Brooks on the Situation of Judging

New York Times columnnist David Brooks had a nice op-ed, “The Empathy Issue,” picking up some of the themes in the recent op-ed by Situationist Contributors Adam Benforado and Jon Hanson.  Here are some excerpts.

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The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

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Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.

As [Situationist Contributor] Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it’s a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It’s a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then — often while you’re in the shower or after a night’s sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Now your conclusion is articulate in your consciousness. You can edit it or reject it. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.

The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. . . .

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To read the entire op-ed, click here.  For some related Situationist posts, see “The News Situation of Judge Sotomayor’s Nomination” and “The Situation of Judicial Activism,” which contains links to still more related posts.

Tamara Piety on Lie Detection

The Situationist receives many good comments, but some are too good to not be posts.  In response to our recent post, “Opening Black Boxes – Abstract,” Tamara Piety wrote an excellent comment, which we’ve posted below.  Thanks Tamara.

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I look forward to reading this article in detail, but I think the prospect of accurate fMRI lie detection is (as I understand it) still relatively remote, while the dangers of courts and the public leaping to adopt the latest technology that purports to offer reliable lie detection is fairly proximate and of grave concern. As the author notes, all one has to do is to look at the history of other lie detection technologies to feel some caution about embracing a new technology too enthusiastically, particularly when offered by the prosecution. The National Research Council’s recent report on the state of the forensic sciences contains some cautionary tales on this issue with respect to all manner of forensic testimony purporting to be “expert” (with some corresponding danger of deference from the jury) that has regularly (and continues to be) admitted by the courts but which lack empirical foundation. It is extremely important to not confuse or conflate what courts decide to admit with real evidence of the technology’s validity or reliability.  A court’s decision to admit something is legal proof but not empirical proof, any more than a court’s decision to admit the testimony of an “expert” astrologer would be proof of the external validity of astrology as a practice. Compared to the rather remote and largely hypothetical question of whether, assuming fMRI lie detection achieves some reliability, it would do away with juries, the danger of admitting it without sufficient grounding seems to me of much greater concern. Many of those subsequently exonerated by DNA were initially convicted with dubious forensic science testimony. Conversely, there has been for some time fairly good evidence that juries cannot do many of the things we ask them to do. (Ex: disregard something they have already heard; use evidence for one purpose but not another, as when jurors are asked to use evidence of a witness’ prior conviction as evidence for assessing his credibility or character for truthfulness, but not for propensity; not discuss issue of insurance; and a host of other incredible constructs). And courts have been fairly resistant to permitting expert testimony about things that challenge existing assumptions, say the frailties of eyewitness testimony or memory or fingerprint comparisons, etc. Were accuracy of factual determinations the main concern in trials one might have predicted that all this evidence concerning unreliable forensics would be admitted and that the Rules of Evidence would have long since been reformed to bear some resemblance to how people really think. Indeed we might have predicted a system of evidence-based evidence as Simon Cole has suggested, and relied less on juries at that point, were it not clear that something else is going on. I think something else is going on and that the experience with forensic science generally to some extent answers the question posed here.

The Situation of Judicial Cognition and Motivation – Abstract

Jennifer Robbennolt, Robert MacCoun, and [Situationist contributor] John M. Darley, posted their excellent paper, “Multiple Constraint Satisfaction in Judging,” on SSRN.  Here’s the abstract.

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Different models of judicial decision making highlight particular goals. Traditional legal theory posits that in making decisions judges strive to reach the correct legal decision as dictated by precedent. Attitudinal and strategic models focus on the ways in which judges further their preferred policies. The managerial model emphasizes the increasing caseload pressures that judges at all levels face. Each model accurately captures some of what every judge does some of the time, but a sophisticated understanding of judicial decision making should explicitly incorporate the notion that judges simultaneously attempt to further numerous, disparate, and often conflicting, objectives. We offer a preliminary account of a more psychologically plausible account of judicial cognition and motivation, based on principles of goal management in a constraint satisfaction network.

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For a sample of related Situationist posts, see “John Darley on “Justice as Intuitions” – Video,” “Why We Punish,” “The Situation of Judicial Activism,” and the links on bottom of those posts.

Opening Black Boxes – Abstract

Julie Seaman has posted another terrific article, “Black Boxes,” on SSRN (published in 58 Emory Law Journal 428 (2008).  Here’s the abstract.

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The metaphor of the black box has often been used to describe the qualities of the human mind; likewise, the jury box is frequently referred to as a black box. In both contexts, the metaphor is apt because of the inscrutability of the process that gives rise to the outputs that emanate from each. Recent advances in brain imaging techniques have now begun to crack open the black box that is the human mind by illuminating the physical manifestations – the “neural correlates” – of a wide range cognitive processes. In particular, research into the neural correlates of deception presents the genuine prospect of a reliable, forensically practicable lie detector within the foreseeable future. Here, I proceed in the nature of a thought experiment to explore the ramifications for the jury system of a highly reliable lie detection technique. In particular, I suggest that opening the black box of the mind would have the effect of opening the black box of the jury room.

Conventional wisdom has it that the jury’s primary – if not singular – function is to determine the historical facts of the case. Yet it is clear that in addition to finding facts, juries also operate in the much more controversial realm of making law. At its extreme, this law-making role may result in jury nullification, whereby the jury issues a verdict intentionally contrary to the law as instructed by the court applied to the facts as found by the jury. Whereas the jury’s power to nullify is well-settled, its right to nullify is highly contested. Thus, much of the scholarly and judicial discussion has focused on the issue of whether the jury may or must be instructed that it has the ability to return a verdict contrary to the applicable law. Though scholars are divided, courts have uniformly held that juries should not be told of their power to nullify.

To the extent that brain imaging lie detection techniques (along with other technological advances in forensics) diminish the need for jury fact-finding, the jury’s law-making role would become more transparent to the public and, perhaps more important, to the jury itself. In cases where the facts were clear, the possibility and the actuality of nullification also would become clear. Thus would arise the questions: Is the black box quality of jury decision-making integral to the nature of the jury system itself? Would opening the black box destroy it? Should even highly accurate lie-detection evidence be excluded in order to preserve the black box nature of jury decision-making? This Article offers a framework within which to begin to think about these questions.

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For a sample of related Situationist posts, see “The Situation of Hate Speech – Abstract,” “Jurors, Brain Imaging, and the Allure of Pretty Pictures,” “The Legal Brain,” and “Jury Selection.”

The Situation of Racism in LA Gangs

Thomas Watkins and Christina Hoag of the Associated Press have an interesting piece on the role of racism in LA gangs.  We excerpt it below.

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In dueling newspaper opinion pieces last year, Los Angeles County Sheriff Lee Baca maintained that race fueled gang violence while Los Angeles Police Chief William Bratton said skin color was seldom a factor.

“If you do a survey within the African-American community . . . you are in constant fear that your young male offspring is going to be killed because of the color of his skin,” Baca said in an interview after his piece appeared in the Los Angeles Times.

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Baca, an elected official, says his opinion comes from running the county jail system where he has to segregate inmates because of gang affiliations that break along racial lines.

