Preference, Principle, & Casuistry

From our sister blog, Law & Mind, here is an excellent post by Harvard Law LL.M. candidate David Simon. Simon summarizes a fascinating chapter by Situationist Contributors Eric Knowles and Peter Ditto (forthcoming in “Ideology, Psychology, and Law” (Jon Hanson, ed., 2011).

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[T]he attribution of principle or its absence is more than an evaluative stance; it is also a lay-psychological hypothesis concerning the causes of another’s behavior.

- Eric D. Knowles & Peter H. Ditto, Preference , Principle, & Casuistry

We often value people who act on their principles  more than those who act solely on their preferences. In other words, we value behavior that is justified by reasons rather than emotions. This shouldn’t be much of a surprise to anyone. It’s ostensibly why people don’t like politicians who “flip-flop,” whether they be “liberal” or “conservative.” So, when people make decisions based on emotion, rather than reason, we think they are “biased” or “irrational.” (Knowles and Ditto call this the principle-preference dichotomy.) What’s strange, though, is that we often view our political opponents as emotional decision-makers, while we view people of our own political leanings as principled decision-makers.

The question Knowles & Ditto want to answer is, why?

They offer two reasons. First, they  argue that this results from the “actor-observer bias”: the tendency to see one’s own actions as based on beliefs and others’ as based on desire. Imagine, for example, Political Candidate is running for office. Her platform is to “make government smaller by cutting taxes and entitlement programs.” When Margo decides to support Political Candidate, Margo thinks she does so because of her beliefs about small government. Jim, on the other hand, views Margo’s behavior as merely reflecting her desires. Jim might say that Margo supported Political Candidate merely because she will receive more money in tax breaks while Margo might claim she dislikes lots of government regulation. The reason for the discrepancy, according to the authors, is one’s access to mental states: Margo has access to her own mental states (sort of), and Jim does not. Margo’s view of her own behavior is therefore privileged; Jim’s is epistemologically impoverished. As a result, she views her own choice as one of principle while Jim views it as one of desire.

Further reinforcing this view is individuals’ desire to see themselves and members of their group positively. As the authors note:

[T]he preference-principle dichotomy is powerfully reinforced by individuals’ desire to hold a positive view of themselves, as well as of others who share their attitudes and group memberships.

To achieve this end, people become “naive realists,” perceiving themselves as  ”reasoned and free from bias.” In other words, individuals view their own attitudes as “reasoned,” “objective,” and, therefore, principled. That provides them with a much more flattering picture of themselves than one in which they make decisions based (solely) on preferences. Forget the somewhat false dichotomy for a moment and just ask yourself: Do you see yourself as someone who makes reasoned, as opposed to emotional, judgments? Do you see those who disagree with you differently?

There’s still a problem, though. Individuals often seem to be seeking self-interested goals while offering principled reasons. This

should, at least in principle (no pun intended), destroy the “objectiveness” people purport to adhere to when making decisions. Put another way, one must at least appear to be objective to gain credibility (with themselves or others). Preserving this appearance happens in two ways. First, we approach judgments “without an explicit sense that we are trying to construct a justification for one conclusion over another.” Instead, our “preferences” are part of cognitive structures: satisfying them produces greater coherence than not satisfying them. So, many times our interpretation of information produces preference-satisfying conclusions.

Second, our cognitive structures can lead us to preference-satisfaction in another, sometimes unconscious way: “‘shifting the standards’ by which a preferred conclusion is defined.” Because we do this somewhat intuitively and seemingly without pretense, Knowles & Ditto call it implicit casuistry.  By this they mean there are “circumstances in which individuals unwittingly select principles that happen to provide intellectual justification for preferred conclusions.” We are not good at being conscious reaonsers, always assessing problems objectively. Our brains select principles that cohere with our preferences. The principles–by way of implicit casuistry–serve in some ways to mask our preference-seeking behavior.

The reason implicit casuistry seems to work so well is because all ideologies seems equally susceptible to it. Indeed, small changes in factual situations can influence the way people use different standards. The authors give examples where subjects use either deontological (or rights-based) standards and consequentialist standards to justify certain behavior or conclusions. They show that people, regardless of their political preferences, will employ these reasoning strategies depending on the outcome that best accords with their political preferences.

Moving into the legal realm, Knowles & Ditto note that people’s views of judicial decisions often correlate with the extent to which the decision satisfies their preferences. They also note that judges may manipulate canons of constitutional interpretation to server various preferences. That, of course, is in line with a mature body of scholarship on judicial behavior. Scholars like Lee Epstein, Thomas Walker, Michael Giles, Ryan Owens, Ryan Black, et al. have shown that judges often seek policy preferences when deciding how to resolve a particular case.

Of course, casuistic reasoning occurs in other domains as well. Knowles & Ditto show how casuistic reasoning occurs in the context of race. Political preferences influence how people react to and justify their decisions when race becomes an issue. They note that frequently scholars disagree about why people hold particular racial attitudes. Some scholars claim disagreements of principle cause rifts; others claim that the disagreement results from claims to competing claims for finite goods (e.g., wealth, education). Knowles & Ditto argue it’s both:

The illusion of contraction may fade if one adopts a casuistic-reasoning model in which principles are frequently brought to bear dynamically in support of preferences.

