2010 Law and Mind Sciences Conference

The 2010 Conference on Law and Mind Sciences

“Moral Biology? How should developments in mind sciences and behavioral biology alter our understanding of law and morality?”

When: Thursday, April 15, 2010, at 5:30 p.m.
Where: Harvard Law School, Austin Hall, West Classroom

Free and Open to the Public

This panel discussion will examine how developments in evolutionary biology and the mind sciences should inform law, philosophy, and economics, focusing on subjects such as punishment, responsibility, racism, addiction, and cooperation. Participants will include:

• I. Glenn Cohen
• Joshua Greene
• William Fitzpatrick
• Adina Roskies
• Walter Sinnott-Armstrong
• Thomas Scanlon

Co-sponsored by The Project on Law and Mind Sciences at Harvard Law School, The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

More specifics regarding participants, materials, and the conference agenda can be found here.

Situationism in Policy

Situationist Contributor Jon Hanson was recently interviewed by Big Think.  Here is his answer to the following question: “How have policy makers responded to your research?”

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You can view more at “Harvard Law Spotlights Situationism” and  “Jon Hanson on Situationism and Dispositionism,” which contains other related Situationist links.

Harvard Journal on Law and Mind Sciences?

Want to support the creation of a Journal on Law and Mind Sciences at HLS? If so, click here to express your support.

The Harvard Journal on Law and Mind Sciences will be the first journal dedicated to exploring the relevance of the mind sciences for law and policy. The Journal will publish legal scholarship that examines the implications of the mind sciences on the law, and it will also publish reviews of original research in psychology, behavioral economics, and neuroscience with implications for law and policy making.

We hope to provide a consolidated forum for mind science researchers to share their insights with the legal community and to facilitate greater interdisciplinary discussion. The Journal of Law and Mind Sciences stands for the belief that good policy requires an accurate understanding of how human beings actually think and behave.

Please show your support in establishing a Journal on Law and Mind Sciences at Harvard Law School by clicking  here.

What Does Situationism Mean for Law?

Situationist Contributor Jon Hanson was recently interviewed by Big Think.  Here is his answer to the following question: “What are some of the changes that the legal system should be making?”

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To watch the first part of Hanson’s BigThink interview, see “Jon Hanson on Situationism and Dispositionism,” which also contains other related Situationist links.

Hanson & Kysar To Deliver the 2010 Monsanto Lecture

Situationist Contributor Jon Hanson and Yale Law Professor Doug Kysar are co-delivering the 2010 Monsanto Lecture on Tort Law and Jurisprudence tomorrow at Valparaiso University School of Law.  Their lecture is titled “Abnormally Dangerous: Inequality Dissonance and the Making of Tort Law.”  Here’s the abstract.

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At the conceptual heart of tort law rests a choice between negligence and strict liability as the default standard of care for unintentional wrongs. The prevailing American view holds that strict liability should be reserved for rare cases in which an activity poses significant hazards even after a defendant has taken all reasonable care. The types of explanations for that preference have shifted over time from a classical liberal rationale to an economic efficiency rationale.  Neither of those explanations is fully persuasive on its own terms, as a careful examination of leading cases makes clear. So what might explain why courts sometimes prefer a negligence standard, when their logic could as easily have led them to a strict liability alternative?

There is growing evidence from the mind sciences that the reasons people give for their behavior and decisions are rarely causal and are often confabulatory. The field of social cognition, for instance, has demonstrated through countless experiments that “implicit attitudes” and “implicit motives,” which lie outside the purview of introspection, play a far more significant role in shaping our attitudes, ideologies, and behavior than most of us realize—or care to acknowledge. Among the most studied and influential implicit motives are the “cognitive closure” motive and the “inequality rationalization” motive.

Focusing primarily on Judge Posner’s famous and influential opinion in Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., we examine whether an understanding of those implicit processes might help explain why he held that the activity of transporting highly toxic and flammable chemicals through residential neighborhoods was not abnormally dangerous and thus not subject to strict liability (and why, more generally, negligence has so thoroughly dominated strict liability as the default standard of care).  We investigate further whether such implicit dynamics left unexamined might themselves be abnormally dangerous.

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For a sample of related Situationist posts, see “Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List,” “Tort Law’s Distributional Injustice,” “The Cultural Situation of Tort Law,” “Situationist Torts – Abstract,” “Robin Hood Motives,” “The Interior Situational Reaction to Inequality,” “The Motivated Situation of Inequality and Discrimination,” and “The Situation of Inequality – Guns, Germs, and Steel.”

