Jon Hanson & Jacob Lipton Respond To Randall Kennedy’s “Black Tape” Op-ed

From the Justice Blog:

In the spirit of fostering a community-wide conversation, we wanted to respond to Randall Kennedy’s provocative op-ed.

Although Randy is unperturbed by the black tape recently placed over his photograph, he is quite concerned about something else: the potentially destructive effects of taking the outrage and demands of some students at Harvard Law School – and at universities around the country – too seriously.

These students perceive racism not only on the walls of Harvard Law School but also in its history, culture, curriculum, and personnel. Having asked some of those students to explain “with as much particularity as possible” the sources of their discontent, Randy is largely unconvinced. Some of their “complaints” may have “a ring of validity,” but others “are dubious.” True, their “accusations warrant close examination and may well justify further reforms,” but his primary concern is with the intensity and unintended consequences of their grievances. On the pages of The New York Times, he cautions those youngsters to avoid “exaggerat[ing] the scope of the racism” or “minimizing their own strength and the victories that they and their forebears have already achieved.”

Read their full essay here.

Related Situationist posts:

• Implicit Gender Bias in Legal Profession
• The Gendered Situation at Harvard Law School – Part II
• The Gendered Situation at Harvard Law School – Part III
• The Gendered Situation at Harvard Law School – Part I
• Examining the Gendered Situation of Harvard Business School
• The Situation of the Law School Classroom – Abstract
• Systemic Justice Project in The Globe

Elizabeth Loftus on “The Memory Factory”

A lecture by Elizabeth F. Loftus, Distinguished Professor of Social Ecology and Professor of Law and Cognitive Science at University of California, Irvine.

In this lecture, Loftus shows us that people can be led to develop rich false memories for events that never happened. False memories look very much like true ones: they can be confidently told, detailed, and expressed with emotion.

From Radcliffe Magazine, an excerpt from an article by Susan Seligson:

Elizabeth Loftus can make people “remember” that eggs once made them sick or that as children they were briefly lost in a mall, though both “memories” are false.

A high-profile forensic psychologist and memory researcher, Loftus does this not as a parlor trick, although she’s witty and entertaining—and clearly savors toppling the assumptions of TED audiences and, once, 60 Minutes correspondent Leslie Stahl. For decades, Loftus has led one of the sides in what has been dubbed “the memory wars.”

“I wanted to make a difference in people’s lives,” says the Los Angeles native, now a distinguished professor of social ecology and a professor of law and cognitive science at the University of California, Irvine. Her UC website playfully describes Loftus as “an expert on nothing.” That’s because her groundbreaking studies of false memories, involving thousands of subjects, drive home the point that human memory is unreliable at best, and malleable enough to wreck the lives of the unjustly accused.

Loftus visited the Radcliffe Institute at the end of April to speak about her 40 years of work in the memory field, which have won her the 2010 American Association for the Advancement of Science’s Scientific Freedom and Responsibility Award. Loftus, who has a PhD from Stanford, has testified in more than 250 legal cases and consulted on many others, including those of Michael Jackson, Oliver North, O.J. Simpson, and Martha Stewart. Despite often unsparing attacks from the defense (“I often joke that I deserve combat pay,” she says), Loftus can shatter, with sound science, the record/playback notion of how we remember and how memories become narratives. “Memory actually works more like a Wikipedia page,” says Loftus. “You can go into your page and change things. But so can other people.”

Supreme Court Acknowledges “Unconscious Prejudice.”

From Slate, by Kenji Yoshino:

Thursday’s blockbuster opinion in the Texas Department of Housing and Community Affairs v. Inclusive Communities Project case will be primarily and justly remembered for interpreting the Fair Housing Act to include a disparate-impact cause of action. In anti-discrimination law, “disparate treatment” requires an intent to discriminate, while “disparate impact” can allow a plaintiff to win even in the absence of discriminatory intent. For instance, if an entity has a policy that disproportionately affects a protected group, it has to justify that disparity even in the absence of any allegation of discriminatory intent. If it cannot produce such a justification, it will lose. As many progressives have already noted, this interpretation of the FHA is a big win, as discriminatory intent is often difficult to prove.

While less obvious, however, there is a passage in the FHA case that can also be counted as a potential win for progressives. On Page 17 of the slip opinion, Justice Anthony Kennedy writes, “Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract the unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” (Emphasis mine.) Disparate impact has long been seen as a way of proving “disguised animus”—so that is nothing new. However, the idea that disparate impact can be used to get at “unconscious prejudices” is, to my knowledge, an idea new to a Supreme Court majority opinion.

The idea of “unconscious prejudice” is that one can have prejudices of which one is unaware that nonetheless drive one’s actions. It has been kicking around in academia for years. As Mahzarin Banaji and Anthony Greenwald discuss in Blindspot: Hidden Biases of Good People, Greenwald created the test to assess such unconscious biases in 1994. This test can now be found at implicit.harvard.edu. Since taking academia by storm, it has migrated over to industry—companies ranging from Google to Pfizer have laudably adopted it to assist in making their workplaces more inclusive.

Read the entire article, including portion where Professor Yoshino discusses potential implications of the Kennedy’s acknowledgment, here.

Systemic Justice Project in The Globe

Below are excerpts from Courtney Humphries’s superb Boston Globe article about the Systemic Justice Project at Harvard Law School (cartoon by Sam Washburn and photo by Justin Saglio, both for the Globe):

From the first day, it’s clear that law professor Jon Hanson’s new Systemic Justice class at Harvard Law School is going to be different from most classes at the school. Hanson, lanky, bespectacled, and affable, cracks jokes as he paces the room. He refers to the class of 50-odd students as a community; he even asks students to brainstorm a name for the group. But behind the informality is a serious purpose: Hanson is out to change the way law is taught.

“None of us really knows what ‘systemic justice’ is—yet you’re all here,” he points out. The new elective class, which is being taught for the first time in this spring term, will ask students to examine common causes of injustice in history and ways to use law and activism to even the field.

