The Situationist

Posts Tagged ‘legal realism’

Moral Grammar and Intuitive Jurisprudence – Abstract

Posted by The Situationist Staff on November 5, 2008

brain-cog-imageJohn Mikhail’s recently posted his forthcoming chapter, “Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge” (forthcoming in The Psychology of Learning and Motiation: Moral Cognition and Decision Making (D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., 2009) on SSRN.  Here’s the abstract.

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Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of crime and tort, particularly Terry’s five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

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For related Situationist posts, see “Moral Cognitions – Abstract” and “Moral Psychology Primer.”

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

Categorically Biased – Abstract

Posted by The Situationist Staff on September 3, 2008

Ron Chen and Situationist contributor Jon Hanson recently posted their article, “Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory” (77 S. Calif. L. Rev. 1103) on SSRN. Here’s the abstract.

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This Article focuses primarily on one slice of social psychology and social cognition research, namely the vast and vibrant field examining the integral role that knowledge structures play in the way we attend to, remember, and draw inferences about information we encounter and, more generally, the way we make sense of our world.

The human system of processing information is, in many cases, an efficient means of understanding our worlds and ourselves. Classification of people, objects, and other stimuli is often both indispensable and ineluctable. Still, as social psychologists have demonstrated, “virtually any of the properties of schematic functioning that are useful under some circumstances will be liabilities under others.” The categories and schemas that operate, usually automatically, influence all aspects of information processing – from what information we focus on, to how we encode that information, to which features of that information we later retrieve and remember, and to how we draw inferences and solve problems based on that information. Given the unconscious and biasing influence of our schemas, combined with the fact that our schemas themselves will often reflect our unconscious motives, we should be mindful, even distrustful, of our schemas and the conclusions that they generate. These effects, the processes that drive them, and the biases they engender are the primary subject of this Article. A central goal is to offer a broad understanding of how individuals utilize categories, schemas, and scripts to help make sense of their worlds. In doing so, we serve another main objective: to provide a comprehensive (yet manageable) synthesis of a vast body of social psychology literature. This overview shold transform how we make sense of our laws and legal-theoretic world.

Part II of this Article is devoted to describing the significance of knowledge structures. Part III briefly summarizes how legal scholars have thus far applied insights about knowledge structures and argues that their most profound implications have yet to be appreciated. Part III then provides a set of predictions regarding the influence of knowledge structures and the biases they likely engender for legal theories and laws.

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To download a copy of the paper for free, click here.

Posted in Abstracts, Deep Capture, Illusions, Law, Legal Theory, Social Psychology | Tagged: , , , , , , , , , , , | 1 Comment »

The Political Situation of Judicial Activism

Posted by The Situationist Staff on August 10, 2008

Thomas Miles and Cass Sunstein recently published their important new paper, “Depoliticizing Administrative Law ,” on SSRN. Here is the abstract.

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A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for “arbitrariness” on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to “rank” justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of “debiasing” that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

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Cass Sunstein published a great post, “The Partisanship Awards,” summarizing parts of that research last week on The Washington Independent. Here are some excerpts from that post.

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Who are the real activists on the U.S. Supreme Court? Do Republican appointees differ from Democratic appointees? How much? Are federal judges political?

I have been studying these issues with several colleagues, including Thomas Miles, an economist and lawyer at the University of Chicago Law School, for a number of years now. One big question: Do judges show a political bias? We also wanted to see what any bias might tell us about how judges might rule in the future –- under, for example, an Obama or McCain administration. We catalogued thousands of judicial decisions — well over 20,000 — to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan — in that they are more likely to vote in favor of conservative agency decisions than liberal ones. (Because Chief Justice John Roberts and Justice Samuel Alito have been on the court only a short time, we did not include them because we had too little data.) We wanted to see if some justices are more political in their voting patterns than others – and also learn something about how future administrations are likely to fare in the Supreme Court.

We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal.

We used this method because the relevant question is not whether an agency’s decision is liberal or conservative in the abstract — it is how and why that decision is challenged in its context. . . .

We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?

Our answers: Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.

Here are the results:

Table 1: Partisan Voting on the Supreme Court

Justice Gap between liberal and conservative agency decisions
(in percentage points)
Type of Agency Decision Favored
Clarence Thomas 46 Conservative
John Paul Stevens 40 Liberal
Antonin Scalia 27 Conservative
Stephen Breyer 26 Liberal
Ruth Bader Ginsburg 23 Liberal
William Rehnquist 21 Conservative
Sandra Day O’Connor 14 Conservative
David Souter 14 Liberal
Anthony Kennedy 1

This information does not tell us everything we need to know. Thomas shows the strongest partisan bias, but is he also an activist? Does he vote to strike down agency decisions at a high rate? To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions.

It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results:

Table 2: Activism and on the Supreme Court

Justice Rate of upholding agency decisions (percentage points)
Breyer 82
Souter 77
Ginsburg 74
Stevens 71
O’Connor 68
Kennedy 67
Rehnquist 64
Thomas 54
Scalia 52

While the Supreme Court gets the most attention, the lower courts are also important in determining the meaning of national law and shaping national policy.

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To read the rest of Sunstein’s post, which examines how Republican and Democratic appointees on the lower courts approach decisions of the Environmental Protection Agency and the National Labor Relations Board and which summarizes three important lessons of the research, click here.

Posted in Abstracts, Behavioral Economics, Ideology, Law, Legal Theory, Politics, Uncategorized | Tagged: , , , , , | 1 Comment »

 
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