In other words, people may use principles to justify their racial preferences. “Colorblindness,” for example, may serve as the principle that justifies an opposition to affirmative action.

In concluding, the authors note that casuistic judgments may have temporal effects. That is, using one principle may increase the probability of using that principle in the future. In lawyer speak, we might say people have a built-in stare decisis mechanism; it’s just not clear how strongly it operates in various situations or across time. Knowles & Ditto also are careful to explain that casuistic judgments are not per se illegitimate. (Here they venture into philosophy, essentially taking an hedged intuitionist stance.) Their claim is that attitudes are likely based on some form of intuition, and that intuition isn’t–in and of itself–a reason to reject a claim. For this reason, they argue that casuistic judgments may be legitimate.

Talk on the Situation of Retribution

Title: “Punishing Jaws: Experiments  on  Retribution  Against  Nonhuman  Perpetrators”

When: Today – April 1st, at 12PM

Where: Griswold 110, Harvard Law School

Who: Situationist Contributor and Drexel Law School Professor Adam Benforado and University of Pennsylvania Psychology Professor Geoff Goodwin will discuss historical and empirical research regarding retributive punishment imposed upon animals.  They will then use this evidence to draw inferences about human intuitions regarding punishment.

Free burritos!

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Related Situationist posts:

• The Criminals that Other Criminals Punish
• “Intuitions of Punishment?,”
• “Michael McCullough on the Situation of Revenge and Forgiveness,”
• “Steven Pinker Speaks at Harvard Law School,”
• “John Darley on “Justice as Intuitions” – Video,”
• “The Situation of Punishment (and Forgiveness),”
• “The Situation of Revenge,”
• “The Situation of Punishment,” and
• “Why We Punish.”

The Situational Effects of Iqbal

Victor Quintanilla recently posted his paper, “Beyond Common Sense: A Social-Psychological Study of Iqbal’s Effect on Claims of Race Discrimination”  on SSRN.  Here’s the abstract.

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This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social-psychological perspective, and empirically studies Iqbal’s disparate effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.

Decades of social-psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit associations will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.

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Download the paper for free here.

Related Situationist posts:

• The Rhetorical Situation of Law, and the Situation of Rhetoric
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “The Situation of Situation in Employment Discrimination Law – Abstract.”
• “Why Race May Influence Us Even When We “Know” It Doesn’t,”
• “Black History is Now,”
• “Jennifer Eberhardt’s “Policing Racial Bias” - Video,”
• “Perceptions of Racial Divide,” and
• “Banaji & Greenwald on Edge – Part IV.”

SALMS Lecture – Tonight

Jon Hanson Evening Lecture and Reception

On Tuesday, March 29th, Professor Jon Hanson will give a lecture entitled “Law, Psychology, and Inequality” at 6PM in Harvard Law School’s Austin East.  A reception with free food and drink will follow!

Psychology of Inequality

Elaine McCardle wrote a terrific review of last month’s Fifth Annual PLMS Conference.  Her article is the spotlight piece on the Harvard Law School website and includes several excellent videos, photos, and links.  Here’s the story.

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While equality is a fundamental principle of American law and the bedrock of the national psyche, inequality has actually increased in the past four decades in the distribution of wealth, power, opportunity, even health. Yet the topic of inequality has received relatively little attention from legal theorists, and, for the most part, it is ignored in the basic law school curriculum.

A conference last month at HLS, “The Psychology of Inequality,” presented by the Project on Law & Mind Sciences (PLMS), stepped into that vacuum, bringing together scholars, law students, and others to examine inequality from the standpoint of the latest research in social science, health science, and mind science, and to reflect on the implications of their findings for law. The HLS Student Association for Law and Mind Sciences (SALMS), together with a group of roughly 20 students, were instrumental in organizing the conference.

“Inequality matters in ways that are not commonly understood, including in how people see and make sense of the world,” saysJon Hanson, the Alfred Smart Professor of Law and Director of PLMS. “Indeed, the way people respond to instances of inequality – either by equalizing, or by rationalizing – appears to be a very significant factor in how they view markets, regulation, and many important policy and social issues. So when we engage in policy debates, mustering all our best arguments and evidence in favor of a given policy conclusion we shouldn’t be perplexed when our opponent doesn’t budge,” says Hanson. “Such recalcitrance on both sides of a discussion often reflects, not the inadequacy, but the irrelevance, of the reasons being exchanged. Behind it all may be a conflict between largely subconscious urges: some people would rather rationalize inequality while others lean toward equalizing.”

Hanson was one of more than a dozen scholars who spoke at the Feb. 26 conference, the fifth annual conference by PLMS, founded by Hanson six years ago to promote interdisciplinary exchange and collaboration between the mind sciences and the l

egal community. PMLS supports research, writing and conferences in order to dislodge the prevailing “dispositionist” approach of law – which holds that human beings, for the most part, make rational choices based on logical preferences – in favor of a “situationist approach.” Situationsim recognizes that social sciences and mind sciences, including social psychology, social cognition, and cognitive neuroscience, have repeatedly demonstrated that human behavior is influenced by countless factors ignored by the dispositionist approach, which collectively are known as “situation.”