Traditionally, students come to law school to master existing laws and how to apply them. But surveys given to the students in this class beforehand show that most are worried about big unsolved social problems—income inequality, climate change, racial bias in policing—and believe that law is part of the problem. The goal of Hanson’s class is to introduce a new approach.

The class is part of a new Systemic Justice Project at Harvard, led by Hanson and recent law school graduate Jacob Lipton. They’re also leading a course called the Justice Lab, a kind of think tank that will ask students to analyze systemic problems in society and propose legal solutions. Both classes go beyond legal doctrine to show how history, psychology, and economics explain the causes of injustice. A conference in April will bring students and experts together to discuss their findings.

Harvard’s project is an unusual one, but it arises out of a growing recognition that law students need to be trained to be problem-solvers and policy makers. As Hanson tells his students that first day, “If you’re thinking about systemic justice, you need to be thinking about legal education.” He believes that this education should be less about learning the status quo and more about how the next generation of lawyers can change it.

There’s widespread acknowledgment that justice is often meted out unfairly; decades of scholarship have shown how social biases based on race, gender, corporate interests, or ideology find their way into written laws. Nevertheless, Hanson says, law school classes don’t always give students the tools to counteract injustices. “My students have expressed increasing amounts of frustration with the fact that many of our biggest problems are not being addressed by the legal system,” he says. Lipton was one of those students. After graduating in 2014, he turned down a fellowship in Washington, D.C., to stay at Harvard and help Hanson see the new project through.

One of their targets is the case method of legal education, which has been the dominant form of teaching law in America since it was introduced at Harvard Law School by Christopher Columbus Langdell after he became its dean in 1870. Rather than lecturing his students, Langdell asked them to examine judicial cases of the past. Then, through a process of Socratic questioning, he would challenge students to explain their knowledge and interpretation of a case, allowing them to glean the deeper principles of the law, much like a scientist would examine evidence.

Though the case method has evolved since the 19th century, the primary text of most classes is still the casebook—a set of legal decisions chosen for their ability to illustrate legal principles. Professors who embrace it say this approach forces students—particularly first-year students with little legal training—to think like lawyers. “Within a few weeks, I have reprogrammed their brains,” says Bruce Mann, a law professor at Harvard who’s known for his rapid-fire questions in class. “That doesn’t mean that it is backward-looking. I’m really teaching them how to think.” Mann, like many professors these days, tries to put cases in a larger historical and social context.

But Hanson and Lipton believe that the case method, while helpful in the hands of skilled teachers, puts too much emphasis on what the law already is, rather than what it should be. It tends to assume that decisions of the past are fair and appropriate. Instead, says Lipton, “we think that legal education should start with what the problems are in the world.”

They also take issue with the way that law gets divided into categories—tax law, criminal law, property law, torts, contracts—each with different professors and different casebooks. Douglas Kysar, a law professor at Yale Law School and former student of Hanson’s who has embraced his interdisciplinary approach to the law, says that these divisions can hinder tackling issues that existing laws don’t address, and permits problems that run across disciplines to go unaddressed. “In each one of those fields, we often try to present the cases and materials as if they’re an efficient and fair whole,” he says. When something arises to challenge that picture, professors can pass the buck. For instance, in environmental law, one of Kysar’s specialties, it’s not always clear where the responsibility to fix a problem like pollution lies. “Everyone’s pointing their fingers at other systems that are supposed to address a harm,” he says. “There’s no place where you’re looking at the systems in a cross section.”

Hanson and Lipton also argue that the law focuses too much on the actions and disputes of individuals—and not even on an accurate vision of how individuals behave. “In many cases, the focus on the individual obscures what the actual problem is or what the solutions are,” Lipton says. Hanson, meanwhile, has long argued that the vision of the individual that exists in law isn’t well backed up by research. He directs the Project on Law and Mind Sciences at Harvard, which brings findings from social psychology and social cognition to bear on the law. The law generally treats people as rational actors making decisions based on their own knowledge and beliefs. In fact, Hanson says, research has shown that people are easily swayed by their circumstances. Through their academic writing and on a blog called The Situationist, Hanson and a growing group of like-minded scholars have argued that solving systemic problems means focusing more on forces that act on us, rather than assigning blame and punishment to individual actors.

A systemic approach to racial bias in policing, for instance, might look at psychological research on unconscious racial bias, police training techniques, and law enforcement policies in order to create a more just system, rather than on the actions of a specific officer. For the problem of rising student debt, another complex issue that students in the Justice Lab think tank are likely to tackle, it might look at federal loan systems that allow for-profit colleges to put students in debt without providing enough value in return. Another example is obesity and the food system; a systemic approach would look at ways that advertising, agricultural subsidies, supermarket zoning, and food service practices create an unhealthy system for consumers. “We want to examine the role that large commercial interests play in shaping laws,” Hanson says. Solutions might involve class actions, new regulations, or institutional changes.

. . . .Hanson thinks that the idea of systemic justice resonates now in a way that it hasn’t always in the past. “I think that is a reflection of the change in the mood in the country and in this generation of law students,” he says.

* * *

The Systemic Justice Project, though unique in some ways, is part of a larger effort introduce a policy focus into law school—Stanford Law School, for instance, recently launched a Law and Policy Lab that asks students to find policy solutions to real-world problems. “Traditionally, law school education has been doctrinal,” says Sergio Campos, a law professor at the University of Miami and visiting professor at Harvard. “You teach students what the law is and how to apply it.” . . . . “When you get to a position where you can change the law, you don’t have a background on policy and what it should be,” Campos says.

* * *

. . . Harvard law professor David Rosenberg . . . . believes law schools often leave students unprepared to think broadly. “Over and over again in my many decades at Harvard, students have told me that my advice contradicts their instruction in other courses that making social policy arguments is a confession of weakness in your legal position, and should be done, if ever, only as a last resort,” he says. “We’re de-training them.”

Rena Karefa-Johnson, a second-year student who’s signed up for both the Systemic Justice class and the Justice Lab, admits that some students simply want to learn existing law and don’t appreciate Hanson’s approach. But it’s been popular with students like her who are already active in fighting for social causes. “The law is inherently political,” she says. “He does not allow his students to learn the law outside of its context.”

