Jim Rice and the Situation of Baseball Hall of Fame Voting

Last week, former Red Sox outfielder Jim Rice was inducted into Baseball’s Hall of Fame. Rice was voted into the Hall of Fame in his last year of eligibility: a retired player is given a 15-year window and Rice was first eligible in 1995.  Hall of Fame voters, who are selected baseball writers, vote each year and a player needs to accumulate a sufficient percentage of votes.  From 1995 to 2008, Rice had come close every year.

So why would Rice become Hall of Fame worthy in 2009 after 14 years of falling short?  Telly Halkias of the Advocate suggests it had little to do with Rice and much more to do with the situation of baseball, steroids, and inflated numbers across the league in the period of time following Rice’s retirement.

Though impressive by any measure, Rice’s career numbers, which were amassed between 1974 and 1989, seemed less special during the mid 90s and most of the current decade as juiced-up players belted home runs at unprecedented rates.   As steroids now wane from the game, however, home runs and other offensive statistics are declining and Rice’s accomplishments seem more impressive again, both for their values and the fact that they were compiled “without cheating.”  We excerpt Halkias’ piece below.

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Jim Rice can thank steroids for his recent induction to the National Baseball Hall of Fame. It’s quite possible that had there been no era of performance-enhancing drugs in Major League Baseball, we would not be toasting Big Jim today . . .

He retired in 1989 and became eligible for induction in 1995. Those five years saw the greatest sea change in the game’s history in how it was played, and thus in its statistics . . . Baseball, the sport judged by numbers more than any other, went skyrocketing out of control. In the early 1990s, balls started flying out of Major League parks at unprecedented rates.

The commissioner’s office explained that the baseball had changed, that it was wound tighter. South American producers of the official game ball were setting the internal gut rope with a higher tension, creating a denser core. This physical change was enough to give extra length to any hit, thus the surge in home runs and extra-base hits.

But that wasn’t all. This also coincided with an era of new retro ballparks, which began in 1992 with Camden Yards in Baltimore and hasn’t ended. The new baseball-only facilities have been generally smaller in dimension than the former cookie cutter mausoleums of the 1960s and 1970s.

Finally, expansion happened. In 1998, baseball added franchises in Tampa and Arizona, and this had the immediate effect of diluting the quality of Major League pitching. Hurlers who should have been in the minor leagues for additional seasoning were rushed up to the majors, serving up even more gopher balls to juiced-up hitters.

The net result? Monstrous offensive numbers, just as Rice began serving his penance for being a grouch with the beat writers. As the 1990s progressed, Rice’s career numbers, which hover around the 50th percentile in terms of Hall of Fame inductees, suddenly looked unimpressive.

This was regrettable, particularly since Rice’s home media, the New England Sports Network, offered him a position as commentator and game analyst so that he could make amends with the fourth estate, essentially by becoming a member himself.

When the steroids scandals finally broke in this century, and the public, as well as the press, began to realize how deep the statistical inflation had run during the period of Rice’s retirement, his achievements got serious reconsideration – just in time for his 15th and final year of Hall eligibility.

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To read the rest of the piece, click here.  For related Situationist posts, see Steroid-Enhancing Situations, Thomas Nadelhoffer’s The Death of Free Will and the Rise of Cheating, and Goutam Jois’s Cheating Doesn’t Pay . . . So Why So Much of It?

“Yuck!” “EWW!” and Other Conservative Expressions

As many readers of this blog know, a number of Situationist contributors are interested in the connections between ideology, psychology, and law.  Working with Jon Hanson, my most recent focus has been on understanding how the motivations underlying ideologies may be connected to attributional proclivities that have a profound impact on legal policies.

Given the strong backlash that often accompanies attempts to characterize ideology as anything but a free “choice,” I always get a little nervous when I see summaries of research studies in this area in the popular media.  However, it also often leaves me a little excited that these ideas might be gaining some traction.

Although I urge readers to check out the actual research paper in the June copy of Cognition and Emotion, here is a nice summary by Bruce Fellman I came across this morning of work by Paul Bloom and his colleagues.

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Pus, maggots, vomit, feces, rotten food: in almost every human society, people share a knee-jerk revulsion for certain substances. Now, Yale psychologist Paul Bloom and his colleagues have found that the level of disgust a person feels can predict his or her political orientation. In a word: “We found that conservatives are more easily disgusted than liberals.”

Using a standard political orientation scale and the Disgust Sensitivity Scale — also a standard psychological measuring tool, developed in 1994 to compare individuals’ reactions to such things as monkey meat, gore, and sex with animals — the researchers tested 181 adults across the country. They discovered a significant correlation between conservatism and strong feelings of being grossed out. The correlation also held among 91 Cornell undergraduates and was strongest when the political issues tested involved gay marriage or abortion. (The research appeared in June in Cognition and Emotion.)

Early in our evolution, disgust may have functioned as a way to ward us away from things that were bad to eat. Today it plays out in disagreements over policy. While Bloom finds disgust a “terribly corrosive emotion,” and wishes we could abandon it in favor of rationality, he feels there’s a risk in ignoring it. “Our findings reinforce the importance of the emotions in policy and morality. A lot of these issues are still driven by the gut.”

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To read some related Situationist posts, see “Unclean Hands” and “The Situation of Political Disposition” (which has links to still more related posts).

The Situation of Black and White

Over on We’re Only Human, Wray Herbert has another of his characteristically superb posts, this one about the automatic associations with black and white. Here’s a sample.

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The colors white and black have carried layers of moral meaning since long before American’ infatuation with cowboys and automobiles, and some scientists believe that those associations may be automatic and universal and ancient. Indeed, blackness and whiteness may be wired into our neurons, and tightly tangled up with notions of sin and virtue and cleanliness and dirt.

Two University of Virginia psychologists recently decided to explore this provocative idea in the laboratory. Gary Sherman and Gerald Clore wanted to know if common metaphors may be more than mere rhetorical devices, if in fact they might be deep embodiments of moral thinking. They decided to test the link between white and virtue (and black and sin) as part of this larger question.