Bratton works for a politically appointed commission and the Los Angeles Police Department has traditionally dealt with black gangs more than Latino gangs, though that is rapidly changing.

“Is there racial crime committed by gang members? Yes, of course,” said Deputy Police Chief Charlie Beck, head of detectives under Bratton. “But if you are asking me if race is a primary factor in gang crime, the answer is no.”

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Most gangs are formed along racial or ethnic lines, so turf battles can easily be construed as racist, though they’re usually driven by desire to control lucrative drug territory or other gang business.

“Every time you see one case, it’s easy to blow it up into a hate crime,” said Malcolm Klein, a University of Southern California social psychologist. “I tend to downplay that.”

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To read the rest of the piece, click here.  To read other Situationist posts related to gangs, click here.

The News Situation of Judge Sotomayor’s Nomination

As the the media quickly responds to news of Judge Sotomayor’s nomination, we thought it might be interesting to include some excerpts from a few different sources.

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From Fox News:

President Obama nominated federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court Tuesday, citing her “inspiring life story” and “distinguished career” in his decision.

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The president, in his announcement, said he was looking for a justice with a “common touch and a sense of compassion” as well as experience and depth of knowledge. He said Sotomayor, who grew up in a Bronx housing project and has an extensive judicial background, would come to the Supreme Court bench with more varied experience than anyone currently on the court when they were appointed.

Sotomayor, who said she was “deeply moved” by the president’s decision, called herself an “ordinary person who has been blessed with extraordinary opportunities and experiences.”

Obama called Sotomayor an “inspiring woman who I believe will be a great justice.”

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Sotomayor’s selection indicates that Obama is interested in diversifying the court. If she is confirmed, Sotomayor will become the third woman to be a Supreme Court justice, and she will join Ruth Bader Ginsburg in the current court.

Obama had said he was looking for a nominee who demonstrates empathy and “intellectual fire power,” as well as possesses the “common touch.” The president on Tuesday described Sotomayor, a judge for the 2nd Circuit Court of Appeals, as someone who fits these criteria.

She is the daughter of Puerto Rican immigrants, and she was raised in a Bronx housing project. She has dealt with diabetes since age 8 and lost her father at age 9, growing up under the care of her mother. Sotomayor supposedly became interested in law after watching the TV show “Perry Mason.”

She graduated from Princeton University and earned her law degree from Yale University. Sotomayor was appointed a federal district court judge in 1992 by President George H.W. Bush and then elevated to the 2nd Circuit Court of Appeals by President Bill Clinton. At that time, Republicans held up her confirmation, but she eventually passed the Senate 68-28.

Tuesday’s selection drew swift praise from liberals like the Rev. Al Sharpton, who called the choice “prudent” and “groundbreaking.” New York Sens. Chuck Schumer and Kirsten Gillibrand, Democrats from Sotomayor’s home state, also praised the pick and released a letter they wrote to Obama earlier in the month recommending her as an “excellent selection.”

Souter generally sided with the liberal wing of the high court, so Obama’s selection would not tilt the ideological balance of the body. But Sotomayor was considered one of the most liberal of Obama’s potential nominees, and she could set off a fight from the right during confirmation — even though Republicans are far outnumbered on Capitol Hill.

“This is not a bipartisan, consensus pick,” one senior GOP Senate leadership aide told FOX News.

As an appellate judge, she sided with the city of New Haven, Conn., in a discrimination case brought by white firefighters after the city threw out results of a promotion exam because two few minorities scored high enough. Ironically, that case is now before the Supreme Court.

A YouTube video of Sotomayor speaking at Duke University about what some interpreted as judicial activism also stirred controversy.

In the video, she said: “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

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“Senate Republicans will treat Judge Sotomayor fairly,” Senate Republican Leader Mitch McConnell said in a written statement. “But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

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From the New York Times:

President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.

Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.”

The president said he had made his decision after “deep reflection and careful deliberation,” and he made it clear that the judge’s inspiring personal story was crucial in his decision. Mr. Obama praised his choice as someone possessing “a rigorous intellect, a mastery of the law.”

But those essential qualities are not enough, the president said. Quoting Justice Oliver Wendell Holmes, Mr. Obama said, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live,” the president said.

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“My heart today is bursting with gratitude for all that you have done for me,” she said to her family, describing her selection as “the most humbling honor of my life.”

“I stand on the shoulders of countless people,” she said. But towering above all, she said, is her mother, who raised her alone after her father died. “I am all I am because of her,” Judge Sotomayor said, “and I am only half the woman she is.”

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Initial reaction to the selection reflected party divisions and signaled that Judge Sotomayor’s confirmation hearing before the Senate Judiciary Committee would be spirited.

“Her record is exemplary,” said Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee. “Judge Sotomayor’s nomination is an historic one, and when confirmed she will become the first Hispanic justice, and just the third woman to sit on the nation’s highest court. Having a Supreme Court that better reflects the diversity of America helps ensure that we keep faith with the words engraved in Vermont marble over the entrance of the Supreme Court: ‘Equal justice under law.’”

Another Democrat on the panel, Senator Charles E. Schumer of New York, was also enthusiastic. “Her outstanding legal mind, and her compelling life experience, is just the combination this court needs in its next justice,” Mr. Schumer said.

But early Republican reaction was decidedly lukewarm. “Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views,” said Michael Steele, chairman of the Republican National Committee.

And Senator John Cornyn of Texas, a member of the Senate Judiciary Committee, said, “Because Judge Sotomayor would serve for life if she is confirmed, it is essential that the Senate conducts this process thoroughly, and the President has assured me that we will have ample time to give Ms. Sotomayor’s record a full and fair review.”

Mr. Cornyn said the nominee “must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences.”

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From MSNBC (video – roughly 10 minutes):

Vodpod videos no longer available.

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From Mike Huckabee’s Website:

The appointment of Sonia Sotomayor for the Supreme Court is the clearest  indication yet that President Obama’s campaign promises to be a centrist and think in a bi-partisan way were mere rhetoric. Sotomayor comes from the far left and will likely leave us with something akin to the “Extreme Court” that could mark a major shift. The notion that appellate court decisions are to be interpreted by the “feelings” of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.

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For a recent, related Situationist post, see Adam Benforado and Jon Hanson’s “The Situation of Judicial Activism,” which contains link to still more related posts.

Getting a Grip on Climate Change

Last month, Adam Corner wrote a worthwhile editorial, “Time to Gamble on a Post-Carbon World,” for the Guardian. Here are some excerpts.

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That we engage in tactics of diversion, avoidance, and denial has been documented extensively on these pages. But as if our natural tendency to stick our heads in the sand wasn’t bad enough, the global recession further undermines our confidence. And when we lack self-confidence, facing up to the immense challenge that climate change represents is made all the more difficult.

One of the trickiest aspects of getting to grips with climate change is acknowledging that some of our beliefs about the world – say, for example, that private car ownership should be encouraged because it enhances personal freedom – might have to be reconsidered.

[Situationist Contributor] Geoffrey Cohen . . . has demonstrated that when people feel threatened or lack confidence they are less receptive to evidence that challenges their existing beliefs. In a study involving opinions about capital punishment, people reacted defensively when their beliefs were challenged, and new evidence failed to alter their existing opinions. But when the participants in the study were made to feel good about themselves – when their self-confidence was enhanced – they were more willing to take on board new evidence and reconsider their beliefs.

