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Posts Tagged ‘Law’

Bias in Fortune 500 Legal Departments

Posted by The Situationist Staff on August 29, 2012

From ABA:

Initial findings from the ABA Commission on Women in the Profession survey “Visible Invisibility: Women of Color in Fortune 500 Legal Departments” found that women of color are underpaid, underestimated and undervalued.

According to an executive summary of the survey, “Sadly, female attorneys of color often are treated as second-class citizens in a profession that ironically is charged with the responsibility of ensuring justice and equality for all.”

Nine years ago, the Commission on Women in the Profession created its Women of Color Research Initiative, which has produced surveys to bring attention to the inequities women of color contend with in the profession.

The first phase of this initiative explored the career experiences of women of color in law firms. The current phase of the initiative focuses on those women in corporate law departments during four aspects of their careers: hiring, recruitment, retention and advancement.

So far, the survey has found that women of color did not experience bias in hiring, but as they progressed in their careers, they experienced it in the retention and advancement phases.

Lorelie S. Masters, the co-chair for the Women of Color Research Initiative Committee, said that other initial findings revealed that 48 percent of white men reported satisfaction with their careers in-house compared with 17 percent of African-American women. Though pleased with the decision to work for in-house Fortune 500 legal departments, African-American women’s overall satisfaction was significantly less.

The survey determined that compensation was a key factor in job satisfaction during each phase of a lawyer’s career. Masters said that one study highlighted that the pay gap in the beginning may start at a $2,000 annual difference between male and female associates earning up to $66,000 a year. She said, “We all understand, and certainly women of color as much as anyone, that compensation is a measure of how an organization values one’s contribution.”

The full report of the nationwide survey of 1,000 in-house lawyers at Fortune 500 companies will be published in the fall.

Related video from “Visible Invisibility: Top women lawyers of color share “best advice” for career advancement.

Related Situationist posts:

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

The Historical Situation of Situationism at Harvard Law

Posted by The Situationist Staff on July 24, 2012

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

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

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

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

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

You can download the paper for free here.

Related Situationist posts:

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

Jon Hanson on Law and Mind Sciences

Posted by The Situationist Staff on March 15, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

How did that realization influence your research?

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

What were some of those insights?

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

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

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

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

What does that mean for the law?

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

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

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

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

Is this entirely new terrain?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How do ideology and psychology influence judicial decision making?

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

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

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

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

I hope so.

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

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

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

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

A sample of related Situationist posts:

Posted in Choice Myth, Ideology, Law, Legal Theory, Situationist Contributors, Social Psychology | Tagged: , , , , | Leave a Comment »

Nancy Gertner on the Situation of Feminism

Posted by The Situationist Staff on March 3, 2012

From Harvard Gazette:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reltated Situationist posts:

Image by Jon Chase/Harvard Staff Photographer.

Posted in Ideology, Implicit Associations, Law, Public Policy | Tagged: , , , | Leave a Comment »

Ideology, Psychology, and Law – Introduction

Posted by The Situationist Staff on February 29, 2012

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

Here’s a quick description.

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

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

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

Download the chapter for free here.

Learn more about the book here.

Posted in Abstracts, Book, Ideology, Law, Legal Theory, Situationist Contributors, Social Psychology | Tagged: , , , , , , | 1 Comment »

Ideology, Psychology, and Law – Available Now!

Posted by The Situationist Staff on January 12, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Purchase information here.

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

Can The Law Go Upstream?

Posted by The Situationist Staff on December 22, 2011

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

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

You can download the paper for free here.

Related Situationist posts:

Posted in Abstracts, Deep Capture, Environment, Law, Public Policy | Tagged: , , , , | Leave a Comment »

Implicit Juror Bias

Posted by The Situationist Staff on November 1, 2011

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

* * *

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

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

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

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

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

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Download the article for free here.

Related Situationist posts:

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Juror Bias

Posted by The Situationist Staff on October 30, 2011

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

* * *

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

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Download the paper for for free here.