Tort Law’s Distributional Injustice

Anita Bernstein, posted her recent review essay, titled “Distributive Justice Through Tort (And Why Sociolegal Scholars Should Care)” (forthcoming 35 Law of Social Inquiry) on  SSRN.  Here’s the abstract.

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Drawing on two books central to an emerging sociolegal literature about tort-Fault Lines: Tort Law as Cultural Practice, a collection of chapters edited by David M. Engel and Michael McCann, and Torts, Egalitarianism and Distributive Justice, a monograph by Tsachi Keren-Paz–this essay argues that tort law in the United States redistributes wealth in ways that ought to trouble sociolegal scholars and enlist their reformist energy. Read together, the two volumes offer considerable description and critique of a distributive injustice, and lead to important proposals for change.

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For a sample of related Situationist posts, see “The Cultural Situation of Tort Law,” “Situationist Torts – Abstract,” “Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast),” “The Distributional Situation of Obesity,” “Robin Hood Motives,” “The Interior Situational Reaction to Inequality,” “Martha Fineman on the Situation of Gender and Equality,” “The Blame Frame – Abstract,” “The Motivated Situation of Inequality and Discrimination,” and “The Situation of Inequality – Guns, Germs, and Steel.”

Jon Hanson on Situationism and Dispositionism

Situationist Contributor was recently interviewed by Big Think.  Here is his answer to the following questions: “What is wrong with our legal system’s notion of human behavior?”; and “What led you to study the link between law and cognition?”

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For a sample of related Situationist posts, see “Hanson’s Chair Lecture on Situationism,” “Legal Academic Backlash – Abstract,” “‘Situation’ Trumps ‘Disposition’ – Part I,” and ““Situation” Trumps “Disposition”- Part II.”

The Need for Situationism in the Law

Dr. William Woody spoke at the University of Northern Colorado about why Psychologists should be involved in the legal system.  Here’s a ten-minute video of that event.

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For a sample of related Situationist posts, see “The Situation of False Confessions,” “Clarence Darrow on the Situation of Crime and Criminals,” “The Lucifer Effect Lecture at Harvard Law School,” and “Law & the Brain.”

Value-Affirmation, and the Situation of Climate Change Beliefs

On NPR’s All Things Considered, Situationist Contributor Dan Kahan and Donald Braman were interviewed this week by Christopher Joyce regarding their important work on cultural cognition.  Here is an excerpt.

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Over the past few months, polls show that fewer Americans say they believe humans are making the planet dangerously warmer, and that is despite a raft of scientific reports that say otherwise. And that puzzles many climate scientists, but not social scientists.

As NPR’s Christopher Joyce reports, some of their research suggests that when people encounter new information, facts may not be as important as beliefs.

CHRISTOPHER JOYCE: The divide between climate believers and disbelievers can be as wide as a West Virginia valley, and that’s where two of them squared off recently at a public debate on West Virginia Public Radio.

Coal company president Don Blankenship is a doubter.

Mr. DON BLANKENSHIP (CEO, Massey Energy Company): It’s a hoax because clearly anyone that says that they know what the temperature of the earth is going to be in 2020 or 2030 needs to be put in an asylum because they don’t.

JOYCE: On the other side, environmentalist Robert Kennedy Jr.

Mr. ROBERT KENNEDY JR. (Environmentalist): Ninety-eight percent of the research, climatologists in the world say that global warming is real, that its impacts are going to be catastrophic. There are 2 percent who disagree with that. I have a choice of believing the 98 percent or the 2 percent.

JOYCE: For social scientist and lawyer Don Braman, it’s not surprising that two people can disagree so strongly over science. Braman is on the faculty at George Washington University and a part of a research group called Cultural Cognition.

Professor DON BRAMAN (George Washington University Law School/The Cultural Cognition Project): People tend to conform their factual beliefs to ones that are consistent with their cultural outlook, their worldview.

JOYCE: Braman’s group has conducted several experiments to back that up. First, they ask people to describe their cultural beliefs. Some embrace new technology, authority and free enterprise – the so-called individualistic group. Others are suspicious of authority, or of commerce and industry. Braman calls them communitarians.