To do this, the psychologists adapted a reaction-time test from the 1930s, called the Stroop Test. Readers may know this from the Internet, where it circulates as a kind of parlor game. It’s the one in which the names of colors are printed in different colors—say the word blue in yellow ink—and you must very rapidly indicate the ink color rather than the meaning. It’s hard, because our mind wants to read the word—and slow reaction time is taken as a sign of cognitive disconnect or conflict.

In Sherman and Clore’s version of the Stroop, volunteers read not the names of colors but words with strong moral overtones: greed and honesty, for example. Some of the words were printed in black and some in white, and they flashed rapidly on a screen. As with the original Stroop, a fast reaction time was taken as evidence that a connection was mentally automatic and natural; hesitation was taken as a sign that a connection didn’t ring true. The researchers wanted to see if the volunteers automatically linked immorality with blackness, as in black ink, and virtue with whiteness.

And they did, so quickly that the connections couldn’t possibly be deliberate. Just as we unthinkingly—almost unconsciously—“know” a lemon is yellow, we instantly know that sin and crime are black; grace and virtue, white.

Why would this be? Well, one possibility is that the metaphor is more complex, embodying not just right and wrong but purity and contagion, too. Think of the metaphor “new fallen snow”: It’s not only white, it’s virginal and unadulterated, like a wedding dress. And blackness not only discolors it; it stains it, taints its purity. With this in mind, the psychologists ran another experiment, adding this idea of contagion, feeling morally dirty. They deliberately primed some volunteers’ immoral thoughts by having them read a story about a self-serving, immoral lawyer, and compared them to volunteers primed for ethical thinking.

The idea was that people who were feeling morally dirty would be quicker to make the connection between immorality and blackness on the moral Stroop test, which is exactly what they found. And what’s more, they found this with much looser definitions of morality and immorality—including words like dieting, gossip, duty, partying, helping, and so forth. In other words, those primed for misbehavior linked blackness not only with crime and cheating but with being irresponsible, unreliable, self-centered slackers.

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To read the entire post (which is well worth the click), click here.  For a sample of related Situationist posts, see “The Situation of Metaphor,” “The Primitive Appeal of The Color Red,” “Coloring Situation,” “The Color of Sex Appeal,” “The Situation of Hair Color,” “The Unconscious Situation of our Consciousness – Part IV,” “The Situation of Body Temperature,” and “Shades of Fairness and the Marketing of Prejudice.”

Greely on Law and Neuroscience

From LBNstudio: “The degree to which brain scans will be admissible in court remains unclear, but experts already are pointing to precedent-setting cases and warning that neuroscience could alter the law, creating new methods and new visual evidence to determine criminal intent and criminal responsibility. Scott Drake talks with Stanford law Professor Hank Greely.”

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To read a sample of related Situationist posts, see “Jurors, Brain Imaging, and the Allure of Pretty Pictures,” “Neurolaw Sampler,” “Law & the Brain,” and “Your Brain and Morality.”

The Post-Obama Situation of Racism – Abstract

Ian Haney-Lopez, has recently posted his thoughtful paper, “Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama” on SSRN.  Here is the abstract.

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What does the 2008 election of Barack Obama to the United States presidency portend for race in America? This Essay uses the tremendous racial disparities in the American crime control system to assess race and racism as key features of contemporary society. The Essay begins by considering a compelling thesis that racialized mass incarceration stems from backlash to the civil rights movement. If true, this raises the possibility that Obama’s election, potentially marking the end of backlash politics, also represents a likely turning point in the war on crime. The Essay then reconsiders mass imprisonment from the perspective of “racial stratification,” a structural theory that emphasizes the simultaneous formation of racial categories and the misallocation of resources between races. A stratification approach leaves one less sanguine about rapid change in American race relations, though without disparaging either the historic nature of Obama’s inauguration or the possibility of incremental improvements in racial justice. Reflecting the continued need to push for positive racial change, the Essay concludes by arguing morally and politically for a renewed focus on racism, in particular on “post-racial racism.”

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To download the paper for free, click here.  For a sample of related Situationist posts, see “The Situation of the Obama Presidency and Race Perceptions,” “Black History is Now,” “The Cognitive Costs of Interracial Interactions,” “Guilt and Racial Prejudice,” “Perceptions of Racial Divide,” “The Situation of Solitary Confinement,” and “Examining Why Estimated “Costs” of Racial Inequality Vary by Race.”

Leaving the Past

Sam has been an active racist his entire life.  For decades, he has called blacks demeaning names; he has written about their inferiority; he has threatened them and beaten them; he has attended lynchings.

Under great pressure from various acquaintances and friends, in his seventieth year of life, he stops using the “n” word and ends the explicit prohibition on hiring blacks at his factory.

Ten years later, however, his business still has an almost all white workforce, despite getting lots of black applications, and no managers.

Should we trust Sam that racial bias has nothing to do with the disparity?

If you are like me, despite hoping that Sam has changed, you are deeply skeptical.  A person carries his past with him, and it continues to shape his life—even when he genuinely believes he has left it far behind

The same is true of countries.

Our own dear old Uncle Sam has come a long way from the Montgomery bus boycott and the Greensboro sit-ins: today, fifty years later, there is broad agreement in society that bias and discrimination based on race are abhorrent.

But we must not forget that, in the history of our country, this consensus is a very recent development.  For most of our past, bias and discrimination were the norm—permitted by statutory and constitutional law and supported by public opinion that openly held whites to be superior to blacks.

At a speech last week celebrating the 100^th anniversary of the National Association for the Advancement of Colored People, President Obama made exactly that point, even as he urged black America to do its part to help black children succeed: “Make no mistake, no mistake: the pain of discrimination is still felt in America.”

When asked several days later about the arrest of African-American Harvard professor Henry Louis Gates, Jr. in his own home, Obama emphasized the “long history in this country of African-Americans being stopped disproportionately by the police” and suggested that the incident was “a sign of how race remains a factor in this society.”

There are many out there who strongly disagree with the president, who believe that we have reached the end of our long journey out of night—that we stand at the dawning of post-racial America.  As former Bush administration official John Yoo argued in the Philadelphia Inquirer, protections for minorities written into employment law, election law, and college admissions “might have been justified in the 1960s . . . [but] they are necessary no longer.”  Our nation has fulfilled its promise of creating a nation that ensures “the proposition that all men are created equal.”

