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Archive for the ‘Law’ Category

The Situation of Criminal Defense

Posted by The Situationist Staff on March 8, 2014

Debo Adegbile

An op-ed by Situationist friend, Sam Wheeler in (Talking Points):

On November 27, 1770, John Adams began the most important trial of his legal career. His clients were eight British soldiers who, when confronted by an angry gathering of Boston patriots, fired into the crowd, killing five. The soldiers were accused of murder and threatened with the death penalty. Adams was a patriot, openly and adamantly opposed to British occupation of the colonies, with no love of the British army. He took the case, which he called “one of the best pieces of service I ever rendered my country,” because in this nation, even before its founding, every accused criminal is entitled to zealous legal defense.

On Wednesday afternoon, the Senate blocked the confirmation of Debo Adegbile President Obama’s nominee for Assistant Attorney General for Civil Rights. Every Senate Republican voted against Adegbile’s nomination. They were joined by eight Democrats: Senators Casey, Coons, Donnelly, Heitkamp, Manchin, Pryor, and Walsh. The main charge against Adegbile is that, during the ten years he worked with the NAACP, he worked on a brief that successfully commuted the death sentence given to Mumia Abu-Jamal, a man convicted of murdering a police officer thirty years ago.

Sen. Casey said in a statement explaining his vote: “I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime.” It is difficult if not impossible to reconcile this statement with his vote against Mr. Adegbile. The right of every citizen to competent legal representation simply cannot survive in a climate where politicians punish lawyers for the acts of their worst, most despised clients.

***

Our justice system is fundamentally flawed, and many of the cracks and imperfections manifest in stark racial and economic disparity. . . .

Men and women like Adegbile spend their careers trying to fix these cracks and imperfections, striving to make sure that American citizens are only punished after they have been found guilty beyond a reasonable doubt by a jury of their peers, are only executed after having exhausted all appeals, and not a moment before hand. They throw their bodies between a prosecutor and their client so that the government must move mountains of incontrovertible evidence before it can take the life and liberty of a citizen. They are paid next to nothing, they work excruciating and unforgiving hours, and they go to work each day representing the people who can afford no other defense, who no one else will help.

They do these things not necessarily because they believe in the virtue or innocence of every client. Rather, they go to work every day because they understand that the only way to ensure that the rights and freedoms of virtuous men and women are not taken away without cause is to fight for the rights and freedoms of every person, regardless of crime or character.

I am currently a second year student at Harvard Law School. I go to school with some of the brightest young legal minds in the country, with the men and women who will undoubtedly shape the laws and legal institutions of the United States.

My classmates think seriously about what doors their choices will open and close. It’s incredibly hard to sell my friends on spending our careers like Adegbile knowing that it is now the practice of the United States Senate to punish public service.

There are already tremendous barriers to such a career. My school, like so many other prestigious institutions, is designed to be a waterslide to big law firms in New York, Washington D.C., Chicago, and Los Angeles. The vast majority of my classmates will end up in corporate law, eschewing a chance to make their living working for the common good. The choice is simple and understandable: corporate firms pay roughly three times what a first-year lawyer can receive in a public interest job, these jobs are secured during the summer of your second year, and they provide incredibly enticing job security in an increasingly competitive and precarious legal market.

Even my classmates who want to go into public service are wary of indigent criminal defense. They worry about the hours, the stress, and the compensation. They worry about being responsible for whether or not their clients spend their lives in jail. They worry about job security in a political climate where budgets in public defenders’ offices are routinely slashed. And they worry that the acts of their worst clients – the murderers, the rapists, the child molesters – will be held against them by their friends and family, by voters, and now by legislators in Congress.

So, the sell has just gotten harder. The Senate has sent an unequivocal message: that lawyers must beware of whom they represent. Should they have the opportunity to serve their country in high office, the men and women in the Senate will judge them not by their actions, not by their character, not by their achievements, but instead by the reputations and crimes of their clients.

In the aftermath of the Senate vote to block Adegbile’s nomination, I am left with only questions for the Senators who voted no.

What should I tell my classmates who are considering a career in indigent criminal defense? Should I tell them that they should not spend their lives representing the wretched, the despised, the friendless, for fear that they will be judged by people like you? How can we ensure everyone gets a zealous defense when lawyers are condemned for public service?

And while we’re at it, would you have voted against John Adams for defending the British soldiers that fired into the crowd during the Boston Massacre? Would you have voted against Thurgood Marshall for his defense of young black men accused of murder? Did you vote against John Roberts for representing eight-time murderer John Errol Ferguson? Does your humanity not teach you that the despised and the rejected are the most in need of help, compassion, and counsel?

We need our young lawyers to aspire to be the next John Adams and we must ask ourselves, in light of the Senate’s decision, how many will be willing to play that part. The number of lawyers who will stand and fight for those that society has condemned and who cannot advocate for themselves – already too few – will become vanishingly small. The Senate has told young lawyers that they must cast aside personal goals and ambitions if they choose to dedicate their careers to the belief that every citizen is entitled to a fair trial and a vigorous defense.

The Senate has raised the cost of such patriotism. I can only hope that there are those who remain willing to pay.

Read the entire op-ed here.

