was done at my institution. The article covers the reasons for and against allowing laptops in the classroom, my reasoning and procedure for banning them, perceived differences in the classroom experience and relevant student comments from my course evaluations, which were overwhelmingly positive to the laptop ban. Also covered are the cognitive psychological reasons in support of banning laptops. Studies show that lower grades were correlated with increased student web browsing during class (Grace-Martin & Gay, 2001; Hembrooke & Gay, 2003), and the amount of time which students used their laptops for tasks other than taking lecture notes (Fried, 2007). MRI studies of the brain indicate that the brain stores information differently when distracted, which occurs when students attempt to multi-task in class (Foerde, Knowlton, & Poldrack, 2006). The science of note-taking is also covered, which indicates verbatim typing may interfere with learning (e.g., Kiewra, 1991). The paper concludes by urging law school professors to review why laptops are allowed in their classrooms and, unless they feel that laptops increase student learning, to ban or heavily restrict their classroom use.
Abstract: An examination of the power of mass media to create panic. In Radio Lab’s very first live hour, we take a deep dive into one of the most controversial moments in broadcasting history - Orson Welles’ 1938 radio play about Martians invading New Jersey. And we ask: Why did it fool people then? And why has it continued to fool people since? From Santiago, Chile to Buffalo, New York to a particularly disastrous evening in Quito, Ecuador.
Some positions within an organization wield unusual impact over the entity’s success. The decision makers who hire these critical performers face a daunting task: to distinguish among closely comparable finalists in a context where small differences in talent can produce enormous outcome divergences. I apply research from psychology and behavioral law and economics to argue that decision makers demonstrate unwarranted confidence in their ability to distinguish among nearly identical candidates. The illusion of validity, representativeness bias, insensitivity to predictability, and the fundamental attribution error all impede decision makers’ ability to make these fine distinctions. Once they have made a selection, cognitive dissonance induces inappropriate confidence in the outcome’s validity and promotes excessive compensation. Involving a group in the decision may worsen these effects by imbuing outcomes with the false veneer of market legitimacy through social cascades and by discouraging contrary views throug hexcessive consensus or groupthink.
I examine two types of critical performers with these insights: professional baseball players (where individual contributions to the enterprise can be measured directly) and public company CEOs (where they cannot). I conclude that in both contexts, these phenomena produce inefficient selection and compensation outcomes. While the relative absence of externalities argues against mandatory regulation in baseball, I propose changes in private ordering that should improve efficiency. In the corporate context, I argue that regulation is called for and propose a combination of mandatory compensation caps linked to firm size and a reverse auction among CEO finalists to determine the successful candidate.
All over the globe, nations rely on a statue of a large hulking woman (sometimes named Justice, sometimes Justicia, sometimes Themis, and usually holding scales and sword) to symbolize that their justice systems have aspirations of fairness and impartiality and also to lay a claim to power. The attributes associated with this Justice image - a woman with scale, sword, and sometimes a blindfold - have a remarkable longevity, as can be seen in cartoons and advertisements, as well as in courthouses.
This Lecture provides a multi-century, cross-cultural visual narrative of both continuity and change in the use of adjudication by governments seeking to legitimate their authority to impose their law through judges. From the story of the Judgment of Solomon to the Town Halls of Siena and Amsterdam, one can find examples of adjudication, a task of governance that predates democracy. From those walls and the allegories that they represent, one can learn how adjudicatory practices contributed to democratic ideology by generating norms that decisionmakers not be corrupted by payments from one side, that their decisions be predicated on information rather than be arbitrary, and that they hear both sides (audi alterum partem).
But democracy has radically increased the demand for adjudication as it provided rights of access to all persons, now seen as equal before the law. That demand in turn has transformed the function and some of the processes of adjudication. The pattern of an expansion of adjudicatory rights is echoed around the world, as can be seen by the many countries with major new buildings of courts and the growth of transnational courts.
This Lecture thus also maps the challenges that democracy poses for adjudication. The responses to the growth in demand has resulted in a shift of many decisions to alternative forms of decisionmaking that limit public access to adjudication. In the United States federal system, for example, fewer than two of one hundred civil cases start a trial. Further, administrative adjudication is increasingly important, as tens of thousands of hearings are held annually in federal agencies dealing with federal benefits, employment discrimination, veterans and immigration. But these proceedings are not readily accessible to street traffic.