Related Situationist posts:

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The Marketing Situation of Doritos (FTC Complaint)

Posted by The Situationist Staff on October 19, 2011

NPLAN filed a complaint today with the FTC today alleging that Frito-Lay has engaged in deceptive marketing to teens by disguising Doritos ads as entertainment; by collecting and using kids’ personal information in violation of its own privacy policy and without adequate disclosure about the extent and purpose of the data collection; and by engaging in viral marketing in violation of the FTC’s endorsement guidelines. Learn more about the complaint here.

These videos, which detail the advertising strategies and goals, speak for themselves.

Related Situationist posts:

For more on the situation of eating, see Situationist contributors Adam Benforado, Jon Hanson, and David Yosfion’s law review article Broken Scales: Obesity and Justice in AmericaFor a listing of numerous Situaitonist posts on the situational sources of obesity, click here.

Posted in Choice Myth, Deep Capture, Emotions, Entertainment, Food and Drug Law, Marketing, Video | Tagged: , , , | 2 Comments »

David Eagleman on the Brain and the Law

Posted by The Situationist Staff on May 31, 2011

From :

Dr David Eagleman considers some questions relating to law and neuroscience, challenging long-held assumptions in criminality and punishment and predicting a radical new future for the legal system.

[Eagleman’s examples in the first 15 minutes will  strike long-term readers of The Situationist as non-novel.  For others, that portion of the video may be a useful primer to neurolaw.]

Related Situationist Posts:

 

 

Posted in Implicit Associations, Law, Neuroscience, Video | Tagged: , , , | 1 Comment »

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 »

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 »

The Situation of Emotional Distress Claims

Posted by The Situationist Staff on November 20, 2009

Betsy Grey has recently posted her intriguing paper, “Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims” on SSRN.  Here’s the abstract.

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American tort law traditionally distinguishes between “physical” and “emotional” harm for purposes of liability, with emotional harm treated as a second class citizen. The customary view is that physical injury is more entitled to compensation because it is considered more objectively verifiable and perhaps more important. The current draft of the Restatement of the Law (Third) of Torts maintains this view. Even the name of the Restatement project itself – “Liability for Physical and Emotional Harm” – emphasizes this distinction. Advances in neuroscience suggest that the concern over verification may no longer be valid, and that the phenomena we call “emotional” harm has a physiological basis. Because of these early scientific advances, this may be an appropriate time to re-examine our assumptions about tort recovery for emotional harm.

Using studies of Post Traumatic Stress Disorder as an example, this paper explores advances in neuroscience that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress. These advances underline the shrinking scientific distinction between physical and emotional harm. Drawing on these scientific developments, as well as on the British approach to emotional injury claims, the paper concludes that we should rethink the American treatment of emotional distress claims. In general, it proposes that we change our approach to account for advances in neuroscience, moving toward a more unified view of bodily and emotional injury. Two potential legal applications are advanced in this paper: (1) that science can provide empirical evidence of what it means to suffer emotional distress, thus helping to validate a claim that has always been subject to greater scrutiny; and (2) that this evidence may allow us to move away from the sharp distinction between how physical and emotional injuries are conceptualized, viewing both as valid types of harm with physiological origins.

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To download the paper for free, click here.  To read a sample of related Situationist posts, see “New Study Looks at the Roots of Empathy,” “Placebo and the Situation of Healing,” “The Situation of Time and Mind,” “The Rubber Hand Illusion,” The Body Has a Mind of its Own,” “A (Situationist) Body of Thought,” and “A Closer Look at the Interior Situation.”

Posted in Abstracts, Emotions, Law, Neuroscience | Tagged: , , , | 1 Comment »

A Rose by any other Name Might Become a Judge

Posted by The Situationist Staff on August 18, 2009

PortiaBentley Coffey and Patrick McLaughlin have recently published their intriguing article, titled “Do Masculine Names Help Female Lawyers Become Judges? Evidence from South Carolina,” in American Law and Economics Review (Spring 2009). Here are some excerpts from the paper’s introduction (citations omitted).