In one experiment, Braman then queried his subjects about something unfamiliar: nanotechnology, new research into tiny, molecule-sized objects that could lead to novel products.

Prof. BRAMAN: These two groups start to polarize as soon as you start to describe some of the potential benefits and harms.

JOYCE: The individualists tended to like nanotechnology; the communitarians generally viewed it as dangerous – all based on the same information.

Prof. BRAMAN: It doesn’t matter whether you show them negative or positive information, they reject the information that is contrary to what they would like to believe, and they glom on to the positive information.

JOYCE: So what’s going on here?

Professor DAN KAHAN (Yale University Law School/The Cultural Cognition Project): Basically, the reason that people react in a close-minded way to information is that the implications of it threaten their values.

JOYCE: That’s Dan Kahan, a law professor at Yale University and a member of Cultural Cognition. He says people test new information against their preexisting view of how the world should work.

Prof. KAHAN: If the implication, the outcome, can affirm your values, you think about it in a much more open-minded way.

JOYCE: And if the information doesn’t, you tend to reject it.

In another experiment, people read a United Nations’ study about the dangers of global warming. Then the researchers said, okay, the solution is to regulate pollution from industry. Many in the individualistic group then rejected the climate science. But when more nuclear power was offered as the solution…

Prof. BRAMAN: They said, you know, it turns out global warming is a serious problem.

JOYCE: And for the communitarians, climate danger seemed less serious if the only solution was more nuclear power.

Then there’s the Messenger Effect. In an experiment dealing with the dangers versus benefits of a vaccine, the scientific information came from several people. They ranged from a rumpled and bearded expert to a crisply business-like one. And people tended to believe the message that came from the person they considered to be more like them – which brings us back to climate.

Prof. BRAMAN: If you have people who are skeptical of the data on climate change, you can bet that Al Gore is not going to convince them at this point.

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You can listen to, or read the rest of, the interview here.  For a sample of related Situationist posts related to cultural cognition, see  “The Situation of Scientific Consensus,” “Dan Kahan on the Situation of Risk Perceptions,” “Cultural Cognition as a Conception of the Cultural Theory of Risk.” For still more  Situationist posts discussing cultural cognition, click here.

For more Situationst posts on perceptions of climate change, see “Global Climate Change and The Situation of Denial,” “Al Gore – The Situationist,” “The Situation of Climate Change,” “Getting a Grip on Climate Change,” “Juliet Schor, ‘Colossal Failure: The Output Bias of Market Economies’,” “Denial,” “The Need for a Situationist Morality,” “The Heat is On,” and “Captured Science.”

The Situation of Scientific Consensus

Situationist Contributor Dan Kahan, Hank Jenkins-Smith, and Donald Braman, have just posted another fascinating paper, “Cultural Cognition of Scientific Consensus” on SSRN.  Here’s the abstract.

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Why do members of the public disagree – sharply and persistently – about facts on which expert scientists largely agree? We designed a study to test a distinctive explanation: the cultural cognition of scientific consensus. The “cultural cognition of risk” refers to the tendency of individuals to form risk perceptions that are congenial to their values. The study presents both correlational and experimental evidence confirming that cultural cognition shapes individuals’ beliefs about the existence of scientific consensus, and the process by which they form such beliefs, relating to climate change, the disposal of nuclear wastes, and the effect of permitting concealed possession of handguns. The implications of this dynamic for science communication and public policy-making are discussed.

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You can download the paper for free here.  For a sample of related Situationist posts, see “The Broader Situation: A Case Study of Cop Car Cameras,” “Whose Eyes are You Going to Believe?,” “Dan Kahan on the Situation of Risk Perceptions,” “Cultural Cognition as a Conception of the Cultural Theory of Risk,” To still more  Situationist posts discussing cultural cognition, click here.

The Broader Situation: A Case Study of Cop Car Cameras

As part of my new commitment to posting more of my work on SSRN, I’ve just put up another forthcoming article that may be of interest to some readers.  It offers a law and mind sciences (situationist / critical realist) perspective on Yale Law School’s Cultural Cognition Project (CCP) using a great recent article by CCP scholars Dan M. Kahan, David A. Hoffman, and Donald Braman as a case study.  That article has been referenced in two recent New York Times pieces (including one that listed it as among the most important ideas of 2009).

If your interest is not yet piqued, I should also mention that the new SSRN post also has police chases and scandalous pictures of Angelina Jolie . . . or, well, at least one of those things.