By reviewing the pictorial history of adjudicatory processes, we raise the question of the future trajectory of adjudication. Even as new courthouses are built around the world, the opportunities for persons to use them may be narrowing. Moreover, the didactic messages conveyed are often more celebratory than reflective of the obligations, under democracy to make accessible justice and to respond to injustice. With rare exceptions (such as the Constitutional Court of South Africa), the iconography of justice has not yet come to reflect the infusion of norms that democracy brings to adjudication.
Gillian K. Hadfield has posted an interesting paper, titled “Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund” on SSRN (to link to it, click here). The piece is forthcoming in Law and Society Review.
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In this paper I report the results of a quantitative and qualitative empirical study of how those who were injured or lost a family member in the September 11, 2001 terrorist attacks evaluated the tradeoff between a cash payment - available through the Victim Compensation Fund - and the pursuit of litigation. Responses make it clear that potential plaintiffs saw much more at stake than monetary compensation and that the choice to forego litigation required the sacrifice of important non-monetary, civic, values: obtaining and publicizing information about what happened, prompting public findings of accountability for those responsible, and participating in the process of ensuring that there would be responsive change to what was learned about how the attacks and deaths happened. The results shed light on the framing component of the transformation of disputes, and in particular on how potential litigants see the decision to sue, or not, as a decision as much or more about how they understand their relationship to their community and their responsibilities as a citizen as how they evaluate monetary considerations.
Robert C. Hockett has recently posted an interesting paper, “Taking Distribution Seriously,” on SSRN. We’ve pasted the abstract below.
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It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing.
To attend systematically to the inter-translatability of maximization language on the one hand, equalization and identification language on the other, is to “take distribution seriously.” It is to recognize explicitly, and to trace the important normative consequences that stem from, the fact that all law and policy are as distributive and citizen-defining as they are aggregative. It is also to recognize therefore that all law and policy treat us as equals in some respects - respects in terms of which they identify and “count” us as politically relevant - and as non-equals in other respects. Attending explicitly to these “respects” brings transparency about the degrees to which our laws and policies identify, “count,” and treat us as equals in the right respects.
This Article accordingly seeks to lay out with care how to take distribution seriously in legal and policy analysis. It does so by two means, keyed to the principal guises in which distribution is typically implicated in legal and policy analysis: First, by careful attention to the internal structures of the social welfare functions favored by most present-day legal theorists and policy analysts. And second, by systematic reference to what linguists call the “cognitive grammar” of non-formal distributive language, a structure that mirrors the structure of distribution itself. The payoffs include both a workable method by which systematically to test proposed maximization norms for their normative propriety, and an attractive distributive ethic that can serve as an ethically intelligible normative touchstone for legal and policy analysis.
Franita Tolson has recently posted a fascinating paper, “The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary.” We’ve posted the abstract below.
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The notion that a corporation has a duty under Delaware law to create an environment amenable to diversity is an intriguing idea. Such an environment could address overt discrimination, but more importantly, discrimination that is unconscious or subtle, which is more prevalent. Unconscious discrimination is actionable under Title VII of the Civil Rights Act of 1964 (presumably), but scholars are in agreement that court regulation of it has failed. Contrary to the alternatives suggested in the literature, placing the burden on the firm to regulate discrimination ex ante is more likely to minimize unconscious, discriminatory behavior, at least moreso than tinkering with the ex post remedies available for those few violations that can be proven through Title VII. This article first explains why courts have failed to address unconscious discrimination, a failure that has emerged largely out of respect for employment at will and an unwillingness to infer differential treatment where other explanations are possible. Courts can address only the most extreme cases of unconscious discrimination, which require the presence of certain factors that will allow the court to isolate the unconscious bias. Second, this article proposes other mechanisms for addressing unconscious discrimination that account for its peculiar nature, mainly firm-based remedies that will be more successful than the courts have been in addressing this problem. The difficulty comes in incentivizing the Delaware courts to become involved in the controversy over unconscious discrimination, or in the alternative, convincing firms to address unconscious discrimination without the impetus of litigation. This article shows that such incentive can come from an unlikely blend of the duties of care and loyalty, corporate norms, and economic pressure from corporate giants like Wal-Mart.
Situationist Contributors Adam Benforado and Jon Hanson have posted their recent article, 
Situationist Contributors Adam Benforado and Jon Hanson have posted their recent article, “