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In Shakespeare’s Merchant of Venice, a woman named Portia masquerades as a man in order to argue before the court as an attorney. Indeed, for centuries the only way a woman could have practiced law was incognito because the courtroom was a domain reserved exclusively for men. A notable exception on record is Miss Margaret Brent, circa 1640, who was permitted by Lord Baltimore to practice law as a woman; nonetheless, she was still addressed as “Gentleman Margaret Brent” during her several dozen appearances in the Maryland colonial court.

Most jurisdictions in the western world refused to admit women to the bar before World War I. By the end of the nineteenth century, any woman attempting to practice law was labeled Portia, as was the first school established exclusively for the legal education of women. The first Portia to be admitted to the South Carolina bar was Miss James (Jim) Margrave Perry in 1918. Although women no longer needed a male disguise to practice law, a male persona or male moniker still might have helped.

Despite the fact that women made up half of the students graduating from law school in the past 15 years, the legal profession remains a male-dominated world. Consequentially, one would suspect that having a male persona or male moniker might still be advantageous to a career in law. We dub this the Portia hypothesis: females with masculine names are more successful in legal careers than females with feminine names. The purpose of this paper is to conduct the first empirical test of the Portia hypothesis, using data from South Carolina.

We have good reason to expect to find the Portia hypothesis holding in our data. The first female lawyer in South Carolina had a masculine name and today many female lawyers privately express their belief that their nominal masculinity matters. Anecdotally, the legal profession remains one of the last bastions of the “good old boy network”, particularly in South Carolina. Even in Massachusetts – a state that is often viewed as less traditional than South Carolina – females comprise a small minority of all partners in law firms. Just as precedent-bound law changes slowly, the legal profession is notoriously slow to embrace change. On the other hand, females are a protected class under the Equal Protection Clause of the US Constitution’s 14th Amendment, and no one should understand (and, arguably, respect) that better than lawyers and judges. Yet judicial positions turn over rarely, some even being held for life, so that the equal status for women may not yet have propagated into the upper echelons of the legal profession.

Several different mechanisms could be at work to make the Portia hypothesis hold in the data. A lawyer’s gender could explicitly matter for advancement to some decision makers; for example, some judicial positions are determined by popular election, and the electorate (or sufficiently large subset of it) could categorically prefer men to women. If nothing else were known about an individual besides that individual’s name, the name itself could contain information on the gender of the individual, just as a name contains information on the race of an individual. Just as with the racial discrimination on call-backs for resumes submitted in job applications, individuals may be more likely to get into the pool of candidates receiving serious consideration for the sorts of positions that lead to potential judgeships, i.e. getting their “foot in the door”, when they have a male moniker.

Alternatively, nominal masculinity might matter when opinions are formed about a lawyer’s work, not face-to-face, but through the written word, such as through briefs or publications in law journals. If there is some gender bias in the citation process – that is, if authors are generally more likely to cite a writer with a masculine name than with a feminine name – then we might observe female lawyers with masculine names receiving more citations than female lawyers with feminine names, ceteris paribus, and having relatively fewer citations could affect career outcomes. The mechanism could be even subtler yet. There could be a subconscious preference for male names, even when the gender is known; jurists, clients, superiors, professors, legislators, etc., might just feel more comfortable with a woman called “George” than one called “Barbara”; in the context of the good old boy network, a woman with a male moniker might just feel more like “one of the boys”. Finally, it could just be that the parents who successfully nurture a girl’s ability are the same people who believe that bestowing a child with a masculine name would be advantageous in her future career path.

In this paper, we use the frequency of names and genders of all registered voters in South Carolina to construct a measure of nominal masculinity and assign this measure to each member of the South Carolina bar. Examining the correlation between a lawyer’s advancement to a judgeship and his/her name’s masculinity, we find that nominally masculine names appear to be favored over nominally feminine names. This could be due to the Portia Hypothesis. Alternatively, the correlation between attaining judgeship and masculine names could also arise from the fact that most judges are males, who tend to have more masculine names (by definition).  Because we do not observe the gender of South Carolina bar members, we are unable to control for male domination of the judiciary with that data source.