While I share Yoo’s desire to embrace progress and to step into the light, I cannot ignore the evidence that suggests that his assessment is wrong.

First, blacks do not enjoy equal outcomes to whites with respect to income, education, health care, and numerous other areas.

Consider just the statistics on criminal law: Forty percent of felony defendants are black and a black male is five times more likely to serve time in prison over his lifetime than a white male.  Blacks also receive significantly higher bail amounts, are given longer sentences, and are more likely to be sentenced to death than their white counterparts.  In fact, the more stereotypically black your features are, the more likely you are to receive the death penalty.

Second, this disparate impact appears to have its roots in implicit biases held by many Americans beyond their conscious awareness or control.

Over the last 10 years, hundreds of thousands of individuals have participated in research studies measuring their racial stereotypical associations using the Implicit Association Test, developed by psychology professors from Harvard, the University of Washington, and the University of Virginia.

Approximately 70 percent of those who have taken the test have demonstrated a preference for whites to blacks.

Just as critically, the test has significant value at predicting social judgment and behavior, as an overview analysis of 122 research reports published in the Journal of Personality and Social Psychology last month documented.  Physicians with a white preference on the Implicit Association Test, for example, provided less effective treatments to hypothetical black coronary artery disease patients than to white patients.  Likewise, individuals with a white preference on the test were more likely to shoot a black target in a simulation than a white target engaging in identical behavior.

This evidence does not mean that, today, Americans are all hate-filled bigots.  One of the major findings is that many egalitarians—those genuinely committed to racial equality, including the test designers themselves—show automatic race preference.

What it means is that the hundreds of years of explicit racism in our country have left a mark within us.  We may be completely unaware of its existence, but it is influencing our actions.

Uncle Sam is on the right path.  The election of our first minority president and the likely confirmation of Judge Sonia Sotomayor to the Supreme Court are testaments to how far we have come, but they are welcome signs of progress not an indication that we have reached our destination.

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To read a sample of related Situationist posts, see “Why Race May Influence Us Even When We “Know” It Doesn’t,” “Black History is Now,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “A Situationist Considers the Implications of Simpson Sentencing,” “What does an Obama victory mean?,” “The Situation of the Obama Presidency and Race Perceptions,” “The Cognitive Costs of Interracial Interactions,” “Guilt and Racial Prejudice,” “Perceptions of Racial Divide,” and “Banaji & Greenwald on Edge – Part IV.”

The Law and Neuroscience Blog

Greetings!  I just wanted to let the readers of The Situationist know that the MacArthur Law and Neuroscience Project recently launched The Law and Neuroscience Blog.

Needless to say, we are excited about it.    In addition to posting updates concerning the various research projects being carried out by the members of our two main networks–namely, Legal Decision Making (LDM) and Criminal Responsibility and Prediction (CRP)–we will also try to provide readers with helpful links to more general developments at the cross-roads of neuroscience, law, and philosophy.  Hopefully, we will hear from some of you in the comment threads soon!

Randomness, Luck, Chance, and other Situational Forces

Professor Leonard Mlodinow visits Google’s Mountain View, CA headquarters to discuss his book, “The Drunkard’s Walk: How Randomness Rules Our Lives” (42 minutes).

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To read a few related Situationist posts, see “Seeing Michael Phelps’s Gold Medal Situation,” “Randomness, Luck, and other Situational Sources of Success and Failure,” and “The Situation of ‘Winners’ and ‘Losers’.”

O’Bannon v. NCAA: The Situation of Signing Forms

Situationist contributor Michael McCann has a column on SI.com concerning a new lawsuit brought against the National Collegiate Athletic Association (“NCAA”) over whether former student-athletes should be compensated for the NCAA’s use of their images and identities in such products as DVDs and video games.

The case, O’Bannon v. NCAA, centers on forms freshmen student-athletes must sign in order to be eligible to play sports and receive their college scholarships. The forms require the student-athletes to relinquish many of their legal rights.  The plaintiff claims that these student-athletes, some of whom are 17 years old, are situationally pressured into signing the forms.

We excerpt the column below.

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Should athletes whose college days are long behind them be paid when the NCAA licenses their images and likenesses? Should they be able to negotiate their own licensing deals with television networks, video game companies and various businesses that use those same images and likenesses?

According to former UCLA basketball star Ed O’Bannon and a class of thousands of other former men’s basketball and football players, the answer to both questions is yes.

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O’Bannon v. NCAA stems from a series of documents Division I student-athletes are required to sign as part of their participation in college sports. Form 08-3a (the “Student-Athlete” statement) is one such document. Among other conditions, it specifies, “You authorize the NCAA . . . to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs.” By signing the statement, student-athletes relinquish in perpetuity all future rights in the NCAA’s licensing of their images and likenesses. O’Bannon claims that student-athletes — some of whom are younger than 18 — effectively have no choice but to sign, since they would otherwise be deemed ineligible to play and would risk losing their athletic scholarships.

In the NCAA’s view, however, these documents promote the NCAA’s core mission: the integration of intercollegiate athletics into higher education and the promotion of student-athletes’ educational experiences. Along those lines, as a voluntary organization comprised primarily of colleges and universities, the NCAA tends to frown upon professional and other remunerative endeavors pursued by student-athletes.

Indeed, if student-athletes were paid salaries or received income through endorsement or licensing deals, they may begin to resemble professional athletes more than college students. The professionalization of student-athletes would frustrate the NCAA’s focus on amateurism, possibly making it more difficult for schools to comply with Title IX, a federal law that commands gender equity in sports. Professionalization could also create economic divisions among student-athletes on the basis of their commercial appeal. Student-athletes’ exposure to professional opportunities might also lead to exploitation by unsavory businesspersons, whom colleges and universities not want on their campuses or near their student bodies.

Some commentators do not find the NCAA’s concerns persuasive. Attorney Alan Milstein of Sherman, Silverstein, Kohl, Rose & Podolsky argues, “If the NCAA genuinely wanted to keep the college game pure, it wouldn’t sell any images or likenesses. Plus, compare how the NCAA treats student-athletes with how colleges and universities treat students who are professional actors or musicians — they, unlike student-athletes, can keep their earnings without jeopardizing their scholarships. It is completely unfair for student-athletes to be treated differently.”

