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Archive for the ‘Law’ Category

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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Law and Social Cognition – Abstract

Posted by The Situationist Staff on August 10, 2012

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

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

Download the chapter for free here.

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

Self-Control and Crime

Posted by The Situationist Staff on August 1, 2012

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

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

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

Related Situationist posts:

Image from Flickr.

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The Historical Situation of Situationism at Harvard Law

Posted by The Situationist Staff on July 24, 2012

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

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

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

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

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

You can download the paper for free here.

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

Will John Roberts Drift?

Posted by Adam Benforado on July 10, 2012

A number of years ago, Jon Hanson and I wrote an article for Boston Review on the situations that lead Supreme Court justices to drift (or not drift) from their previous ideological moorings, which has gained new relevance in light of Chief Justice John Roberts majority opinion on the constitutionality of the new national health care law.

I am personally skeptical of speculation that this is a sign that Roberts is shifting.  However, I am somewhat more compelled by Richard Posner’s argument that the reaction to his opinion by the Court’s most conservative justices, Republican members of Congress, and the right-wing media may itself lead Roberts to rethink his ingroup allegiances:

Because if you put [yourself] in his position … what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.

In an interesting interview with NPR, Posner explains how he himself has been influenced politically by a negative reaction to what he characterizes as a growing “goof[iness]” of the Republican Party.  Listen to the interview here.

Also, for those dedicated few interested in how Posner’s situation may have influenced his worldview, check out The Costs of Dispositionism: The Premature Demise of Situationist Law and Economics, in which Jon and I compare the situations of two founders of the law and economics movement, Posner and Guido Calabresi.

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Posted in Ideology, Law, Politics, Situationist Contributors | Leave a Comment »

Implicit Bias in Employment Discrimination Litigation

Posted by The Situationist Staff on July 5, 2012

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

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

Download the chapter for free here.

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Fear of Flying and NBA Players

Posted by The Situationist Staff on July 1, 2012

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

Here is an excerpt:

* * *

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

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

* * *

To read the rest, click here.

Sample of related Situationist posts:

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The Situation of the Self

Posted by The Situationist Staff on June 28, 2012

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

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

Download the article for free here.

Sample of related Situationist posts:

Image from Flickr.

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The Situation of State Judiciaries

Posted by The Situationist Staff on June 26, 2012

From The Anerican Scholar:

The hearing room of the Wisconsin Supreme Court could be a Beaux-Arts museum, exhibiting images of justice as idealized in America for centuries: ornate, dignified, above reproach. Light pours in through a huge leaded-glass skylight, radiating off veined white marble. Large murals set high off the floor dominate each wall, depicting the venerable sources of Wisconsin law—Roman, English, Native American, and federal. The one to the left of the room’s mahogany bench portrays King John of England reluctantly granting the Great Charter, or Magna Carta, which, in June 1215, ended his lawless seizure of nobles’ land and began an era of legal rights embodied in English, then American, common law.

Article 40 of the Magna Carta pledged, “To no one will we sell, to no one will we refuse or delay right or justice.” But recently, in a string of expensive and increasingly contested elections, candidates to be justices of the Wisconsin Supreme Court have flouted the not-for-sale principle, demeaning the courtroom’s grandeur.

Wisconsin is not alone. In state after state, campaign contributions and related spending by special interests have risen dramatically in the past decade and are expected to swell in the wake of the U.S. Supreme Court’s 2010 Citizens United decision, which removed any limits on independent spending. Wisconsin is one of 22 states that elect judges to their highest courts, or one of 38 if you count states that have so-called retention elections by which appointed judges run to retain their seats. In all of them, independent spending threatens to overwhelm the system of electing judges, making them and the candidates running against them dependent on private money and eroding the public’s confidence in the courts.

Because judicial elections occur on different cycles and are subject to the push and pull of different forces in different jurisdictions, Citizens United has not increased spending uniformly in each state. But across the country, the ruling has caused spending to continue to rise at an ever-accelerating rate. This year, races in Florida, Michigan, and West Virginia have already set new highs for independent spending. Nowhere, though, are the pernicious effects more evident than in Wisconsin, which stands as a warning of just how bad things can get.