Climate change challenges us all to think differently and question our assumptions. The last thing we need is financial uncertainty to unsteady our nerves. But the doctrine of continual economic growth requires great risks to be taken in the hope that great gains will be achieved. Can we get to grips with climate change within an economic system that demands we live life on the edge?

Herman Daly, a former economist at the World Bank, has proposed a radically different system – a steady state economy. Rejecting the assumption that a market-based economy must continually grow, a steady state economy starts from the position that any economy will be constrained by the finite limits of the earth’s ecosystems. Noting that the earth is in a naturally steady state (that is, its natural systems are not expanding) Daly suggests that a steady state economy should allow qualitative development but not quantitative growth. According to Daly: “Growth is more of the same stuff; development is the same amount of better stuff.”

While the quality of life of millions of people in the developing world is fundamentally contingent on increasing their financial wealth, the developed nations have stormed past the point at which there is any correlation between additional wealth and happiness. Certainly, this masks gross inequalities in per capita income but as a nation we have more money than we need. Should we keep on getting richer? Or should development take priority over growth?

Daly proposes that a steady state economy means a global redistribution of wealth and a fundamental revaluation of what constitutes ‘value.’ But as well as its incredible potential for social transformation, a steady state economy removes the instability of a system of perpetual growth. It both requires and ensures that we live within our psychological and ecological means.

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To read tbe entire article, click op-ed. For some related Situationist posts, see “Jeffrey Sachs on Our Situation – Part V,” “The Situation of Climate Change,” “The Need for a Situationist Morality,” “The Heat is On,” and “Captured Science.”

Something to Smile About

Yes, I’m easily excitable, but I can’t tell you how happy it makes me to see mainstream newspapers publishing articles on hedonic research!  Lame (terribly clever) puns aside, there is a promising trend afoot.

In the last couple weeks, the New York Times and the Boston Globe have published articles exploring the implications of research on human happiness.

In the NYT, Situationist friend Dan Gilbert sought to shed light on “new survey results from the Gallup-Healthways Well-Being Index showing that Americans are smiling less and worrying more than they were a year ago, that happiness is down and sadness is up, that we are getting less sleep and smoking more cigarettes, that depression is on the rise.”

According to Gilbert, the explanation has to do with the discomfort of uncertainty.

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Consider an experiment by researchers at Maastricht University in the Netherlands who gave subjects a series of 20 electric shocks.  Some subjects knew they would receive an intense shock on every trial.  Others knew they would receive 17 mild shocks and 3 intense shocks, but they didn’t know on which of the 20 trials the intense shocks would come.  The results showed that subjects who thought there was a small chance of receiving an intense shock were more afraid—they sweated more profusely, their hearts beat faster—than subjects who knew for sure that they’d receive an intense shock.

That’s because people feel worse when something bad might occur than when something bad will occur.  Most of us aren’t losing sleep and sucking down Marlboros because the Dow is going to fall another thousand points, but because we don’t know whether it will fall or not — and human beings find uncertainty more painful than the things they’re uncertain about.

But why?

A colostomy reroutes the colon so that waste products leave the body through a hole in the abdomen, and it isn’t anyone’s idea of a picnic. A University of Michigan-led research team studied patients whose colostomies were permanent and patients who had a chance of someday having their colostomies reversed. Six months after their operations, patients who knew they would be permanently disabled were happier than those who thought they might someday be returned to normal.

Similarly, researchers at the University of British Columbia studied people who had undergone genetic testing to determine their risk for developing the neurodegenerative disorder known as Huntington’s disease.  Those who learned that they had a very high likelihood of developing the condition were happier a year after testing than those who did not learn what their risk was.

Why would we prefer to know the worst than to suspect it?  Because when we get bad news we weep for a while, and then get busy making the best of it.  We change our behavior, we change our attitudes.  We raise our consciousness and lower our standards. We find our bootstraps and tug.  But we can’t come to terms with circumstances whose terms we don’t yet know.  An uncertain future leaves us stranded in an unhappy present with nothing to do but wait.

Our national gloom is real enough, but it isn’t a matter of insufficient funds. It’s a matter of insufficient certainty. Americans have been perfectly happy with far less wealth than most of us have now, and we could quickly become those Americans again — if only we knew we had to.

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To read the entire article, click here.

For the Globe, Drake Bennett wrote about the potential policy implications of hedonic research.  Here are some excerpts.

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In recent years, cognitive scientists have turned in increasing numbers to the study of human happiness, and one of their central findings is that we are not very good at predicting how happy or unhappy something will make us. Given time, survivors of tragedies and traumas report themselves nearly as happy as they were before, and people who win the lottery or achieve lifelong dreams don’t see any long-term increase in happiness. By contrast, annoyances like noise or chronic pain bring down our happiness more than you’d think, and having friends or an extra hour of sleep every night can raise it dramatically.

These findings have fed the growth of a burgeoning “positive psychology” movement focused on helping people enrich their own lives. But now some scholars are starting to ask a bigger question: shouldn’t this new understanding affect policy, too? A huge range of social systems, from tort law to urban planning to medical care, are built on assumptions about what makes people happy. Now, for the first time, researchers are claiming to be actually measuring happiness, to actually know what causes it. In a society whose founding document asserts a basic right to the pursuit of happiness, that new knowledge could have far-reaching implications.

What we’re learning, these thinkers argue, should make us reconsider some of the basic rules by which government regulates behavior: how we litigate lawsuits and write contracts; how we zone neighborhoods; which medical research we fund, and how we prioritize healthcare. The findings of happiness researchers offer a new and potentially powerful set of tools to compare the impacts of various laws: how does it change everybody’s happiness if the minimum wage is raised, if the speed limit is lowered, if divorce laws are loosened?

Some skeptics think it’s premature to let happiness research dictate policy: much of the data is still provisional, and some findings seem to contradict each other. And, more fundamentally, some argue that no amount of data could justify the sort of paternalism that would be required for the government to force people into some happiness-maximizing choices. It’s part of a broader debate that has preoccupied thinkers since the dawn of philosophy but been rekindled by the new research: how do we define happiness, anyway, and how much should we value it?

[S]ome psychologists have begun to argue that you can, in fact, reliably measure happiness: all you need to do is ask people. Because we so badly mispredict and misremember how happy something made us, however, the trick is to ask people to rate their current happiness, and then track the changes over time. Many recent studies have subjects keep happiness diaries; others give them beepers and have them rate their happiness whenever beeped.

Perhaps the best known study in the literature was published in 1978 by the psychologists Philip Brickman, Dan Coates, and Ronnie Janoff-Bulman. They compared the self-reported happiness levels of lottery winners, paralyzed accident victims (both paraplegics and quadriplegics), and people who were neither. What they found was that lottery winners didn’t report themselves appreciably happier than the control group, and while the paralyzed did report themselves less happy than the controls, the difference was not as dramatic as the researchers had expected. More recent and rigorous studies have yielded results broadly similar: getting married or getting a raise or a new house all give a boost to our happiness, but eventually we drop to levels near where we were before. By contrast, happiness dips and then rebounds after people lose a limb, their sight or even – though the data is more conflicting here – a loved one.