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In assessing O’Bannon’s claims, a court will consider the extent to which student-athletes possess a real “choice” when presented with the Student-Athlete statement and similar documents. On that front, O’Bannon appears emboldened by NCAA policies on student-athletes’ access to legal counsel. According to O’Bannon, neither NCAA officials nor college athletic officials advise student-athletes that they can seek legal advice in connection with the release of future compensation rights. Particularly given the lack of “life experience” of most incoming student-athletes, such a policy may be viewed as arguably exploitative and also one that creates a disparity in bargaining power.

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To read the rest, click here.  For related Situationist posts, see The Changing Situation of the NBA’s Age limit, March Madness, and Hoyas, Hos, & Gangstas.

Why Are They So Biased?

Last week Sally Lehrman published an interesting op-ed, titled “Why are people of color presumed biased, and we are not?“ in the Oakland Tribune.   Here are some excerpts.

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On the first day of the Sonia Sotomayor confirmation hearings, one senator after another demanded assurances the judge would not allow her background to influence her decisions on the U.S. Supreme Court.

Sen. Jeff Sessions, of Alabama, the ranking Republican on the Senate Judiciary Committee, decried anyone “who believes it is acceptable for a judge to allow their personal background, gender, prejudices or sympathies to sway their decision in favor of or against parties before the court.”

It’s certainly fair to demand that members of the high court set aside personal politics and prejudice in their deliberations. But it seems odd to me that a series of white men can so easily assume themselves and everyone who looks like them to be impartial — and, at the same time, conclude someone of a different background would inevitably make tainted decisions.

Unfortunately, though, it is an all-too-common instinct. In every field, it seems, people from underrepresented groups must prove themselves able to transcend their identity. “A person of color is immediately suspected of bringing bias and perspective into their decisions,” observes Luis Fraga, a political scientist at the University of Washington.

Peer reviewers search for distortion in the research of scholars of color. Editors press minority journalists to see whether they can fairly cover their own people. But those of us who are white enjoy a great privilege instead — our objectivity is presumed.We would do well to follow Sotomayor’s advice — that is, to pay attention to the lenses through which we see the world. In the oft-quoted 2001 speech at UC Berkeley, Sotomayor said that personal history can make someone wise. Again in the hearing Tuesday, Sotomayor acknowledged her own life story as a Latina can shape her reactions. But in both situations, she did not stop there. She clearly pointed to the need for judges to examine those feelings and, as she put it Tuesday, “accept that they may not be appropriate.”

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But white people rarely have to think about the ways in which our cultural and social experience of skin color affects us. We are not called to do so — both our majority status and messages from institutions such as the media and medicine feed the assumption we have no special perspectives, that our truth is the “real” truth.

Mainstream news outlets commonly present white perspectives as if they were representative. . . .

Life experience matters. In fact, the whole field of cognitive and experiential psychology is based on that concept: “Almost every result we have shows that (it matters) in some way,” says Harvard University experimental psychologist [and Situationist contributor] Mahzarin Banaji.

Unfortunately, white men and women often close our eyes to this fact when it comes to the impact of our own race on our own decisions. As Fraga says, with her insistence that identity shapes perception, Sotomayor rightly “requires all of us to take a deep look in the mirror.”

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To read the entire op-ed click here.  To read a sample of related Situationist posts, see “Stereotyping Sotomayor,” and “The Situation of Judicial Activism,” “Biased? I know you are but what am I?,” “The Situation of Biased Perceptions,” and “I’m Objective, You’re Biased.”

The Situation of the Law School Classroom – Abstract

Robert Chang and Adrienne Davis have posted their interesting article, “Making Up is Hard to Do: Race/Gender/Sexual Orientation in the Law School Classroom” (forthcoming Harvard Journal of Law and Gender (2009)) on SSRN.  Here’s the abstract.

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This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered. Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching effectiveness. It hypothesizes that the mechanism by which this bias manifests itself is a variant of stereotype threat, one that they call projected stereotype threat, where stereotypes of incompetence or accent are projected onto the bodies of teachers marked by difference. They examine how institutions respond or, as is more typically the case, fail to respond to these problems. They conclude with some suggestions for change, asserting that if institutions want to pay more than lip service to the goal of diversity, the success and employment conditions of women and minorities will improve only through the hiring of more women and minorities and by addressing directly the issue of bias to educate students about bias and its discriminatory effects on instructors whose bodies are marked by perceived differences and how such bias interferes with their learning.

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To read a sample of related Situationist posts, see “Banning Laptops in the Classroom – Abstract,” “The Situational Benefits of Outsiders,” and “Some Situational Sources and Consequences of Diversity.”

The Situation of Homogeneity

This summer, I have finally gotten around to reading Richard Thaler and Cass Sunstein’s book Nudge and, unsurprisingly, there is much in the book that parallels situationist work.  Indeed, many (if not most) of the referenced social psychology experiments and dynamics should already be familiar to readers of this website.

One paragraph that I came across this morning particularly struck a chord with me because it took up a topic that I addressed not a month earlier in an op-ed in the Baltimore Sun: the problem with “collaborative filtering,” whereby consumers are given recommendations based on the preferences of others with identical tastes.  As Thaler and Sunstein explain,

[S]urprise and serendipity can be fun for people, and good for them too, and it may not be entirely wonderful if our primary source of information is about what people like us like.  Sometimes it’s good to learn what people unlike us like—and to see whether we might even like that.  If you like the mystery writer Robert B. Parker (and we agree that he’s great), collaborative filtering will probably direct you to other mystery writers (we suggest trying Lee Child, by the way), buy why not try a little Joyce Carol Oates, or maybe even Henry James?  If you’re a Democrat, and you like books that fit your predilections, you might want to see what Republicans think; no part can possibly have a monopoly on wisdom.  Public-spirited choice architects—those who run the daily newspaper, for example—know that it’s good to nudge people in directions that they might not have specifically chosen in advance.

As my op-ed, included below, suggests, Thaler and Sunstein’s faith in daily newspapers may be misplaced . . .

Segregating markets – and people

What do people interested in recent conservative attacks on federal appellate Judge Sonia Sotomayor buy? Portable pet carriers, moisturizing liquid hand soap, and flat screen televisions. The fact that I know this is not something I find comforting.