The link is here; the abstract is found below.

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The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories.  Nonetheless, the projects have failed to engage one another in a substantial way.  This Article attempts to bridge that gap by demonstrating how the situationist approach taken by PLMS scholars can crucially enrich CCP scholarship.  As a demonstration, the Article engages the case of Scott v. Harris, 127 S. Ct. 1769 (2007), the subject of a recent CCP study.

In Scott, the Supreme Court relied on a videotape of a high-speed police chase to conclude that an officer did not commit a Fourth Amendment violation when he purposefully caused the suspect’s car to crash by ramming the vehicle’s back bumper.  Challenging the Court’s conclusion that “no reasonable juror” could see the motorist’s evasion of the police as anything but extremely dangerous, CCP Professors Dan M. Kahan, David A. Hoffman, and Donald Braman showed the video to 1,350 people and discovered clear rifts in perception based on ideological, cultural, and other lines.

Despite the valuable contribution of their research in uncovering the influence of identity-defining characteristics and commitments on perceptions, Kahan, Hoffman, and Braman failed to engage what may well be a more critical dynamic shaping the cognitions of their subjects and the members of the Supreme Court in Scott: the role of situational frames in guiding attributions of causation, responsibility, and blame.  As social psychologists have documented—and as PLMS scholars have emphasized—while identities, experiences, and values matter, their operation and impact is not stable across cognitive tasks, but rather is contingent on the way in which information is presented and the broader context in which it is processed.

In large part, the Scott video is treated—both by the Supreme Court and by Kahan, Hoffman, and Braman—as if it presents a neutral, unfiltered account of events.  This is incorrect.  Studies of viewpoint bias suggest that the fact that the video offers the visual and oral perspective of a police officer participating in the chase—rather than that of the suspect or a neutral third party—likely had a significant effect on both the experimental population and members of the Court.

Had the Supreme Court watched a different video of the exact same events taken from inside the suspect’s car, this case may never have been taken away from the jury.  Any discussion of judicial “legitimacy”—in both the descriptive and normative sense—must start here.  The real danger for our justice system may not ultimately be the “visible fiction” of a suspect’s version of events, as Justice Scalia would have it, or cognitive illiberalism as Kahan, Hoffman, and Braman would, but the invisible influence of situational frames systematically prejudicing those who come before our courts.

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To read a sample of related Situationist posts, see “Whose Eyes are You Going to Believe?,” “Dan Kahan on the Situation of Risk Perceptions,” “Cultural Cognition as a Conception of the Cultural Theory of Risk,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “The Situation of Racial Profiling,” “The Situational Demographics of Deadly Force – Abstract,” and “The Situation of False Confessions.”

Martha Fineman on the Situation of Gender and Equality

Martha Fineman recently posted on  SSRN her fasinating chapter, titled “Evolving Images of Gender and Equality: A Feminist Journey” examining the changing conceptions of gender and equality and the unjustified privileging of autonomy over equality in American culture.

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This chapter, which will be included in Transcending the Boundaries of Law, M.A. Fineman, Ed (Routledge 2010) brings a historical and analytic gaze on the concept of equality in the US legal system. Beginning with the establishment of Portia Law School for women and court decisions like Muller v. Oregon, I discuss the tension between seeking equality as sameness of treatment and seeking positive improvements in the lives of women. While women have officially attained legal equality with men, in terms of being able to vote, practice a profession, and own property among other things, the benefits of citizenship are still distributed in highly unequal ways. In part this is because as a nation Americans value autonomy over equality and thus sacrifice substantive equality in the name of greater independence, ignoring the realities of our shared states of episodic dependency and constant vulnerability.

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You can download the chapter for free here.  For a sample of related Situationist posts, see “Nicole Stephens on ‘Choice, Social Class, and Agency’,” The Blame Frame – Abstract,” “The Motivated Situation of Inequality and Discrimination,” and “The Space & Place (Situation) of Rural Women.”

Law and Economics Primer

Situationist Contributor Jon Hanson, Kathleen Hanson, and Melissa Hart, have recently posted their outstanding introduction to law and economics (to be published in Dennis Patterson’s forthcoming volume, “Compantion to Philosophy of Law and Legal Theory) on SSRN.  The chapter includes a brief discussion of the emergence of economic behavioralism and situationism, and it is now available to download for free here.  Here’s the abstract.