Posted in Law, Politics | Leave a Comment »

Immaculate Perception?

Posted by Jerry Kang on February 1, 2014

Recently, I did a TEDx talk on implicit bias titled “Immaculate Perception?”  It’s only about 13 minutes long, which made it quite a challenge. Enjoy!

Here’s a guide to my related scholarship.

Posted in Implicit Associations, Law, Social Psychology, Uncategorized | Leave a Comment »

Increasing Role of Pscyhology in Law

Posted by The Situationist Staff on January 24, 2014

From the latest edition of Observer, an article by David Halpern:Halpern_David

When governments want advice on the likely impact of their policies, they traditionally turn to economists. Psychologists have been less in demand. The reasons are understandable: Economists have seemed to offer relatively clear and well developed models for predicting behavior, notably “expected utility theory.”  In contrast, the lessons from psychology have often seemed less clear-cut, no matter how interesting or suggestive they may have been.

This situation is now changing. Officials are recognizing that their policies may stand or fall on social, cognitive, and emotional factors that economists have traditionally neglected. Given their position at the top table, it is perhaps unsurprising — if ironic — that economists themselves have communicated this point. Behavioral economics, essentially a combination of economics and psychology, has provided a new bridge between policymakers and psychological findings.

Read more here.

Posted in Behavioral Economics, Law, Public Policy | Leave a Comment »

Mikki Hebl on Interpersonal Discrimination

Posted by The Situationist Staff on December 16, 2013

Related Situationist posts:

Posted in Implicit Associations, Law, Social Psychology, Video | Leave a Comment »

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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Posted in Abstracts, Deep Capture, Law, Legal Theory | Tagged: , , , , | Leave a Comment »

The Surprisingly Dangerous Situation of Hands Free Devices while Driving

Posted by The Situationist Staff on June 20, 2013

Many drivers use hands-free devices in their cars believing that it is a safer way of texting and emailing than to do so by typing.  A new study by the University of Utah and AAA suggests hands-free devices pose more danger than other distractions in cars.  Here is an excerpt from a story on the University of Utah’s website:

* * *

“Our research shows that hands-free is not risk-free,” says University of Utah psychology Professor David Strayer, lead author of the study, which he conducted for the foundation arm of the nonprofit AAA, formerly known as the American Automobile Association.

“These new, speech-based technologies in the car can overload the driver’s attention and impair their ability to drive safely,” says Strayer. “An unintended consequence of trying to make driving safer – by moving to speech-to-text, in-vehicle systems – may actually overload the driver and make them less safe.”

* * *

To read the rest, click here.  For a related Situationist post, see The Situation of Driving While Texting.

Posted in Law, Life | Leave a Comment »

The Situation of Questions about NFL Players’ Sexual Orientation

Posted by The Situationist Staff on June 17, 2013

SI Loaded Question 3Last week the National Football League Players’ Association announced it would sell t-shirts with a gay pride theme.  A number of players have agreed to have their names on the t-shirts.  This is a positive step for the NFL, which as Situationist contributor Michael McCann wrote about earlier this year for Sports Illustrated, has seen fallout from its teams asking prospective players about their sexual orientation.  Here is an excerpt of McCann’s article “Loaded Question“, which appeared on page 16 in the March 25, 2013 issue of SI.

* * *

In a March 14 letter to NFL commissioner Roger Goodell, New York attorney general Eric Schneiderman inquired why, during last month’s scouting combine, several college players were allegedly asked about their sexual orientation. Notre Dame linebacker Manti Te’o denied reports that he had faced such queries, but Colorado tight end Nick Kasa said a team wanted to know if he “likes girls.” Kasa’s isn’t the first case of offensive predraft questioning. In 2010, Dolphins G.M. Jeff Ireland asked Dez Bryant if his mother was a prostitute. (Ireland later apologized.)

The NFL asserts that such questions violate existing league policies and are subject to discipline. A league spokesperson also says that the questioning of prospects was to be discussed at this week’s owners meeting.

Are the NFL and the players association doing enough to protect prospects from biased questions? Article 49 of the current CBA declares, “There will be no discrimination in any form against any player … because of … sexual orientation.” But is a draft prospect who is not yet a member of the NFLPA or of an NFL team—and may never become one—fully protected by Article 49?

* * *

To read the rest, click here.  For other Situationist posts on homophobia, click here.

Posted in Law, Life, Situationist Contributors, Situationist Sports | Leave a Comment »

The Situation of Bran-Scan Lie Detectors

Posted by The Situationist Staff on June 15, 2013

Brain Scan Lie DetectorLauren Kirchner of Pacific Standard Magazine has an interesting piece on the science on brain-scan lie detectors and concerns about law enforcement using them.

* * *

The brain-scan “guilt detection test” is a newer technology that supposedly measures electrical activity in the brain, which would be triggered by specific memories during an interrogation. “When presented with reminders of their crime, it was previously assumed that their brain would automatically and uncontrollably recognize these details,” explains a new study published last week by psychologists at the University of Cambridge. “Using scans of the brain’s electrical activity, this recognition would be observable, recording a ‘guilty’ response.”