Let me explain. After I wrote a recent op-ed, a friend drew my attention to something at the bottom of the online version of the article. I have grown used to advertisements with my news and links to “most read articles,” but this seemed to raise the stakes. Alongside the helpful recommendation of other articles the newspaper imagined the reader might like based on her decision to read an op-ed on Supreme Court nominations was a list of “paired” products that other readers of the piece had purportedly purchased.

The list ought to be reassuring, I suppose: I would hate to think that readers were only purchasing catamarans and caviar. Still, I am not sure that this is an encouraging development.

True, the various technologies that make product linkage possible are not particularly mysterious or menacing. In a typical scenario, when you visit a Web site, a tracking “cookie” may be placed on your computer. These cookies store data about the places you have visited on the Internet. By collecting such information for millions of people, advertisers know what individuals with an identical browsing history subsequently looked at and can direct you to the same page.

I wonder if it is good to assist individuals in this way – and, more specifically, for newspapers to be involved in this process.

Desire can be manufactured. Hummers can be sold to Manhattan housewives. Water that is by all measures inferior to that flowing out of the tap for free can be bottled and priced at $4 a pop.

Maybe readers of my op-ed do not really need or want a new flat screen TV, but what is the problem with a newspaper encouraging them to buy one? The paper makes a little revenue; Sam’s Club sells a TV; and the reader gets a fun status symbol.

The answer is that although “funneling” might be fairly harmless when it comes to being guided to other albums while shopping for a CD, the same may not be true on the broader scale. What does it mean for society when individuals who read the same articles are, as a result, encouraged to go to the same movies, wear the same clothes, drive the same cars, vacation in the same resorts and eat in the same restaurants?

Creating and reinforcing insular communities is likely to hurt us in the long run. Humans may gravitate toward those most like them, but we should resist the impulse to help the process along.

If I am going to be swayed into buying a product or watching a show, I would like to think that, at least, everyone else is being moved in the same way. In a country still deeply divided along racial, religious, economic, and ideological lines, wouldn’t it be nice if the liberal, black teenager in L.A. was encouraged to read the same book as the conservative, white soccer mom in Nashville?

How will we ever close the gaps, if we are constantly steered to opposite sides of the lunch counter?

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To review previous Situationis posts discussing marketing, click here.

John Jost on System Justification Theory

Vodpod videos no longer available.

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To read a selection of related Situationist posts, see “John Jost’s “System Justification and the Law” – Video,” “Independence Day: Celebrating Courage to Challenge the Situation,” “Thanksgiving as “System Justification”?” and “Patriots Lose: Justice Restored!”  To review the full collection of Situationist posts related to system justification, click here.

Bruno and the Situation of “Humor” in Films

Larry Muhammad of the Courier Journal has an interesting piece on the response tactics of groups that have been the target of jokes in recent films, including in Sacha Baron Cohen’s “Bruno.”  We excerpt it below.

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Has comedian Sacha Baron Cohen gone too far with his new movie, “Bruno”?

Scan the cable news shows and the talk-radio dial and — between all the Michael Jackson talk — you’ll hear howls of outrage from some gay groups, angry that Cohen’s gay Austrian fashionista character reinforces stereotypes about homosexuals.

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Last summer, demonstrators picketed outside showings of the Ben Stiller comedy “Tropic Thunder,” angry that a character named Simple Jack was repeatedly referred to as a “retard.”

Of course, the dust has barely settled from David Letterman tussling with — and apologizing to — Alaska Gov. Sarah Palin over a joke he made about her daughter and New York Yankees third baseman Alex Rodriguez. And that dust-up closely followed the tempest over a controversial joke about Rush Limbaugh told by Wanda Sykes at the White House Correspondents Association dinner.

What’s happening here? Movie makers, after all, keep pushing the envelope when it comes to sex and violence, since it is harder and harder to shock and surprise. But that thick skin turns thin — on both sides of the political aisle — when it comes to humor. Are we no longer able to laugh at ourselves? Or, has protesting a movie or a joke simply become an easy way to get one’s own political agenda into the media?

In protesting “Bruno,” Rashad Robinson of the Gay and Lesbian Alliance Against Defamation told the Boston Globe: “My fear is that in parts of the country where gay men and lesbians are still unable to adopt children or can lose their jobs for being gay, ‘Bruno’ is going to make things worse for people.”

But here in Kentucky, Chris Hartman, director of the Fairness Campaign in Louisville, noted, “It’s not something that anyone has brought up to us, or something that we have looked into.”

Robinson, however, has gotten his concerns into the Los Angeles Times, The New York Times, E! and newspapers around the world.

“I don’t think that any group that’s been made fun of has enjoyed the experience,” said Michael Cunningham, a University of Louisville social psychologist. “The difference is that now that some groups have a platform, they sometimes look for ways to be offended so they can get additional attention. The classic example would be Sarah Palin, because it wasn’t Letterman’s intention to defame her daughter.”

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To read the rest, click here.   For related Situationist posts, see Being Smart About “Dumb Blonde” Jokes and Situation Comedy.

Compassion, Law, and Judge Sonia Sotomayor

Situationist contributor Michael McCann has posted on SSRN a draft of his forthcoming law review essay, Judge Sonia Sotomayor and the Relationship between Leagues and Players: Insights and Implications, 42 Connecticut Law Review __ (forthcoming, 2009).

The essay examines two of Judge Sotomayor’s most notable sports law decisions, Silverman v. Major League Baseball Player Relations Committee and Clarett v. National Football.  In doing so, the essay challenges prevailing criticisms of Judge Sotomayor–namely, that her “compassion” distorts her understanding and application of the law.  An excerpt is below.

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Politicians and commentators are vigorously debating the judicial philosophy of federal appeals Judge Sonia Sotomayor, whom President Barack Obama has nominated to succeed retiring Justice David Souter on the United States Supreme Court. They are pouring through Judge Sotomayor’s opinions, speeches and other writings, examining and sometimes cherry-picking her words and expressions. Competing sets of beliefs, ideas, and attitudes will gradually be offered to explain Judge Sotomayor’s legal reasoning.