In 2007, in a Wisconsin Supreme Court race in which the two candidates spent a total of $2.7 million and special interests spent $3.1 million, Annette Kingsland Ziegler was elected and kept for conservatives a seat being vacated by another judge. The following year, the two candidates together spent “only” $1.2 million, joined by $3.4 million from special interests, much of it on distorted attack ads, which helped Michael Gableman defeat Louis Butler, the court’s first African-American justice, and swung the seven-member bench from liberal to conservative. And things have only gotten worse—over the past five years, special interests in Wisconsin have spent $14.8 million on TV ads to influence judicial elections, more than in any state except Pennsylvania, which has more than twice Wisconsin’s population.

After his defeat, Butler appeared at a conference on judicial selection reform. Holding up a copy of John Grisham’s 2008 novel, The Appeal, he said, “Welcome to my world.” In the novel, a chemical company’s industrial waste poisons the water in a Mississippi town, causing widespread cancer and death. The company stage-manages and heavily funds a successful campaign to replace a liberal justice with a conservative one, who shifts the state supreme court from left to right and casts the deciding vote to overturn a $41 million verdict against the company. The ads that defeated the liberal incumbent attacked her record on crime and other social issues, but really it was her lack of favoritism to business that led the company to take her down.

Like Grisham’s successful challenger, Michael Gableman was a little-known county trial judge with thin credentials, recruited by business to run against Butler. He became the first candidate to defeat a sitting justice since 1967; only three other justices in state history had been defeated in the previous 115 years—in 1947, 1908, and 1855.

Gableman’s TV ads accused Butler of having worked “to put criminals on the street,” pointing to the rapist of an 11-year-old girl. The ad was so misleading that the Wisconsin Judicial Commission charged Gableman with misconduct for “reckless disregard for the truth.” As a judge or justice, Butler never heard a case involving the rapist. But as a public defender years before, he had unsuccessfully sought a new trial for the man because of a breach of criminal procedure in a rape case. The rapist served out his time, and after his release, when he was no longer Butler’s client, he sexually assaulted another girl. Nevertheless, a review board rejected the misconduct charge against Gableman, finding that each individual assertion in the ad was true, so their sum could not be false.

Butler was not targeted for his views on crime, however. Gableman shifted the Wisconsin court to the right and cast the pivotal vote in 2011 when, by 4-3, the court overturned a trial court’s stay of a Republican-backed state law curbing the collective bargaining rights of public employees, effectively upholding the law—the legal fight that made Wisconsin a battleground between the rabid new right and the outraged old left in American politics.

Read the entire article here.

Related Situationist posts:

For a PBS Frontline website on “Justice for Sale,” click here. To download the “New Politics for Judicial Elections Report for 2006,” by the Justice at Stake Campaign, click here. For an NPR interview (audio) of Justice O’Connor about judicial independence by Nina Totenberg, click here. For a PBS interview (transcript, audio, or streaming video) of Justices O’Connor and Breyer on the topic of judicial independence, click here.

Posted in Deep Capture, Law, Politics | Leave a Comment »

Rebecca Onie on the Situation of Health (and Health Care)

Posted by The Situationist Staff on June 22, 2012

From

Rebecca Onie asks audacious questions: What if waiting rooms were a place to improve daily health care? What if doctors could prescribe food, housing and heat in the winter? At TEDMED she describes Health Leads, an organization that does just that — and does it by building a volunteer base as elite and dedicated as a college sports team.

Related Situationist posts:

Posted in Distribution, Education, Law, Life, Morality, Video | Leave a Comment »

Implicit Bias in the Law Conference – This Thursday

Posted by The Situationist Staff on June 12, 2012

Date: Thursday, June 14, 2012, 9:00 AM
Location: Austin Hall, Ames Courtroom, Harvard Law School
Address: 1515 Massachusetts Ave., Cambridge, MA

Presenters include Situationist Contributors Mahzarin Banaji, Jon Hanson, Jerry Kang.

From the conference web page:

Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This conference considers what emerging social science can contribute to the discussion of race in American law, policy, and society. The conference will explore how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, the conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law”, examines both the continued subordination of historically disadvantaged groups and the legal system’s complicity in the subordination.