Law enforcement agencies in Japan and India have started to use this tool to solve crimes, and even to try suspects in court. These types of tests have not caught on with law enforcement in the U.S., though they are commercially available here. That’s probably a good thing; the researchers of this study found that “some people can intentionally and voluntarily suppress unwanted memories.”

* * *

To read the rest, click here.  For a related Situationist post, see Tamara Piety on Lie Detection.

Posted in Law, Neuroscience | Leave a Comment »

The Gendered Situation at Harvard Law School – Part III

Posted by The Situationist Staff on May 15, 2013

harvard law library

The Harvard Crimson‘s Dev Patel has an outstanding series of articles last week on gender inequality at Harvard Law School. Here are some excerpts from the third article, titled “Female HLS Graduates Enter a Job Market Dominated by Men” in the series.

The law firm Brune & Richard is an anomaly. In a world where female lawyers represent fewer than 20 percent of partners in private practices, women make up 12 of the 18 lawyers at Brune & Richard.

And for founder Hillary Richard, who graduated from Harvard Law School in 1988, that number makes a difference.

“What it presents for female lawyers, particularly younger lawyers, is an array of possibilities that they don’t see at other firms,” Richard said. “Women who come to work here know that being a woman is certainly not going to hold you back, is not going to be an impediment to partnership, and is not going to be an impediment professionally in any way.”

But when female students graduate from the Law School, most must grapple with the large gender gap in the legal profession, especially at the level of the most prestigious positions. According to a Feb. 2013 report by the American Bar Association, fewer than one-third of federal and state judgeships are filled by women, and only 15 percent of equity partners in law firms are female. Just 21.6 percent of general counsel at Fortune 500 companies are female lawyers, and women make up barely one-fifth of all deans in U.S. law schools.

Harvard Law professor David B. Wilkins ’77, an expert on the legal profession, said he thinks this severe gender disparity creates a vicious cycle that prevents many women from moving up in the field.

“I think it’s true as in many other places in society,” he said. “If people see people like themselves succeeding, they are more likely to succeed.”

At Harvard Law School, where fewer than one in five professors is female and women are regularly outperformed in the classroom by their male counterparts, graduating students are not immune to the pressure of entering a field dominated at the top by men.

A “FEMINIZED” PROFESSION, BUT NOT AT HARVARD

“Law is becoming a feminized profession, by which I mean the majority of the entrants to the profession are women,” said Wilkins, who described the breakdown in the United States as “50/50,” whereas worldwide “women make up the majority.”

Yet one would never get that sense from the campus of Harvard Law School.

More than six decades since the first women were admitted to the school, female students have never made up 50 percent or more of a class, according to Assistant Dean and Chief Admissions Officer Jessica L. Soban ’02, a former Crimson business editor.

A gender disparity is especially apparent in the most prestigious extracurricular activities, where women succeed in smaller numbers than their male peers.

According to Yvonne L. Smith of the Dean of Students Office, twice as many men as women made it to the semi-final round of the Ames Moot Court competition, a prestigious mock trial held annually by the school, and only nine of the 44 most recently elected editors on the Harvard Law Review have been women.

Valerie Duchesneau, director of student organizations on the Student Representative Board, pointed out that while most journals at the Law School have many women on staff, the Law Review is different.

“For me that’s why that statistic says something about there being a real problem,” said Duchesneau. “Somehow the Law Review gets a lot of the prestige that these other journals don’t carry.”

The gender gap at the Law Review is nothing new.

“When I was a student here from 1994 to 1997, I took the Law Review competition in the spring of 95, and of the 40 to 42 people who made the Law Review that year, only nine of us were women,” said visiting professor Laura A. Rosenbury ’92 in a video released by Shatter the Ceiling, a new coalition to address gender disparities. “I assumed when I came back to the faculty this year, that the Law Review would be close to 50/50. And it’s not.”

Students and faculty said there is no clear answer as to why certain extracurricular activities end up disproportionately male. The Harvard Law Review this year implemented a new gender-based affirmative action policy in an attempt to counteract the gap.

“There is, for lack of better terms, a hierarchy in terms of extracurriculars on campus,” said third-year Harvard Law student Stephanie E. Davidson, outgoing president of the Women’s Law Association.

TROUBLE AT THE TOP

And while the problem might start with student activities, it extends into the job market. Many in the Law School consider certain activities like the Law Review and Ames Moot Court to be important lines on the resume when securing top jobs after graduation.

Female graduates at the Law School find positions at private law firms less often than their male peers, according to Assistant Dean for Career Services Mark A. Weber. At the same time, he said, women tend to enter public interest work in greater numbers than men.

Nationwide, women make up 19.9 percent of partners in private legal firms, according to the American Bar Association.

Visiting professor Daniel R. Coquillette said that part of this disparity can be attributed to the fact that large law firms have “never made the accommodations they should make to family life.”

“I was an associate in a big law firm and I’ll tell you, it really is a very, very tough existence,” he said. “You might say that they treat men and women equally. And that’s true, they make it difficult for everyone, but under the conditions of modern society, it impacts women more.”

Wilkins agreed that typical legal careers, particularly at law firms where the key years in which lawyers become partners coincide with the time when many choose to start a family, are “not just made for a man but made for a man whose wife doesn’t work.”