Read entire article here.

Jennifer Eberhardt Wins MacArthur!

Congratulations to Situationist friend, Jennifer Eberhardt who is one of this year’s MacArthur Grant winners.

Eberhardt investigates the subtle, complex, largely unconscious yet deeply ingrained ways that individuals racially code and categorize people and the far-reaching consequences of stereotypic associations between race and crime.

To read numerous Situationist posts about Eberhardt’s research or presentations at Harvard Law School click here. To watch similar videos, visit the video libraries on the Project on Law and Mind Sciences website (here).

Ideology, Psychology, and Free Speech

From Today’s New York Times, here is a brief excerpt from an article about a revealing new study, co-authored by Lee Epstein.

In cases raising First Amendment claims, a new study found, Justice Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones. In 161 cases from 1986, when he joined the court, to 2011, he voted in favor of conservative speakers 65 percent of the time and liberal ones 21 percent.

He is not alone. “While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

Social science calls this kind of thing “in-group bias.” The impact of such bias on judicial behavior has not been explored in much detail, though earlier studies have found that female appeals court judges are more likely to vote for plaintiffs in sexual harassment and sex discrimination suits.

Lee Epstein, a political scientist and law professor who conducted the new study with two colleagues, said it showed the justices to be “opportunistic free speech advocates.”

Read the entire article here.

The role that ideology plays in law and legal decision making is the focus of the book, Ideology, Psychology, and Law, which contains numerous chapters by contributors to and friends of this blog including one co-authored by Lee Epstein.  Read more about Ideology, Psychology, and Law here.

Related Situationist posts:

• Another Review of “Ideology, Psychology, and Law”
• Jon Hanson on Law and Mind Sciences
• Review of “Ideology, Psychology, and Law”
• The Imagined Ideological Divide
• Ideology, Psychology, and Law – Available Now!
• The Situation of Ideology – Part I
• Ideology is Back
• Ideology Shaping Situation of Vice Versa
• The Great Attributional Divide
• Naive Cynicism
• The Situation of Polarization

The Situation of Criminal Defense

An op-ed by Situationist friend, Sam Wheeler in (Talking Points):

On November 27, 1770, John Adams began the most important trial of his legal career. His clients were eight British soldiers who, when confronted by an angry gathering of Boston patriots, fired into the crowd, killing five. The soldiers were accused of murder and threatened with the death penalty. Adams was a patriot, openly and adamantly opposed to British occupation of the colonies, with no love of the British army. He took the case, which he called “one of the best pieces of service I ever rendered my country,” because in this nation, even before its founding, every accused criminal is entitled to zealous legal defense.

On Wednesday afternoon, the Senate blocked the confirmation of Debo Adegbile President Obama’s nominee for Assistant Attorney General for Civil Rights. Every Senate Republican voted against Adegbile’s nomination. They were joined by eight Democrats: Senators Casey, Coons, Donnelly, Heitkamp, Manchin, Pryor, and Walsh. The main charge against Adegbile is that, during the ten years he worked with the NAACP, he worked on a brief that successfully commuted the death sentence given to Mumia Abu-Jamal, a man convicted of murdering a police officer thirty years ago.

Sen. Casey said in a statement explaining his vote: “I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime.” It is difficult if not impossible to reconcile this statement with his vote against Mr. Adegbile. The right of every citizen to competent legal representation simply cannot survive in a climate where politicians punish lawyers for the acts of their worst, most despised clients.

***

Our justice system is fundamentally flawed, and many of the cracks and imperfections manifest in stark racial and economic disparity. . . .

Men and women like Adegbile spend their careers trying to fix these cracks and imperfections, striving to make sure that American citizens are only punished after they have been found guilty beyond a reasonable doubt by a jury of their peers, are only executed after having exhausted all appeals, and not a moment before hand. They throw their bodies between a prosecutor and their client so that the government must move mountains of incontrovertible evidence before it can take the life and liberty of a citizen. They are paid next to nothing, they work excruciating and unforgiving hours, and they go to work each day representing the people who can afford no other defense, who no one else will help.

They do these things not necessarily because they believe in the virtue or innocence of every client. Rather, they go to work every day because they understand that the only way to ensure that the rights and freedoms of virtuous men and women are not taken away without cause is to fight for the rights and freedoms of every person, regardless of crime or character.

I am currently a second year student at Harvard Law School. I go to school with some of the brightest young legal minds in the country, with the men and women who will undoubtedly shape the laws and legal institutions of the United States.

My classmates think seriously about what doors their choices will open and close. It’s incredibly hard to sell my friends on spending our careers like Adegbile knowing that it is now the practice of the United States Senate to punish public service.

There are already tremendous barriers to such a career. My school, like so many other prestigious institutions, is designed to be a waterslide to big law firms in New York, Washington D.C., Chicago, and Los Angeles. The vast majority of my classmates will end up in corporate law, eschewing a chance to make their living working for the common good. The choice is simple and understandable: corporate firms pay roughly three times what a first-year lawyer can receive in a public interest job, these jobs are secured during the summer of your second year, and they provide incredibly enticing job security in an increasingly competitive and precarious legal market.

Even my classmates who want to go into public service are wary of indigent criminal defense. They worry about the hours, the stress, and the compensation. They worry about being responsible for whether or not their clients spend their lives in jail. They worry about job security in a political climate where budgets in public defenders’ offices are routinely slashed. And they worry that the acts of their worst clients – the murderers, the rapists, the child molesters – will be held against them by their friends and family, by voters, and now by legislators in Congress.

So, the sell has just gotten harder. The Senate has sent an unequivocal message: that lawyers must beware of whom they represent. Should they have the opportunity to serve their country in high office, the men and women in the Senate will judge them not by their actions, not by their character, not by their achievements, but instead by the reputations and crimes of their clients.

In the aftermath of the Senate vote to block Adegbile’s nomination, I am left with only questions for the Senators who voted no.

What should I tell my classmates who are considering a career in indigent criminal defense? Should I tell them that they should not spend their lives representing the wretched, the despised, the friendless, for fear that they will be judged by people like you? How can we ensure everyone gets a zealous defense when lawyers are condemned for public service?