The conference will bring together scholars, judges, practitioners, and community leaders to explore the issues surrounding implicit racial bias in law and policy. It will begin with a compelling overview of the social science. What does science teach us about automatic biases? And what do we still not know? Leaders in the areas of criminal justice, housing law and policy, education, and health care will then present overviews of the impact of implicit bias in their fields. Attendees will hear federal judges’ and leading scholars’ perspective on implicit bias claims in the courtroom and hear experts’ assessment of the future of implicit bias in the law. A lively afternoon session will include simultaneous break-out sessions and roundtable discussions of specific implicit bias related topics. Audience participation will be welcomed and encouraged. The conference will close with a discussion of setting a forward looking and collaborative implicit bias agenda.”

RSVP for the conference here.

Here is the conference agenda.

Posted in Events, Implicit Associations, Law, Legal Theory, Situationist Contributors | Leave a Comment »

Corporations, Cars, the U.S.A., and Us

Posted by The Situationist Staff on June 1, 2012

Benjamin Levin just posted his excellent article “Made in the USA: Corporate Responsibility and Collective Identity in the American Automotive Industry” (forthcoming Boston College Law Review, Vol. 53, No. 3, p. 821, 2012) on SSRN.  Here’s the abstract:

This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bail-out of the major American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted private/public nature of the corporate form and for examining what it means for a corporation to be American and what duties and benefits such an identity confers.

By examining the ways in which consumable myths of the American corporation interact with the institutions and legal regimes that govern American corporations, I argue that the advertised image of the national in the global economy serves as a broad corporate veil, a way of obscuring the consumer’s understanding of corporate identity and corporate accountability. With these overarching issues and questions as a guide, this Article will historically situate the identification of corporate nationality within a broader framework of debates on corporate social responsibility and interrogate the way that we conceive of the American corporation and corporate decision making.

Download the article for free here.

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Review of “Ideology, Psychology, and Law”

Posted by The Situationist Staff on May 30, 2012

Over at The Jury Expert, You can read an insightful review (by Rita R. Handrich, PhD) of Jon Hanson’s recent book, Ideology, Psychology, and Law” (Oxford University Press). [Introductory chapter available, here].

It opens this way:

Trial consultants, and the very best trial lawyers, practice with an awareness of the law, the domain of the case facts, and the way jurors are likely to understand and misunderstand all of it. If these avenues of thought had a single intersection, you would find that Jon Hanson has been living on that corner for 25 years. As a Harvard Law School professor and prolific writer, he has done much to keep me and many others informed of the traffic coming from these diverse directions. . . .

Read the entire review here.

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Posted in Book, Ideology, Law, Politics, Situationist Contributors | Tagged: , , , , | 3 Comments »

Implicit Bias Conference at HLS – More Details Soon

Posted by The Situationist Staff on May 24, 2012

Thursday, June 14, 2012, 9:00 AM
Austin Hall, Ames Courtroom, Harvard Law School
1515 Massachusetts Ave., Cambridge, MA<

Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This conference considers what emerging social science can contribute to the discussion of race in American law, policy, and society. The conference will explore how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, the conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law”, examines both the continued subordination of historically disadvantaged groups and the legal system’s complicity in the subordination.

The conference will bring together scholars, judges, practitioners, and community leaders to explore the issues surrounding implicit racial bias in law and policy. It will begin with a compelling overview of the social science. What does science teach us about automatic biases? And what do we still not know? Leaders in the areas of criminal justice, housing law and policy, education, and health care will then present overviews of the impact of implicit bias in their fields. Attendees will hear federal judges’ and leading scholars’ perspective on implicit bias claims in the courtroom and hear experts’ assessment of the future of implicit bias in the law. A lively afternoon session will include simultaneous break-out sessions and roundtable discussions of specific implicit bias related topics. Audience participation will be welcomed and encouraged. The conference will close with a discussion of setting a forward looking and collaborative implicit bias agenda.

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

The Situation of Gender in the Workplace

Posted by The Situationist Staff on May 18, 2012

From Harvard Business Review (part of an op-ed written by Lauren Stiller Rikleen):

The new millennium has not brought much progress for women seeking top leadership roles in the workplace. Although female graduates continue to pour out of colleges and professional schools, the percentages of women running large companies, or serving as managing partners of their law firms, or sitting on corporate boards have barely budged in the past decade.

Why has progress stalled? A recent study suggests the unlikeliest of reasons: the marriage structure of men in the workplace.

