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Archive for the ‘Law’ Category

What Effect Does Gender Have on Judging?

Posted by The Situationist Staff on March 19, 2012

Professor Pat K. Chew recently posted her article, “Judges’ Gender and Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions” (Journal of Gender, Race and Justice, Vol. 14, pp. 359-374, 2011) on SSRN.

Here are several paragraphs from the article’s introduction:

This Article furthers our understanding of the substantive value of women judges by analyzing a subset of the research on this topic. It offers a macro-level review of the empirical research done on judges’ gender in U.S. federal courts and how a judge’s gender affects the outcomes in employment discrimination cases, a research area that has attracted considerable empirical analysis. Employment discrimination is also a major subject area of litigation in the federal courts, highlighting its importance and also providing ample databases of cases to study. Thus, this comparatively rich source of research makes it possible to draw conclusions with a clarity that would not be possible if we were comparing judicial decision making in diverse court venues or legal subjects.

To lay the groundwork for the macro review, this Article briefly identifies factors to consider when studying empirical research. A macro review of the empirical research on the relationship between judges’ gender and the outcome in employment discrimination cases follows. This macro review is based on fourteen research studies, a surprisingly large number given the relatively short period in which researchers have actively engaged in this particular inquiry. This macro review focuses on illustrative studies on (1) sex-based discrimination cases, (2) employment discrimination cases more generally, and (3) non-gender-specific employment discrimination cases such as race-based discrimination cases.

This Article provides a status report on the reasonably clear conclusions that can be drawn from current empirical evidence in this area. To the extent that there is a difference between the way female judges and male judges resolve legal cases, the frequent hypothesis is that those differences would most likely appear in employment discrimination, particularly sex discrimination, cases. This macro review largely supports that hypothesis. Thus, it concludes that increasing gender diversity on the bench makes a substantive difference in how these kinds of cases are resolved. As the subject of the cases moves away from sex discrimination, however, the review of research indicates that the relationship of the judges’ gender to case outcomes is less predictable.

Download the article for free here.

Related Situationist posts:

Image from Flickr.

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Jon Hanson on Law and Mind Sciences

Posted by The Situationist Staff on March 15, 2012

Harvard Law School just published an interview with Jon Hanson.  We’ve posted it in full below.

Director of the Project on Law and Mind Sciences at Harvard Law School (PLMS), Professor Jon Hanson has long combined social psychology, economics, history, and law in his scholarship. After PLMS hosted several conferences featuring leading mind scientists and legal scholars, Hanson collected the work of many of the contributors in a book he edited, “Ideology, Psychology, and Law” (Oxford University Press). [Introductory chapter available, here].

In the following Q&A, he speaks about the new book, the connection between law and mind sciences, and his own work in a field that has grown rapidly over the past 20 years.

What sparked your interest in the study of mind sciences and the law?

My interest has evolved through several stages. Although I studied economics in college, I did so with special interest in health care policy, where the life-and-death decisions have little in common with the consumption choices imagined in neoclassical economics. Purchasing an appendectomy through insurance has little in common with buying a fruit at the market.

After college, I spent a year studying the provision of neonatal intensive care in Britain’s National Health Service, attending weekly rounds with neonatologists at London hospitals, meeting with pediatricians in rural English hospitals, interviewing nurses who were providing daily care for the infants, some of whom were not viable, and speaking with parents about the profound challenges they were confronting. Those experiences strengthened my doubts regarding the real-world relevance of basic economic models for certain types of decisions.

In law school, I studied law and economics, but tended to focus on informational problems and externalities that had been given short shrift by some legal economists at the time. After attending a talk by, and then meeting with, the late Amos Tversky, I became an early fan of the nascent behavioral economics movement.

It wasn’t, however, until I spent a couple of years immersed in cigarette-industry documents in the early and mid 1990s that I felt the need to make a clean break from the law’s implied psychological models and to turn the mind sciences for a more realistic alternative.

What was it about the cigarette documents that had that effect?

Well, they made clear that the tobacco industry articulated two views of their consumers – an inaccurate public portrayal, and a more accurate private view.

The first, which the industry conveyed to their consumers and to lawmakers, was of smokers who are independent, rational, and deliberate. Smokers smoke cigarettes because they choose to, because smoking makes them happier, even considering the risks. The industry thus gave consumers a flattering view of themselves as autonomous, liberated actors while assuring would-be regulators that there was no need to be concerned about the harmful consequences of smoking. Smokers were, after all, just getting what they wanted.

The second view of the consumer, which was evident in the industry’s internal documents, was of consumers as irrational, malleable, and manipulable. The industry’s confidential marketing strategy documents, for instance, made clear that the manufacturers theorized and experimented to discover how to target, persuade, lure, and chemically hook young consumers to take up and maintain the smoking habit. That internal understanding of consumers had nothing in common with the industry’s external portrayals.

I came to the realization that, unfortunately, the latter view of the human animal is far more accurate and, furthermore, that failure to understand the actual forces behind human behavior may be contributing to injustice.

How did that realization influence your research?

In the late 1990s, I put my writing down and devoted a couple of years to learning what I could about the mind sciences – social psychology, social cognition, cognitive neuroscience, and the like. Those fields, coincidentally, were blossoming with new theories, new methodologies, and new findings and insights, most of which created challenges to the fundamental assumptions in law and legal theory.