For Daniel Gilbert . . . the implications for policymaking are straightforward. Lawmakers, judges, doctors and managers alike should take the growing happiness literature into account as they decide what behavior they want to encourage or discourage. “Before we get people to do X, we ought to know that X is actually a source of happiness for them,” he says.

The field that has taken this most to heart so far is the law. A few scholars have begun arguing, for example, that the damages we award in lawsuits need to be rethought in light of work like Gilbert’s. Last year Cass R. Sunstein, a Harvard Law School professor who is now the Obama administration’s nominee for “regulatory czar,” published a law review article in which he argued that our inability to predict how well people adapt to traumas leads to excessively large awards in personal injury lawsuits. Jurors and judges overcompensate plaintiffs for their suffering, he argued, because they are unable to believe that a disabled life can be a happy one. At the same time, Sunstein pointed to evidence that people are actually better at adapting to physical disabilities than to mental illness or chronic pain – conditions that, because they are not visible, don’t tend to elicit the same sort of reaction from juries. Because of that, he argued, our misunderstanding of happiness shortchanges those plaintiffs.

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Other legal scholars are concerned not with the misallocation of award money, but with how the legal process itself may hurt people who have already suffered a trauma by impeding their natural ability to adapt. Samuel Bagenstos and Margo Schlanger, law professors at Washington University in St. Louis, co-wrote a law review article in 2007 suggesting that the emphasis on lost enjoyment of life in jury awards actually makes it harder for the plaintiff to recover. Better, they argue, to focus remedies not on the lost happiness, which in many cases will take care of itself, but on specific lost capabilities, and on mitigating their effects through rehabilitation. And to the extent that disabilities do cause unhappiness, it’s often from social factors like isolation and discrimination – so paying people off just for their disability may be counterproductive, since it can leave the real causes of unhappiness unaddressed.

In the legal world, these ideas have triggered some pushback. Among the more specific critiques was one offered by Peter Huang, a law professor at Temple, and Rick Swedloff, a visiting associate professor at Rutgers. In a law review article published this spring, they take on what they call the “legal hedonists,” cautioning that happiness research was still too uncertain to justify large-scale legal changes. What’s more, they argue, juries and judges often display a subtler intuitive understanding of hedonic adaptation than Sunstein allows.

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To read Bennett’s worthwhile piece in its entirety, click here.   For related Situationist posts, click here.

Thanks to Julian Darwell for his assistance with this post.

Confronting the Backlash against Implicit Bias

Below you will find some excerpts from an important paper by Situationist Contributor John T. Jost and six distinguished co-authors (Laurie A. Rudman, Irene V. Blair, Dana R. Carney, Nilanjana Dasgupta, Jack Glaser, Curtis D. Hardin).  The paper is titled “The Existence of Implicit Bias is Beyond Reasonable Doubt:  A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager Should Ignore.” The paper will be published in Research in Organizational Behavior.  Many thanks to Julian Darwal for putting this post together.

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In this chapter, we respond to recent critiques of research on implicit bias, especially studies using the Implicit Association Test (IAT).

Philip Tetlock and Gregory Mitchell argue that measures of implicit bias including the IAT fail to predict organizationally relevant behavioral outcomes.   They claim “there is no evidence that the IAT reliably predicts class-wide discrimination on tangible outcomes in any setting,” accuse their colleagues of violating “the injunction to separate factual from value judgments,” adhering blindly to a “statist-interventionist” ideology, and of conducting a witch-hunt against implicit racists, sexists, and others.  These and other charges are specious.  Far from making “extraordinary claims” that “require extraordinary evidence,” researchers have identified the existence and consequences of implicit bias through well-established methods based upon principles of cognitive psychology that have been developed in nearly a century’s worth of work.  We challenge the blanket skepticism and organizational complacency advocated by Tetlock and Mitchell and summarize ten recent studies that no manager (or managerial researcher) should ignore.  These studies reveal that students, nurses, doctors, police officers, employment recruiters, and many others exhibit implicit biases with respect to race, ethnicity, nationality, gender, social status, and other distinctions.  Furthermore—and contrary to the emphatic assertions of the critics—participants’ implicit associations do predict socially and organizationally significant behaviors, including employment, medical, and voting decisions on the part of working adults.

THIRTY YEARS (OR MORE) OF RESEARCH ON IMPLICIT BIAS: A PRIMER

The IAT is is merely one methodological innovation in a long stretch of empirical contributions documenting the existence of implicit bias.  Implicit prejudice results followed naturally from a century’s worth of research on perception, memory, and learning.  The evidence fits the contemporary consensus that an enormous amount of cognition occurs automatically, effortlessly, and outside of conscious awareness.

Cognitive Accessibility as a Method of Demonstrating Implicit Bias

In Devine’s experiment, participants evaluated “Donald” as more hostile after they had been subliminally exposed to a relatively large (vs. small) proportion of words related to common stereotypes of African Americans in a previous, ostensibly unrelated task.  Not only were participants’ social judgments affected by stereotypes without their awareness once these had been rendered accessible through subliminal exposure, but this effect on social judgment occurred regardless of how participants had voluntarily reported their personal racial attitudes.

Semantic Priming as a Method of Demonstrating Implicit Bias

According to this paradigm, prejudice and stereotypes are empirically captured by the degree to which they are linked through speed and efficiency to semantically related concepts.  Exposure to a word related to women (e.g., lady, nurse) hastens the speed with which people identify female pronouns that appear subsequently; similarly, exposure to a word linked to men (e.g., gentleman, doctor) facilitates the identification of male pronouns.

Evaluative Priming as a Method of Demonstrating (and Measuring) Implicit Bias

Fazio et al. (1995)’s evaluative priming tasks exposed participants to photographs of either white or black faces and asked them to categorize subsequent words as either positive or negative, as quickly as possible.  The presentation speed of the faces and words was short enough in duration to ensure that their influence on responses would be the result of automatic rather than controlled processes.  When white participants classified positively valenced words, their responses were faster when they had been exposed to white (vs. black) faces, but when they classified negatively valenced words, their responses were faster when they had been exposed to black (vs. white) faces.

Individual Differences in the Motivation to Control Prejudice

Fazio also identified an important moderator of the relationship between implicit and explicit biases, namely the “motivation to control prejudice.”  Specifically, they developed a questionnaire measure that included items such as, “It’s never acceptable to express one’s prejudices.”  Not surprisingly, participants who were higher in motivation to control prejudice scored lower on an explicit measure of prejudice (the Modern Racism Scale).  By contrast, the motivation to control prejudice did not predict implicit bias.

Recent Brain Imaging Work

In 2000, researchers provided physiological evidence for the construct validity of implicit attitudes in general and the predictive validity of the IAT in particular when they demonstrated that IAT scores were correlated with the magnitude of amygdala activation when white participants were exposed to photographs of unfamiliar black (vs. white) faces.  The amygdala is involved in emotional responses to threat, such as fear.  Self-reported racial attitudes failed to predict amygdala activation under the same circumstances.