Jaime Napier, an assistant professor of psychology at Yale University, presented her research on the ways in which high-status and low-status groups differ in their rationalizations of inequality. High-status people tend to place blame on individuals for their lot in life, while low-status people tend to see theirs as the natural order of things. Eric Knowles, an assistant professor of psychology and social behavior at the University of California, Irvine, discussed his theory of “malleable ideologies,” through which different groups with a same core ideology – say, “life is sacred” – can come to different outcomes on issues such as abortion or the death penalty. Adam Benforado ’05, a former student of Hanson’s and an assistant professor at the Earl Mach School of Law at Drexel University, presented on the mind-body connection in decision-making, including how seemingly innocuous environmental influences such as room temperature might have significant influence on decisions made by juries and judges. Ichiro Kawachi, a Professor of Social Epidemiology and Chair of the Social/Behavioral Sciences Department at the Harvard School of Public Health, discussed research showing that people of lower social status lead shorter, sicker lives, while other speakers discussed ways that social disparities influence health, how even young children favor high-status individuals, and the drive among humans to view the world as essentially fair.

In addition to national experts in the areas of health, psychology, and mind sciences, a number of HLS faculty contributed to the discussion from their areas of expertise in a panel discussion (see video below), including John Palfrey ’01, the Henry N. Ess III

Professor of Law and Vice Dean for Library and Information Resources, an expert on the internet; Lucie White ’81, the Louis A. Horvitz Professor of Law, who specializes in poverty law and international economic and social rights; Robert C. Bordone ’97, the Thaddeus R. Beal Clinical Professor of Law and Director of the Harvard Negotiation & Mediation Clinical Program; Stella Burch Elias, a Climenko Fellow and Lecturer on Law and Andrew Woods ’07, a Climenko Fellow and Ph.D. candidate in politics at Cambridge University.

In that discussion, Hanson shared some provocative ideas. The good news, he said, is that humans have an egalitarian impulse, so that inequality causes them discomfort; some resolve the conflict by redistributing so that there is more equality, while others rationalize with reasons that explain the inequality. The bad news, Hanson added, is that it’s not terribly hard to move someone away from the equalizing impulse.

“When you experience fear and threat – personal threat, group threat, system threat – you become a hardcore dispositionist,” said Hanson, snapping his fingers, “just like that!”

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More here. Related Situationist posts:

• John Palfrey’s PLMS Conference Reflections
• SALMS Liveblogs PLMS Conference
• Harvard Law Record on Tomorrow’s PLMS Conference
• Fifth PLMS Conference Agenda

SALMS Liveblogs PLMS Conference

Read James Wang’s excellent notes from yesterday’s terrific conference here.

The Criminals that Other Criminals Punish

This week, inmates in Sao Paulo broke into a cell block where prisoners convicted of rape and pedophilia were held and killed six people, including a man, Jose Agostinho Pereira, convicted of imprisoning his daughter for twelve years and having seven children with her, two of whom he also sexually abused.  Using makeshift knives, the attacking inmates, decapitated Pereira and three of the other prisoners.

Extreme overcrowding in the prison seemed to be one cause of the violence – a number of inmates, unhappy with their poor conditions, attempted to escape, which precipitated a riot.  However, the level of brutality and the focus of the harm seem to tell another story.  Indeed, it’s important to note that the men who were killed had been kept apart from the general population for their protection, a practice which is common at many prisons both abroad and in the United States.

Once imprisoned, child sex offenders become prime targets for violence by other inmates and it’s interesting to think about how much of that abuse might be retributive in nature.

Do prisoners who decapitate child molesters feel they are delivering “justice”?  And, if so, on behalf of whom do they believe they are acting?

As I’ve mentioned previously, I’m currently working on a set of experiments with Penn cognitive psychologist Geoff Goodwin regarding intuitions about punishment and one of the recurring themes in our research (and that of others interested in retribution) is that people’s motives to punish often do not align with what legal scholars assume them to be and that there is still much left to uncover in the study of “responsive harm.”  For better or for worse, that additional research may lead us to some troubling truths.

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Related Situationist Posts:

• “Intuitions of Punishment?,”
  
• “Michael McCullough on the Situation of Revenge and Forgiveness,”
• “Steven Pinker Speaks at Harvard Law School,”
• “John Darley on “Justice as Intuitions” – Video,”
• “The Situation of Punishment (and Forgiveness),”
• “The Situation of Revenge,”
• “The Situation of Punishment,” and
• “Why We Punish.”

Patrick Shin at Harvard Law School

On Tuesday, the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Suffolk Law professor Patrick Shin entitled “Unconscious Bias and the Legal Concept of Discrimination.”

Professor Shin is a professor of law at Suffolk University Law School. He conducts research into the meaning and value of diversity in antidiscrimination law. He has applied psychology to real-world problems of employment discrimination law.