A group of researchers from several universities recently published a report on the attitudes and beliefs of employed men, which shows that those with wives who did not work outside the home or who worked part-time were more likely than those with wives who worked to: (1) have an unfavorable view about women in the workplace; (2)think workplaces run less smoothly with more women; (3) view workplaces with female leaders as less desirable; and (4) conside female candidates for promotion to be less qualified than comparable male colleagues.

The researchers also found that the men who exhibited resistance to women’s advancement were “more likely to populate the upper echelons of organizations and thus, occupy more powerful positions.”

Their conclusion? “Marriage structures play an important role in economic life beyond the four walls of the house.” They affect how people view gender roles and how they categorize others. And, as Harvard professor Mahzarin Banaji has documented in her work, using the Implicit Association Test, this can happen even unconsciously.

So even if a male boss explicitly states — and believes — he supports women in leadership, he might still exhibit contradictory behavior or remain oblivious to the obstacles that female colleagues face. Indeed, according to this HBR Research Report from the Center for Work-Life Policy, only 28% of men, compared with 49% of women, see gender bias as still prevalent in the workplace.

I saw this in my own research for Ending the Gauntlet: Removing Barriers to Women’s Success in the Law. Many of the women partners I interviewed described a lack of support and sponsorship from key men in their firms. Several talked to male colleagues who admitted that the success of married women as equity partners invalidated the choices they and their wives had made about how to divide the responsibilities of work and family.

These biases are understandable. It’s natural to seek validation for the choices, and particularly the sacrifices, you have made. But when this expresses itself in attitudes and actions that make it difficult for talented individuals whose choices have been different to advance, it is critical for workplace leaders to intervene.

More.

Related Situationist posts:

Posted in Distribution, Ideology, Implicit Associations, Law, Social Psychology | Tagged: , , , | 1 Comment »

Exciting New Book from Tamara Piety!

Posted by Adam Benforado on April 16, 2012

Situationist friend and Tulsa law professor Tamara Piety’s new book, Brandishing the First Amendment: Commercial Expression in America, has just hit book stores!

It looks to be an engaging read for all of us interested in how commercial entities have shaped and wielded First Amendment jurisprudence to increase profits and secure power.  And it is hard to think of a more important topic as we continue into this election year.

Here is a description:

Over the past two decades, corporations and other commercial entities have used strategic litigation to win more expansive First Amendment protections for commercial speech—from the regulation of advertising to the role corporate interests play in the political process, most recently debated in the Supreme Court case of Citizens United v. Federal Election Commission. Tamara R. Piety, a nationally known critic of commercial and corporate speech, argues that such an expansion of First Amendment speech rights imperils public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment.

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Beginning with an evaluation of commonly evoked philosophical justifications for freedom of expression, Piety determines that, while these are appropriate for the protection of an individual’s rights, they should not be applied too literally to commercial expression because the corporate person is not the moral equivalent of the human person. She then gathers evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies to show how overly permissive extensions of First Amendment protections to commercial expression limit governmental power to address some of the major social, economic, and environmental challenges of our time.

To purchase a copy, click here.

Congrats, Tamara!

Related Situationist posts:

Posted in Abstracts, Book, Law, Marketing | Comments Off

Implicit Bias in the Courtroom

Posted by The Situationist Staff on March 30, 2012

Situationist Contributor Jerry Kang and his numerous co-authors, Mark Bennett, Devon Carbado, Pamela Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony Greenwald, Justin Levinson, and Jennifer Mnookin, have just posted their important paper, “Implicit Bias in the Courtroom” (forthcoming UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN.  Here’s the abstract:

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Download paper for free.

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Justice for Trayvon

Posted by The Situationist Staff on March 26, 2012


For The Situationist, Sabreena El-Amin (Harvard Law School student and President of the Student Association for Law and Mind Sciences (SALMS)), has authored the following legal analysis of the Trayvon Martin shooting and situationist analysis of the “stand your ground” doctrine.  We are pleased to publish it and look forward to more contributions from Sabreena and other members of SALMS.

The Trayvon Martin incident is of particular importance to me: not only as a Black person, not only as a law student, not only as a mother, but as a big sister. My younger brother is currently attending school at Barry University in Miami, Florida. He, like myself, loves Arizona Ice Tea. We are also both big fans of Skittles, though we have a particular preference for the sour kind. Most importantly, we both wear hoodies. I am now more nervous than ever for my brother: a 19-year-old black man walking the streets of Miami with a camera. With laws like the “Stand your Ground” statute, vigilantes like Zimmerman are free to roam the streets in Florida, singling out young black men and killing them seemingly without repercussions.