“In a profession in which human capital is at its core, we are systematically losing out on the talent of very talented female lawyers who are leaving the profession altogether sometimes,” he said.

Wilkins helped co-author a study entitled “After the JD,” in which researchers surveyed lawyers in 2008 who had entered private practice in 2000. They found that at large law firms of 250 or more, men were five times more likely to have been made equity partner than women.

Weber said that while the statistics at the level of the top positions might paint a troubling picture, firms who hire HLS graduates soon after graduation treat candidates equally regardless of gender.

“What we’ve seen on the output side is that employers just want to hire smart, talented students,” he said. “It’s never an issue of gender. I’ve never seen employers say ‘We want to hire men.’”

Nevertheless, Wilkins said he thinks “unconscious bias and stereotypes” may play a powerful role.

“Whether they be clients or partners, when they think about a successful lawyer they are less likely to think of a female lawyer,” he said.

Richard said she thinks this issue is rooted in the low number of female partners. With a small number of women at the top, female job applicants find it harder to imagine their own success.

“I think with anything else, the more diversity that you have, whether its gender or race or what have you, I think the more it opens your mind to the possibility no matter who you are that there are jobs and careers open to you,” said Richard.

In lower courts, women fill more clerkship positions than men, according to Weber. But that dynamic changes at the level of the top positions. Among HLS graduates, far more men secure clerkships at the Supreme Court than women, a statistic often cited by the Shatter the Ceiling coalition.

“The higher you go in the profession, whether its Supreme Court Justices, partners in law firms, or deans of law schools, the number of women is smaller,” Dean of the Law School Martha L. Minow said. “It’s not just Harvard Law School’s problem, it’s the legal profession’s problem.”

Read the article here.

Related Situationist posts:

Posted in Distribution, Education, History, Law | Leave a Comment »

The Gendered Situation at Harvard Law School – Part II

Posted by The Situationist Staff on May 11, 2013

the hark 1953The Harvard Crimson‘s Dev Patel has an outstanding series of articles last week on gender inequality at Harvard Law School. Here are some excerpts from the second article, titled “In HLS Classes, Women Fall Behind” in the series.

Among the top students in their graduating classes, men and women entering Harvard Law School earn similar undergraduate grades and LSAT scores. But as soon as students step into Wasserstein Hall, a dramatic gender disparity emerges.

Indicators suggest that female students participate less and perform worse than their male counterparts over the course of their three years at the Law School.

“For better or worse, when women come to law school, they feel their gender more strongly than they may have in undergrad,” said third-year law student Stephanie E. Davidson, outgoing president of the Women’s Law Association. “I still barely have words to describe why that is or what that means. But you feel like a female lawyer instead of a lawyer.”

Davidson is not alone. Hundreds of students and faculty gathered this spring for Shatter the Ceiling, a new coalition whose goal is to address gender disparities at Harvard Law. The issue of imbalance in the classroom has emerged at the forefront of their discussions, prompting reactions across the campus and the nation over how women and men stack up.

IS SOCRATES SEXIST?

Harvard Law student Jessica R. Jensen hates the Socratic method. “It’s the worst thing in the world,” she said. “It forces you to talk like a man.”

“It made me feel really uncomfortable and incompetent at first, and it really impacted my performance in classes the first year,” Jensen said. “You feel like you don’t know the material really well because you feel like an idiot in class.”

Employed in some form across most classrooms at Harvard Law School, the Socratic method, a teaching style that relies on cold-calling, lies at the heart of the debate over gender issues and serves as a focal point for the Shatter coalition.

Today, many students and faculty have raised concerns over the teaching method, saying that men are more likely to participate voluntarily in Law School classes than women.

In a 2004 study on gender issues at Harvard Law School, a then-third-year law student Adam M. C. Neufeld found that men were 50 percent more likely than women to volunteer at least one comment during class, and 144 percent more likely to speak voluntarily at least three times. The study also showed that 10 percent of students accounted for nearly half of all volunteered comments in first-year law classrooms.

“I think the big point is that many men weren’t talking too,” Neufeld said. “There was a small number of people who account for most of the comments.”

More recently, according to a 2012 study at Yale Law School, men made 58 percent of comments in the classroom, while women made 42 percent.

Yet the root cause of this disparity remains contested, as professors, students, and administrators debate whether the Socratic method—the traditional form of legal pedagogy—needs to be adapted to account for gender disparities in the classroom.

For many in the Law School, the Socratic method is an outdated teaching style that reinforces gender imbalances in academia.

“Women take longer to process thoughts before they feel comfortable to say them out loud than men do,” Jensen said, adding that men feel more natural in that kind of classroom atmosphere.

Because of this disparity, the Shatter coalition hopes to encourage changes to the Law School pedagogy.

“If you can show that the Socratic method makes us better lawyers, then fine, but we need to see that data,” said Lena M. Silver, a third-year Law School student and the co-chair of the Shatter the Ceiling coalition.

Harvard Law professor Lani C. Guinier ’71, who has authored several articles on legal pedagogy, said that the problems described by Silver and her group highlight potential issues with legal education today.

“In short, women’s reaction to law school is an important warning sign, but a warning sign that the problem will not go away simply by focusing on helping the women think more like their male counterparts,” Guinier wrote in an email, saying that the faculty should reevaluate their pedagogical techniques.