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This chapter provides an introduction to the history, uses, methods, strengths, and limits of law and economics. It begins by examining the role of positive and normative approaches to law and economics. To examine the positivist thesis – that the law does in fact tend toward efficiency – the chapter discussed and analyzes the famous Hand Formula developed by Judge Learned Hand in United States v. Carroll Towing. As one of the only traditional cases in which a judge arguably made efficiency his explicit goal, the case presents an excellent opportunity to assess whether, even an efficiency-oriented judge will or can identify the efficient result. The chapter reviews the possible liability rules that might have been applied in Carroll Towing, and uses that review to introduce many of the core concepts and methods of law and economics, including game theory. Ultimately, the chapter concludes that, although the Hand Formula may have led to one of the possible efficient results, there is little reason to be confident, and some reason to doubt, that Judge Hand reached the most efficient outcome. The difficulties inherent in selecting the efficient rule through litigation present a significant challenge to the positivist case for legal economics.

The second part of the chapter considers both the normative support for efficiency and the range of challenges to, and refinements of, the normative position that have developed in recent years. The chapter highlights some of the trade-offs inherent in the law and economics approach and concludes that law and economics has, like any legal theory, both costs and benefits.

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Again, you can download the paper for free here.  For a sample of related Situationist posts, see “Tushnet on Teles and The Situation of Ideas – Abstract,” “Deep Capture – Part X,” “Behavioral Economics and Policy,” and “Emotional Reactions to Law & Economics – Abstract.”

Brenda Cossman on the Situation of Women in the Workplace

Brenda Cossman is a Professor of Law, at the Faculty of Law, University of Toronto. Her teaching and research is in the area of family law, feminist theory, law and film, and sexuality and the law. Her most recent book on Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging was published by Stanford University Press in 2007.

She recently published a fascinating article, titled “The ‘Opt Out Revolution’ and the Changing Narratives of Motherhood: Self Governing the Work/Family Conflict” in the 2009 volume of the Utah Law Review.  Here’s the abstract.

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“The double shift,” “the glass ceiling,” “the mommy track”: Women’s efforts to balance work and family have given rise to a host of buzz words over the last two decades. Now, it is the “Opt-Out Revolution,“-the title of Lisa Belkin’s New York Times Magazine article in 2003 that described the decision of upper middle class, professionally trained women to leave the work force and to stay home to care for their children. Her Sunday magazine cover story, headlined as “Q: Why Don’t More Women Get to the Top?” alongside the answer: “A: They Choose Not To,” tracked the decisions of eight women graduates from Princeton now living in Atlanta, and four women in San Francisco, three with MBAs, to trade in their briefcases for diaper bags. Belkin maps their decisions onto what she identifies as a larger trend amongst highly educated women to opt out of the labor market in favor of motherhood.

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You can download a pdf of the article here.

In February of 2008, at the New Frontiers In Family Law Symposium, Professor Cossman gave a fascinating talk based on that article.  You can watch the seventeen-minute talk on the following video.

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For a sample of related Situationist posts, see “The Situation of Objectification,” “Hillary Clinton, the Halo Effect, and Women’s Catch-22,” “Women’s Situational Bind,” “The Gendered Situation of Science & Math,” and “You Shouldn’t Stereotype Stereotypes.”

Motivated Judicial Reasoning

In her recent book, Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning (2009), Eileen Braman examines how policy preferences and legal authority interact to influence judicial decision making.  Here’s the book’s abstract.

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Are judges’ decisions more likely to be based on personal inclinations or legal authority? The answer, Eileen Braman argues, is both. Law, Politics, and Perception brings cognitive psychology to bear on the question of the relative importance of norms of legal reasoning versus decision markers’ policy preferences in legal decision-making. While Braman acknowledges that decision makers’ attitudes—or, more precisely, their preference for policy outcomes—can play a significant role in judicial decisions, she also believes that decision-makers’ belief that they must abide by accepted rules of legal analysis significantly limits the role of preferences in their judgments. To reconcile these competing factors, Braman posits that judges engage in “motivated reasoning,” a biased process in which decision-makers are unconsciously predisposed to find legal authority that is consistent with their own preferences more convincing than those that go against them. But Braman also provides evidence that the scope of motivated reasoning is limited. Objective case facts and accepted norms of legal reasoning can often inhibit decision makers’ ability to reach conclusions consistent with their preferences.