What were some of those insights?

To keep things simple, I’ll boil them down to two big ones.

First, mind scientists had learned that most people in western cultures operate with a naïve and commonsensical model of human psychology that presumes that an individual’s actions reflect a stable personality or disposition and little else. From that perspective, people are presumed to be in control of, and responsible for, their behavior and its consequences.

By the way, that’s the same model of human behavior that is employed in law and conventional legal theory. And it’s the same model that the tobacco industry actively promoted.

The second big insight was that that model of human behavior is fundamentally wrong. People are moved less by a stable disposition and more by internal and external forces that generally go unnoticed in our causal stories. The errors go beyond our causal assessments of other people’s behavior; we confuse and deceive even ourselves, believing our own reasons, when social science reveals those reasons often turn out to be mere confabulations.

What does that mean for the law?

Exactly. That’s the big question. My briefest answer is: a lot. The book is one place where the contributors and I begin to sketch some of the answers.

Given the large gap between what the law assumes and what the mind sciences have shown to be true, my initial goal has been to understand the breadth and contours of that gap and to develop a better understanding of the psychological and contextual forces behind human behavior. I have resisted the strong urge to focus on only those psychological tendencies that can lead to straightforward but narrow implications for law.

Having said that, abandoning the familiar, if wrong, conception of human behavior is daunting and unsettling; it calls for establishing new knowledge structures and being open to some humbling truths about ourselves and some uncomfortable truths about our justice system.

I expect that several generations of lawmakers, legal academics, and lawyers will be grappling with the implications of what mind scientists are discovering about human behavior. Indeed, they will have to do so, if we are ever going to find meaningful solutions to many of our thorniest policy challenges.

Is this entirely new terrain?

I shouldn’t give the impression that I am alone in the wilderness. The approach I’ve taken has its origins in the legal realism movement, and there is actually significant overlap with parts of more recent legal theoretic schools of thought, from law and economics to critical legal studies.

Furthermore, there are other scholars around the country exploring this terrain, and I have been extraordinarily lucky to work with a number of remarkable students over the years, including Melissa Hart, Doug Kysar, David Yosifon, Adam Benforado, Michael McCann, and Mark Yeboah.  Most of those students have gone on to make their own path-breaking contributions to law and mind sciences.

Can you say more about how the field has evolved and your involvement in it over the last 20 years?

Well, 20 years ago, only a small but important corner of psychology known as “decision theory” or “behavioral economics” was getting much attention among legal theorists. Roughly, the research and evidence in that field disputed the “rationality” assumption of the “rational actor” model. I co-authored several articles arguing that those insights suggested that market actors could, would, and do manipulate the risk perceptions of consumers.

A decade ago, I co-wrote a pair of law-review articles (“The Situation” and “The Situational Character”) introducing some of the broader insights of mind sciences and speculating on some of their implications for law. The articles were among the first of their kind, and contested even the “actor” portion of the “rational actor” model. At the time, many readers from legal academia found the research we reviewed to be foreign and hard to fathom.

Five years ago, I began the Project on Law and Mind Sciences. With then-Dean Kagan’s support, some technical know-how from Michael McCann, and the aid of many outstanding students, I set up a website and blog and began holding annual conferences intended to help bridge the gap between the law and the mind sciences. In the meantime, numerous books have popularized the mind sciences, and several new law school programs and projects have been established around the country reflecting and reinforcing this burgeoning interdisciplinary approach.

As of today, the mind sciences are, well, hot. There is now almost too much scholarship for me to keep up with, judges are beginning to cite such research in their opinions, and student groups are springing up in law schools, including the vibrant Student Association for Law and Mind Sciences (or “SALMS”) at Harvard Law School. Every year, I hear from more 1Ls who tell me they chose Harvard Law School because of the exciting work that we’ve been doing.

Are other members of the HLS faculty now employing mind sciences in their work?

Absolutely. Alan Stone has been writing and teaching about the law and psychiatry since the 1960s.  Cass Sunstein and Christine Jolls, when here, were prominent leaders of the economic behavioralism movement. Several other members of the faculty employ mind sciences in elements of their scholarship and teaching. Lani Guinier, Bob Bordone, Martha Minow, Duncan Kennedy, Charles Ogletree, Bob Mnookin, Larry Lessig, Diana Feldman, Bruce Hay, Yochai Benkler, Glenn Cohen, and David Cope come to mind, and I’m surely forgetting some. Among our visitors this year, Dan Kahan and Martha Chamallas are prominent leaders in this interdisciplinary approach.

Many of us are interacting more often and more collaboratively with mind scientists in other departments of this University and beyond, and I would be surprised if we didn’t add a social psychologist to our faculty in the next decade, as other law schools have.

Your book has more than 20 contributors representing different disciplines. Does their work share a common theme?

First, let me emphasize that the book reflects the work of many students and my assistant, Carol Igoe, who helped organize the conferences on which much of the book is based and who helped in the initial editing stages as part of a seminar that I taught.

To your question, I need to be quite abstract to locate one common theme. If there is a single thread running throughout the book, it is that “how we think” affects “what we think” about law. Many of the contributors – social psychologists, political scientists, legal scholars among them – also consider the effects of “what we want to believe” on “how we think.”