Others suggested that the pressures of the classroom environment contribute to women not raising their hands as often as men. “Women are more likely to be called ‘gunners’ or ‘teacher’s pets’ if they participate in class,” said Jean N. Ripley, second-year Law School student and co-chair of the Shatter coalition.

In his study, Neufeld, who said he supports the Socratic method, found that women assessed themselves significantly lower than men did, suggesting that different confidence levels may account for the disparity in classroom participation.

“Volunteering is a fairly socially aggressive act,” he said. “You are making all the other students listen to your comment, you think it is unbelievably important and something that no one else has thought of.”

Yet supporters of the Socratic method discount the existence of inherent gender disparities and argue that it is an essential part of the legal education.

“It’s an extreme form of sexism to say that essentially women in general aren’t capable of dealing with the demands of the Socratic method,” said Harvard Law professor Alan M. Dershowitz.

Dershowitz noted that some of the best Socratic students in his classes have been women. “You cannot generalize about men and women when it comes to their ability to be law students or practice law,” he said. “We have to keep inquiring as to why this disparity exists but we have to do it without divulging into stereotypes.”

Dean of the Law School Martha L. Minow pointed to an ongoing debate over the possibility of gendered dimensions of certain forms of argument and reasoning, saying that it “can’t be the case” that “certain types of reasoning are beyond the reach of a group of students.”

And many professors, including Dershowitz, defend the Socratic method as a critical component of the Harvard Law School education.

* * *

Though Minow has refused to release data on the gender breakdown of grades, professors said that indicators point to a dramatic disparity between men’s and women’s performance despite blind assessment.

Neufeld’s 2004 study found that women earned lower grades in first-year courses across three years of data, though the disparity varied in part with the content and gender of the professor. The form of assessment, by contrast, did not increase or decrease the grade disparity.

In the study, men were also more likely to receive graduation honors than women, a disparity frequently cited by the Shatter coalition.

“We haven’t created a situation in which women are doing as well as we’d like them to be,” Law school professor Christine Desan said. “Part of that is surely societal, both social and political.”

But the gender grade disparity is not the same at other law schools, according to visiting professor Laura Rosenbury.

“It’s interesting because I’ve been teaching at Washington University in St. Louis, and we don’t have this problem,” said Rosenbury in a video released by the Shatter coalition. “In fact, women outperform their male colleagues both in terms of grades and in terms of law review competition. And so what makes Harvard different?”

Faculty and students alike have struggled to find an answer.

Minow said there is “unequivocally” no difference in undergraduate grades or the LSAT scores of men and women coming into Harvard Law.

“They are at some level puzzling, because the grading in the big classes are completely anonymous,” Tushnet said. “And yet there must be something about the style of a writing or arguing that the faculty prefers that tilts in favor of men.”

Others said they believe that levels of confidence and self-perception may play a role.

“The main argument for this one is the stereotype threat,” Neufeld said. “If you are a high school girl who’s taking a math class, and there’s a general perception that women do worse, you, no matter what your inherent ability, are going to be more anxious because you don’t want to do poorly and reflect that stereotype, and you will end up doing worse because you can’t relax and focus.”

While the cause of these issues remains unknown, in many ways the extent of the problem is also uncertain.

No new grade data has been released since the administration changed the grading system from the standard letter grades to an honors, pass/fail system. A key goal of the Shatter coalition has been access to that data, but Minow has declined to share it.

“We don’t need to have a study, we need to work on making this better,” Minow said. “Do I think there are issues about whether or not Harvard Law School or any law school is conducive to learning for any student? Yes. Might there be gendered dimensions? Possibly. You don’t have to prove anything to me; I’m already committed to addressing these issues, as is the faculty.”

Desan said that as long as she and her colleagues continue to grade, they must take responsibility for the marks they give.

“If those grades suggest that there may be a problem with our teaching or our testing, then we should try to figure out what that problem is,” she said. “We have data that we haven’t explored yet, and I think it’s time that we explored it.”

While Minow said she hopes to diminish the role of grades in the community, some students have raised concerns that beyond the Harvard Law campus, grades remain critical to success.

“I think that potentially a barrier Dean Minow has to face in deemphasizing the prestige of those things is that the legal profession and the academic world still values them,” President of the Student Representative Board Lisa M. Lana said.

Read the entire article, which includes an extensive discussion about the socratic method and links to the other articles in the series, here.

Related Situationist posts:

Posted in Distribution, Education, History, Law | Leave a Comment »

The Gendered Situation at Harvard Law School – Part I

Posted by The Situationist Staff on May 8, 2013

men and woman in Langdell Library 1959The Harvard Crimson‘s Dev Patel has an outstanding series of articles this week on gender inequality at Harvard Law School. Here are some excerpts from the first article, titled “Once Home to Kagan and Warren, HLS Faculty Still Only 20 Percent Female” in the series.

Just 20 percent of U.S. senators are female. Women make up a mere 21.6 percent of the lawyers who serve as general counsels to Fortune 500 companies. Only three of the nine Supreme Court Justices are women.

But these figures are still higher than the proportion of women within the ranks of the Harvard Law School faculty.