My argument will focus on two main points: 1) Zimmerman should have been arrested as the prosecution will likely be able to meet their burden of proof that his action was not in accordance with the statute; and 2) the Stand Your Ground statute should be repealed because a) it encourages armed individuals to respond to situations violently and b) it sanctions the attack of Blacks.  I will begin the article by outlining the facts as I know them. I understand that there are several different fact patterns floating around and the story is being developed daily. My arguments will be based solely on the facts mapped out below. I will continue by discussing why the facts would support the prosecution’s case, if one were to be brought, focusing mainly on a piece by Governor Granholm of Michigan. I will then go on to discuss the “Stand Your Ground” statute based on two psychological studies that show the statute endorses more violence than is reasonably necessary.

Facts*

Trayvon Martin, a 17-year-old Black male, was walking to his father’s home in a gated community in Sanford, FL after returning from a 7-Eleven convenience store. En route, 28-year-old self-appointed Neighborhood Watchman, George Zimmerman, spotted Trayvon and telephoned police that there was a suspicious young black man walking around. Zimmerman informed the police that the young man looked like he was on drugs and appeared to be reaching for something in his waistband. Initially Zimmerman claimed that the young man was coming right at him, and then that Trayvon was getting away. Zimmerman complained that “they” always get away. Dispatcher informed Zimmerman that they did not need him to follow Trayvon and Zimmerman said okay. Several residents of the area called in shortly after Zimmerman’s call to report that they heard screaming. In some cases, callers reported a black male lying on the ground. Each caller also heard gun shots and heard the screaming stop. One caller reported that there was a man in a white shirt on top of someone lying on the ground.

Police collected Trayvon’s body, tested him for drugs, ran a background check, labeled him John Doe and placed him in the morgue where he would lie for over 24 hours before he was identified. Trayvon was unarmed and in fact only had a can of Arizona Ice Tea and a bag of Skittles. Zimmerman was questioned after the shooting, but never arrested. Zimmerman weighed 250 pounds and had a history of vigilantism.

Zimmerman claims that he shot Trayvon in self defense. Florida has a statute (Fla. Stat. § 776.013, also called the “Stand Your Ground” statute) which states (in relevant part):

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Zimmerman’s claims he was justified in his use of force based on this statute. It is not clear which clause Zimmerman’s defense is connected to.

Zimmerman has, since the incident, secured legal counsel. Zimmerman’s lawyer asserts that Zimmerman is not a racist and that he in fact mentors Blacks. His lawyer also stated that Zimmerman is currently in hiding, but has not fled the country. According to Zimmerman’s father, Zimmerman identifies as Hispanic.

Currently, Florida Governor Jed Bush does not believe Zimmerman’s actions are covered by the statute. There is a Department of Justice investigation in regards to the failure of the Sanford Police Department to arrest Zimmerman, President Obama has called for justice for Trayvon, and Sanford’s chief of police has stepped down. People across the country are expressing their distaste for the response to Trayvon’s murder and are, via protest, Facebook, articles, etc., calling for “Justice for Trayvon”.

Justice for Trayvon: Bringing Charges against Zimmerman

The “Stand Your Ground” statute essentially creates a presumption of self-defense in certain situations. Zimmerman has yet to be arrested because authorities do not believe there is enough evidence to rebut this presumption. I would like to focus this aspect of my piece on the following arguments: a) the facts of the case do not support a claim of self defense alleged pursuant to Fla. Stat. § 776.013(3) as Zimmerman appears to have been the attacker and not the victim, and b) the facts of the case do not support a claim of self defense pursuant to Fla. Stat. § 776.013(1) as Trayvon was unarmed and Zimmerman was likely acting unlawfully in his pursuit of Trayvon by misleading officials. Admittedly, only Zimmerman knows exactly what transpired during his altercation with Martin, and thus this argument may be moot after Zimmerman’s account becomes public.