More concretely, some authors examine the implications of the dispositionist conception of the person for the law. Others scrutinize and challenge the ideological premises of prominent legal goals, including utilitarianism and instrumentalism. Some consider the harmful effects of the “free market” ideology. Others look at the implicit motives underlying political ideologies – that is, left and right – while a few summarize evidence regarding the effects of political ideology on judicial decision-making. That’s a sample.

You write that the legal system is built on a dubious ideological framework. How so?

There are several ways in which that is true. Construing “ideology” broadly to refer to shared understandings of human behavior, I’ll answer by echoing what I’ve already highlighted. The legal system presumes that a person’s behavior is the manifestation of little more than a stable set of preferences, combined with a given supply of information, activated by the person’s will. Such perceived truths about what makes people behave as they do shape beliefs about why some groups are advantaged or disadvantaged or about how well certain systems or institutions operate. Unfortunately, those shared understandings are often incorrect.

How do ideology and psychology influence judicial decision making?

That’s another great question, which calls for a bigger answer than I can muster here. What I can say is that there seems to be little disagreement among observers of the legal system that judicial decision making is influenced by ideology. Although some point to Roe v. Wade while others point to Citizens United as their exemplar, the disagreement is over when and how judges are swayed by ideology.

Social psychology and social cognition help us see that there is no escaping the influence of ideology, any more than a person can speak without an accent.  Although we tend to hear the accents and perceive the ideologies of those who don’t share our own, we all have both.  So ideology is inescapable; pretending that we operate outside of ideology probably makes us more, not less, subject to its biasing influence.

More important, mind scientists have discovered some of the implicit motives and situational factors that push us toward one ideology or another, including political ideologies or legal-theoretic ideologies.

Will an awareness of mind sciences help an attorney in practicing the law?

I hope so.

Having an awareness of the power and effects of psychology and ideology on the law, a lawyer can better predict the outcomes of cases and more ably persuade jurors or judges to see a case their way.

An imperfect analogy is to a doctor who understands the underlying causes of a disease and not simply its symptoms. A lawyer who understands what is moving the law is like the doctor who understands the disease and its processes. Such a lawyer can be effective in taking on the tough, novel cases on the frontiers of the law.

Understanding the remarkable insights being generated by mind scientists similarly can help lawyers to understand and work with their clients or even to recognize and articulate injustices that might otherwise be missed.

My own teaching reflects my strong belief that law students will make better lawyers if they learn some psychology. At the very least, they will learn something about themselves.

A sample of related Situationist posts:

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Nancy Gertner on the Situation of Feminism

Posted by The Situationist Staff on March 3, 2012

From Harvard Gazette:

Nancy Gertner is a former federal judge, the author of a recent memoir (“In Defense of Women”), a professor of practice at Harvard Law School, and an authority on sentencing, jury system discrimination, forensic evidence, and other legal areas.

But go back to June 1971, the month she had a loud argument with her mother in their kitchen in Flushing, Queens, N.Y. Gertner was about to graduate from Yale Law School and assume a prestigious clerkship in Chicago. But her mother wanted her to take the test to be a Triborough Bridge toll taker — just in case.

For a young woman lawyer at the time, “just in case” wasn’t a bad idea. The law was a man’s world. But just a decade later, the culture seemed to swing toward what feminists worked for: parity. By the late 1980s, first-rate law firms were hiring men and women in equal numbers. “We thought the numbers would do everything,” Gertner said during a lunchtime talk on Feb. 23 that was sponsored by the Women and Public Policy Program at the Harvard Kennedy School. (Weekly talks there are part of the program’s mission to create gender equality.)

But faith in the raw numbers turned out to be “dramatically wrong,” said Gertner. “Advancement has stalled.” Half of all new lawyers are women, she said, but only 16 percent of equity partners in law firms are female. And of lawyers who leave the profession, most are women — and most do it because of family and social concerns.

Gertner used the lens of the legal profession to speculate why, after earlier rapid advances, feminism’s cultural agenda seems to have stalled. (Universities, she said, are in an analogous position, with plenty of women graduating as Ph.D.s, but few getting to the top of the academic game.)

During her years on the bench from 1994 to 2011, Gertner got used to being trotted out at events as an example of progress. “You’re supposed to say: ‘Things are fabulous,’ ” she told her audience at the Taubman Building’s Cason Seminar Room. But they are not. The women’s movement was not just about having more choices, she said, but about “revolutionary” changes in the workplace and at home that have not happened yet.

In today’s “imperfectly transformed world,” said Gertner, it is social expectations and an “unfriendly workforce” that mean a woman — if anyone — usually will stay home with the children. (She called this reality “the maternal wall.”)

Gertner cited one study that showed 30 percent of women leaving the law, including 15 percent of equity partners, those with a financial stake in a firm. Another study, she said, showed that 34 percent of female law graduates have worked part time, compared with only 9 percent of their male counterparts.

So without a corresponding transformation of family responsibilities, feminism is likely to stay stalled, she said. “We’ve hit a wall.”