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To read a sample of related Situationist posts, see “The Situation of Judicial Activism,” “The Situation of Biased Perceptions,” “The Bias of the Bar?,” “Judicial Ideology – Abstract,” “The Situation of Judicial Methods - Abstract,” “The Situation of Constitutional Beliefs – Abstract,” “The Political Situation of Judicial Activism,” “Ideology is Back!,” “The Situation of Judges (1),” “The Situation of Judges (2),” “Blinking on the Bench,” “The Situation of Judging – Part I,” “The Situation of Judging – Part II,” and “Justice Thomas and the Conservative Hypocrisy.”

Bernard Harcourt on “Neoliberal Penality”

Bernard Harcourt, the Julius Kreeger Professor of Law and professor of political science at the University of Chicago, presented his fascinating paper “Neoliberal Penality: The Birth of Natural Order, the Illusion of Free Markets” at the third annual conference on Law and Mind Sciences, “The Free Market Mindset: History, Psychology, and Consequences,” which took place on March 7, 2009 at Harvard Law School.  The abstract for his talk is as follows:

In the Encyclopédie in 1758, under the entry “Grains,” Francois Quesnay declared that “It is quite sufficient that the government simply not interfere with industry, suppress the prohibitions and prejudicial constraints on internal commerce and reciprocal external trade, abolish or diminish tolls and transport charges, and extinguish the privileges levied on commerce by the provinces.” Quesnay’s vision of an economic system governed by natural order led to a political theory of “legal despotism” that would stand on its head an earlier understanding of a more seamless relationship between economy and society. By relegating the state to the margins of the market and giving it free rein there and there alone, the idea of natural order facilitated the unrestrained expansion of the penal sphere. It gave birth to our modern form of neoliberal penality.  In this presentation, I will trace a genealogy of neoliberal penality and explore the effects it has had in the field of crime and punishment specifically, and in the area of economy and society more generally.

To watch his fascinating talk (in three nine-minute sections) click on the videos below.

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For a sample or related Situationist posts, see “The Situation of Racial Profiling,” “Conference on the Free Market Mindset,” and “The Categorical Situation of ‘Money’.”

Goutam Jois at Harvard Law School

On Thursday, October 22, the HLS Student Association for Law and Mind Sciences (SALMS) and the HLS American Constitution Society (ACS) are hosting a talk by Situationist Fellow Goutam Jois entitled “Stare Decisis is Cognitive Error”:

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For hundreds of years, the practice of stare decisis — a court’s adherence to prior decisions in similar cases — has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society’s “true preferences” with regard to law and policy, may reflect — and exacerbate — our cognitive biases.

The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others’ decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies — analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture — suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.

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The event will take place in Pound 108 at Harvard Law School, from 4:00 – 5:00 p.m.

For more information, e-mail salms@law.harvard.edu. To download the paper click here.

Posner on Keynes and the Economic Depression

Judge Richard Posner just published an essay, “How I Became a Keynesian” in the New Republic.  In it he describes how the economic depression led him to go back to read Keynes’s The General Theory of Employment, Interest, and Money and his new-found appreciation for Keynes and elements of Keynesianism.  Here are some excerpts.

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I knew that John Maynard Keynes was widely considered the greatest economist of the twentieth century, and I knew of his book’s extraordinary reputation. But it was a work of macroeconomics–the study of economy-wide phenomena such as inflation, the business cycle, and economic growth. Law, and hence the economics of law–my academic field–did not figure largely in the regulation of those phenomena. And I had heard that it was a very difficult book, which I assumed meant it was heavily mathematical; and that Keynes was an old-fashioned liberal, who believed in controlling business ups and downs through heavy-handed fiscal policy (taxing, borrowing, spending); and that the book had been refuted by Milton Friedman, though he admired Keynes’s earlier work on monetarism. I would not have been surprised by, or inclined to challenge, the claim made in 1992 by Gregory Mankiw, a prominent macroeconomist at Harvard, that “after fifty years of additional progress in economic science, The General Theory is an outdated book. . . . We are in a much better position than Keynes was to figure out how the economy works.”