And while we’re at it, would you have voted against John Adams for defending the British soldiers that fired into the crowd during the Boston Massacre? Would you have voted against Thurgood Marshall for his defense of young black men accused of murder? Did you vote against John Roberts for representing eight-time murderer John Errol Ferguson? Does your humanity not teach you that the despised and the rejected are the most in need of help, compassion, and counsel?

We need our young lawyers to aspire to be the next John Adams and we must ask ourselves, in light of the Senate’s decision, how many will be willing to play that part. The number of lawyers who will stand and fight for those that society has condemned and who cannot advocate for themselves – already too few – will become vanishingly small. The Senate has told young lawyers that they must cast aside personal goals and ambitions if they choose to dedicate their careers to the belief that every citizen is entitled to a fair trial and a vigorous defense.

The Senate has raised the cost of such patriotism. I can only hope that there are those who remain willing to pay.

Read the entire op-ed here.

Immaculate Perception?

Recently, I did a TEDx talk on implicit bias titled “Immaculate Perception?”  It’s only about 13 minutes long, which made it quite a challenge. Enjoy!

Here’s a guide to my related scholarship.

Increasing Role of Pscyhology in Law

From the latest edition of Observer, an article by David Halpern:

When governments want advice on the likely impact of their policies, they traditionally turn to economists. Psychologists have been less in demand. The reasons are understandable: Economists have seemed to offer relatively clear and well developed models for predicting behavior, notably “expected utility theory.”  In contrast, the lessons from psychology have often seemed less clear-cut, no matter how interesting or suggestive they may have been.

This situation is now changing. Officials are recognizing that their policies may stand or fall on social, cognitive, and emotional factors that economists have traditionally neglected. Given their position at the top table, it is perhaps unsurprising — if ironic — that economists themselves have communicated this point. Behavioral economics, essentially a combination of economics and psychology, has provided a new bridge between policymakers and psychological findings.

Read more here.

Mikki Hebl on Interpersonal Discrimination

Related Situationist posts:

• Judge Nancy Gertner on the Situation of Discrimination Claims
• Liability for Unconscious Discrimination?
• Krieger on the Situation of Discrimination in France
• What Are the Legal Implications of Implicit Biases?
• Colorblinded Wages – Abstract
• Firefighters and the Situation of “Merit”
• The Situation of Situation in Employment Discrimination Law – Abstract

Corporate Aid to Governmental Authority – Abstract

Situationist Contributor David Yosifon recently posted another thoughtful and provocative article on corporate law.  The article, titled “Corporate Aid to Governmental Authority: History and Analysis of an Obscure Power in Delaware Corporate Law” (forthcoming in University of St. Thomas Law Journal) can be downloaded for free on SSRN.  Here’s the abstract.

The Delaware General Corporation Law contains an obscure provision stating that all corporations have the power to “[t]ransact any lawful business which the corporation’s board of directors shall find to be in aid of governmental authority.” 8 DGCL §122(12). This oddly worded provision has never been applied, analyzed, or interpreted by any court. It has received almost no treatment by corporate law scholars. This lack of attention is surprising, given that by its own terms the provision seems to bear on fundamental corporate law themes, such as the purpose of corporations, the scope of directors’ fiduciary obligations and discretion, and the relationship between corporate law and corporate social responsibility. In this Article, I examine the history behind this strange provision and analyze its applicability to pressing social policy questions surrounding corporate law.

My analysis leads both to narrow and broad policy conclusions. The narrow conclusion is that §122 of the Delaware corporate code is a textual mess that should be amended at least for coherence and clarity. The broad conclusion is that the analysis herein contributes to the case for reforming corporate governance law to require directors to actively attend to the interests of multiple stakeholders, not just shareholders.

Download the article for free here.  See Yosifon’s SSRN page here.

Related Situationist posts:

• Marjorie Kelly Speaks at Harvard Law
• Our Stake in Corporate Behavior
• Taking the Situation of Consumers Seriously
• Against Freedom of Commercial Expression – Abstract
• Merchants of Discontent – Abstract

The Surprisingly Dangerous Situation of Hands Free Devices while Driving

Many drivers use hands-free devices in their cars believing that it is a safer way of texting and emailing than to do so by typing.  A new study by the University of Utah and AAA suggests hands-free devices pose more danger than other distractions in cars.  Here is an excerpt from a story on the University of Utah’s website:

* * *

“Our research shows that hands-free is not risk-free,” says University of Utah psychology Professor David Strayer, lead author of the study, which he conducted for the foundation arm of the nonprofit AAA, formerly known as the American Automobile Association.

“These new, speech-based technologies in the car can overload the driver’s attention and impair their ability to drive safely,” says Strayer. “An unintended consequence of trying to make driving safer – by moving to speech-to-text, in-vehicle systems – may actually overload the driver and make them less safe.”

* * *

To read the rest, click here.  For a related Situationist post, see The Situation of Driving While Texting.

The Situation of Questions about NFL Players’ Sexual Orientation

Last week the National Football League Players’ Association announced it would sell t-shirts with a gay pride theme.  A number of players have agreed to have their names on the t-shirts.  This is a positive step for the NFL, which as Situationist contributor Michael McCann wrote about earlier this year for Sports Illustrated, has seen fallout from its teams asking prospective players about their sexual orientation.  Here is an excerpt of McCann’s article “Loaded Question“, which appeared on page 16 in the March 25, 2013 issue of SI.

* * *

In a March 14 letter to NFL commissioner Roger Goodell, New York attorney general Eric Schneiderman inquired why, during last month’s scouting combine, several college players were allegedly asked about their sexual orientation. Notre Dame linebacker Manti Te’o denied reports that he had faced such queries, but Colorado tight end Nick Kasa said a team wanted to know if he “likes girls.” Kasa’s isn’t the first case of offensive predraft questioning. In 2010, Dolphins G.M. Jeff Ireland asked Dez Bryant if his mother was a prostitute. (Ireland later apologized.)

The NFL asserts that such questions violate existing league policies and are subject to discipline. A league spokesperson also says that the questioning of prospects was to be discussed at this week’s owners meeting.