It’s not a situation that discrimination lawsuits can correct, said Gertner, because so many women are “leaning out” of their professions — that is, anticipating future pressures and so choosing career paths that enable them to leave the workplace more readily. (She gave as an example the woman who chooses a small family-practice firm over a larger one that presents more challenges and opportunities.) “If women are leaning out” of their own volition, said Gertner, “then their failure to advance can’t be the subject of a lawsuit.”

Besides, she added, overt gender discrimination in the workplace has gone the way of discos and bell-bottoms, “a world that no longer exists.” What is left, said Gertner, is “implicit bias,” which has the same stalling effect on feminism as the maternal wall.

There is also an issue with executing the law itself — a denial of the power of context. The gender discrimination lawsuits that do make it to court are weakened by a tendency to “slice and dice” the circumstances of alleged discrimination, said Gertner. “You don’t look at them as a course of conduct,” but as separate events. “Discrimination in the real world does not fit into the legal models we have.”

One way to counteract this tendency in the law is to have judges on the bench who are aware of the way the world works. “I had an appreciation of context,” said Gertner of her time as a judge. “I never saw the law as legal rules on the page.” (That appreciation, in part, was biographical. Her judicial tenure was influenced by her early childhood in a tenement on Manhattan’s lower East Side, by championing unpopular clients as a young lawyer, and by becoming a mother at age 39.)

In the absence of overt gender discrimination, it is hard to get legal redress, said Gertner. For young women in the workplace today, “it’s the opacity of discrimination” that makes advancement difficult, she said, instead of the stark realities of discrimination in the 1970s. Gertner said, “It was easier for me.”

With feminism stalled by social pressures at home and the workplace, she offered a radical idea. “The government needs to step up to the plate,” Gertner said, beginning by providing incentives for day care that would make it easier for women to combine career and work.

After all, there is a “business case” to be made for gender equality in law firms and workplaces, “beyond the obvious need to tap a rich vein of talent,” said Gertner. In a diverse world, workplace diversity adds to “the texture and the richness of the dialogue,” she said.

In the end, feminism’s mission of workplace parity has been stalled by the three factors of the maternal wall, implicit bias, and the opacity of discrimination, Gertner said.

She said advocates have a list of things to do: parse workplace discrimination by collecting the right data; engage in collective action; and challenge the government to underwrite day care and other engines of cultural change.

But all this is not enough. “The most important thing is: We have to be unsatisfied,” Gertner told her largely female, professional audience. “We have to not believe that this was the accomplishment of the women’s movement — that I’m here and that you’re here is somehow all we can achieve.”

Reltated Situationist posts:

Image by Jon Chase/Harvard Staff Photographer.

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Ideology, Psychology, and Law – Introduction

Posted by The Situationist Staff on February 29, 2012

On SSRN, you can now download the introductory chapter of Ideology, Psychology, and Law (published in 2012 by Oxford University Press and containing chapters from numerous Situationist Contributors and edited by Situationist Editor Jon Hanson).

Here’s a quick description.

Formally, the law is based solely on reasoned analysis, devoid of ideological biases or unconscious influences. Judges claim to act as umpires applying the rules, not making them. They frame their decisions as straightforward applications of an established set of legal doctrines, principles, and mandates to a given set of facts. As most legal scholars understand, however, the impression that the legal system projects is largely an illusion. As far back as 1881, Oliver Wendell Holmes, Jr. made a similar claim, writing that “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

More than a century later, we are now much closer to understanding the mechanisms responsible for the gap between the formal face of the law and the actual forces shaping it. Over the last decade or so, political scientists and legal academics have begun studying the linkages between ideologies, on one hand, and legal principles and policy outcomes on the other. During that same period, mind scientists have turned to understanding the psychological sources of ideology. This book is the first to bring many of the world’s experts on those topics together to examine the sometimes unsettling interactions between psychology, ideology, and law, and to better understand what, beyond and beneath the logic, animates the law.

This introductory chapter describes why this volume came together when it did and provides an overview of the general sections and the individual chapters and comments in the book. It begins with a brief, loose, and highly stylized history of the relationships between ideology, psychology, and law—a history premised on the oversimplifying assertion that something changed around the year 2000.

Download the chapter for free here.

Learn more about the book here.

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20% off for Situationist Readers

Posted by The Situationist Staff on January 31, 2012

Ideology, Psychology, and Law (the Situationist book edited by Jon Hanson and published by Oxford University Press) is now available.  Use the promotional code (30552) from the following flyer to save 20%.  Click here (or on the image below) to go to the book’s website for more information.

Posted in Book, Ideology, Law, Social Psychology | Tagged: | 3 Comments »

If Guns Don’t Kill People, Sometimes Gun-Saturated Situations Do

Posted by The Situationist Staff on January 20, 2012

Matty McFeely, former President of SALMS and current 3L, just had a situationist-inspired letter to the editor published in The New YorkerThe article to which he was responding (by Rachel Aviv’s “No Remorse,” January 2, 2012) was about a 15-year-old sentenced to life without parole for shooting his grandfather.  Before the murder, the boy’s girlfriend had just dumped him and a number of other things weren’t going his way, and the article asked whether putting a minor away for life was appropriate. Matty’s letter read as follows:

Aviv’s article forces us to rethink the justice system’s treatment of young adults, but it should also be a call for stricter gun control. It was too simple for Eliason to take “his grandfather’s loaded gun off the coatrack” and then shoot his grandfather. Eliason’s grim tale shows what surveys have already told us: the availability of guns is linked to higher rates of both suicide and homicide. A teen-ager’s rather routine funk became a senseless tragedy because a lethal device was at hand. A person’s situation has a lot of power over his or her behavior; we would be wise to recognize that fact and shape our situations accordingly.

