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Archive for the ‘Legal Theory’ Category

Thomas Nadelhoffer on Neuroscience, Philosophy, and Law

Posted by The Situationist Staff on August 12, 2010

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

Posted in Experimental Philosophy, Law, Legal Theory, Morality, Neuroscience, Philosophy, Situationist Contributors, Video | Tagged: , , , , , | Leave a Comment »

The Situation of Psychopaths

Posted by The Situationist Staff on July 8, 2010

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.”

Posted in Choice Myth, Emotions, Legal Theory, Morality, Neuroscience, Video | Tagged: , , , | 3 Comments »

The Spatial Situation of Crime and Criminal Law

Posted by Adam Benforado on May 13, 2010

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.”

Posted in Abstracts, Geography, Law, Legal Theory, Situationist Contributors, Social Psychology, Uncategorized | Tagged: | 3 Comments »

The Situation of Cooperation

Posted by The Situationist Staff on May 4, 2010

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.”

Posted in Abstracts, Conflict, Legal Theory | Tagged: , | 1 Comment »

2010 Law and Mind Sciences Conference

Posted by The Situationist Staff on April 14, 2010

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.

Posted in Events, Legal Theory, Morality, Neuroscience, Situationist Contributors | Tagged: , , | 1 Comment »

Situationism in Policy

Posted by The Situationist Staff on April 10, 2010

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.

Posted in Law, Legal Theory, Public Policy, Situationist Contributors, Video | Tagged: , , | Leave a Comment »

Harvard Journal on Law and Mind Sciences?

Posted by The Situationist Staff on April 7, 2010

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.

Posted in Education, Law, Legal Theory | 1 Comment »

What Does Situationism Mean for Law?

Posted by The Situationist Staff on March 23, 2010

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.

Posted in Deep Capture, Education, Ideology, Legal Theory, Situationist Contributors, Video | Tagged: , , , | Leave a Comment »

Hanson & Kysar To Deliver the 2010 Monsanto Lecture

Posted by The Situationist Staff on March 18, 2010

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.”

Posted in Abstracts, Distribution, Events, Implicit Associations, Law, Legal Theory, Public Policy, Situationist Contributors | Tagged: , , , | 1 Comment »

Tort Law’s Distributional Injustice

Posted by The Situationist Staff on March 16, 2010

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.”

Posted in Abstracts, Book, Distribution, Ideology, Legal Theory | 3 Comments »

Jon Hanson on Situationism and Dispositionism

Posted by The Situationist Staff on March 13, 2010

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.”

Posted in Ideology, Law, Legal Theory, Social Psychology, Video | Tagged: , , , | 2 Comments »

The Need for Situationism in the Law

Posted by The Situationist Staff on March 5, 2010

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.”

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

Value-Affirmation, and the Situation of Climate Change Beliefs

Posted by The Situationist Staff on February 26, 2010

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.”

Posted in Cultural Cognition, Ideology, Legal Theory, Politics, Public Policy, Situationist Contributors | Tagged: , , | 2 Comments »

The Situation of Scientific Consensus

Posted by The Situationist Staff on February 15, 2010

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.

Posted in Abstracts, Cultural Cognition, Education, Ideology, Legal Theory, Politics, Public Policy, Situationist Contributors | Tagged: , , , , | 3 Comments »

The Broader Situation: A Case Study of Cop Car Cameras

Posted by Adam Benforado on February 12, 2010

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.”

Posted in Abstracts, Cultural Cognition, Legal Theory, Situationist Contributors | Tagged: , | 5 Comments »

Martha Fineman on the Situation of Gender and Equality

Posted by The Situationist Staff on January 19, 2010

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.”

Posted in Abstracts, Distribution, History, Ideology, Law, Legal Theory | Tagged: , , | Leave a Comment »

Law and Economics Primer

Posted by The Situationist Staff on January 16, 2010

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.”

Posted in Abstracts, Distribution, Legal Theory, Situationist Contributors | Tagged: , , , , , , , , | 1 Comment »

Brenda Cossman on the Situation of Women in the Workplace

Posted by The Situationist Staff on January 8, 2010

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.”

Posted in Choice Myth, History, Ideology, Law, Legal Theory, Life | Tagged: , , , | Leave a Comment »

Motivated Judicial Reasoning

Posted by The Situationist Staff on November 30, 2009

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.”

Posted in Abstracts, Book, Choice Myth, Ideology, Law, Legal Theory | Tagged: , , , , | Leave a Comment »

Bernard Harcourt on “Neoliberal Penality”

Posted by The Situationist Staff on October 30, 2009

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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’.”

Posted in Abstracts, History, Ideology, Law, Legal Theory, Video | Tagged: , , | Leave a Comment »

 
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