To separate these two possible causes of correlation between nominal masculinity and judgeship, we combine data on the names and genders of the entire population of registered voters in South Carolina with the publicly available names and genders of judges.  Controlling for gender, we find a significant correlation between nominal masculinity and judgeship, supporting the Portia Hypothesis.  A series of robustness checks confirm the Portia Hypothesis.

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You can download a pre-publication pdf draft of their paper here.

For a sample of related Situationist posts, see “The Gendered Situation of Chess,” The Situation of Gender-Science Stereotypes,” “Women’s Situational Bind,” The Situation of Gender and Science,Stereotype Threat and Performance,” “The Gendered Situation of Science & Math,” Gender-Imbalanced Situation of Math, Science, and Engineering,” “Sex Differences in Math and Science,” “You Shouldn’t Stereotype Stereotypes,” “Women’s Situation in Economics,” and “Your Group is Bad at Math.”

Posted in Abstracts, Implicit Associations, Law, Social Psychology | Tagged: , , | 4 Comments »

Law, Chicken Sexing, Torture Memo, and Situation Sense

Posted by The Situationist Staff on May 25, 2008

Image by altopower - FlickrIt’s law-school graduation season. Here is one of the best law-school commencement speeches in recent memory, given by Situationist contributor Dan Kahan at Yale Law School two years ago.

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I’m sure we are all moved by the profound and unique signification of commencement exercises at Yale Law School. At other, lesser law schools, commencement marks the successful completion of a program in legal education. But at Yale, commencement means just that – a start, a beginning.

Having earned your Juris Doctorate from Yale, the time has come for you finally to commence learning real law. Well, today I’d like to offer you an apology for the distinctive brand of legal education you received here. Of course I mean apology not as in a contrite acknowledgment of fault, but apology as in a justification of a position of political and moral dispute.

Now in truth, I think our pedagogy at Yale Law School is not nearly so alienated from the practice of law as it is sometimes, comically depicted. But it is, I concede, emphatically opposed to the conventional view that learning law means learning a body of formal rules. So I want to explain why, to my mind at least, a conventional legal education of that sort would almost certainly have made you a bad lawyer – in multiple senses – and why the approach we use instead will, at least hopefully, make you a good one.

Do you know what this is? Yes, it’s a baby chick. But do you know its gender? Of course, not. But you would if you were a professional chick sexer. In the poultry industry, it is very important to separate out male and female chicks almost immediately after birth: the males are less valuable – they can’t lay eggs and their meat isn’t nearly so tender – and they end up competing with the female chicks for food. So you need to pick the males out and get rid of them. This job falls to the professionally trained chick sexer, who turning the chicks over gently in his or her hand is able to sort out male from female at a rate of 1,000 per hour and at an accuracy rate of 99%.

What makes this feat so astonishing, though, is that there just isn’t any readily discernable, or at least articulable, difference in the anatomy of newborn chicks. All zoologists agree that this is so. If you ask a professionally trained chick sexer what he is looking for, don’t expect a satisfying answer.

Either he’ll confabulate, telling you some fantastic and silly story about the inability of the male chick to look him straight in the eye. Or more candidly, he’ll just shrug his shoulders.

But while the nature of the chicksexer’s skill may be inexplicable, how he acquired it isn’t. To become chicksexers, individuals go off for an extended period of study with a chick sexing grandmaster. He doesn’t give lectures or assign texts. Instead he exposes his pupils to slides– “male,” “female,” “male,” “male,” “female,” “female,” “male” – continuing on in this way until the students acquire the same special power to intuitively perceive the gender of a newborn chick, even without being able to cogently explain how.

What in the world does this have to do with law, you are asking yourself of a professor’s lecture, once again. Well, what I want to suggest is that what’s going on in the chick-sexing profession is the very same thing that goes on in the legal profession. The formal doctrines and rules that make up the law – unconscionability, proximate causation, character propensity, unreasonable restraints of trade – are just as fuzzy and indeterminate as the genetalia of dayold chicks. And yet just as the trained chick sexer can accurately distinguish female from male, so the trained lawyer can accurately distinguish good decision from bad, persuasive argument from weak. Ask the lawyer for an explanation, and in his case too you’ll get nothing but confabulation – “plain meaning,” “congressional intent,” “efficiency” – or what have you.