Critics of Judge Sotomayor have already championed an alleged weakness: she crafts her opinions to advance progressive agendas, with wavering adherence to actual law. Proponents of this viewpoint cite President Obama’s comment that he selected Judge Sotomayor partly because of her “compassion,” with the insinuation, in their view, that she bends fixed rules in order to aid disadvantaged litigants. Still others chastise the quality of her logic as overlooking or obscuring substantive legal issues. At their core, these criticisms attempt to impugn Judge Sotomayor as unfit for the Court.

As this Essay explores in Parts I and II, such criticisms are countered by Judge Sotomayor’s role in resolving two notable sports law disputes. In assessing whether Major League Baseball (“MLB”) owners could unilaterally impose new labor conditions on MLB players during the 1994 baseball strike and whether Ohio State University sophomore Maurice Clarett was obligated to wait three years from the completion of high school to become eligible for the National Football League (“NFL”) draft, Judge Sotomayor invoked traditional, arguably inflexible, applications of federal labor law.  In fact, from the lens of each case’s least advantaged party, her opinions may have seemed bereft of “compassion” . . .

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To download a free copy of this essay from SSRN, click here.  For related Situationist pieces, see “It’s Hard to Step into Someone Else’s Shoes,” “Stereotyping Sotomayor,” and “The Situation of Judicial Activism.”  For a related op-ed on Maurice Clarett, see Jon Hanson and Michael McCann’s “The Psychopathology of Athlete Worship.”

Firefighters and the Situation of “Merit”

The following excerpted op-ed, “Trial by Firefighters,” co-written by Harvard Law Professor Lani Guinier and Columbia Law Professor Susan Sturm, was published in the July 11, 2009, edition of The New York Times. They are also the co-authors of “Who’s Qualified: A New Democracy Forum on the Future of Affirmative Action” (Beacon Press, 2001).

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STANDING on the steps of the federal courthouse in New Haven, the lawyer Karen Torre reveled in her clients’ victory in a recent case before the Supreme Court. She anointed her clients — the white firefighters who scored well on a promotion test — “a symbol” for millions of Americans who are “tired of seeing individual achievement and merit take a back seat to race and ethnicity.”

But the Supreme Court’s 5-to-4 decision last month — that New Haven should not have scrapped the test — perpetuates profound misconceptions about the capacity of paper-and-pencil tests to gauge a person’s potential on the job. Exams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion. And Ms. Torre’s identity-politics sloganeering diverts attention from what we need most: a clear-eyed reassessment of our blind faith in entrenched testing regimes.

New Haven used a multiple-choice test to measure its firefighters’ retention of information from national firefighting textbooks and study guides. Civil service tests like these do not identify people who are best suited for leadership positions. The most important skills of any fire department lieutenant or captain are steady command presence, sound judgment and the ability to make life-or-death decisions under pressure. In a city that is nearly 60 percent black and Latino, the ability to promote cross-racial harmony under stress is also crucial.

These skills are not well measured by tests that reward memorization and ask irrelevant questions like whether it is best to approach a particular emergency from uptown or downtown even when the city isn’t oriented that way. The Civil Service Board in New Haven declined to certify the test not only because of concerns about difference in scores between black and white firefighters but also because it failed to assess qualities essential for firefighting.

As Justice Ruth Bader Ginsburg noted in her dissent, tests drawn from national textbooks often do not match a city’s local firefighting needs. Most American fire departments have abandoned such tests or limited the multiple-choice format to 30 percent or less of an applicant’s score. In New Haven, the test still accounted for 60 percent of the score. Compounding the problem, insignificant numerical score differences were used to rank the firefighter candidates.

What should a city do when its promotion test puts a majority of its population at a disadvantage and is also unlikely to predict essential job performance? People who excel on such a test may expect to be promoted. But testing should not be about allocating prizes to winners. No one has a proprietary right to a particular open job, even if that person worked hard preparing for a test.

When a city replaces a bad test, as New Haven wanted to do, the employees who did well on it do not lose their right to compete for promotions; they merely need to compete according to procedures that actually identify people who advance the mission of saving lives and property — and enhance the department’s reputation in the community for treating all citizens with respect.

Yet many Americans believe so strongly that tests are fair that they never question the outcomes, especially when those outcomes conform to stereotypes about people of color. Such preconceptions lead to the conclusion that blacks or Latinos who don’t do well must lack individual initiative or ability.

As the plaintiff in the New Haven case, Frank Ricci, declared, “If you work hard, you can succeed in America.” His lawyer went further: White officials who voted for a better assessment system must have been lowering “the professional standard of competence,” she said, “for the sake of identity politics.” Yet, in New Haven, no one was promoted instead of the white firefighters.

In fact, many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.

Moreover, it was the firefighters union — which sided with the white firefighters in the Supreme Court — that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white. Taking this into account, after five days of public hearings, Malcolm Webber, one of the white members of the New Haven Civil Service Board, said: “I’ve heard enough testimony here to give me great doubts about the test itself and the testing — some of the procedures. And I believe we can do better.”

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To read the entire op-ed, click here. For a collection of previous Situationist posts discussing how situation influences standardized test scores, click here.  For those discussing Supreme Court nominee, Judge Sotomayor, click here.

What Are the Legal Implications of Implicit Biases?

A federal judge and regular reader of The Situationist recently sent me a thoughtful e-mail containing the following paragraph.  The judge is asking for input regarding the practical legal consequences of IAT research for employment law.

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A thought about the IAT and employment law from a practicing judge–even if the law as it now stands does not effectively address some instances of bias, where do we go with that insight? I see no practical, effective way to utilize the IAT in actual employment cases.  Moreover, by far the biggest problem in employment law that any one studying our actual cases would discern is the surfeit of meritless cases.  The ease with which many weak cases get by summary judgment and the likelihood of substantial litigation expense lead to settlement of  hundreds, and perhaps thousands, of  cases throughout the country each year brought by plaintiffs you or almost any one else reasonably objective (if I can still use that word) would have fired, not promoted, chosen for layoff, etc.  A statutory approach designed to help people get a foot in the door–when that door had
for so long been unfairly closed–is now almost exclusively used by plaintiffs who got the job, got the opportunity. The sense that employment litigation has become something of a settlement racket has led to cynicism in the work place, among the bar, and to some extent even on the bench. I think this is tragic, and a disgrace to the legacy of those who suffered to advance the cause of equality under law.  I am conscious of my own general frustration, and I really do try to be open-minded and fair in dealing with each individual case-  and there are still  meritorious ones that come my way. While I am not a spokesman for the judiciary in even the slightest way, I do think most judges see the area of law as I do, and most, despite concern or frustration, also try very hard to remain open-minded in approaching each individual case. I wonder, do scholars writing about implicit bias and employment law generally have any sense of what the actual cases are like?  Any thoughts?