Section 3 of the “Stand Your Ground” statute allows someone who is being attacked to respond with force and does not require them to first attempt to flee. Under a possible account of the facts, Zimmerman’s actions were self defense because he was attacked by Trayvon. Michigan Governor Jennifer M. Granholm wrote a piece on March 21, 2012 outlining several reasons why this account is unsupported by the facts as publicly known. In her piece Governor Granholm discusses five key pieces of evidence which refute Zimmerman’s claim:

  • 1.The call from Zimmerman to law enforcement, and the officers telling Martin not to pursue. Zimmerman whispers what many have described as a racial slur under his breath.
  • 2.There is a 911 call where you can hear a voice yelling for help and a firearm shot.
  • 3.Trayvon’s father identified his voice on that 911 call on Al Sharpton’s Politics Nation program on MSNBC.
  • 4.The account of the girlfriend, who says Trayvon told her by cellphone that he was being followed.
  • 5.Trayvon was not armed and weighed between 75-100 pounds less than Zimmerman.

The evidence that we know of — the public evidence — establishes that Zimmerman was the pursuer, and not the victim.

In addition to this evidence, a 9-11 caller reported a man in a white shirt on top of a man lying on the ground. Another caller reported a man lying on the ground screaming “Help” and hearing gun shots go off before he got the chance to go to the man for help. Trayvon’s parents have identified this voice as their sons on the tape. Zimmerman, however, claims that this is his voice, but in connection with the other evidence (e.g., that he was the heavier of the two and that Trayvon was unarmed), this will likely be refuted. Based on the facts as alleged, the situation seems to have been initiated by Zimmerman. Even if Trayvon fought back after being pursued, his actions were justified based on the same statute that Zimmerman is currently hiding under.

Section 1 of the “Stand Your Ground” statute creates a presumption of self defense if a person is doing something unlawful and the person using force knows or reasonably believes that an unlawful act is occurring or about to occur. There has been some discussion at my law school that if Zimmerman asserts that he witnessed Trayvon about to break into someone’s home then Zimmerman may likely have a claim. I think this is unlikely for two reasons. First, Trayvon was unarmed and, based on all available evidence, innocently walking home from the convenience store. In order for the presumption in section 1 to be triggered, the attacked must have been in the process of committing certain crimes. There has been no evidence advanced indicating that Trayvon was participating in any crime. In fact the evidence points to Trayvon being engaged in innocent activity. Second, section (2)(c) asserts that this presumption is unavailable if the attacker is engaged in an unlawful activity at the time of the attack. As the 911 tape shows, Zimmerman was told not to follow Trayvon and said “okay.” This act can be seen as misleading police officers, who were likely told by dispatch that Zimmerman would be waiting for them to arrive before doing anything further. This act is likely in violation of Fla. Stat. § 843.06, which makes the “neglect or refusal to aid peace officers” “in the preservation of the peace” unlawful. Zimmerman’s false compliance with the order may have delayed the response time of the dispatched officers and been the reason why the police were unable to respond to Zimmerman’s call in time to save Trayvon’s life. Arguably, Zimmerman’s actions show  neglect to assist a peace officer and thus could qualify as unlawful acts that will exclude Zimmerman from the protection of Fla. Stat. § 776.013(1).

Justice for Blacks in Florida: Repeal the Stand Your Ground Statute

I would like to start this section by clarifying two points. First, Florida is not the only state to have a version of the “Stand Your Ground” statute. According to the above-mentioned piece by Gov. Granholm, who describes the statute as “part of the American Legislative Exchange Council (ALEC)’s cluster of pro-NRA bills that shot through legislatures in the past few years”, Florida is only one of 17 states to have a statute of this kind. Secondly, studies suggest that it is very possible for Zimmerman to be a rational, tolerant, even intelligent, person and still to have reacted in the manner that he did. Many people have labeled Zimmerman a racist and even called him sadistic for his response to an innocent young boy. Sadly, while this may be true for Zimmerman, it does not have to be. Due to the freedom that this law opens up for people to act upon their fears, which may be based on their predisposition to certain opinions, I believe this law should be repealed immediately. Every minute that this law and laws like it remain on the books another Black person’s life is in jeopardy.