Literally hundreds of studies in cognitive accessibility, semantic priming, evaluative priming, and other areas in social cognition provide conclusive evidence that mental processes can and do operate nonconsciously and can be measured implicitly.  To take Tetlock and Mitchell’s critique seriously, one would need to set aside so much of social and cognitive psychology that both disciplines would be rendered unrecognizable to contemporary students and scholars.

TEN STUDIES NO MANAGER SHOULD IGNORE

The case for implicit bias in no way depends upon any single methodological innovation (such as the IAT), nor is it restricted to associations about race or ethnicity or gender.  Rather than duplicate a number of metanalytical studies have found that measures of implicit bias predict relevant behavioral outcomes, the authors focus on a small subset of recent studies with a diversity of methodological strengths that no manager should ignore.

(1) Employment recruiters who favored native Swedes over Arabs on an implicit stereotyping task were significantly less likely to offer (equally qualified) Arab (vs. Swedish) applicants job interview opportunities.  Overall, Swedes were 3 times more likely to receive callback interviews.

(2) Despite the fact that participants regarded female (vs. male) managerial applicants who presented themselves as confident, competitive, and ambitious as highly qualified, they also disliked them and were therefore less likely to recommend hiring them.  Participants’ implicit gender stereotyping predicted the extent of disliking.

(3) White student participants who scored higher on measures of implicit bias against various racial/ethnic outgroups were significantly more likely to report engaging in verbal slurs, social exclusion, and physical harm against members of minority groups.  They also were more likely to recommend budget cuts disproportionately against Jewish, Asian, and black student associations.

(4) In the context of a video simulation program, police officers were significantly more likely to “shoot” an unarmed suspect when he was black (vs. white) on early trials, but they were able to overcome this bias with practice.

(5) Physicians’ degree of implicit (but not explicit) bias predicted racial disparities in simulated treatment recommendations.  Specifically, greater bias was associated with (a) decreased likelihood of recommending thrombolysis for black patients suffering from coronary heard disease, and (b) increased likelihood of recommending it for comparable white patients.

(6) Nurses working in a drug and alcohol treatment and rehabilitation facility who scored higher in implicit bias against intravenous drug users experienced more occupational stress, less job satisfaction, and were more likely to express intentions to leave their jobs.

(7) Undecided voters’ implicit candidate preferences, obtained one month prior to the election, significantly predicted their eventual voting decisions.

(8) Hazardous drinkers’ implicit attitudes toward alcohol predicted heightened appetitive responses in the presence of alcohol and self-reported binge drinking.

(9) Convicted male pedophiles were found to exhibit an implicit association between children and sex, whereas no such effect was observed for other sex offenders (who were not pedophiles).

(10) Adolescents’ self-injury implicit associations were correlated with whether or not they had attempted suicide as well as suicidal ideation up to 6 months after their initial assessment, even after adjusting for demographic and psychological risk factors.

THE PAPER ALSO EXPLAINS . . .

– Why, contrary to what Tetlock and Mitchell claim, IAT research does provide reason to suspect Jesse Jackson and Jesse Helms would perform differently on an IAT test.

– Why IAT test results cannot just to be attributed to the “benign causes” of familiarity (people tend to prefer familiar over unfamiliar stimuli); cultural awareness (implicit bias measures may tap “shared cultural stereotypes rather than personal animus”); sympathy for the disadvantaged (the IAT could be driven by sympathy, rather than antipathy, toward outgroup members); fear of being labeled a bigot (rather than actual bigotry); or differences in IAT participants’ cognitive dexterity.

– Why Tetlock’s “organizational accountability” solution to workplace prejudice is inadequate.

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For a sample of related Situationist posts, see “Legal Academic Backlash – Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,” and “Implicit Bias and Strawmen.”

The Situation of Judicial Activism

Yesterday, Situationist Contributors Adam Benforado and Jon Hanson published an op-ed, “Right or Left, Judges Are Activists,” in the Philadelphia Inquirer.

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The attack is on. Supreme Court Justice David Souter may still have his robe, but a conservative rabble has already begun its effort to influence who will wear it next. Their weapon is a tested one: the claim of “judicial activism.”

Over the last week, conservative pundits and bloggers have set their sights on Judge Sonia Sotomayor of the Second U.S. Circuit Court of Appeals. By most accounts, Sotomayor, who was first nominated to the federal bench by President George H.W. Bush in 1991, is an accomplished, respected jurist with a compelling personal story. Nonetheless, some on the far right have assailed her for daring to speak honestly and insightfully about the judicial process and what judging entails.

What precisely has drawn their ire? Sotomayor has challenged the popular illusion that a judge’s job is simply to apply the precedents and principles that the law provides to the facts at hand. She has publicly acknowledged what legal scholars have recognized at least since Oliver Wendell Holmes Jr.’s famous observation that “the life of the law has not been logic; it has been experience.  [You can find a video containing some of the evidence of her offending views below.]

As Sotomayor has explained, “personal experiences affect the facts that judges choose to see,” and true impartiality may be impossible “in all, or even in most, cases.” Her point is not that a good judge should surrender to those influences, but that to pretend they do not exist is to surrender to them.

More generally, to give unexamined weight to the experiences, worldviews, and ideologies of those who tend to occupy the bench is to favor the privileged. It is bias in the name of neutrality and a thumb on the scale in the guise of equality.

Thus, while Sotomayor has continually questioned her own “opinions, sympathies, and prejudices” in a struggle to approach objectivity, she has nonetheless wondered “whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Sotomayor’s statements are hardly grounds for disqualification; indeed, they are supported by a century of legal scholarship that is now the stuff of many first-year law classes. All judges by necessity resort to their own moral and political values when analyzing complex factual questions and ambiguous statutory language. And all judges are susceptible to cognitive proclivities and limitations – often beyond their awareness and control.

The judicial behavior associated with “activism” is not exceptional; activism is just the term conservatives use for judges whose experiences lead them to interpret the facts, decipher the doctrine, and construe the language in ways they disagree with.

In a recent study of more than 20,000 federal court decisions, legal scholars Cass Sunstein and Thomas Miles discovered significant partisan bias (both liberal and conservative) in judicial rulings upholding or striking down the decisions of federal agencies. And, somewhat surprisingly, the conservative members of the Supreme Court demonstrated the most judicial activism, as measured by the share of agency decisions they voted to overturn.

It’s time to extinguish the misconception that the law is something that exists “out there” in its own right, and which judges merely observe and apply. Sotomayor has shown the courage to speak the truth – that the law is subject to interpretation and, “whether born from experience or inherent physiological or cultural differences, … our gender and national origins may and will make a difference in our judging.”

Being honest and acknowledging the biases we all bring to interpretive tasks is a critically important step toward fair and equal justice. For this, Sotomayor deserves our respect and admiration.

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To read some related Situationist posts, see 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.”

The Marketing Situation of Children

The Campaign For A Commercial-Free Childhood has an excellent video, Consuming Kids: The Commercialization of Childhood, depicting the ubiquity and power of childhood advertising.  Here’s the trailer.