Professor Shin will be speaking in Austin East from 12:00 – 1:00 p.m.

Free burritos will be provided! For more information, e-mail salms@law.harvard.edu.

System Justification Theory and Law

Over at the new Law & Mind Blog, several Harvard Law students have been blogging about about system justification theory.  In the first post on the topic (copied below), third-year student Rachel Funk summarizes a chapter by Gary Blasi and Situationist Contributor John Jost (forthcoming in Ideology, Psychology, and Law, edited by Situationist Contributor Jon Hanson).

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In System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, Gary Blasi and John Jost outline a model of social psychology they call system justification theory (SJT). According to Blasi and Jost, in addition to the well-established theories of ego justification (that is, our psychological need to think well of ourselves) and group justification (our psychological need to think well of the groups that we identify and associate with), there is a third related phenomenon: namely, system justification. While ego justification accounts for our tendency to privilege ourselves above others and to think and behave in ways that are self-serving, and group justification accounts for our tendency to give preference to members of our group over outsiders, Blasi and Jost argue that system justification is needed to fill out the picture, because we need to account for why marginalized members of society tend to support the current social order, even though it disadvantages them, thus defying the rational actor model inherent in our social institutions, particularly the legal system.

According to the rational actor model, members of disadvantaged groups should be trying to undermine the current regime, since, by definition, it disadvantages them. Instead, as demonstrated by various empirical studies, they seem to be zealous advocates (so to speak) of the status quo. Blasi and Jost argue that SJT can account for this seeming contradiction because, unlike the rational actor model, it posits that people will generally support the status quo, regardless of whether it advantages or disadvantages them.

In fact, our defense of the status quo becomes even more ardent when we perceive the current system to be threatened. For instance, Blasi and Jost cite one study in which people were asked to assign punishments to hypothetical defendants. For crimes that the researchers represented as being common but rarely punished — and thus an implicit threat to the existing social order — people assigned much more severe punishments to defendants accused of that crime than to defendants accused of crimes represented as being more frequently successfully prosecuted (129-30). However, we have the opposite reaction to the status quo when we view the regime change as “inevitable” (134-35), which may explain the phenomenon we are now seeing with regard to Americans’ changing attitudes to same-sex marriage, although it is unclear what is needed for a regime change to be considered “inevitable.”

So what happens when we endorse the status quo and adopt system-justifying ideologies? Studies show that in the short term, the acceptance of the status quo by disadvantaged members of society results in greater satisfaction at work and at home, indicating that system justification serves a “palliative function” (132). However, in the long run, their support of the status quo leads to cognitive dissonance, because their need to think well of themselves and their social groups necessarily conflicts with their low status in society. In other words, for disadvantaged members of society, ego justification and group justification will inevitably conflict with system justification because members of these groups will not be able to reconcile their positive perception of themselves and their social groups with their simultaneous support of a system that marginalizes them.

One of the reasons that society may be resistant to this model, as Blasi and Jost suggest, is that it necessitates accepting that our biases can be implicit (that is, unconscious) as well as explicit. The rational actor model is more comforting, because it assures us that we are in full control of our beliefs and behavior. If we have control over them, we can change them. And if we don’t change them, that must be because they are fine the way they are (and of course they are fine, because why else would we have them?).

Overall, SJT provides a persuasive account of the phenomena that Blasi and Jost seek to explain in the chapter. In the same vein as theories like “belief in a just world”, SJT offers a further insight into how we conjure up rationalizations for our situation in life because we do not want to believe — or cannot believe — that it is random or out of our control. Blasi and Jost also suggest a variety of ways in which SJT could be incorporated into the legal system, something that is desperately needed if the law’s foundational view of human behavior — which is to say, the rational actor model — is so far off the mark.

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Read the students’ discussion of the chapter here.

Related Situationist posts:

• “Patriots Loss = ‘poetic justice‘“
• “The Unlucky Irish: Celtics Fans and Affective Forecasting,”
• “Ideology Shaping Situation of Vice Versa,”
• “Thanksgiving as ‘System Justification.’”
• “Cheering for the Underdog.”
• “A System-Justification Primer,”
• “Barbara Ehrenreich on the Sources of and Problems with Dispositionism,”
• “The Motivated Situation of Inequality and Discrimination,”
• “John Jost on System Justification Theory,”
• “John Jost’s “System Justification and the Law” – Video,”
• “Independence Day: Celebrating Courage to Challenge the Situation,”

To review the full collection of Situationist posts related to system justification, click here.

Tom Tyler on “Moving away from Instrumentalism”

Here is an informative interview of Situationist Contributor Tom Tyler by Harvard Law student (now alum) Michal Rosenn. The interview lasts 24 minutes. It was conducted as part of the Law and Mind Science Seminar at Harvard taught by Situationist Editor Jon Hanson.

Biography

Professor Tyler is the University Professor of Psychology and Chair of Psychology at NYU.  He received his B.A. in Psychology from Columbia in 1973, and his M.A. and Ph.D. in social psychology from UCLA in 1974 and 1978.  At NYU, he heads the Tyler Lab, where he and his students research the dynamics of authority and motivations within groups, organizations, and societies.  Much of Prof. Tyler’s work centers on social justice and the psychology of procedural justice — the topics addressed in this interview.