We have learned since September that the present generation of economists has not figured out how the economy works. The vast majority of them were blindsided by the housing bubble and the ensuing banking crisis; and misjudged the gravity of the economic downturn that resulted; and were perplexed by the inability of orthodox monetary policy administered by the Federal Reserve to prevent such a steep downturn; and could not agree on what, if anything, the government should do to halt it and put the economy on the road to recovery. By now a majority of economists are in general agreement with the Obama administration’s exceedingly Keynesian strategy for digging the economy out of its deep hole. Some say the government is not doing enough and is too cozy with the bankers, and others say that it is doing too much, heedless of long-term consequences. There is no professional consensus on the details of what should be done to arrest the downturn, speed recovery, and prevent (so far as possible) a recurrence. Not having believed that what has happened could happen, the profession had not thought carefully about what should be done if it did happen.

Baffled by the profession’s disarray, I decided I had better read The General Theory. Having done so, I have concluded that, despite its antiquity, it is the best guide we have to the crisis.

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[The General Theory] is an especially difficult read for present-day academic economists, because it is based on a conception of economics remote from theirs. This is what made the book seem “outdated” to Mankiw–and has made it, indeed, a largely unread classic. (Another very distinguished macroeconomist, Robert Lucas, writing a few years after Mankiw, dismissed The General Theory as “an ideological event.”) The dominant conception of economics today, and one that has guided my own academic work in the economics of law, is that economics is the study of rational choice. People are assumed to make rational decisions across the entire range of human choice, including but not limited to market transactions, by employing a form (usually truncated and informal) of cost-benefit analysis. The older view was that economics is the study of the economy, employing whatever assumptions seem realistic and whatever analytical methods come to hand. Keynes wanted to be realistic about decision-making rather than explore how far an economist could get by assuming that people really do base decisions on some approximation to cost-benefit analysis.

The General Theory is full of interesting psychological observations–the word “psychological” is ubiquitous–as when Keynes notes that “during a boom the popular estimation of [risk] is apt to become unusually and imprudently low,” while during a bust the “animal spirits” of entrepreneurs droop. He uses such insights without trying to fit them into a model of rational decision-making.

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Posner’s essay is reviews many of Keynes’s arguments and insights and then concludes as follows.

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Although there are other heresies in The General Theory, along with puzzles, opacities, loose ends, confusions, errors, exaggerations, and anachronisms galore, they do not detract from the book’s relevance to our present troubles. Economists may have forgotten The General Theory and moved on, but economics has not outgrown it, or the informal mode of argument that it exemplifies, which can illuminate nooks and crannies that are closed to mathematics. Keynes’s masterpiece is many things, but “outdated” it is not. So I will let a contrite Gregory Mankiw, writing in November 2008 in The New York Times, amid a collapsing economy, have the last word: “If you were going to turn to only one economist to understand the problems facing the economy, there is little doubt that the economist would be John Maynard Keynes. Although Keynes died more than a half-century ago, his diagnosis of recessions and depressions remains the foundation of modern macroeconomics. His insights go a long way toward explaining the challenges we now confront. . . . Keynes wrote, ‘Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slave of some defunct economist.’ In 2008, no defunct economist is more prominent than Keynes himself.”

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In March of 2009, Judge Posner spoke at the Third Annual Project on Law and Mind Sciences Conference, titled “The Free Market Mindset.”  In his talk, “A Failure of Capitalism,” Posner discussed his own explanation for the economic depression, informed by his then-recent reading of The General Theory.  You can watch a video of his talk here.  (Thanks to Goutam Jois for sending the link to Posner’s essay.)

Fiery Cushman at Harvard Law School

Tomorrow (Monday, September 21), the Student Association for Law and Mind Sciences (SALMS) at Harvard Law School is hosting a talk, titled “Outcome vs. Intent: Which Do We Punish and Why?,” by Professor Fiery Cushman. The abstract for the talk is as follows:

Sometimes people cause harm accidentally; other times they attempt to cause harm, but fail. How do ordinary people treat cases where intentions and outcomes are mismatched? Dr. Cushman will present a series of studies suggesting that while people’s judgments of moral wrongness depend overwhelmingly on an assessment of intent, their judgments of deserved punishment exhibit substantial reliance on accidental outcomes as well. This pattern of behavior is present at an early age and consistent across both survey-based and behavioral economic paradigms. These findings raise a question about the function of our moral psychology: why do we judge moral wrongness and deserved punishment by different standards? Dr. Cushman will present evidence that punishment is sensitive to accidental outcomes in part because it is designed to teach social partners not to engage in harmful behaviors and because teaching on the basis of outcomes is more effective than teaching on the basis of intentions.