At Elizabeth Warren and Elena Kagan’s former place of work, women constitute fewer than a fifth of all professors and assistant professors of law—a disparity that Harvard Law School Dean Martha L. Minow called “absolutely inadequate.” With only 17 women among 92 tenure-track faculty members, according to the Law School’s online directory as of May 6, the gender imbalance of Harvard Law School’s faculty is comparable to that of other elite law schools, yet still among the most severe of the approximately 200 law schools nationwide.

Concerns about gender inequality have spread throughout campus as a new student-run coalition called Shatter the Ceiling draws hundreds of community members together to address these issues, faculty members pursue research on gender disparities, and the administration pushes for new strategies to level the playing field. Amidst this growing movement, some have raised questions about the impact of gender inequality within the ranks of the faculty, in the classroom, in student organizations, and in life after Law School.

Among their top concerns is the small proportion of women on the faculty, an issue they say is rooted in the Law School’s history and today impacts hiring decisions, faculty conversations, and topics of intellectual inquiry.

“It’s an issue that matters to me, an issue that matters to the Law School, and an issue that matters to the profession,” Minow said.

BURDENED BY THE PAST

Portraits of tenured professors arranged in chronological order line a wing of the Law School’s new student center, looking down on students as they walk to class each day. But students cannot see a woman’s photograph until they pass the 1972 mark, and can only count a handful more in the next few decades.

More than 20 years after female students first stepped foot on campus, the Law School in 1972 granted tenure to its first female faculty member, Elisabeth A. Owens. But she did not attend faculty meetings, and her appointment “was widely regarded as not genuine,” according to Daniel R. Coquillette, a visiting professor and the former dean of Boston College Law School.

Coquillette is currently working on a history of Harvard Law School that will devote a significant section to the history of gender at the school. He said that the Law School’s progress on gender issues came relatively late, after other law schools across the country had already taken significant steps towards welcoming women.

“The appointment of women to the tenured faculty is so recent that many of the pioneer women are still right there as active faculty members,” Coquillette said, referring particularly to Law School professors Martha A. Field ’65 and Elizabeth Bartholet ’62, two of the first women to successfully complete the tenure process.

Field recounted that when she first joined the faculty as a tenured professor in 1979, the Law School had “such a terrible reputation” among women in the field.

“It used to be a nice male club,” she said. “It really did sort of mess up the boys’ club when women came on.”

Field said that in the early years, the hiring of female faculty members was slowed by concerns about tilting the political direction of the school leftward.

“For a while, you sort of had the feeling that it was hard to hire women because people had one idea of what a woman should be,” Field said. “They assumed that if you pushed for women or minorities that you were leftist, radical, and pushy.”

Since that time, acceptance of female faculty members has improved—a development highlighted by the appointment of two female deans, Kagan in 2003 and Minow in 2009. But Minow herself acknowledges that these changes are still not enough.

“Now we have women serving as partners at law firms, on the Supreme Court, making a difference in all walks of legal life,” Minow said in a March interview. “On the other hand, the small relative number of women who are partners at law firms, sit on the bench, and are tenured professors shows that there’s still lots to be done.”

Harvard Law School ClassroomADDING MORE PORTRAITS

At less than 20 percent female, Harvard Law School’s tenure-track faculty is the least diverse of its kind in the Ivy League. At Columbia Law School, about 25 percent of faculty members are female, while women make up about 29 percent of the faculty at Yale Law School. The law schools at Cornell and the University of Pennsylvania count even more female faculty members among their ranks, with percentages of about 30 and 33, respectively.

Outside the Ivy League, female law professors are represented in even greater numbers. According to a report released by the Association of American Law Schools, women accounted for 34.4 percent of law school faculty nationwide in the 2008-2009 academic year.

“In terms of our peer [top-ranked] schools we are not so different,” Minow said, noting that the Law School does not fare as well when compared to a broader group of schools. “So it’s again the same pattern you see all over the profession. The higher the prestige, the more elite, the fewer women are there.”

Since she took the helm of the school four years ago, Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron, a former Crimson president. “There’s no reason that our faculty should not be more diverse.”

Despite this progress, Field said that gender stereotypes still remain in the Law School’s hiring process.

“The more you present yourself as the old traditional type, the more likely you are to get in,” Field said.

Field said that “for [the faculty] to take you seriously, it’s nice to have a good male subject, what they think of as hard law subjects”—constitutional law­, for instance. She said female applicants fare better when presenting a “‘touchy-feely’ subject”—for example, family law or other “soft law” topics.

Others, including professor John F. Manning ’82, chair of the lateral hiring committee, contested Field’s characterization of the hiring process, saying that they do not see any correlation between the topic presented during the workshop and a candidate’s ability to be hired.

“Some of the most successful presentations I’ve had have been on subjects that have been regarded as sort of soft law,” said Law School professor Alan M. Dershowitz, who said that his own subjects were typically regarded as softer. “I welcome more people in those subjects.”

The Law School has also taken steps to accommodate faculty members—both male and female—who want to balance both their personal life and their professional careers.

Law School professor David B. Wilkins ’77, who is an expert on gender issues in the legal profession, said that an important obstacle to women’s success is the simultaneous timing, in many cases, of pursuing a tenure-track position and choosing to raise a family.