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Situationist friend and legal scholar Tamara Piety responds as follows:

The judge’s comments raise important issues. But I think these issues have more to do with the problems of the structure of litigation, the cost of litigation and how the presence of financial incentives create a particular sort of (predictable) distortion in outcomes insofar as they depart from what an observer might conclude is the “truth” about the facts. Litigation is binary.

With some qualifications about the way in which the amount of damages can be used as a sort of Solomonic device to split the difference and not clearly find for either party, litigation is binary and you either win or you lose. Moreover, it costs something. So in every civil case that involves a business entity (the purpose of which is to make money not to reform social policy), the persons making decisions on behalf of the entity weight the relative costs of pursuing or defending an action against the financial benefits likely to accrue rather than on the “principle” at issue.

This is true of personal injury lawsuits, intellectual property disputes, contract disputes, in short, disputes of all kinds. So if it is the case that such a racket exists, it is arguably as much due to the financial incentives for defendants to settle as it is the evidence or legal standards, or at least they are inextricably intertwined. Should we blame defendants for “frivolously” settling and thus contributing to the situation of which the judge complains? Probably not, as it would seem awfully burdensome to say that defendants must continue to defend cases where the defense is meritorious, no matter the cost to themselves not to mention economically unsound. The same may not be true of fired, dismissed or non-promoted defendants whose livelihoods are at stake and who *may* (in some circumstances) have few options beyond suing. For these individuals (and for unions) bringing the lawsuit may not be solely about the financial benefit but about dignity, setting and example for others, self-defense, etc.

I am also struck by many aspects of the judge’s comments that draw a picture that contains many implicit assumptions. It is not self-evident to me that the existing employment laws that grant such broad and virtually unreviewable discretion to employers to discharge employees at will is a good thing that any reasonably objective person would agree strikes the appropriate balance of power between employee and employers so that anyone would agree that a particular person should not have been retained or promoted.

Maybe it does, but I am not sure about that. And what if a part of the explanation for the poor performance is a hostile environment that exacerbated the employee’s deficiencies? Moreover, the comment seems to assume that damages are a sufficient incentive to bring such a suit, even though the fact of having filed a lawsuit against a previous employer may make an employee virtually unemployable in their chosen profession. Given the seriousness of the consequences for at least some plaintiffs, I wouldn’t be as apt to conclude that cases without merit were brought frequently (although clearly the judge is in a far better position to judge the current situation in the courts than I).

And, just as it is possible to behave in a discriminatory manner while not intending to do so, that is with a pure heart, I think it might be possible to file a law suit as a plaintiff in the sincere belief that you have been discriminated against even if you have not been.

I also don’t think it is entirely accurate to say that the laws against discrimination were intended “solely” to allow people to get a “foot in the door.” It is of little merit to give someone an opportunity if that opportunity is not a real one because you will be applying standards that the employee cannot meet. I think we have perhaps entered the stage in the country’s development where some of the biggest problems of racial, gender and other bias are not in problems of overt and intentional discrimination, but in trying to ferret out the ways in which we may not be applying standards or rules as even-handedly as we imagine we are, or indeed as we want to do in order to ensure equality of opportunity for all.

The IAT information speaks to that issue. As someone who teaches Evidence I would respond that the place for the IAT evidence is as one piece of evidence that may be offered by a plaintiff – not determinative or conclusive evidence, perhaps not sufficient evidence, but evidence nonetheless. The judge seems frustrated that these cases don’t reach the truth of discrimination and create bad will and hostility to the goals of equality through the promotion of frivolous lawsuits.

I understand that frustration since I experienced that frustration when I practiced law. But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.

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Please post your responses or thoughts as comments.   To read some recent, related Situationist posts, see “Confronting the Backlash against Implicit Bias,” and “The Situation of Situation in Employment Discrimination Law – Abstract.”  For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.

Situational Branding Effects

Situationist contributor Grainne Fitzsimons conducted a fascinating study in collaboration with Gavan Fitzsimons and Tanya Chartrand on the effects of popular company logos on human behavior.  In the following video Gavan and Tanya describe the study.

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To read some related Situationist posts, see “The Unseen Behavioral Influence of Company Logos,” “The Situation of Repackaging,” and “The Big Game: What Corporations Are Learning About the Human Brain.” To read other Situationist posts on marketing, click here; for those on priming, click here.

The Situation of Pain

From Harvard University, “Pain Hurts More if the Person Hurting You Means It”:

Researchers at Harvard University have discovered that our experience of pain depends on whether we think someone caused the pain intentionally. In their study, participants who believed they were getting an electrical shock from another person on purpose, rather than accidentally, rated the very same shock as more painful. Participants seemed to get used to shocks that were delivered unintentionally, but those given on purpose had a fresh sting every time.

The research, published in the current issue of Psychological Science, was led by Kurt Gray, a graduate student in psychology, along with Daniel Wegner, professor of psychology.

It has long been known that our own mental states can alter the experience of pain, but these findings suggest that our perceptions of the mental states of others can also influence how we feel pain.

“This study shows that even if two harmful events are physically identical, the one delivered with the intention to hurt actually hurts more,” says Gray. “Compare a slap from a friend as she tries to save us from a mosquito versus the same slap from a jilted lover. The first we shrug off instantly, while the second stings our cheek for the rest of the night.”

The study’s authors suggest that intended and unintended harm cause different amounts of pain because they differ in meaning.

“From decoding language to understanding gestures, the mind distills meaning from our social environment,” says Gray. “An intended harm has a very different meaning than an accidental harm.”

The study included 48 participants who were paired up with a partner who could administer to them either an audible tone or an electric shock. In the intentional condition, participants were shocked when their partner chose the shock option. In the unintentional condition, participants were shocked when their partner chose the tone option. Thus, in this condition, they only received a shock when their partner did not intend them to receive one. The computer display ensured that participants both knew their partner’s choice and that a shock would be coming, to ensure the shock was not more surprising in the unintentional condition.