Are the NFL and the players association doing enough to protect prospects from biased questions? Article 49 of the current CBA declares, “There will be no discrimination in any form against any player … because of … sexual orientation.” But is a draft prospect who is not yet a member of the NFLPA or of an NFL team—and may never become one—fully protected by Article 49?

* * *

To read the rest, click here.  For other Situationist posts on homophobia, click here.

The Situation of Bran-Scan Lie Detectors

Lauren Kirchner of Pacific Standard Magazine has an interesting piece on the science on brain-scan lie detectors and concerns about law enforcement using them.

* * *

The brain-scan “guilt detection test” is a newer technology that supposedly measures electrical activity in the brain, which would be triggered by specific memories during an interrogation. “When presented with reminders of their crime, it was previously assumed that their brain would automatically and uncontrollably recognize these details,” explains a new study published last week by psychologists at the University of Cambridge. “Using scans of the brain’s electrical activity, this recognition would be observable, recording a ‘guilty’ response.”

Law enforcement agencies in Japan and India have started to use this tool to solve crimes, and even to try suspects in court. These types of tests have not caught on with law enforcement in the U.S., though they are commercially available here. That’s probably a good thing; the researchers of this study found that “some people can intentionally and voluntarily suppress unwanted memories.”

* * *

To read the rest, click here.  For a related Situationist post, see Tamara Piety on Lie Detection.

The Gendered Situation at Harvard Law School – Part III

The Harvard Crimson‘s Dev Patel has an outstanding series of articles last week on gender inequality at Harvard Law School. Here are some excerpts from the third article, titled “Female HLS Graduates Enter a Job Market Dominated by Men” in the series.

The law firm Brune & Richard is an anomaly. In a world where female lawyers represent fewer than 20 percent of partners in private practices, women make up 12 of the 18 lawyers at Brune & Richard.

And for founder Hillary Richard, who graduated from Harvard Law School in 1988, that number makes a difference.

“What it presents for female lawyers, particularly younger lawyers, is an array of possibilities that they don’t see at other firms,” Richard said. “Women who come to work here know that being a woman is certainly not going to hold you back, is not going to be an impediment to partnership, and is not going to be an impediment professionally in any way.”

But when female students graduate from the Law School, most must grapple with the large gender gap in the legal profession, especially at the level of the most prestigious positions. According to a Feb. 2013 report by the American Bar Association, fewer than one-third of federal and state judgeships are filled by women, and only 15 percent of equity partners in law firms are female. Just 21.6 percent of general counsel at Fortune 500 companies are female lawyers, and women make up barely one-fifth of all deans in U.S. law schools.

Harvard Law professor David B. Wilkins ’77, an expert on the legal profession, said he thinks this severe gender disparity creates a vicious cycle that prevents many women from moving up in the field.

“I think it’s true as in many other places in society,” he said. “If people see people like themselves succeeding, they are more likely to succeed.”

At Harvard Law School, where fewer than one in five professors is female and women are regularly outperformed in the classroom by their male counterparts, graduating students are not immune to the pressure of entering a field dominated at the top by men.

A “FEMINIZED” PROFESSION, BUT NOT AT HARVARD

“Law is becoming a feminized profession, by which I mean the majority of the entrants to the profession are women,” said Wilkins, who described the breakdown in the United States as “50/50,” whereas worldwide “women make up the majority.”

Yet one would never get that sense from the campus of Harvard Law School.

More than six decades since the first women were admitted to the school, female students have never made up 50 percent or more of a class, according to Assistant Dean and Chief Admissions Officer Jessica L. Soban ’02, a former Crimson business editor.

A gender disparity is especially apparent in the most prestigious extracurricular activities, where women succeed in smaller numbers than their male peers.

According to Yvonne L. Smith of the Dean of Students Office, twice as many men as women made it to the semi-final round of the Ames Moot Court competition, a prestigious mock trial held annually by the school, and only nine of the 44 most recently elected editors on the Harvard Law Review have been women.

Valerie Duchesneau, director of student organizations on the Student Representative Board, pointed out that while most journals at the Law School have many women on staff, the Law Review is different.

“For me that’s why that statistic says something about there being a real problem,” said Duchesneau. “Somehow the Law Review gets a lot of the prestige that these other journals don’t carry.”

The gender gap at the Law Review is nothing new.

“When I was a student here from 1994 to 1997, I took the Law Review competition in the spring of 95, and of the 40 to 42 people who made the Law Review that year, only nine of us were women,” said visiting professor Laura A. Rosenbury ’92 in a video released by Shatter the Ceiling, a new coalition to address gender disparities. “I assumed when I came back to the faculty this year, that the Law Review would be close to 50/50. And it’s not.”

Students and faculty said there is no clear answer as to why certain extracurricular activities end up disproportionately male. The Harvard Law Review this year implemented a new gender-based affirmative action policy in an attempt to counteract the gap.

“There is, for lack of better terms, a hierarchy in terms of extracurriculars on campus,” said third-year Harvard Law student Stephanie E. Davidson, outgoing president of the Women’s Law Association.

TROUBLE AT THE TOP

And while the problem might start with student activities, it extends into the job market. Many in the Law School consider certain activities like the Law Review and Ames Moot Court to be important lines on the resume when securing top jobs after graduation.

Female graduates at the Law School find positions at private law firms less often than their male peers, according to Assistant Dean for Career Services Mark A. Weber. At the same time, he said, women tend to enter public interest work in greater numbers than men.

Nationwide, women make up 19.9 percent of partners in private legal firms, according to the American Bar Association.

Visiting professor Daniel R. Coquillette said that part of this disparity can be attributed to the fact that large law firms have “never made the accommodations they should make to family life.”

“I was an associate in a big law firm and I’ll tell you, it really is a very, very tough existence,” he said. “You might say that they treat men and women equally. And that’s true, they make it difficult for everyone, but under the conditions of modern society, it impacts women more.”

Wilkins agreed that typical legal careers, particularly at law firms where the key years in which lawyers become partners coincide with the time when many choose to start a family, are “not just made for a man but made for a man whose wife doesn’t work.”