In addition, the lawyer attains her skill – to recognize what she can’t cogently explain – in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.

Now, by this point in my argument, you’ll likely recognize that my analogy between legal reasoning with chick sexing is just a colorful rehearsing of legal realism. As developed at Yale Law School in the 1920s and 1930s, legal realism was less interested to demonstrate that legal rules are formally indeterminate than to explain how lawyers nonetheless form such uniform and predictable understandings of what those rules entail. Llewellyn attributed this ability to what he called “situation sense,” an intuitive perceptive faculty born of immersion in professional and cultural norms – the slide show of law.

Contemporary social psychologists use the concepts of pattern recognition and prototypical reasoning to describe the same cognitive processes – which are pervasive in all fields and facets of life, not just law and the poultry industry.

Well, if you accept this central insight of legal realism, as I do, then you will readily understand that effective legal training has very little to do with learning the mass and detail of formal legal rules. Instead, it has everything to do with acquiring situation sense.

You’ll also see that being an effective advocate requires an ability to arouse the situation sense of other lawyers, including judges. Those who believe that making convincing arguments consists in knowing formal rules are professionally autistic. They can’t make arguments that engage the emotional motivations of those they are trying to persuade. Only those who understand the role of situation sense, who are acquainted with the norms that construct it, are poised to explain, to predict, and through strategic framing and advocacy, to influence legal decisionmakers.

So to make you good lawyers we at Yale impart not “rule knowledge” but situation sense. This is part of my apology for our distinctive pedagogy.

But it is only part. There’s another, which is more complicated and which is concerned with making you good rather than bad lawyers in a somewhat different sense.

I’m sure you will all have immediately recognize one difference between the situation sense of chicksexers and situation sense of lawyers. The quality of intuitive perceptions of any individual chicksexer can be externally validated: ultimately we can test whether he is able accurately to distinguish male and female. But we can’t externally validate the situation sense of lawyers. The only test of whether some lawyer has reliable situation sense is to see whether other lawyers (including decisionmakers) agree with her perceptions of how
society’s rules should be applied.

Now understand, the lack of external validation doesn’t mean that good lawyering, as a psychological matter, can’t be said to involve the same faculty of tacit reasoning, or intuitive perception, that good chick-sexing does. But it does mean that the content of the lawyers situation sense will be inevitably be more contingent and dynamic: our professional norms – and in turn the law itself – will evolve in response to the evaluations we ourselves make of the decisions and actions of one another.

As a result, there is an element of moral agency in good lawyering that has no analog in good chick sexing. When I as a lawyer exercise professional judgment, when I perform my professional responsibilities, I affirm the authority and extend the vitality of the norms that Dan Kahanconstruct our professional situation sense. Now granted, it would be absurd to assert that every decision a lawyer makes meaningfully influences professional understandings, much less that any individual lawyer always has the power to point those understandings in a either a just or an unjust direction. But it would be equally naïve to deny that the decisions of certain individual lawyers, on certain critical occasions, can have that effect.

A little over a decade ago, a brilliant 25 year-old was standing where you are. Less than a decade later, after serving as a Supreme Court Law Clerk and as professor at an elite law school, he found himself serving as Deputy Assistant Attorney General in the Office of Legal Counsel. At the behest of White House lawyers who were battling internal opposition from career military officers and lawyers, he wrote a legal memorandum which construed the law to permit the use of interrogation techniques that the U.S. had for decades understood to be banned by the Geneva Convention. Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound
and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

The analysis reflected in the so-called Torture Memo did not, in fact, become part of our professional and cultural understandings, our situation sense. But I think a large part of the credit for that belongs to another individual lawyer, who as a 20-something also stood where you now are about a decade and a half ago. He too clerked for a Supreme Court Justice and then served on the faculty of a major U.S. law school. In 2003 he took over as head of the Office of Legal Counsel. And to the shock of his patrons, he immediately issued a directive advising the military intelligence services that they couldn’t rely on the so-called Torture Memo. This was well before the Abu Ghraib prisoner abuse scandal came to light, at a time when high-ranking political appointees in the Justice Department and Pentagon were continuing to place decisive reliance on the Torture Memo. As a result, this lawyer had every reason to believe the Memo’s understanding of the law would persist, and that it would pervade and shape the shared professional and cultural understandings of lawyers, unless he as a lawyer took responsibility for repudiating it. So he did.