For related Situationist posts, see “Merchants of Discontent – Abstract,” “Hey Dove! Talk to YOUR parent!,” “Spas and Girls,” and “Fitting in and Sizing up.”

Marketing Revolution?

In a previous post I discussed a recent marketing trend towards advertising corporate responsibility and emphasizing corporate commitments to various stakeholders.  I questioned whether the new wave of advertisements referenced a real shift in corporate behavior and a new responsiveness to public concerns or whether it was simply the most effective way to sell products and services in the wake of the economic debacle.

As I just highlighted over at the Faculty Lounge, Staurt Elliot provides part of the answer in an interesting New York Times article on a “a spate of angry advertising campaigns that seek to channel the outrage, frustration and fear felt by consumers hit hard by what some are calling the Great Recession.”

According to Elliot,

The campaigns take an outspoken, provocative tone that is unusual for mainstream marketing messages, which typically try to avoid aggrieved attitudes for fear of alienating audiences.  The change reflects the significant shift in sentiment as the public reacts to the wrenching and, at times, frightening financial events of the last year.

In a Post Shredded Wheat ad, for example, an actor wonders “Has progress taken us to a better place?” before concluding, “I’d say it’s taken us for a ride.  (Probably in a carbon-coughing oil guzzler.)”  Similarly, a Harley-Davidson campaign bemoans “the stink of greed and billion-dollar bankruptcies.”  JetBlue focuses on “the discomfort of chief executives forced off corporate jets by greeting them with a sardonic ‘Welcome aboard.’”

The article suggests that the advertisements are having a noticeable effect, increasing sales for the implicated companies, although there is little evidence provided that the ads reflect substantive changes within the businesses.  As Fiona Morrisson, director of advertising and brand at JetBlue, explains, “We weren’t looking for Versailles.”

The Distributional Situation of Obesity

William Underhill had a nice summary of recent research on one of the situational causes of obesity: inequality.  Here are some excerpts.

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What makes Americans so fat? Don’t blame the doughnuts. That extra heft could be symptomatic of a malaise prevalent in all the world’s least equal societies. According to “The Spirit Level,” a new book by British academics Richard Wilkinson and Kate Pickett, a slew of social woes—from drug abuse to obesity and mental illness—can be tied directly to the width of a nation’s income gap.

The evidence for the link is compelling. Obesity is six times more common in America, where the wealth gap is among the highest in the developed world, than in Japan at the opposite end of the inequality scale. And teenage birthrates in Britain are at least five times higher than in the more egalitarian Netherlands.

The explanation lies in a highly evolved reaction to low status, which shows itself in misery, violence or poor self-esteem. Weight, in particular, has long been a marker of socio-economic clout, and there’s an unusually close match between obesity in women and their society’s wealth gap. But it’s not only the poor who suffer in unequal societies; higher incidences of mental illness, for example, affect all classes.

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The entire (brief) article is here. For a few related Situationist posts, see “The Situation of Body Image,”“Prejudice Against the Obese and Some of its Situational Sources,” and “Fitting in and Sizing up.”

Perfectionism as Situation for Binge Eating

Last month, ScienceDaily had a helpful review of recent research revealing how perfectionism can contribute to eating disorders. Here are some excerpts.

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In everyday life, someone who takes a perfectionist’s approach to activities might be admired or even rewarded with a pat on the back.

These attitudes are tied to a commonly held, but mistaken, belief that perfectionism will ultimately produce achievement and social success. But a psychologist warns that perfectionism is not a healthy, or even effective, approach to life’s challenges.

“Perfectionism is a double-edged personality trait,” says Simon Sherry, assistant professor of psychology.

A newly-published study shows why individuals with a high degree of perfectionism are often setting themselves up for a host of physical, emotional and mental problems – particularly related to binge eating. Although less well recognized than anorexia or bulimia, binge eating is a serious disorder. Binge eating occurs when a person feels out of control and rapidly consumes a large amount of food in a short period of time. Binge eating elevates the risk of developing depression, obesity, diabetes and other problems.

Dr. Sherry, of Dalhousie University in Halifax Nova Scotia, has published “The Perfectionism Model of Binge Eating” in the Journal of Personality and Social Psychology, along with co-author Peter Hall of the University of Waterloo. By closely following the daily activities of a large group of undergraduates, the researchers believe that they’re the first to identify why perfectionism results in binge eating.

They have also honed in on the type of perfectionist who is most at risk–someone who believes that others are evaluating their performance critically (as opposed to someone who is self-critical). This kind of perfectionist concludes that a parent, a friend or a boss is being harshly judgmental of their performance and pressuring them to be perfect.

“It seems that as perfectionists go about their day-to-day lives, they generate a lot of friction,” says Dr. Sherry. “Because of their inflexibility and unrealistic expectations they also create problems in their relationships.”

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The entire review is here.  For related Situationist posts, see

Binge eating becomes an effort to escape from being overwhelmed with feelings of loneliness, failure and sadness. To temporarily escape from a discouraging reality, it’s necessary to do away with higher order thought. The experience of eating–smelling, chewing, tasting–is immediate and visceral.

“Think about it–when was the last time that you were rapidly eating a pizza and pondering a major life decision at exactly the same time?” asks Dr. Sherry.

While binge eating banishes troubles and difficulties in the short term, it also generates powerful negative emotions of guilt and shame that are longer lasting.

“We want to improve the lives of perfectionists with patterns of disordered eating,” he says.

The intent is that this research will translate directly into better care, through improved assessment and treatment opportunities. Society does demand achievement, but perfectionism is often maladaptive–a conscientious and adaptable person who can modify goals and expectations is better able to excel.

Perfectionists are often not self aware and are reluctant to seek help, posing a conundrum: They don’t want to admit they’re imperfect.

“I’m hopeful that students will read about this and realize that there are effective interventions for binge eating, including some help for perfectionism–change is possible.”

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The review is here. “The Science of Addiction, The Myth of Choice,” “The Situation of Body Image,” “The Situation of Eating – Part II,” “The Situation of the Dreaded ‘Freshman 15′,” “Our Situation Is What We Eat,” and “Social Networks.”

The Tort Situation of the Dallas Cowboys’ Practice Facility Collapse

Situationist contributor Michael McCann has a Sports Illustrated commentary on the tort implications of the recent and tragic collapse of the Dallas Cowboys’ indoor practice facility.  We excerpt the piece below.

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The second and more worrisome area for the Cowboys is tort law and specifically Texas law on negligence. Negligence refers to unreasonable behavior, be it the form of carelessness or inattentiveness.

Whether the Cowboys behaved negligently could be examined from multiple perspectives. Here are a few:

• Did the Cowboys construct an adequately safe facility for the typical weather conditions found in Irving, Texas, this time of the year?

• How typical or atypical were the specific weather conditions experienced by the facility when it collapsed? If the stadium was designed and constructed to withstand winds in excess of 100 miles per hour, does its failure to do so suggest substandard maintenance on the part of the facility’s operators, the Cowboys?

• How much warning did the Cowboys have about the inclement weather May 2, and would a reasonable employer in that situation have cancelled practice?