Despite identical shock voltage between conditions, those in the intentional condition rated the shocks as significantly more painful. Furthermore, those in the unintentional condition habituated to the pain, rating them as decreasingly painful, while those in the intentional condition continued to feel the full sting of pain.

Gray suggests that it may be evolutionarily adaptive for this difference in meaning to be represented as different amounts of pain.

“The more something hurts, the more likely we are to take notice and stop whatever is hurting us,” he says. “If it’s an accidental harm, chances are it’s a one-time thing, and there’s no need to do anything about it. If it’s an intentional harm, however, it may be the first of many, so it’s good to take notice and do something about it. It makes sense that our bodies and brains might amplify our experience of pain when we know that the pain could signal threats to our survival.”

These findings speak to how people experience pain and negative life events. If negative events are seen as intended, they may hurt more. This helps to explain why torture is so excruciating – not only are torture techniques themselves exceptionally painful, but it’s the thought that counts–and makes torture hurt more than mere pain.

On the other hand, if negative events are seen as unintended, they may hurt less. This may explain, in part, why people in abusive relationships sometimes continue to stay in them. By rationalizing that an abusive partner did not intend harm, some victims may reduce their experience of pain, which could make them less likely to leave the relationship and escape the abuse.

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You can download a copy of the fascinating paper, Gray, K., & Wegner, D. M. (2009). The sting of intentional pain. Psychological Science, 19, 1260-1262, here.

For a sample of related Situationist posts, see “The Racial Situation of Pain Relief,” “The Legal Brain,” “Attributing Blame — from the Baseball Diamond to the War on Terror,” “Moral Psychology Primer,” and “Quick Introduction to Experimental (Situationist?) Philosophy.”

Dr. David Kessler Waxes Situationist

Tara Parker-Pope recently had a terrific article, titled “How the Food Makers Captured Our Brains,” in The New York Times.  Thanks to the many readers who forwarded us the link to this article, recognizing it’s situationist message.  Here are some excerpts.

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As head of the Food and Drug Administration, Dr. David A. Kessler served two presidents and battled Congress and Big Tobacco. But the Harvard-educated pediatrician discovered he was helpless against the forces of a chocolate chip cookie.

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“Why does that chocolate chip cookie have such power over me?” Dr. Kessler asked in an interview. “Is it the cookie, the representation of the cookie in my brain? I spent seven years trying to figure out the answer.”

The result of Dr. Kessler’s quest is a fascinating new book, “The End of Overeating: Taking Control of the Insatiable American Appetite” (Rodale).

During his time at the Food and Drug Administration, Dr. Kessler . . . [was] perhaps best known for his efforts to investigate and regulate the tobacco industry, and his accusation that cigarette makers intentionally manipulated nicotine content to make their products more addictive.

In “The End of Overeating,” Dr. Kessler finds some similarities in the food industry, which has combined and created foods in a way that taps into our brain circuitry and stimulates our desire for more.

When it comes to stimulating our brains, Dr. Kessler noted, individual ingredients aren’t particularly potent. But by combining fats, sugar and salt in innumerable ways, food makers have essentially tapped into the brain’s reward system, creating a feedback loop that stimulates our desire to eat and leaves us wanting more and more even when we’re full.

Dr. Kessler isn’t convinced that food makers fully understand the neuroscience of the forces they have unleashed, but food companies certainly understand human behavior, taste preferences and desire. In fact, he offers descriptions of how restaurants and food makers manipulate ingredients to reach the aptly named “bliss point.” Foods that contain too little or too much sugar, fat or salt are either bland or overwhelming. But food scientists work hard to reach the precise point at which we derive the greatest pleasure from fat, sugar and salt.

The result is that chain restaurants like Chili’s cook up “hyper-palatable food that requires little chewing and goes down easily,” he notes. And Dr. Kessler reports that the Snickers bar, for instance, is “extraordinarily well engineered.” As we chew it, the sugar dissolves, the fat melts and the caramel traps the peanuts so the entire combination of flavors is blissfully experienced in the mouth at the same time.

Foods rich in sugar and fat are relatively recent arrivals on the food landscape, Dr. Kessler noted. But today, foods are more than just a combination of ingredients. They are highly complex creations, loaded up with layer upon layer of stimulating tastes that result in a multisensory experience for the brain. Food companies “design food for irresistibility,” Dr. Kessler noted. “It’s been part of their business plans.”

But this book is less an exposé about the food industry and more an exploration of us. “My real goal is, How do you explain to people what’s going on with them?” Dr. Kessler said. “Nobody has ever explained to people how their brains have been captured.”

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One of his main messages is that overeating is not due to an absence of willpower, but a biological challenge made more difficult by the overstimulating food environment that surrounds us. “Conditioned hypereating” is a chronic problem that is made worse by dieting and needs to be managed rather than cured, he said. And while lapses are inevitable, Dr. Kessler outlines several strategies that address the behavioral, cognitive and nutritional factors that fuel overeating.

Planned and structured eating and understanding your personal food triggers are essential. In addition, educating yourself about food can help alter your perceptions about what types of food are desirable. Just as many of us now find cigarettes repulsive, Dr. Kessler argues that we can also undergo similar “perceptual shifts” about large portion sizes and processed foods. For instance, he notes that when people who once loved to eat steak become vegetarians, they typically begin to view animal protein as disgusting.

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You can watch David Kessler’s Google presentation in the video below.

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For a sample of related Situationist posts, see “The Situation of Food: The Movie,” “Our Situation Is What We Eat,” “Big Calories Come in Small Packages,” “Common Cause: Combating the Epidemics of Obesity and Evil,” “The Situation of Fatness = Our ‘Obesogenic’ Society,” “Innovative Policy: Zoning for Health,” “Situational Obesity, or, Friends Don’t Let Friends Eat and Veg,” “McDonalds tastes better than McDonalds, if it’s packaged right,” “The Situation of our Food – Part I,” “The Situation of Our Food – Part II,” “The Situation of Our Food – Part III,” and “The Situation of our Food – Part IV.”