Related Situationist posts:

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Ideology, Psychology, and Law – Available Now!

Posted by The Situationist Staff on January 12, 2012

Edited by Situationist Editor Jon Hanson, Ideology, Psychology, and Law examines the sometimes unsettling interactions between psychology, ideology, and law and elucidates the forces, beyond and beneath the logic, that animate the law.

Here is some of the glowing praise for the volume from, among others, several Situationist Contributors:

“Ideology, Psychology, and Law is a revolution in the making. Encyclopedic in its breadth, this volume captures a moment – like the early heady days of the law and economics movement – when bold, new inquiries are suddenly possible.  For those who still cling to the centrality of preferences and incentives, thisbook will be usefully threatening.”

~ Ian Ayres, William K. Townsend Professor, Yale Law School, and author of Carrots and Sticks: Unlock the Power of Incentives to Get Things Done

“This volume is the first of its kind, employing the latest mind science research to illuminate the motivated and unconscious inspirations for ideology, law, and policy. The superbly edited and timely volume is a highly accessible, interdisciplinary collection, bringing together the perspectives and insights of many of the world’s most thoughtful and influential social psychologists, political scientists, and legal scholars. It is essential reading for anyone who wants to better understand the psychological winds buffeting our institutions of collective governance.”

~ Philip G. Zimbardo, Professor Emeritus of Psychology, Stanford University

“With this collection, Jon Hanson and the contributors to this volume have gone a long way towards breaking the iron grip that Law and Economics have held on serious legal policy analysis. By incorporating insights from psychology and other behavioral and mind sciences, this volume maps animportant and inspiring interdisciplinarity that will guide path breaking work in the future.”

~ Gerald Torres and Lani Guinier, co-authors of The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy

“This volume shows what ideology is and does. The chapters written by psychologists demonstrate that there is little about the mind’s work that can be called ‘neutral.’ The legal scholars who contribute to this volume push forward to ask how the law must itself bend toward justice, if such is the case. This compendium contains facts and ideas that, if heeded, may bring the law closer to the aspiration that everybody be equal before the law.”

~ Mahzarin R. Banaji, Cabot Professor of Social Ethics, Department of Psychology, Harvard University

“Insightful, comprehensive, boundary-spanning. Hanson pulls together research and ideas from multiple disciplines to create a new way of looking at the most important legal questions of our time.”

~ Sheena S. Iyengar, S.T. Lee Professor of Business, Columbia Business School and author of The Art of Choosing

Purchase information here.

Posted in Book, Ideology, Law, Legal Theory, Morality, Situationist Contributors, Social Psychology | Tagged: , , , , | 2 Comments »

The Deep Capture of Financial Institutions

Posted by The Situationist Staff on December 31, 2011

Lawrence G. Baxter, at Duke Law School, recently wrote an excellent situationist article, titled “Capture in Financial Regulation: Can We Redirect It Toward the Common Good?” (forthcoming in 21 Cornell Journal of Law & Public Policy).  Here’s the abstract.

* * *

“Regulatory capture” is central to regulatory analysis yet is a troublesome concept. It is difficult to prove and sometimes seems refuted by outcomes unfavorable to powerful interests. Nevertheless, the process of bank regulation and supervision fosters a closeness between regulator and regulated that would seem to be conducive to “capture” or at least to fostering undue sympathy by regulators for the companies they oversee. The influence of very large financial institutions has also become so great that financial regulation appears to have become excessively distorted in favor of these entities and to the detriment of many other legitimate interests, including those of taxpayers, smaller financial institutions, and the promotion of general economic growth. So “deep capture” by the larger elements of the financial industry of the regulatory process might well have become a very significant problem. At the same time, it is unrealistic to assume that participants in the policy making and policy implementation process will not be trying to exert influence on the outcome of any regulation that impacts them. Attempts to maximize influence are surely an inevitable element of the ongoing regulatory process. And it is unrealistic to try to avoid extensive industry input altogether. Regulators and regulations depend on frequent and sometimes intense interaction with various sectors of the industry. To promote sound regulatory policy, we should renew efforts to shape the environmental conditions in which the competition for regulatory outcomes takes place, so that policy more favorable to the general public interest becomes more likely. This involves a combination of measures, many of which are quite traditional but some of which are too often neglected. Such measures might include: strengthening “tripartism,” advocated by Ayres and Braithwaite, by facilitating broader interest group participation in the regulatory process; limiting the influence of dominant participants by reducing their scale; properly structuring, resourcing and supporting regulatory agencies and regulators; “rotating” regulators so that they are less likely to develop unduly empathic relationships with the institutions they regulate; tightening the rules governing the “revolving door;” and making greater use of independent consultative and review bodies.

* * *

Download the paper here.

Related Situationist posts:

You can review hundreds of Situationist posts related to the topic of “deep capture” here

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Can The Law Go Upstream?