• Did any Cowboys’ personnel have knowledge or insight that the five-year-old facility could have been at risk of collapsing during stiff winds. If so, did the team do anything with this information?

• Did the injured persons have notice about the structure’s apparent shortcomings — could the injured persons have been comparatively negligent for their own injuries? (Texas, like most other states, uses a system of comparative negligence, meaning if a plaintiff is partly responsible for his/her own injury, he or she cannot recover for the percent of damages attributable to the his or her own negligence).

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The injured persons also could choose to sue the practice facility’s manufacturers: Summit Structures and Cover-All Building Systems, both of which have built other sports practice facilities, including the one used by the New England Patriots in Foxboro, Mass. In tort law, there is a very old doctrine known as res ipsa loquitur, which is Latin for “the thing that speaks for itself.” It is used in negligence cases to show that an event could not have occurred without a party being negligent. Here, one might say that a building doesn’t collapse during non-catastrophic weather conditions unless a party, in this case the building company, is negligent.

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To read the rest of the piece, click here.  The piece is also discussed by Charleston School of Law Professor Sheila B. Scheuerman on Torts Prof Blog.  For a recent Situationist torts-related post, see Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast). Also, Jon Hanson and Michael McCann recently published their article Situationist Torts, 41 Loyola of Los Angeles Law Review 1345 (2008).

The Changing Face of Marketing?

Last week, in a guest blog post at the Faculty Lounge, I suggested that corporate America has been behaving rather strangely recently.  Oil companies have been touting investments in wind technology.  Investment firms have been urging caution.  Agriculture behemoths have been talking about conserving earth’s precious resources.  And clothing companies, known for trading on sex, youth, and hipness, have been focusing their advertisements on the benefits that they provide to their workers.

In the post (part of which I excerpt below) I considered whether this recent shift might reference a genuine change in corporate culture or if it might just be the latest marketing fad (comparable, in certain respect, to playing up swine flu fears to sell hygiene-related products).

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Over the course of this term, I’ve encouraged students in my Business Organizations class to consider whether, in the wake of the current economic disaster, the role of corporations might be reconceptualized.  As we’ve discussed the history of shareholder primacy, stakeholder statutes, fiduciary duties, director incentives, and the like, I’ve pushed the class to think about whether we are on the cusp of change.

What, if anything, are we to make of business school deans, like Yale’s Sharon M. Oster, arguing recently for a new emphasis on social commitment in B-schools and indicting the blind pursuit of profit?   How should we view Treasury Secretary Timothy Geithner asserting that the financial industry needs “[n]ot modest repairs at the margin, but new rules of the game”?  Are we perhaps entering a new era in which corporations will forsake profit in favor of good works—or, at least, only seek to profit from doing good?

Certain corporate managers—like Timberland CEO Jeffrey Schwartz—have been publicly embracing a compatible vision for a number of years (according to the company website, the Timberland “mission is to equip people to make a difference in their world.  We do this by creating outstanding products and by trying to make a difference in the communities where we live and work.”).  John Mackey, the CEO of Whole Foods, has gone as far as to state that

[l]ong-term profits are maximized by not making them the primary goal.  A business is best not thought of as a machine with various factors of production working in tandem to maximize profits.  A business model more in touch with our complex, post-modern, information-rich world is a complex self-adaptive system of interdependent constituencies.  Management’s role is to optimize the health and value of the entire complex, evolving, and self-adaptive system.

Has the recent recession and resulting public outrage caused other companies to change their practices?  It’s hard to tell, but they do appear to have changed their tune.  Flipping through the New York Times yesterday morning as I waited for copies of my exam to print, I was struck by a particularly revealing full-page Starbucks advertisement—and it wasn’t solely because the somniferous drone of the copier left me in dire need of a little caffeine.

What is Starbucks selling?

Well, “[i]t’s not just coffee.”

Coffee, Hummers, diamond-encrusted purses, alligator cowboy boots . . . Those things are so 2007!  Americans aren’t into blind consumerism anymore.  People are no longer satisfied feeding on a never ending buffet of disposable products and easy comforts.  Starbucks understands: “It’s not just what you are buying.  It’s what you are buying into.”

And what is that exactly?

“[A] coffee ethic.”

As the advertisement explains, Starbucks “ensur[es] that the farmers who grow . . . [coffee] beans receive a fair price for their hard work” and that employees “receive full healthcare coverage.”  Even the beans are taken care of—“nurtured from farm to cup under our watchful eye.”

And who is the final stakeholder?

It’s you, the valued consumer.  The profit from your Frappuccino isn’t going to enrich some fat-cat Wall Street type; no, Starbucks is going to use it to better serve your needs: “[A] little bit of the price of a cup of Starbucks coffee helps furnish the place with comfy chairs, good music, and the right atmosphere to dream, work and chat in.  We all need a place like that these days.”

One might be skeptical of the company’s motivation in all of this, were it not for the reassurance in the ad itself: “We continue to do this, even in hard times, because it’s the right thing to do.”

You know, I’d really, truly love to believe that.  It’s just that the friends and colleagues of Mr. Starbucks have a long history of playing up their commitments to their customers and the broader community for the sole reason that doing so helps them sell more products.  Could this time be different?  Could the new wave of advertisements reference a real shift in corporate behavior—a genuine and lasting response to public concerns?  Maybe.

But maybe it’s just the best way to get nervous consumers to open their pocketbooks in a sick economy.

Mass Marketing

A student in my Business Organizations course just sent me a link to an interesting four-part BBC series, “The Century of the Self,” that was made in 2002 and is likely to be of interest to Situationist readers, particularly in the wake of the recent economic troubles.  The set of films considers the emergence of a mass-consumer society in the U.S. and U.K. during the last century using the Freud dynasty as a focus for the investigation.  The first installment, “Happiness Machines,” explores the relationship between Sigmund Freud and his nephew, Edward Bernays, who invented the field of public relations.  As the film’s website summarizes, Bernays

showed American corporations how they could make people want things they didn’t need by systematically linking mass-produced goods to their unconscious desires.

Bernays was one of the main architects of the modern techniques of mass-consumer persuasion, using every trick in the book, from celebrity endorsement and outrageous PR stunts, to eroticising the motorcar.

His most notorious coup was breaking the taboo on women smoking by persuading them that cigarettes were a symbol of independence and freedom. But Bernays was convinced that this was more than just a way of selling consumer goods. It was a new political idea of how to control the masses. By satisfying the inner irrational desires that his uncle had identified, people could be made happy and thus docile.

It was the start of the all-consuming self which has come to dominate today’s world.

Although there are points and characterizations to contest in the first part of the series, the filmmakers present a provocative theory.

Virtual Milgram

From ICT Results:

Despite advances in computer graphics, few people would think virtual characters or objects are real. Yet placed in a virtual reality environment most people will interact with them as if they are really there. European researchers are finding out why.

In trying to understand presence – the propensity of humans to respond to fake stimuli as if they are real – the researchers are not just gaining insights into how the human brain functions. They are also learning how to create more intense and realistic virtual experiences, opening the door to myriad applications for healthcare, training, social research and entertainment.