Table of Contents

0:17 — Tell us a little about your general research interests.

1:11 — Can you tell us about your research methods?

2:23 — Can you tell us about your work on procedural justice?

4:24 — What is your argument about an instrumentalist versus a values-based system as it applies to criminal law?

7:21 — What do you see as the reasons behind America’s move away from rehabilitation in the prison context?

9:43 — How do you see a values-based approach being implemented in the criminal justice system?

11:19 — How does your research on instrumentalism apply to anti-terrorism efforts?

13:18 — How does neuroimaging research complement your research findings?

14:09 — How does a values-based approach account for differences in values among a population?

18:33 — Is an over-reliance on instrumentalism a distinctly American phenomenon, or is it more universal?

19:04 — Does the relevance of your work extend beyond the context of criminal law?

20:34 — Do you have any recommendations to lawyers based on the research you’ve done?

22:29 — How do you see the relationship between law and psychology developing in the future?

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For a sample of related Situationist posts, see “Andrew Papachristos Explains Why Criminals Obey the Law – Video,” “The Legal Situation of the Underclass,” “The Situation of Criminality – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and “Tom Tyler on “Strategies of Social Control” - Video.”

Sam Sommers on “Empirical Perspectives on Jury Diversity”

Tufts Psychology Professor Sam Sommers speaks at Harvard Law School about his research on the interaction between the legal system and the psychology of race, stereotyping, and diversity.

Watch the video here.

For a sample of related Situationist posts, see “Sam Sommers at Harvard Law School” or click here.

The Situation of Creating a Consumer Financial Protection Bureau

In the wake of the worst economic crisis in the United States since the Great Depression, there has been a drive to reconfigure the regulatory state and renegotiate the relationship between Americans, business, and government.

In a new article, just posted on SSRN, I argue that the ultimate formulation of that relationship turns, to a significant degree, on our basic attributional tendencies, particularly where we look to assign causal responsibility when things go wrong.

Who or what engendered the shanty town that appeared in Sacramento, California in 2008?  Who blackened the pelican and closed the beach of Pensacola?  What lies behind the rise in diabetes in elementary school students?

The answers that we give drive our remedial responses and our prophylactic measures—and in doing so, define the interactions between our regulatory institutions, business entities, and members of the public.

If you believe that business causes—or, at least, significantly contributes to—a lot of these types of harms in society, then you are likely to want a government that gets tough and restrains corporations to protect the public.  If you think that business is largely blameless, then you are likely to be in favor of free markets with little or no regulation.

The Article begins by summarizing evidence from the mind sciences concerning our basic attributional framework, before investigating its value to business as a ready means to (1) manipulate our environments to encourage profitable consumer behavior and (2) avoid regulation and liability.

As a case study of the ways in which corporations play on our basic attributional proclivities to manage negative outcomes, the Article focuses on the intense – and often nasty — recent battle over the creation of the Bureau of Consumer Financial Protection.

Download a free copy of the article here!

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For a sample of related Situationist posts see “Attributional Divide – Top 10,” “Legal Academic Backlash - Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,” “The Great Attributional Divide – Abstract,” “The Situation of ‘Common Sense’,” “The Situation of Political Animals,” and “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?”

Sam Sommers at Harvard Law School

Today the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Tufts psychology professor Sam Sommers entitled “Empirical Perspectives on Jury Diversity.”

Professor Sommers has extensively studied the interaction between the legal system and the psychology of race, stereotyping, and diversity and has served as an expert witness on racial bias and eyewitness testimony in a number of trials.

Professor Sommers will be speaking in Hauser 102. Free bagels will be provided!  For more information, e-mail salms@law.harvard.edu.

You can review a list of Situationist posts discussing Professor Sommers’s work by clicking here.

Adam Kolber at Harvard Law School

On Tuesday, November 2nd, the HLS Student Association for Law and Mind Sciences (SALMS) and HLS Ethics, Law, and Biotechnology group are hosting a talk by Brooklyn Law School professor Adam Kolber entitled “Freedom of Memory.”

Professor Kolber teaches a variety of subjects at Brooklyn Law School, including bioethics and “law and the brain” courses. He is a respected expert in the field of neuroethics, and is the founder of the Neuroethics & Law Blog. Professor Kolber is frequently quoted in major news publications for his views regarding the ways that legal punishment should be influenced by modern advances in human understanding of the brain’s reactions to punishment.

Professor Kolber will be speaking in Pound 107.   Free bagels will be provided!

For more information, e-mail salms@law.harvard.edu.

Daniel Dennett To Speak at Harvard Law School

On Tuesday, September 28th, the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Tufts professor Daniel Dennett entitled Free Will, Responsibility, and the Brain.

Professor Dennett is the Austin B. Fletcher Professor of Philosophy at Tufts University, as well as the co-director for the school’s Center for Cognitive Studies.  His work examines the intersection of philosophy and cognitive science in relation to religion, biology, science, and the human mind.  Professor Dennett has also contributed greatly to the fields of evolutionary theory and psychology.