To this end, Harvard Law School offers a parental leave program and allows faculty members to extend the period necessary to be considered for tenure, Minow said.

“I’m a woman, I’m a mother,” she said. “It’s a priority for me to allow people to have meaningful lives, work, and family.”

A GENDERED FEELING?

Before she came to Harvard in 2010, Law School professor Vicki C. Jackson taught and held associate deanships at Georgetown University Law Center. At Georgetown, she said, the more gender-balanced faculty created a remarkably different environment.

“It felt different just in terms of more women, more women at the workshops, and more women at the faculty,” she said, acknowledging that many other factors contributed to her perception.

For some professors like Jackson who have spent time at other law schools, Harvard’s gender disparity creates a distinct atmosphere around lunch tables and faculty workshops.

“For a variety of reasons, including the gender disparity, the faculty culture does have what I think scholars of this topic would describe as a masculine attitude, a way of presenting yourself and your arguments that has gender associations,” Law School professor Mark V. Tushnet ’67 said, adding that “assertive, outright statements” take precedence in faculty conversations.

Field said that as a result, engaging in faculty discussions becomes much more difficult for professors who are less outgoing.

“The first thing you have to learn how to do here is how to interrupt,” she said. “I think you’re considered smarter if you are showing off.”

Read the rest of the article, which includes range of opinions from a variety HLS faculty members on the question of gender disparity at Harvard Law School, 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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Gender, Weight, Stereotypes, and Prejudice

Posted by The Situationist Staff on February 25, 2013

Cali Jury

From Slate:

This month a team of Yale psychologists released a study indicating that male jurors—but not female jurors—were more likely to hand a guilty verdict to obese women than to slender women. The researchers corralled a group of 471 pretend peers of varying body sizes and described to them a case of check fraud. They also presented them with one of four images—either a large guy, a lean guy, a large woman, or a lean woman—and identified the person in the photograph as the defendant. Participants rated the pretend-defendant’s guilt on a five-point scale. No fat bias emerged when the female pretend peers evaluated the female pretend defendants or when either men or women assessed the guilt of the men. But when the male pretend peers pronounced judgment on the female pretend defendants, BMI prejudice reared up. . . .

The study offers further depressing insights. Not only did the male pretend jurors prove “significantly more likely” to find the obese female defendants—rather than the slim ones—guilty, but the trim male participants were worst of all, frequently labeling the fat women “repeat offenders” with “awareness” of their crimes. And because the effect disappeared when the photographs depicted a man, the hypothesis that subjects were simply layering class-based assumptions—such as “poor people are more often overweight” and “poor people commit more crime”—on top of one another falls a bit short. (On the other hand, as one of the researchers, Dr. Natasha Schvey, explained to me over the phone, fat women are more likely to be perceived as coming from lower socioeconomic backgrounds than fat men. Somehow I don’t find that consoling.)

“What’s going on?” I asked her. Schvey suggested that stereotypes about obese people paint them as greedy, selfish, and thus prone to defrauding checks.

Read the rest of the article, including the author’s alternative theories here.

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Image from Flickr (by Eric Molinsky).

Posted in Implicit Associations, Law | 2 Comments »

Gary Wells on Improving the Accuracy of Eyewitness Identification

Posted by The Situationist Staff on December 28, 2012

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Judge Nancy Gertner on the Situation of Discrimination Claims

Posted by The Situationist Staff on October 27, 2012

From YLJO (the essay of an essay titled Losers’ Rules by Judge Nancy Gertner):

Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.

Decades ago, law-and-society scholars offered an explanation for that phenomenon, evaluating the structural forces at work in law-reform litigation that lead to one-sided judicial outcomes. Focusing on employment discrimination claims, Marc Galanter argued that, because employers are “repeat players” whereas individual plaintiffs are not, the repeat players have every incentive to settle the strong cases and litigate the weak ones.Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests.More recently, Catherine Albiston went further, identifying the specific opportunities for substantive rulemaking in this litigation—as in summary judgment and motions to dismiss—and how the “repeat players,” to use Galanter’s term, take advantage of them.In this Essay, drawing on my seventeen years on the federal bench, I attempt to provide a firsthand and more detailed account of employment discrimination law’s skewed evolution—the phenomenon I call “Losers’ Rules.” I begin with a discussion of the wholly one-sided legal doctrines that characterize discrimination law. In effect, today’s plaintiff stands to lose unless he or she can prove that the defendant had explicitly discriminatory policies in place or that the relevant actors were overtly biased. It is hard to imagine a higher bar or one less consistent with the legal standards developed after the passage of the Civil Rights Act, let alone with the way discrimination manifests itself in the twenty-first century. Although ideology may have something to do with these changes, and indeed the bench may be far less supportive of antidiscrimination laws than it was during the years following the laws’ passage, I explore another explanation. Asymmetric decisionmaking—where judges are encouraged to write detailed decisions when granting summary judgment and not to write when denying it—fundamentally changes the lens through which employment cases are viewed, in two respects. First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics—the Losers’ Rules—that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.

Read the entire essay here.

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For a list of Situationist posts discussing the research on implicit bias and the IAT, click here. To review a collection of Situationist posts discussing Nancy Gertner‘s work, click here.