“In a profession in which human capital is at its core, we are systematically losing out on the talent of very talented female lawyers who are leaving the profession altogether sometimes,” he said.

Wilkins helped co-author a study entitled “After the JD,” in which researchers surveyed lawyers in 2008 who had entered private practice in 2000. They found that at large law firms of 250 or more, men were five times more likely to have been made equity partner than women.

Weber said that while the statistics at the level of the top positions might paint a troubling picture, firms who hire HLS graduates soon after graduation treat candidates equally regardless of gender.

“What we’ve seen on the output side is that employers just want to hire smart, talented students,” he said. “It’s never an issue of gender. I’ve never seen employers say ‘We want to hire men.’”

Nevertheless, Wilkins said he thinks “unconscious bias and stereotypes” may play a powerful role.

“Whether they be clients or partners, when they think about a successful lawyer they are less likely to think of a female lawyer,” he said.

Richard said she thinks this issue is rooted in the low number of female partners. With a small number of women at the top, female job applicants find it harder to imagine their own success.

“I think with anything else, the more diversity that you have, whether its gender or race or what have you, I think the more it opens your mind to the possibility no matter who you are that there are jobs and careers open to you,” said Richard.

In lower courts, women fill more clerkship positions than men, according to Weber. But that dynamic changes at the level of the top positions. Among HLS graduates, far more men secure clerkships at the Supreme Court than women, a statistic often cited by the Shatter the Ceiling coalition.

“The higher you go in the profession, whether its Supreme Court Justices, partners in law firms, or deans of law schools, the number of women is smaller,” Dean of the Law School Martha L. Minow said. “It’s not just Harvard Law School’s problem, it’s the legal profession’s problem.”

Read the article here.

Related Situationist posts:

• Implicit Gender Bias in Legal Profession
• The Gendered Situation at Harvard Law School – Part II
• The Gendered Situation at Harvard Law School – Part I
• Elena Kagan’s Situation
• The Situation of Gender in the Workplace
• Nancy Gertner on the Situation of Feminism
• Judge Nancy Gertner on her Situation
• The Gendered Situation of Recommendation Letters
• The Double-Binded Situation of Even Women Lawyers
• Examining the Gendered Situation of Harvard Business School
• A Rose by any other Name Might Become a Judge
• The Nerdy, Gendered Situation of Computer Science
• The Situation of “Opting Out”
• The Gendered Situation of Science & Math
• The Situation of Sexism
• Sexual Harassment at Wal-Mart?
• Women’s Situation in Economics

The Gendered Situation at Harvard Law School – Part II

The Harvard Crimson‘s Dev Patel has an outstanding series of articles last week on gender inequality at Harvard Law School. Here are some excerpts from the second article, titled “In HLS Classes, Women Fall Behind” in the series.

Among the top students in their graduating classes, men and women entering Harvard Law School earn similar undergraduate grades and LSAT scores. But as soon as students step into Wasserstein Hall, a dramatic gender disparity emerges.

Indicators suggest that female students participate less and perform worse than their male counterparts over the course of their three years at the Law School.

“For better or worse, when women come to law school, they feel their gender more strongly than they may have in undergrad,” said third-year law student Stephanie E. Davidson, outgoing president of the Women’s Law Association. “I still barely have words to describe why that is or what that means. But you feel like a female lawyer instead of a lawyer.”

Davidson is not alone. Hundreds of students and faculty gathered this spring for Shatter the Ceiling, a new coalition whose goal is to address gender disparities at Harvard Law. The issue of imbalance in the classroom has emerged at the forefront of their discussions, prompting reactions across the campus and the nation over how women and men stack up.

IS SOCRATES SEXIST?

Harvard Law student Jessica R. Jensen hates the Socratic method. “It’s the worst thing in the world,” she said. “It forces you to talk like a man.”

“It made me feel really uncomfortable and incompetent at first, and it really impacted my performance in classes the first year,” Jensen said. “You feel like you don’t know the material really well because you feel like an idiot in class.”

Employed in some form across most classrooms at Harvard Law School, the Socratic method, a teaching style that relies on cold-calling, lies at the heart of the debate over gender issues and serves as a focal point for the Shatter coalition.

Today, many students and faculty have raised concerns over the teaching method, saying that men are more likely to participate voluntarily in Law School classes than women.

In a 2004 study on gender issues at Harvard Law School, a then-third-year law student Adam M. C. Neufeld found that men were 50 percent more likely than women to volunteer at least one comment during class, and 144 percent more likely to speak voluntarily at least three times. The study also showed that 10 percent of students accounted for nearly half of all volunteered comments in first-year law classrooms.

“I think the big point is that many men weren’t talking too,” Neufeld said. “There was a small number of people who account for most of the comments.”

More recently, according to a 2012 study at Yale Law School, men made 58 percent of comments in the classroom, while women made 42 percent.

Yet the root cause of this disparity remains contested, as professors, students, and administrators debate whether the Socratic method—the traditional form of legal pedagogy—needs to be adapted to account for gender disparities in the classroom.

For many in the Law School, the Socratic method is an outdated teaching style that reinforces gender imbalances in academia.

“Women take longer to process thoughts before they feel comfortable to say them out loud than men do,” Jensen said, adding that men feel more natural in that kind of classroom atmosphere.

Because of this disparity, the Shatter coalition hopes to encourage changes to the Law School pedagogy.

“If you can show that the Socratic method makes us better lawyers, then fine, but we need to see that data,” said Lena M. Silver, a third-year Law School student and the co-chair of the Shatter the Ceiling coalition.

Harvard Law professor Lani C. Guinier ’71, who has authored several articles on legal pedagogy, said that the problems described by Silver and her group highlight potential issues with legal education today.

“In short, women’s reaction to law school is an important warning sign, but a warning sign that the problem will not go away simply by focusing on helping the women think more like their male counterparts,” Guinier wrote in an email, saying that the faculty should reevaluate their pedagogical techniques.

Others suggested that the pressures of the classroom environment contribute to women not raising their hands as often as men. “Women are more likely to be called ‘gunners’ or ‘teacher’s pets’ if they participate in class,” said Jean N. Ripley, second-year Law School student and co-chair of the Shatter coalition.