Professor Dennett will turn a critical eye on the recent influx of work regarding the impact of neuroscience on scholarly concepts of moral and legal responsibility.

He will be speaking in Pound 101 from 12:00 – 1:00 p.m. Free burritos will be provided!

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For more information, e-mail salms@law.harvard.edu.

For a sample of related Situationist posts, see “Daniel Dennett on the Situation of our Brain,” “Dan Dennett on our Interior Situation,” “Bargh and Baumeister and the Free Will Debate,” “Bargh and Baumeister and the Free Will Debate – Part II,” “The Death of Free Will and the Rise of Cheating,” “Clarence Darrow on the Situation of Crime and Criminals,” “Person X Situation X System Dynamics,” “Situation” Trumps “Disposition” – Part I & Part II,” “The (Unconscious) Situation of our Consciousness – Part I, Part II, Part III, & Part IV” and “Coalition of the Will-less.”

Happiness and Legal Policy – Abstract

Peter Huang recently posted his interesting paper, “Happiness Studies and Legal Policy” (forthcoming Annual Review of Law & Social Science) on SSRN.  Here’s the abstract.

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Social scientists have conducted numerous empirical and experimental studies of self-reported happiness. This review focuses on two fundamental areas of research in happiness and law, namely alternative measures of happiness and various policies to foster happiness. There are many aspects, concepts, dimensions, and visions of happiness. Empirical findings often depend critically on which particular measure of happiness is analyzed. Happiness studies have applications to national well-being indices; policy evaluation; civil judicial and jury decision-making about liability and damages in cases of sexual harassment, employment discrimination, torts; optimal tax law design; family law; criminal sentencing, legal education, and legal practice. There are decision-making, health, productivity, and psychological benefits to various types of happiness. There are more or less paternalistic happiness interventions, including policies to encourage regular physical exercise, good sleep, and meditation. Hopefully analysis of these topics offers exemplars of possibilities and limits to utilizing happiness studies in designing legal policy.

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You can download the paper for free here.  To review a sample of related Situationist posts, see “The Situation of Pleasure,” “Money and the Situation of Happiness,” and “Something to Smile About.” To review a collection of Situationist posts exploring the causes and consequences of happiness, click here.

Thomas Nadelhoffer on Neuroscience, Philosophy, and Law

From The Project on Law & Mind Sciences at Harvard Law School (PLMS):

Below is a fascinating and enlightening 51-minute interview of Thomas Nadelhoffer by Harvard Law Student Brian Wood.  The interview, titled “Developments in Neuroscience and their Implications for Criminal Law,” lasts just over 51 minutes.  It was conducted the Law and Mind Science Seminar at Harvard (taught by Situationist Editor Jon Hanson).

Bio:

Situationist Contributor Dr. Thomas Nadelhoffer was born and raised in Atlanta, Georgia. He has earned degrees in philosophy from The University of Georgia (BA), Georgia State University (MA), and Florida State University (PhD). Since 2006, he has been an assistant professor of philosopy and a member of the law and policy faculty at Dickinson College in Carlisle, Pennsylvania. He is currently at Duke University as a Visiting Scholar in the Kenan Institute for Ethics.

His main areas of research include moral psychology, the philosophy of action, free will, punishment theory, and neurolaw. He is particularly interested in research at the cross roads of philosophy and the sciences of the mind. His articles have appeared in journals such as Analysis, Midwest Studies in Philosophy, Mind & Language, Neuroethics, and Philosophy and Phenomenological Research. He is the coordinator of the blogs Flickers of Freedom and the Law and Neuroscience Blog. He is also a contributing author to blogs such as The Situationist, The Leiter Reports, and Experimental Philosophy.

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Table of contents:

• What have you been working on recently?  0:22
• What are some areas of the legal system in which this science is relevant? 1:07
• What are the problems with the traditional approaches to using science in the criminal system, and how are new scientific methods relevant to fixing them? 2:15
• How could these newer scientific methods be employed? 4:09
• What are the rationales society has traditionally cited as justifying criminal punishment? 6:55
• Can you explain what Compatibalism is? 10:17
• Aren’t there problems with notions of moral responsibility under Compatibalism? 12:26
• How do neuroscience, Compatibalism, and determinism relate to our notions of law? 12:55
• What do you see as the problems with the classic approaches to punishment? 15:25
• Is there anything especially strange about Retributivism to you? 20:37
• Can you detail what you believe to be the just reasons for punishment and how society can punish people more justly? 23:41
• In your view, how would you punish psychopaths under the consequentialist rationale? 30:40
• Can you give an example of the distinctions psychopaths cannot draw? 34:50
• What’s the most interesting experiment you have conducted? 37:01
• Do you think these participants just misunderstood what determinism is? 38:15
• What qualities do you believe you and other researchers and philosophers need to be successful? 40:03
• How has what you have learned through your research influenced the way you live you life? 41:35
• How do you see the relationship of law and mind science developing in the future? 44:55

The Situation of Psychopaths

NPR’s Morning Edition had a three-part series, called “Inside the Criminal Brain” (hosted by Renee Montagne and Barbara Hagerty) at the end of June.  The first in the of the series, “Neuroscientist Uncovers A Dark Secret” (which you can listen to here) tells the story of neuroscientist James Fallon.  Here are some excerpts from the transcript.