This lawyer, Jack Goldsmith, was ultimately pushed out of OLC and is now languishing at an obscure law school in Cambridge, Massachusetts. When he got there, by the way, a portion of that institution’s faculty, unaware of the role he had played in overturning the Torture Memo, and later in temporarily suspending the then still-secret NSA warrantless domestic surveillance policy, refused to even acknowledge him in the halls. Well, some of the lawyers trained at that school also played a sad role in the Torture Memo. Now that Goldsmith is there, I suspect it’s much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of his actions, it’s much less likely any of you ever will either.

This was my last chance to teach you some law, Yale style. These were my final two slides: one bad lawyer, one good. What made the bad one bad wasn’t that he knew “less law.” It was that he, unlike the good lawyer, refused to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself.

Because you today are standing where these two lawyers stood, because you are standing where number members of Congress, Justices of the Supreme Court, and Presidents of the United States have all stood too, I feel petty certain that a number of you too will be in that position some day. If you are, how good a lawyer you are won’t be determined by how many rules you’ve learned; it will turn on how good a person you are. My apology for not teaching you more “law” is that I thought it was much more urgent to try to teach you that.

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For a related Situationist post, see “The Situation of John Yoo and the Torture Memos.”

Posted in Education, Law, Legal Theory, Life, Morality, Social Psychology | Tagged: , , , , , , | 3 Comments »

The Endowment Effect in Chimpanzees – Abstract

Posted by The Situationist Staff on May 14, 2008

Chimpanzee by lightmatter - FlickrSarah F. Brosnan, Owen D. Jones, Susan P. Lambeth, Mary Catherine Mareno, Amanda S. Richardson, and Steven Schapiro, posted their article, “Endowment Effects in Chimpanzees” 17 Current Biology, 1704-1707 (October 9, 2007) on SSRN. Here’s the abstract.

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Human behavior is not always consistent with standard rational choice predictions. The much-investigated variety of apparent deviations from rational choice predictions provides a promising arena for the merger of economics and biology. Although little is known about the extent to which other species also exhibit these seemingly irrational patterns of human decision-making and choice behavior, similarities across species would suggest a common evolutionary root to the phenomena.

The present study investigated whether chimpanzees exhibit an endowment effect, a seemingly paradoxical behavior in which humans tend to value a good they have just come to possess more than they would have only a moment before. We show the first evidence that chimpanzees do exhibit an endowment effect, favoring items they just received more than items they prefer that could be acquired through exchange. Moreover, we demonstrate that – as predicted – the effect is far stronger for food than for less evolutionarily salient objects, perhaps due to historically greater risks associated with keeping a valuable item versus attempting to exchange it for another. These findings suggest that the larger set of seeming deviations from rational choice predictions may be common to humans and chimpanzees, and that the evaluation of these through a lens of evolutionary relevance may yield further insights in both humans and other species.

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To read about a related paper, see “A New Theory of the Endowment Effect.”

Posted in Abstracts, Behavioral Economics, Choice Myth, Uncategorized | Tagged: , , , , , , , , , , , | 1 Comment »

Naive Cynicism – Abstract

Posted by The Situationist Staff on May 8, 2008

Image by Wetsun - FlickrSituationist Contributors Adam Benforado and Jon Hanson have posted their recent article, “Naive Cynicism: Maintaining False Perceptions in Policy Debates” (57 Emory Law Journal (2008)) on SSRN. The paper was recently listed on SSRN’s Top Ten download list for LSPLDL: Political Process, and is a featured article on the Emory Law Journal Website. The abstract is pasted below.