Posted by The Situationist Staff on December 22, 2011

Roger Magnusson, Lawrence O. Gostin, and David  Studdert recently posted their paper, “Can Law Improve Prevention and Treatment of Cancer?” on SSRN:

The December 2011 issue of Public Health (the Journal of the Royal Society for Public Health) contains a symposium entitled: Legislate, Regulate, Litigate? Legal approaches to the prevention and treatment of cancer. This symposium explores the possibilities for using law and regulation – both internationally and at the national level – as the policy instrument for preventing and improving the treatment of cancer and other leading non-communicable diseases (NCDs). In this editorial, we argue that there is an urgent need for more legal scholarship on cancer and other leading NCDs, as well as greater dialogue between lawyers, public health practitioners and policy-makers about priorities for law reform, and feasible legal strategies for reducing the prevalence of leading risk factors. The editorial discusses two important challenges that frequently stand in the way of a more effective use of law in this area. The first is the tendency to dismiss risk factors for NCDs as purely a matter of individual ‘personal responsibility’; the second is the fact that effective regulatory responses to risks for cancer and NCDs will in many cases provoke conflict with the tobacco, alcohol and food industries. After briefly identifying some of the strategies that law can deploy in the prevention of NCDs, we briefly introduce each of the ten papers that make up the symposium.

You can download the paper for free here.

Related Situationist posts:

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The Risky Situation of In-House Lawyers

Posted by The Situationist Staff on December 19, 2011

Donald Langevoort recently posted his worthwhile paper, “Getting (Too) Comfortable: In-House Lawyers, Enterprise Risk and the Financial Crisis” on SSRN.  Here’s the abstract.

In-house lawyers are under considerable pressure to “get comfortable” with the legality and legitimacy of client goals. This paper explores the psychological forces at work when inside lawyers confront such pressure by reference to the recent financial crisis, looking at problems arising from informational ambiguity, imperceptible change, and motivated inference. It also considers the pathways to power in-house, i.e., what kinds of cognitive styles are best suited to rise in highly competitive organizations such as financial services firms. The paper concludes with a research agenda for better understanding in-house lawyers, including exploration of the extent to which the diffusion of language and norms has reversed direction in recent years: that outside lawyers are taking cognitive and behavioral cues from the insiders, rather than establishing the standards and vocabulary for in-house lawyers.

Download the paper for free here.

Related Situationist posts:

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Situation, McDonalds, & Tort Law

Posted by The Situationist Staff on December 15, 2011

Professor Caroline Forell has written a wonderfully thoughtful, situationist article, titled “McTorts: The Social and Legal Impact of McDonald’s Role in Tort Suits (forthcoming in Volume 24 of the Loyola Consumer Law Review) on SSRN.  Here’s the abstract.

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McDonald’s is everywhere. With more than 32,000 restaurants around the world, its Golden Arches and “Mc” conjure up both the good and the bad about American capitalism.

This article looks at McDonald’s, impact on public policy, and tort law from historical and social psychology perspectives, following McDonald’s from its beginnings in the mid-1950’s through today. By examining McDonald’s Corp. v. Steel and Morris (McLibel), Liebeck v. McDonald’s Restaurants (Hot Coffee), and Pelman v. McDonald’s Corp. (Childhood Obesity), I demonstrate that certain tort cases involving McDonald’s have had particularly important social and legal consequences that I attribute to McDonald’s special influence over the human psyche, beginning in childhood. In explaining McDonald’s extraordinary power over the public imagination and how this affects lawsuits involving it, I rely on the social psychology approach called situationism that recognizes the strong effect that environmental influences can have on individual decision-making. I conclude that lawsuits involving McDonald’s have had and will continue to have important social and legal consequences because of the unique role this corporation plays in our lives.

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Download the paper for free here.

Related Situationist posts:

Professor Forell relies on an article by Situationist Contributors, Adam Benforado, Jon Hanson, and David Yosifon, entitled “Broken Scales: Obesity and Justice in America,” which you can access here.

Review tens of Situationist posts on the topic of diet and obesity by clicking here.

Posted in Abstracts, Food and Drug Law, Law, Legal Theory, Social Psychology | Tagged: , , , | 1 Comment »

Illusion of Judicial Objectivity

Posted by The Situationist Staff on November 27, 2011

Daniel Real and Judge John Irwin have posted their article, “Unconscious Influences on Judicial Decision-Making: The Illusion of Objectivity” (McGeorge Law Review, Vol. 43, 2010) on SSRN.  Here’s the abstract.

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Judicial decision making is influenced by unconscious decisions and motivations – implicit biases. This paper explores how implicit bias impacts judicial decision-making, as well as considerations for minimizing negative impacts of implicit bias.

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Here is the article’s preview.

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Most people, especially members of the judiciary, strive to make decisions that are correct, fair, ethical, and that are free from the influence of biases and prejudices. For members of the judiciary, the very notion of impartial decisionmaking is codified in the Judicial Code of Conduct. It is in the very nature of being a judge to be an impartial and unbiased arbiter of the cases presented to the court for disposition. Most judges expend significant energy and thought consciously avoiding personal biases and prejudices in the decision-makingprocess.