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RENEE MONTAGNE:

For the past couple of decades, [James] Fallon has studied the brains of murderers.

Recently, Fallon made a startling discovery.

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Fallon investigated, and it turns out that one of his direct great-grandfathers, Thomas Cornell, killed his mother in the 1600s, and that line of Cornells produced seven other alleged murderers.

Dr. FALLON: There’s this whole lineage of very violent people, killers, ending with Lizzy Borden.

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HAGERTY: Fallon was a little spooked by his ancestry, so he set out to see if anyone in this family had the brain of a serial killer. He knows what to look for, since he’s studied the brains of dozens of psychopaths. He calls up an image of a brain on his computer screen. It’s lit up with patches of color.

Dr. FALLON: Here is a brain that’s not normal. You can see where this is – this yellow here and red here, and look at it. It’s almost nothing here.

HAGERTY: He’s pointing to the orbital cortex. It’s completely dark. That’s the part of the brain that’s right above the eyes, and this is the area that Fallon and other scientists believe is involved with ethical behavior, moral decision making and controlling one’s impulses.

Dr. FALLON: People with low activity are either freewheeling types or sociopaths.

HAGERTY: Fallon says that’s because the orbital cortex puts a brake on another part of the brain called the amygdala, which is involved with aggression and appetites. If there’s an imbalance, if the orbital cortex isn’t doing its job -maybe because it was damaged or was just born that way . . .

Dr. FALLON: What’s left? What takes over? Well, the area of the brain that drives your id-type behaviors, which is rage, violence, eating, sex, drinking.

HAGERTY: Now, nobody in his family has problems with those behaviors, but he persuaded 10 of his close relatives to submit to a brain scan. Then he examined the images, comparing them with the brains of psychopaths. . . .

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Dr. FALLON: And I took a look at my own PET scan and saw something a little disturbing that I did not talk about.

HAGERTY: What he didn’t want to reveal was that his orbital cortex looks inactive.

Dr. FALLON: If you look at the PET scan, I look just like one of those killers.

HAGERTY: Fallon cautions that this is a young field. Scientists are just beginning to understand this area of the brain. Still, he says, the evidence is accumulating that some people’s brains predispose them toward violence, and that psychopathic tendencies may be passed down from one generation to another.

Which brings us to the next part of this family experiment. Along with brain scans, Fallon also tested each family member’s DNA for genes that are associated with violence and impulsivity. He looked at 12 genes and zeroed in on something called the MAOA gene. It’s also known as the warrior gene because it regulates serotonin in the brain.

Serotonin affects your mood, and many scientists believe that if you have a certain version of the warrior gene, your brain won’t respond to the calming effects of serotonin.

Dr. FALLON: So this is the MAO gene. And we can see here my daughter, son, daughter, daughter, brother, brother, wife, brother.

HAGERTY: Everyone in his family has the low aggression variant, except…

Dr. FALLON: I’m like 100 percent here. I have the pattern, a risky pattern. In a sense, I’m a born killer.

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Ms. DIANE FALLON: I wasn’t too concerned. I really wasn’t. I mean, I’ve known him since I was 12.

HAGERTY: That’s Jim Fallon’s wife, Diane. She probably doesn’t need to worry, according to scientists who study this area. They believe that brain patterns and genetic makeup are not enough to make anyone a psychopath. You need a third ingredient: childhood abuse.

Ms. D. FALLON: And fortunately, he wasn’t abused as a young person, so I’ve lived to be, you know, a ripe old age so far.

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HAGERTY: Jim Fallon says he had a great childhood. And, he says, this journey through his brain has changed the way he thinks about nature and nurture. He used to believe that genes and brain function determine everything about us, but now, he says, he thinks his childhood may have made all the difference.

Dr. FALLON: We’ll never know. But had I been abused, I think we wouldn’t be sitting here today.

HAGERTY: As to the psychopaths he studies, he feels some compassion for these people who got, as he put it, a bad roll of the dice.

Dr. FALLON: It’s an unlucky day when all of these three things come together in a bad way. And I think one has to empathize with what happened to them.

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You can read the entire transcript or listen to the interview here.  Below is a Jim Fallon’s 8-minute TED Talk briefly describing his own work and his own family.

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For a sample of related Situationist posts, see “The Situation of Mental Illness,” “The Situation of Bullying,” “The Cruelty of Children,”  “Examining the Bullying Situation,” “The Disturbing Mental Health Situation of Returning Soldiers,”  “The Psychology of The Dark Knight,” “The Neuro-Situation of Violence and Empathy,” “The Situation of Morality and Empathy,” “The Situation of Kindness,” “The Situation of Caring,” “New Study Looks at the Roots of Empathy,” “The Situation of Gang Rape,” “Some (Interior) Situational Sources War – Part I,” and “Some (Interior) Situational Sources War – Part III.”