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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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Nancy Gertner on The Situation of Dispositionist Criminal Sentencing

Posted by The Situationist Staff on September 8, 2012

From Cognoscenti:

There is a canned, formulaic newspaper story about any criminal case. It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number). The prosecutor argued for 10 (or higher than the number the judge gave). The victim’s family is appalled. When interviewed, they stridently proclaim their outrage at the judge. The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded. So when the judge sentences the defendant to less, they cry foul. Another lenient judge! Another liberal! Another blow against the “tough on crime” mentality!

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers – five, 10, 15, 20 – without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime. They don’t consider alternative approaches. They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration.

These numbers only reflect the public’s and the district attorney’s spleen – and so whatever the number was before the sentencing of this defendant, they “must” be higher in the next case, with the next defendant. There is, in short, no end.

Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We lead the world in imprisonment not just by a little — but by several orders of magnitude. Our nearest competitors are Rwanda and China, hardly good company. And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents. This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000).

Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.

But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in.

And not just the public. By the late 1980s, crime issues were part and parcel of the political debate — think of the role of the Willie Horton ads in the 1988 presidential election. A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

Some of the blame surely goes to the media. Take the case of Kenneth Belew of Somerville, Mass. On the evening of April 21, 2011, after drinking too much, Belew got behind the wheel and lost control of the car. Of the five passengers – two tragically died. The judge sentenced Belew to five years; the prosecutor had wanted eight to 10.

A Boston Globe columnist excoriated the judge in all too familiar terms: He was insensitive and unduly lenient for not imposing the sentence the prosecutor wanted. But what the prosecutor wanted was hardly the measure of fairness. The presumptive range of sentences under the Massachusetts Sentencing Guidelines was about three and a half to five and a half years.

Those guidelines were established by a Sentencing Commission consisting of prosecutors, defense counsel, public safety and correctional officials, and victim-witness advocates. And the judge accompanied the sentence with an elaborate recitation of the reasons for the sentence — on the record and in public.

The prosecutor cannot be so monitored. He picks a number and does not have to explain it, beyond justifying it in the particular case. There are no public, transparent guidelines for prosecutors, no Sentencing Commission, no standards. He cannot be easily reviewed to see if he is biased, choosing mandatory minimums for defendants of color more than for those who are white, or simply going with his gut.

Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences. When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence? The answer is never.

And, to a shocking degree, the prosecutor is picking numbers out of the air. Twenty years ago, we considered five years a very long sentence. In most European countries that is still the case. But now, in the United States, we increase sentences by fives. It’s like a betting game. Five does not send a message if it is what the defense lawyer wants. OK, I’ll raise you five more. Why five? Why not 10?

When sentences had to bear some relationship to outcomes – what worked to prevent recidivism, for example – there were limits. With retribution, there are few.

To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences. They are beginning to notice the disproportionate sentences for African Americans and Hispanics. And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective.

But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) – not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate.

That is the only explanation of why, just when punitive states like Texas and Mississippi are repealing “three strikes” laws, Massachusetts just passed one, after two highly publicized and tragic crimes: the murders of Melissa Gosule and Officer Jack Maguire. Three strikes is nothing more than a baseball metaphor – not social policy.

Read the entire article, including the 5 myths echoed in the press and among legislators, here.

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To review a collection of Situationist posts discussing Nancy Gertner‘s work, click here.

Posted in Law, Video | Leave a Comment »

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 »

Bias in Fortune 500 Legal Departments

Posted by The Situationist Staff on August 29, 2012

From ABA:

Initial findings from the ABA Commission on Women in the Profession survey “Visible Invisibility: Women of Color in Fortune 500 Legal Departments” found that women of color are underpaid, underestimated and undervalued.

According to an executive summary of the survey, “Sadly, female attorneys of color often are treated as second-class citizens in a profession that ironically is charged with the responsibility of ensuring justice and equality for all.”

Nine years ago, the Commission on Women in the Profession created its Women of Color Research Initiative, which has produced surveys to bring attention to the inequities women of color contend with in the profession.

The first phase of this initiative explored the career experiences of women of color in law firms. The current phase of the initiative focuses on those women in corporate law departments during four aspects of their careers: hiring, recruitment, retention and advancement.

So far, the survey has found that women of color did not experience bias in hiring, but as they progressed in their careers, they experienced it in the retention and advancement phases.

Lorelie S. Masters, the co-chair for the Women of Color Research Initiative Committee, said that other initial findings revealed that 48 percent of white men reported satisfaction with their careers in-house compared with 17 percent of African-American women. Though pleased with the decision to work for in-house Fortune 500 legal departments, African-American women’s overall satisfaction was significantly less.

The survey determined that compensation was a key factor in job satisfaction during each phase of a lawyer’s career. Masters said that one study highlighted that the pay gap in the beginning may start at a $2,000 annual difference between male and female associates earning up to $66,000 a year. She said, “We all understand, and certainly women of color as much as anyone, that compensation is a measure of how an organization values one’s contribution.”

The full report of the nationwide survey of 1,000 in-house lawyers at Fortune 500 companies will be published in the fall.

Related video from “Visible Invisibility: Top women lawyers of color share “best advice” for career advancement.

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