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This is the second article in a multi-part series. In the first part, The Great Attributional Divide, the authors suggested that a major rift runs across many of our major policy debates based on contrasting attributional tendencies (dispositionist and situationist). This article explores how dispositionism maintains its dominance despite the fact that it misses so much of what actually moves us. It argues that the answer lies in a subordinate dynamic and discourse, naïve cynicism: the basic subconscious mechanism by which dispositionists discredit and dismiss situationist insights and their proponents. Without it, the dominant person schema — dispositionism — would be far more vulnerable to challenge and change, and the more accurate person schema — situationism — would be less easily and effectively attacked. Naïve cynicism is thus critically important to explaining how and why certain legal policies manage to carry the day. (To download a copy, click here.)

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For a recent Situationist post illustrating naive cynicism at work, see “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?.”

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Posted in Abstracts, Conflict, Ideology, Legal Theory, Naive Cynicism, Politics, Social Psychology, Uncategorized | Tagged: , , , , , , , , , | 2 Comments »

The Great Attributional Divide – Abstract

Posted by The Situationist Staff on April 29, 2008

Image by aaardvaark - FlickrSituationist Contributors Adam Benforado and Jon Hanson have posted their recent article, “The Great Attributional Divide: How Divergent Views of Human Behavior are Shaping Legal Policy” (57 Emory Law Journal (2008)) on SSRN. The paper was recently listed on SSRN’s Top Ten download list for LSPLDL: Political Process, and is a featured article on the Emory Law Journal Website. The abstract is pasted below.

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This article, the first of a multipart series, argues that a major rift runs across many of our major policy debates based on our attributional tendencies: the less accurate dispositionist approach, which explains outcomes and behavior with reference to people’s dispositions (i.e., personalities, preferences, and the like), and the more accurate situationist approach, which bases attributions of causation and responsibility on unseen influences within us and around us. Given that situationism offers a truer picture of our world than the alternative, and given that attributional tendencies are largely the result of elements in our situations, identifying the relevant elements should be a major priority of legal scholars. With such information, legal academics could predict which individuals, institutions, and societies are most likely to produce situationist ideas – in other words, which have the greatest potential for developing the accurate attributions of human behavior that are so important to law. (To download a copy, click here.)

Posted in Abstracts, Ideology, Legal Theory, Life, Naive Cynicism, Social Psychology | Tagged: , , , , , , , | 1 Comment »

A New Theory of the Endowment Effect – Abstract

Posted by The Situationist Staff on April 26, 2008

Image by by Chi King - FlickrOwen Jones and Sarah Brosnan have posted their article, “Law, Biology, and Property: A New Theory of the Endowment Effect” 48 William & Mary Law Review (2008) on SSRN. We’ve included the abstract below.

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Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context.

The paradoxical psychological bias known as the endowment effect puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at present no satisfying explanations for why it manifests when and how it does. Drawing on evolutionary biology, this Article provides a new theory of the endowment effect. Briefly, we hypothesize that the endowment effect is an evolved propensity of humans and, further, that the degree to which an item is evolutionarily relevant will affect the strength of the endowment effect. The theory generates a novel combination of three predictions. These are: (1) the effect is likely to be observable in many other species, including close primate relatives; (2) the prevalence of the effect in other species is likely to vary across items; and (3) the prevalence of the endowment effect will increase or decrease, respectively, with the increasing or decreasing evolutionary salience of the item in question.

The authors tested these predictions in a chimpanzee (Pan troglodytes) experiment, recently published in Current Biology. The data, further explored here, are consistent with each of the three predictions. Consequently, this theory may explain why the endowment effect exists in humans and other species. It may also help both to predict and to explain some of the variability in the effect when it does manifest. And, more broadly, the results of the experiment suggest that combining life science and social science perspectives could lead to a more coherent framework for understanding the wider variety of other cognitive heuristics and biases relevant to law.

Posted in Abstracts, Behavioral Economics | Tagged: , , , , , , , , , | Leave a Comment »

 
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