The Spatial Situation of Crime and Criminal Law

No pressure (except for you, grandma — loyal reader number 1), but I have a new article out in the most recent issue of the Cardozo Law Review.  The abstract for The Geography of Criminal Law is below.

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When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space—that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal structures, order interactions, and influence behavior.

To understand these dynamics, this Article establishes the foundation for a new spatial analysis of criminal law. By casting a wide net and capturing data across a diverse set of fields, this Article uncovers unappreciated but vital parallels, connections, and patterns concerning the ways in which physical space—and the meanings that we attach to spatial elements—affect (1) the proximate decision to commit a crime, (2) the likelihood a given person will become a criminal, (3) the experience of victimization, (4) the way in which policing is conducted, (5) what a crime is and how it is prosecuted, and (6) the consequences of being convicted.

As the first Article in a broader project, this systematic spatial analysis provides the basis for future work dedicated to understanding the origins of our criminal system and assessing whether our current legal structures—from the laws on the books to the practices of police officers to our approaches to punishment—align with our societal needs and values, and, thus, whether the structures we have in place ought to be changed. Instead of building its normative conclusions on geographical analysis alone, the project employs the lens of the mind sciences—including social psychology, social cognition, evolutionary psychology, and related fields—to investigate and explain identified spatial dynamics. This research offers the best hope for unlocking, among other concerns, why our justice system has focused on physically isolating criminals from society; why laws are frequently structured around protecting the physical boundaries of the body, home, and community; why more police shootings occur in certain areas than others; and why we have spatially-embedded laws that become inoperative when an individual leaves a jurisdiction.

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Click here for the full article on SSRN.

For a sample of related Situationist posts, see “The Situation of Looting,” “The Situation of Suspicion,” “The Legal Situation of the Underclass,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and “The Situation of Criminality – Abstract.”

The Situation of Cooperation

From The National Science Foundation:

Humans are incredibly cooperative, but why do people cooperate and how is cooperation maintained? A new research study by UCLA anthropology professor Robert Boyd and his colleagues from the Santa Fe Institute in New Mexico suggests cooperation in large groups is maintained by punishment.

The finding challenges previous cooperation/punishment models that argue punishment is uncoordinated and unconditional.

Boyd and his team report their research in the April 30 issue of the journal Science. . . .

To understand the study, let’s start with a small group of friends. In small groups, individuals often have personal connections with other group members and cooperation typically is maintained by a “you help me, I’ll help you” reciprocity system. Group members cooperate because they do not want to hurt their friends by not participating in group efforts, and also because they may want help in the future.

But in a larger group, like a tribe, those mechanisms for maintaining cooperation are lost. All group members experience the benefits of the large group, even those members who stop cooperating and become “free-riders.” Free-riders are people who benefit from the group in food sharing and protection from enemies, for example, without contributing to food collection or war. In these cases, the personal connection to the group’s members is often gone.

But it turns out that most members of large groups cooperate. Why? Boyd and his colleagues suggest cooperation is maintained by punishment, which reduces the benefits to free riding. There are tribes, for example, that punish free-riders who do not participate in warfare by not allowing them to take a bride. Thus, there is the threat of losing societal benefits if a member does not cooperate, which leads to increased group cooperation.

Previous models of cooperation assumed that punishment of free-riders was uncoordinated and unconditional. One problem with these models was that the costs associated with punishment were often higher than the gains of cooperation. Thus, the cost of one group member’s punishing a free-rider would be substantial and would not overweigh the gains achieved through increased cooperation.

Costs may be defined as loss of friendship or loss of relational closeness with other members of the group.

To address the problem, Boyd and his colleagues changed the assumptions built into previous cooperation/punishment models. First, they allowed for punishment to be coordinated among group members. In their model, group members could signal their willingness to punish someone who was not participating in the group, but punishment would only occur if it was coordinated. This meant the cost of punishing a free-rider would be distributed across members and would not be higher than the cost of gains achieved through increased cooperation.

Second, the researchers allowed for the cost of punishing a free-rider to decline as the number of punishers increased. Boyd explained that this new model was “catching up with common sense” because these two assumptions exist in reality.

Their model had three stages in which a large group of unrelated individuals interacted repeatedly. The first stage was a signaling stage where group members could signal their intent to punish. In the second stage, group members could choose to cooperate or not. The final stage was a punishment stage when group members could punish other group members.

The results of their model look a lot like what is seen in most human societies, where individuals meet and decide whether and how to punish group members who are not cooperating. This is coordinated punishment where group members signal their intent to punish, only punish when a threshold has been met and share the costs of punishing.

Boyd argues that even in societies without formal institutions for establishing rules and methods of punishment, group punishment appears to be effective at maintaining cooperation.

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To review a sample of related Situationist posts, see “The Situation of Kindness,” “New Study Looks at the Roots of Empathy,” “Monkey Fairness,” “The Situation of Punishment (and Forgiveness),” “The Situation of Revenge,” “The Situation of Punishment,” and “Why We Punish.”