Guns Breed Violence

In a piece entitled “Holding a Gun Influences You to Think Others are Armed,” David DiSalvo discusses psychological research that suggests Zimmerman may have reasonably believed that Trayvon was armed. As the title of the piece indicates, James Brockholm’s study, which will be published in the upcoming edition of Journal of Experimental Psychology, supports the idea that the possession of a gun will influence your opinion of whether those around you are armed. Brockholm’s conclusion is that a person’s ability to act upon certain impulses can “bias their recognition of objects… in dramatic ways.” In the study, individuals holding toy guns were more likely to believe a person had a gun than those who were holding a ball and who simply had guns in the room, but not in their hand. The article describes this as the “blending of perception and action representations” which cause those holding guns to believe others are too.

The statute and others like it (e.g. Wisconson’s Castle Doctrine under which a homeowner recently shot and killed 20-year-old, unarmed Bo Morrison, without being charged) is meant to provide a means for people to protect themselves when actually threatened. Based on Brockholm’s research, the statute is actually allowing people to act upon perceived threat that is automatically enhanced by their ability to act against the threat. This research supports the idea that individuals with guns are likely to act frequently because they can act, and not because there is an actually threat. In Bo’s case, his hands were both in the air. In Trayvon’s case, he was walking with a cell phone, an Arizona Ice Tea, and Skittles. Neither youth was armed. Neither was attempting to harm anyone. But two lives are lost, and importantly, two men have taken a life because they were able to, not because they had to. These statutes encourage violence by giving gun holders the right and encouraging them to “meet force with force” when the force they perceive will always be equal to the force they are capable of exerting themselves. These types of laws should be repealed immediately in order to prevent more innocent people from losing their lives and others from taking lives.

People Focus on Blacks when on the Look-out for Criminal Activity

Recently, I took a photograph with some of my Black classmates at Harvard Law School. We wore hoodies and held signs asking “Do we look suspicious?” Unfortunately, research completed by Jennifer Eberhardt, Valerie Purdie, Phillip Goff, and Paul Daves in 2005 concludes that for many people the answer to that question is yes. “Seeing Black: Race, Crime, and Visual Processing” asserts that stereotypes are bidirectional. The article states:

the mere presence of a Black man…can trigger thoughts that he is violent and criminal. Simply thinking about a Black person renders these concepts more accessible and can lead to misremember the Black person as the one holding the razor. Merely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to mis-categorize harmless objects as weapons, or to shoot quickly . . . .

The studies show that not only does thinking about Blacks make people think of crime, but thinking about crime makes people think of Blacks. These studies were intentionally done with both civilians and police officers. The officers were as susceptible to this association. Importantly, the study showed that when one is told to look out for crime, their visual attention focuses on Black faces. They may thus unconsciously avoid criminal activity of non-Black actors. For instance, when experimenters asked police officers “Who looks criminal?,” the officers choose Black faces more often than White faces. The study makes it clear that racial animus is not required. The association is automatic and is even sparked in Blacks and others minorities.

Based on this research, Zimmerman may have associated Trayvon with criminality without having any negative opinions of Blacks. As a neighborhood watchman put on guard to look out for crime, he was likely looking for Blacks. Zimmerman was attempting to crack down on several robberies that had occurred in his neighborhood, and the possibility of criminal activity was salient in his mind, when Trayvon walked innocently by. Zimmerman may have reasonably believed that Trayvon was about to engage in unlawful behavior, but this belief was based on stereotypes and not supported by what was actually occurring. Section 1 of the statute protects people who seek out criminals and prevent their crimes from being completed. As people often unconsciously associate African Americans with crime, they may seek out African Americans engaging in ambiguous behavior percieve it as criminal. Acting upon this perception, they may attack (as Zimmerman did), under the protective shield of the Stand Your Ground Statute, leading to the harm of either themselves or innocent individuals. Based on this research it is clear that the first section of the statute puts a target on Blacks.

Implications

The implications of the research that I have outlined in this section are that people who carry guns and seek out criminal activity will be searching for Blacks and will automatically associate ambiguous behavior with criminal activity. Laws like the “Stand Your Ground” statute give these individuals the right to act upon their perception and harm these Black people regardless of what they are doing. This means that Blacks in such situations will likely have no control over being shot or attacked. Even worse it means that individuals will be searching for Blacks and may unconsciously overlook true criminal activity in an attempt to find images that support their perception. We should not provide support for individuals to act upon irrational conclusions that are not supported by the circumstances. This does not mean that there should be no protection of individuals who respond reasonably to imminent danger, but we should require their perception to be supported by fact and not stereotype and thus require them to be able to connect their fear to something more than the person’s race. We should deem this on a case by case and remove the blanket approval of such behavior. People should be instructed to call police when observing unlawful behavior or to attempt to retreat when in fear of being attacked. Thus the statute should be repealed and self-defense should return to being a defense of murder, and not a presumption of innocence that must be rebutted.