“Virtual environments could be used by psychiatrists to help people overcome anxiety disorders and phobias . . . by researchers to study social behaviour not practically or ethically reproduced in the real world, or to create more immersive virtual reality for entertainment,” explains Mel Slater, a computer scientist at ICREA in Barcelona and University College, London, who led the team behind the research.

Working in the EU-funded Presenccia project, Slater and his team, drawn from fields as diverse as neuroscience, psychology, psychophysics, mechanical engineering and philosophy, conducted a variety of experiments to understand why humans interpret and respond to virtual stimuli the way they do and how those experiences can be made more intense.

For one experiment they developed a virtual bar, which test subjects enter by donning a virtual reality (VR) headset or immersing themselves in a VR CAVE in which stereo images are projected onto the walls. As the virtual patrons socialise, drink and dance, a fire breaks out. Sometimes the virtual characters ignore it, sometimes they flee in panic. That in turn dictates how the real test subjects, immersed in the virtual environment, respond.

Panic and pain . . . virtually

“We have had people literally run out of the VR room, even though they know that what they are witnessing is not real,” says Slater. “They take their cues from the other characters.”

In another instance, the researchers re-enacted controversial experiments conducted by American social psychologist Stanley Milgram in the 1960s that showed people’s propensity to follow orders even if they know what they are doing is wrong. Instead of using a real actor, as Milgram did, the Presenccia team used a virtual character to which the test subject was instructed to give progressively more intense electric shocks whenever it answered questions incorrectly. The howls of pain and protest from the character, a virtual woman, increased as the experiment went on.

“Some of the test subjects felt so uncomfortable that they actually stopped participating and left the VR environment. Around half said they wanted to leave, but said they did not because they kept telling themselves it wasn’t real,” Slater says.

All had physical reactions, measured by their skin conductivity, perspiration and heart rate, showing that, at a subconscious level, people’s responses are similar regardless of whether what they are experiencing is real or virtual. The plausibility of the events enhances the sense that what is happening is real. Plausibility, Slater says, is therefore more important to presence than the quality of the graphics in a VR environment.

For example, when a test subject was made to stand on the edge of a virtual pit, staring down at an 18-metre drop, their level of anxiety increased if they could see dynamically changing shadows and reflections of their virtual body even if the graphics were poor. In other experiments, the researchers made people believe that a virtual hand was their own – replicating in VR the so-called “rubber hand illusion” – or that they were looking at themselves from another angle, creating a kind of out-of-body experience. In one trial, they even gave male test subjects a woman’s body.

Help with phobias and paranoia

By understanding what makes people perceive virtual objects and experiences to be real, the researchers hope to create applications that could revolutionise certain psychiatric treatments. Patients with a fear of spiders or heights, for example, could be exposed to and helped to overcome their fears in virtual reality. Similarly people who are shy or paranoid about public speaking could be helped by having to face virtual people and crowds.

“One application we are working on is designed to help shy men overcome their fear of meeting women by making them interact with a virtual woman,” Slater says.

The technology is also being used for social research which, much like the Milgram experiments, would not be practical or ethical to conduct in the real world. One experiment due to be run at University College, London, will use a virtual environment to study how people respond to violence in public places, such as a bar fight between football hooligans.

Besides healthcare and research, more immersive VR would also help in training, potentially greatly improving the results of flight or driving simulators. Slater also envisions VR environments being used to train people to use prosthetic limbs and wheelchairs through mind control before trying them out in the real world. A brain-computer interface (BCI) developed for just such a purpose was tested in the Presenccia project and in a similarly named predecessor called Presencia, which received funding under the EU’s Sixth and Fifth Framework Programmes for research, respectively.

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Vodpod videos no longer available.

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Though immersive VR is likely to have many applications in healthcare, research and training, the biggest market is probably entertainment. With the cost of VR technology coming down, people could eventually be exploring virtual worlds and interacting with virtual characters and other people through VR rooms in their homes akin to the “holodecks” seen in Star Trek, Slater says.

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You can read the story and watch a related video at ICT Results, here.  To read some related Situationist posts, see “Virtual Worlds, Learning, and Virtual Milgram,” “The Positive Situation of Crowds,” “Virtual Bias,” “Are Video Games Addictive?,” and “Resident Evil 5 and Racism in Video Games.”

The Student Association for Law and Mind Sciences

We are excited to share with our community of contributors and readers that the first law student organization that we know of promoting the law and mind sciences approach was recently approved at Harvard Law School.  Here is a brief description.

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The Student Association for Law and Mind Sciences (SALMS) is a student organization helping to bring to the Harvard Law School community the ground-breaking mind sciences research that has profound implications for law and policy-making.

Over the past decade, the number of law review articles citing to prominent mind sciences journals has skyrocketed while an increasing number of law schools have begun offering courses emphasizing relevant insights from social psychology and related fields.

SALMS hopes to provide a vibrant community of committed students who seek a more rigorous interdisciplinary approach to legal studies.  Working in conjunction with the scholars affiliated with the Harvard Project on Law and Mind Sciences, we intend to host speakers and collaborate with other organizations on campus to help fill a pronounced void in legal discourse.  Finally, we plan to reach out to other law schools and graduate departments in the region with the hope that our efforts will inspire likeminded students to embark on similar initiatives and collaborative projects.

SALMS will be hosting speakers throughout the 2009-2010 academic year and encourages you to get in touch with its leadership if you are interested in sharing your work.  Likewise, if you are an HLS student interested in getting involved, or a law student at another school and interested in launching a SALMS-like organization on your campus, the SALMS leadership would love to hear from you.  For more information, email the President of SALMS, Mike Rozensher, at salms@law.harvard.edu.

The Situation of Hygiene-Related Sales and Swine Flu

The Appleton (Wisconsin) Post-Crescent has an interesting piece on hygiene-related companies taking advantage of Swine flu fears, which have grown as the the illness has spread (there are reportedly now 2,600+ cases in 44 U.S. states).  We excerpt the piece below.

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Marketers are out in force — particularly on the Internet — with items ranging from 99-cent face masks to potions such as oregano oil that fetch $70 a bottle to third-party overnight shipments of Tamiflu for $135 per prescription.

David Dickson, a spokesman for Dallas-based consumer products giant Kimberly-Clark Corp., which employs about 4,000 people in the Fox Cities, said the company has seen an increase in interest in orders for face masks and other health care products the firm sells through its Kimberly-Clark Professional division.

Kimberly-Clark’s N95 mask respirator meets Centers for Disease Control and Prevention criteria, is effective against airborne disease transmission and is available at most retail stores, Dickson said.

With more people seeking medical attention, health care providers have needed more basic supplies, he said.

Kimberly-Clark’s biggest customer for the face masks is health care providers, Dickson said. Some major marketers are seeing an uptick in sales of items such as masks, latex gloves, anti-bacterial soaps and hand sanitizers.

Consumer gurus aren’t surprised that so many treatments and protective devices related to swine flu — legitimate or not — are getting plenty of traction from retailers and marketers.

“When we’re faced with a potential threat, we tend to imagine the worst,” says Jerald Jellison, a social psychologist. “That’s what marketers are capitalizing on. In a state of high need, with our rational powers diminished, we’ll take almost any action.”

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