When considering biases and prejudices that influence decision-making, what most readily comes to mind is conscious bias and prejudice. But in recent years the subject of implicit bias—unconscious or subconscious influences on decision-making—has reemerged in a variety of psychological and social science venues and has potentially significant ramifications in judicial decision-making. This paper introduces the concept of implicit bias in useful terms and then points the reader to deeper and more nuanced discussions of the subject and its ramifications across the social science spectrum. This paper will then consider some aspects of implicit bias’ role in judicial decision-making, both in terms of quick, heat-of-trial decisions (known as “blinking”) and in terms of carefully considered and weighed decisions (known as “staring”). Finally, this paper proposes some avenues of thought for future consideration about implicit bias’ potential influences and possible steps toward minimizing whatever harmful effects it might have on judicial decision-making.

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Download the article for free here.

Related Situationist posts:

For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Posted in Abstracts, Implicit Associations, Law, Legal Theory, System Legitimacy | 1 Comment »

Torts and Social Change – Today!

Posted by The Situationist Staff on November 16, 2011

When

Wednesday, November 16, 2011, 5:30 – 7pm

Where

Harvard Law School – Pound 102

Sponsor

Law and Social Change Program of Study

Contact E-mail

jlevin@jd13.law.harvard.edu

Note

Interested in hearing more about how the 1L curriculum relates to social justice issues and how it could be applied to social justice work? Please join us as Professor Martha Chamallas and Professor Jon Hanson deliver an insightful presentation on Torts and Social Change, the second in our exciting new speaker series designed to give 1L students (and interested 2Ls and 3Ls as well!) the opportunity to hear their professors discuss how the subjects they teach are relevant in creating positive social change.

Posted in Events, Law, Legal Theory, Situationist Contributors | Tagged: , , | Leave a Comment »

Implicit Juror Bias

Posted by The Situationist Staff on November 1, 2011

Anna Roberts posted her article, “(Re)Forming the Jury: Detection and Disinfection of Implicit Juror Bias” (Connecticut Law Review, Vol. 44, 2012) on SSRN.  Here is the abstract.

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This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test (“IAT”), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The first group would use the IAT to “screen” potential jurors for implicit bias; the second group would use the IAT to educate jurors about implicit bias. These proposals merit deeper consideration. Implicit bias is pervasive, and affects crucial juror functions: evaluation of evidence, recall of facts, and judgments of guilt. Juries are generally told nothing about implicit bias. The judiciary has expressed concern about implicit juror bias, and sought help from the academy in addressing the problem.

I provide what the proposals lack: critique and context. I show that using the IAT to screen jurors is misguided. The educational project has merit, however, since implicit bias can be countered through knowledge of its existence and motivation to address it. To refine the project, I identify two vital issues that distinguish the proposals: when jurors should learn about implicit bias, and how they should learn.

On the issue of when, I argue that the education should begin while the jurors are still being oriented. Orientation is not only universal, but, as research into “priming” and “framing” has shown, a crucial period for the forming of first impressions. On the issue of how, I argue that those proposals that would include the jurors taking an IAT are superior to those that would simply instruct jurors on what the IAT shows. In an area fraught with denial, mere instruction would likely be dismissed as irrelevant. I use pedagogical theory to show that experiential learning about bias is more likely to be effective.

I bring when and how together, proposing a model that would include the use of the IAT as an experiential learning tool during orientation. It would harness the civic energy of jurors to an educational purpose, rather than letting it morph into boredom; by putting jurors in an active mindset, it would enhance their satisfaction with the process, and their ability to perform optimally. As for potential jurors who are never selected, their participation would honor the long-standing educational function of jury service.

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Download the article for free here.

Related Situationist posts:

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

Juror Bias

Posted by The Situationist Staff on October 30, 2011

Jessica West recently posted her article, “12 Racist Men: Post-Verdict Evidence of Juror Bias” (Harvard Journal of Racial & Ethnic Justice, Vol. 27, p. 165, 2011) on SSRN. Here’s the abstract.

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Federal Evidence Rule 606(b) and similar state rules prohibit post-verdict admission of juror statements, including racist or biased remarks, made during deliberations. The roots of the evidentiary prohibition are historically deep and the interests underlying the Rule implicate the very existence of the jury system. Constitutionality of the post-verdict evidentiary exclusion is based upon the presumption that pre-trial and trial mechanisms exist to discern juror bias prior to deliberations. Empirical studies and recent cases indicate, however, that these mechanisms do not currently operate to adequately expose or remove juror biases. This article argues that the expansion of these mechanisms, including more diverse jury venires, more robust and effective juror voir dire, less discretion for parties to remove jurors on the basis of race, and the development of jury admonitions directly addressing bias, will reduce juror expressions of bias during deliberations. Even with these reforms, however, not all juror bias will be disclosed and, whether for reasons of embarrassment, inattention or intent, some jurors will misrepresent material biases during voir dire. To address juror misrepresentations during voir dire, the article proposes a narrow exception to Rule 606(b) permitting inquiry into juror bias for the purpose of showing juror misrepresentation. The article’s unique approach of combining enhanced pre-trial and trial mechanisms with a narrow exception to the rule to address juror misrepresentations strikes a balance between upholding the goals underlying Rule 606(b) and the right to a fair trial by an impartial jury.

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Download the paper for for free here.