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The event will take place in Hauser 104 at Harvard Law School, from 12:00 – 1:00 p.m.  For more information, e-mail salms@law.harvard.edu.

For a sample of related Situationist posts, see “Attributing Blame — from the Baseball Diamond to the War on Terror,” “John Darley on ‘Justice as Intuitions’ – Video,” “The Situation of Punishment in Schools,” “Why We Punish,” “Kevin Jon Heller on The Cognitive Psychology of Mens Rea,” “Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast),” and “Situationist Torts – Abstract.”

The Situation of Situationism and Other Interdisciplinary Approaches

Interdisciplinary research is on the rise and is itself increasingly a topic of discussion and study.  At this year’s Association for Psychological Science (APS) annual conference, for instance, Situationist Contributors Geoff Cohen and Jon Hanson participated in a symposium titled “Psychology as a Hub Science II: Navigating Early Career Interdisciplinary Collaboration.”

In the last issue of APS’s Observer, Eric Jaffe has a terrific article, titled “Crossing Boundaries: The Growing Enterprise of Interdisciplinary Research.” Here’s the introduction.

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Anyone who followed this past election season — and, considering the voter turnout records, that’s pretty much everyone — no doubt grew familiar with, and likely a bit tired of, each candidate’s avowed mission of “reaching across the aisle.” Almost immediately upon winning the presidency, Barack Obama set out to do just that, inviting a handful of Republicans to a Super Bowl party. Still he was able to rally only meager cross-party support for his historic stimulus bill, failing, in some eyes, to validate his call for a bipartisan era — which in turn prompted The New Yorker to point out that eight days in office was, after all, “a tight schedule for era-delivering.”

In the sciences, the era of interdisciplinary study has been delivering for some time. The past 50 years have seen researchers engaged in their own version of aisle reaching, extending a hand or a methodology or a graduate student across campus and, in some cases, across the globe, to advance some form of basic understanding. A recent National Academy of Sciences committee, charged with summarizing the state of scientific study across disciplines, reeled off an impressive list of achievements, from genome sequencing to neuroimaging to the Manhattan Project.

Psychologists have not been strangers to this trend. Rather, they have been in the vanguard, according to a paper published in Science (Wuchty, 2007). In the second half of the 20th century, the average size of a psychology research team increased 75 percent — the top rate of increase among social sciences.

As research teams have expanded, their composition has diversified. Economists and political scientists, in particular, have teamed with psychologists at a progressive rate, the Science authors found. More importantly, the citation impact of these larger teams seems to have increased with their added size and breadth. This heightened influence holds true even when adjusting for the increase in self-citation that comes with a greater number of researchers per study.

New fields have already begun to emerge from these meetings of minds—neuroscience, political psychology, cognitive science, and evolutionary psychology, to name a handful. Such instances distinguish true interdisciplinary work from multi-disciplinary efforts, which, as APS Past President John Cacioppo pointed out in a previous Observer column, require “only that one share an established procedure with an investigator in another field.” Ideally, interdisciplinary collaborations lead to more than a parlor game of pass the procedure. They don’t just shift eyes onto the question at hand; they ask completely new questions. The goal here, it would seem, is not to reach across the aisle, but rather to eliminate it.

Still, despite their head start over the Aisle Reacher-in-Chief, collaborative scientists also face many challenges when it comes to working outside their comfort zone. An additional workload, communication breakdowns, and tenure-track requirements are some the interdisciplinary scientist’s heaviest burdens. But most consider the evolution of psychology well worth the growing pains. “When psychology departments were forming, it was experimental, social, clinical, developmental — as if any one of these things can be studied independent of the other,” says APS Fellow and Past Board Member Elizabeth Phelps, who is part of the interdisciplinary Center for Neuroeconomics at New York University, of the way psychology operated up through the first half of the 20th century. “I think we had divided up how we understand human behavior. “I see a lot of those barriers starting to be broken.”

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Jaffe’s fascinating article is just getting warmed up.  To read it in its entirety and learn more about some of the triumphs and pitfalls of interdisciplinary research, click here.  For a sample of related Situationist posts, see “Quick Introduction to Experimental (Situationist?) Philosophy” and “Behavioral Economics and Policy.”