In his study, Neufeld, who said he supports the Socratic method, found that women assessed themselves significantly lower than men did, suggesting that different confidence levels may account for the disparity in classroom participation.

“Volunteering is a fairly socially aggressive act,” he said. “You are making all the other students listen to your comment, you think it is unbelievably important and something that no one else has thought of.”

Yet supporters of the Socratic method discount the existence of inherent gender disparities and argue that it is an essential part of the legal education.

“It’s an extreme form of sexism to say that essentially women in general aren’t capable of dealing with the demands of the Socratic method,” said Harvard Law professor Alan M. Dershowitz.

Dershowitz noted that some of the best Socratic students in his classes have been women. “You cannot generalize about men and women when it comes to their ability to be law students or practice law,” he said. “We have to keep inquiring as to why this disparity exists but we have to do it without divulging into stereotypes.”

Dean of the Law School Martha L. Minow pointed to an ongoing debate over the possibility of gendered dimensions of certain forms of argument and reasoning, saying that it “can’t be the case” that “certain types of reasoning are beyond the reach of a group of students.”

And many professors, including Dershowitz, defend the Socratic method as a critical component of the Harvard Law School education.

* * *

Though Minow has refused to release data on the gender breakdown of grades, professors said that indicators point to a dramatic disparity between men’s and women’s performance despite blind assessment.

Neufeld’s 2004 study found that women earned lower grades in first-year courses across three years of data, though the disparity varied in part with the content and gender of the professor. The form of assessment, by contrast, did not increase or decrease the grade disparity.

In the study, men were also more likely to receive graduation honors than women, a disparity frequently cited by the Shatter coalition.

“We haven’t created a situation in which women are doing as well as we’d like them to be,” Law school professor Christine Desan said. “Part of that is surely societal, both social and political.”

But the gender grade disparity is not the same at other law schools, according to visiting professor Laura Rosenbury.

“It’s interesting because I’ve been teaching at Washington University in St. Louis, and we don’t have this problem,” said Rosenbury in a video released by the Shatter coalition. “In fact, women outperform their male colleagues both in terms of grades and in terms of law review competition. And so what makes Harvard different?”

Faculty and students alike have struggled to find an answer.

Minow said there is “unequivocally” no difference in undergraduate grades or the LSAT scores of men and women coming into Harvard Law.

“They are at some level puzzling, because the grading in the big classes are completely anonymous,” Tushnet said. “And yet there must be something about the style of a writing or arguing that the faculty prefers that tilts in favor of men.”

Others said they believe that levels of confidence and self-perception may play a role.

“The main argument for this one is the stereotype threat,” Neufeld said. “If you are a high school girl who’s taking a math class, and there’s a general perception that women do worse, you, no matter what your inherent ability, are going to be more anxious because you don’t want to do poorly and reflect that stereotype, and you will end up doing worse because you can’t relax and focus.”

While the cause of these issues remains unknown, in many ways the extent of the problem is also uncertain.

No new grade data has been released since the administration changed the grading system from the standard letter grades to an honors, pass/fail system. A key goal of the Shatter coalition has been access to that data, but Minow has declined to share it.

“We don’t need to have a study, we need to work on making this better,” Minow said. “Do I think there are issues about whether or not Harvard Law School or any law school is conducive to learning for any student? Yes. Might there be gendered dimensions? Possibly. You don’t have to prove anything to me; I’m already committed to addressing these issues, as is the faculty.”

Desan said that as long as she and her colleagues continue to grade, they must take responsibility for the marks they give.

“If those grades suggest that there may be a problem with our teaching or our testing, then we should try to figure out what that problem is,” she said. “We have data that we haven’t explored yet, and I think it’s time that we explored it.”

While Minow said she hopes to diminish the role of grades in the community, some students have raised concerns that beyond the Harvard Law campus, grades remain critical to success.

“I think that potentially a barrier Dean Minow has to face in deemphasizing the prestige of those things is that the legal profession and the academic world still values them,” President of the Student Representative Board Lisa M. Lana said.

Read the entire article, which includes an extensive discussion about the socratic method and links to the other articles in the series, here.

Related Situationist posts:

• The Gendered Situation at Harvard Law School – Part I
• Elena Kagan’s Situation
• The Situation of Gender in the Workplace
• Nancy Gertner on the Situation of Feminism
• Judge Nancy Gertner on her Situation
• The Gendered Situation of Recommendation Letters
• The Double-Binded Situation of Even Women Lawyers
• Examining the Gendered Situation of Harvard Business School
• A Rose by any other Name Might Become a Judge
• Not Just Whistling Vivaldi
• The Nerdy, Gendered Situation of Computer Science
• The Situation of “Opting Out”
• The Gendered Situation of Science & Math
• The Situation of Sexism
• Sexual Harassment at Wal-Mart?
• Women’s Situation in Economics

The Gendered Situation at Harvard Law School – Part I

The Harvard Crimson‘s Dev Patel has an outstanding series of articles this week on gender inequality at Harvard Law School. Here are some excerpts from the first article, titled “Once Home to Kagan and Warren, HLS Faculty Still Only 20 Percent Female” in the series.

Just 20 percent of U.S. senators are female. Women make up a mere 21.6 percent of the lawyers who serve as general counsels to Fortune 500 companies. Only three of the nine Supreme Court Justices are women.

But these figures are still higher than the proportion of women within the ranks of the Harvard Law School faculty.

At Elizabeth Warren and Elena Kagan’s former place of work, women constitute fewer than a fifth of all professors and assistant professors of law—a disparity that Harvard Law School Dean Martha L. Minow called “absolutely inadequate.” With only 17 women among 92 tenure-track faculty members, according to the Law School’s online directory as of May 6, the gender imbalance of Harvard Law School’s faculty is comparable to that of other elite law schools, yet still among the most severe of the approximately 200 law schools nationwide.