Related Situationist posts:

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

Poverty and Delinquency

Posted by The Situationist Staff on October 15, 2011


Tamar Birckhead recently posted her article, “Delinquent by Reason of Poverty” (forthcoming Journal of Law and Policy, Vol. 38, 2012) on SSRN.  Here’s the abstract.

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This Article, written for the 12th Annual Access to Equal Justice Colloquium, explores the disproportionate representation of low-income children in the United States juvenile justice system. It examines the structural and institutional causes of this development, beginning with the most common points of entry into delinquency court — the child welfare system, public schools, retail stores, and neighborhood police presence. It introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which children are adjudicated delinquent. It argues that at each stage of the process — from intake through adjudication to disposition and probation — the court gives as much or more weight to the perceived “needs” of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case. Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system’s emphasis from an evaluation of a child’s criminal responsibility to an assessment of a family’s social service needs. The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the state’s burden for indigent juveniles while heightening it for affluent youth. The result is that in all but the most serious of cases, children from low-income homes do not have to be as “guilty” as those from families of means in order to enter and remain in the system, thereby widening the net of court intervention for poor children.

The Article establishes that the juvenile court’s traditional focus on the needs of destitute youth continues to be reflected in the system’s practices and procedures, despite the modern court’s shift in dispositional philosophy from rehabilitation to youth accountability and public safety. It argues that this emphasis on families’ needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuating negative stereotypes based on class. It offers strategies for confronting and reversing this trend, including data collection that records the income-level of juveniles’ parents; initiatives that raise awareness of needs-based delinquency among police, prosecutors, defenders, judges, and agency personnel; diversion programs that reduce the high rate of juvenile court adjudications for minor offenses; cross-agency mental health treatment plans for children and adolescents; and the adoption of international juvenile justice models that are preventative and diversionary rather than penal and punitive. The Article challenges the view that in tight budgetary times, court involvement is the only way for poor children to access services. It concludes by calling for lawmakers and system players to end the practice of needs-based delinquency, with the goal of increasing fairness for all youth in the juvenile justice system.

Download the article for free here.

Related Situationist posts:

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

Trapped: Mental Illness in American Prisons

Posted by The Situationist Staff on October 6, 2011

From Movie Website: 

The continuous withdrawal of mental health funding has turned jails and prisons across the nation into the default mental health facilities.

The system designed for security is now trapped with treating mental illness and the mentally ill are often trapped inside the system with nowhere else to go.

Documentary photographer Jenn Ackerman takes us inside the Correctional Psychiatric Treatment Unit of the Kentucky State Reformatory to see how a state is meeting the needs of this growing population.

Related Situationist posts:

Posted in Law, Video | Tagged: , | Leave a Comment »

Judicial Mindsets

Posted by The Situationist Staff on September 18, 2011

Victor D. Quintanilla recently posted his situationist paper, “Judicial Mindsets: The Social Psychology of Implicit Theories and the Law” (forthcoming Nebraska Law Review) on  SSRN.  Here’s the abstract:

This article introduces Dr. Carol Dweck’s seminal and significant line of psychological research on the phenomenon of implicit theories and draws on this research as a lens through which we might better understand judicial decision-making. In particular, the article focuses on the implications of two types of implicit theories – whether people believe that phenomena are static and fixed versus dynamic and malleable. By introducing this research, this article aims to forward a research agenda designed to examine how social, contextual, and situational forces influence judicial behavior.

An entity theory reflects the mindset that phenomena are fixed and unlikely to change. An incremental theory reflects the mindset that phenomena are malleable and can be developed. Humans hold entity or incremental implicit theories about, for example, human nature, social institutions, and society. These theories, or “mindsets,” affect perception, judgment, and decision-making and strongly shape how people organize their experience in, knowledge about, and transactions in the world. When an entity theory is salient, people expect that phenomena are fixed, immutable and unchangeable. However, when an incremental theory is salient, humans believe that phenomena are malleable, changeable, and affected by contexts and situations. Whether one holds an entity theory versus an incremental theory is often driven by situations, contexts, and social influences.

Implicit theories affect how jurists find facts, draw inferences, and impose punishment. Research on implicit theories, moreover, can enrich our understanding of how jurists apply the common law, engage in statutory interpretation, and construe the Constitution, offering novel insight into a timeless legal debate: whether American law is static versus dynamic. The article sets forth a research agenda that will form a line of psychological experiments to examine these processes.

Download the paper for free here.

Relate Situationist posts:

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

Judge Nancy Gertner on her Situation

Posted by The Situationist Staff on September 13, 2011

On Joining the Harvard Law Faculty:

On Life After the Bench:

On Being a Passionate Advocate:

On Women and the Law:

Insights from the Federal Bench:

Posted in Education, Law, Legal Theory, Video | Tagged: , | Leave a Comment »

Implicit Gender Bias in Legal Profession

Posted by The Situationist Staff on September 9, 2011

Justin Levinson and Danielle Young posted their excellent article, “Implicit Gender Bias in the Legal Profession: An Empirical Study” (Duke Journal of Gender Law & Policy, Vol. 18, No. 1, 2010) on SSRN.  Here’s the abstract.

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In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.

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Download article for free.

Related Situationist posts:

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

 
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