Conclusion

What happened to Trayvon Martin is an all too familiar story to many Blacks. We are profiled regularly based on stereotypes that we have no control over. As many of us mourn Trayvon’s death and remember many of our other brothers and sisters who have fallen victim to racial stereotyping, there is a concurrent legal movement attempting to shed some hope on the issue by bringing charges against Zimmerman. This movement should also focus on repealing the Florida statute. Once these actions are taken, we will be one step closer to Justice for Trayvon.

*I would like to thank Anisha Queen, David Korn, James Smith, and Professor Jon Hanson for their assistance and inspiration with this piece.

** The facts have been compiled from the following articles:

Related Situationist posts:

Image from Flickr.

Posted in Implicit Associations, Law, SALMS, Social Psychology | Tagged: , , , , , | 1 Comment »

New Research on the Dangers of Private Law Enforcement

Posted by Adam Benforado on March 22, 2012

In my last post on the Trayvon Martin shooting, I suggested that the dispositionist narratives being offered by many in the media might be missing the real story of why this tragedy happened.  Indeed, it might come down to “a toxic combination of negative stereotypes (linking blacks and crime) and a culture increasingly encouraging private law enforcement.”  (The focus of this law review article.)

This suggests that the debate taking place over the case perhaps ought to be shifted to the implicit biases of private citizens engaged in “policing” activities.  To this end, I thought it was worth introducing some fascinating new research by Jessica Witt and James Brockmole to be published in the upcoming issue of the Journal of Experimental Psychology: Human Perception and Performance.  According to a Notre Dame press release focused on the paper,

Wielding a gun increases a person’s bias to see guns in the hands of others, new research from the University of Notre Dame shows.

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. . . .

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In five experiments, subjects were shown multiple images of people on a computer screen and determined whether the person was holding a gun or a neutral object such as a soda can or cell phone. Subjects did this while holding either a toy gun or a neutral object such as a foam ball.

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The researchers varied the situation in each experiment — such as having the people in the images sometimes wear ski masks, changing the race of the person in the image or changing the reaction subjects were to have when they perceived the person in the image to hold a gun. Regardless of the situation the observers found themselves in, the study showed that responding with a gun biased observers to report “gun present” more than did responding with a ball. Thus, by virtue of affording the subject the opportunity to use a gun, he or she was more likely to classify objects in a scene as a gun and, as a result, to engage in threat-induced behavior, such as raising a firearm to shoot.

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“Beliefs, expectations and emotions can all influence an observer’s ability to detect and to categorize objects as guns,” Brockmole says. “Now we know that a person’s ability to act in certain ways can bias their recognition of objects as well, and in dramatic ways. It seems that people have a hard time separating their thoughts about what they perceive and their thoughts about how they can or should act.”

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The researchers showed that the ability to act is a key factor in the effects by showing that simply letting observers see a nearby gun did not influence their behavior; holding and using the gun was important.

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“One reason we supposed that wielding a firearm might influence object categorization stems from previous research in this area, which argues that people perceive the spatial properties of their surrounding environment in terms of their ability to perform an intended action,” Brockmole says.

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For example, other research has shown that people with broader shoulders tend to perceive doorways to be narrower, and softball players with higher batting averages perceive the ball to be bigger. The blending of perception and action representations could explain, in part, why people holding a gun would tend to assume others are, too.

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. . . .

All of this raises the possibility that the tragic shootings of unarmed men like Trayvon might reflect the mistaken determination by the shooters that the victim posed a lethal threat caused, in part, by the simple act of the shooter carrying a gun.

Posted in Abstracts, Embodied Cognition, Implicit Associations, Law, Social Psychology | Tagged: , , | Leave a Comment »

Howard Gardner Speaks at Harvard Law School on Wednesday

Posted by The Situationist Staff on March 19, 2012

Posted in Education, Emotions, Law, Positive Psychology | Tagged: , | Leave a Comment »

 
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