Concerns about gender inequality have spread throughout campus as a new student-run coalition called Shatter the Ceiling draws hundreds of community members together to address these issues, faculty members pursue research on gender disparities, and the administration pushes for new strategies to level the playing field. Amidst this growing movement, some have raised questions about the impact of gender inequality within the ranks of the faculty, in the classroom, in student organizations, and in life after Law School.

Among their top concerns is the small proportion of women on the faculty, an issue they say is rooted in the Law School’s history and today impacts hiring decisions, faculty conversations, and topics of intellectual inquiry.

“It’s an issue that matters to me, an issue that matters to the Law School, and an issue that matters to the profession,” Minow said.

BURDENED BY THE PAST

Portraits of tenured professors arranged in chronological order line a wing of the Law School’s new student center, looking down on students as they walk to class each day. But students cannot see a woman’s photograph until they pass the 1972 mark, and can only count a handful more in the next few decades.

More than 20 years after female students first stepped foot on campus, the Law School in 1972 granted tenure to its first female faculty member, Elisabeth A. Owens. But she did not attend faculty meetings, and her appointment “was widely regarded as not genuine,” according to Daniel R. Coquillette, a visiting professor and the former dean of Boston College Law School.

Coquillette is currently working on a history of Harvard Law School that will devote a significant section to the history of gender at the school. He said that the Law School’s progress on gender issues came relatively late, after other law schools across the country had already taken significant steps towards welcoming women.

“The appointment of women to the tenured faculty is so recent that many of the pioneer women are still right there as active faculty members,” Coquillette said, referring particularly to Law School professors Martha A. Field ’65 and Elizabeth Bartholet ’62, two of the first women to successfully complete the tenure process.

Field recounted that when she first joined the faculty as a tenured professor in 1979, the Law School had “such a terrible reputation” among women in the field.

“It used to be a nice male club,” she said. “It really did sort of mess up the boys’ club when women came on.”

Field said that in the early years, the hiring of female faculty members was slowed by concerns about tilting the political direction of the school leftward.

“For a while, you sort of had the feeling that it was hard to hire women because people had one idea of what a woman should be,” Field said. “They assumed that if you pushed for women or minorities that you were leftist, radical, and pushy.”

Since that time, acceptance of female faculty members has improved—a development highlighted by the appointment of two female deans, Kagan in 2003 and Minow in 2009. But Minow herself acknowledges that these changes are still not enough.

“Now we have women serving as partners at law firms, on the Supreme Court, making a difference in all walks of legal life,” Minow said in a March interview. “On the other hand, the small relative number of women who are partners at law firms, sit on the bench, and are tenured professors shows that there’s still lots to be done.”

ADDING MORE PORTRAITS

At less than 20 percent female, Harvard Law School’s tenure-track faculty is the least diverse of its kind in the Ivy League. At Columbia Law School, about 25 percent of faculty members are female, while women make up about 29 percent of the faculty at Yale Law School. The law schools at Cornell and the University of Pennsylvania count even more female faculty members among their ranks, with percentages of about 30 and 33, respectively.

Outside the Ivy League, female law professors are represented in even greater numbers. According to a report released by the Association of American Law Schools, women accounted for 34.4 percent of law school faculty nationwide in the 2008-2009 academic year.

“In terms of our peer [top-ranked] schools we are not so different,” Minow said, noting that the Law School does not fare as well when compared to a broader group of schools. “So it’s again the same pattern you see all over the profession. The higher the prestige, the more elite, the fewer women are there.”

Since she took the helm of the school four years ago, Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron, a former Crimson president. “There’s no reason that our faculty should not be more diverse.”

Despite this progress, Field said that gender stereotypes still remain in the Law School’s hiring process.

“The more you present yourself as the old traditional type, the more likely you are to get in,” Field said.

Field said that “for [the faculty] to take you seriously, it’s nice to have a good male subject, what they think of as hard law subjects”—constitutional law­, for instance. She said female applicants fare better when presenting a “‘touchy-feely’ subject”—for example, family law or other “soft law” topics.

Others, including professor John F. Manning ’82, chair of the lateral hiring committee, contested Field’s characterization of the hiring process, saying that they do not see any correlation between the topic presented during the workshop and a candidate’s ability to be hired.

“Some of the most successful presentations I’ve had have been on subjects that have been regarded as sort of soft law,” said Law School professor Alan M. Dershowitz, who said that his own subjects were typically regarded as softer. “I welcome more people in those subjects.”

The Law School has also taken steps to accommodate faculty members—both male and female—who want to balance both their personal life and their professional careers.

Law School professor David B. Wilkins ’77, who is an expert on gender issues in the legal profession, said that an important obstacle to women’s success is the simultaneous timing, in many cases, of pursuing a tenure-track position and choosing to raise a family.

To this end, Harvard Law School offers a parental leave program and allows faculty members to extend the period necessary to be considered for tenure, Minow said.

“I’m a woman, I’m a mother,” she said. “It’s a priority for me to allow people to have meaningful lives, work, and family.”

A GENDERED FEELING?

Before she came to Harvard in 2010, Law School professor Vicki C. Jackson taught and held associate deanships at Georgetown University Law Center. At Georgetown, she said, the more gender-balanced faculty created a remarkably different environment.

“It felt different just in terms of more women, more women at the workshops, and more women at the faculty,” she said, acknowledging that many other factors contributed to her perception.

For some professors like Jackson who have spent time at other law schools, Harvard’s gender disparity creates a distinct atmosphere around lunch tables and faculty workshops.

“For a variety of reasons, including the gender disparity, the faculty culture does have what I think scholars of this topic would describe as a masculine attitude, a way of presenting yourself and your arguments that has gender associations,” Law School professor Mark V. Tushnet ’67 said, adding that “assertive, outright statements” take precedence in faculty conversations.

Field said that as a result, engaging in faculty discussions becomes much more difficult for professors who are less outgoing.

“The first thing you have to learn how to do here is how to interrupt,” she said. “I think you’re considered smarter if you are showing off.”

Read the rest of the article, which includes range of opinions from a variety HLS faculty members on the question of gender disparity at Harvard Law School, here.

Related Situationist posts:

• Elena Kagan’s Situation
• The Situation of Gender in the Workplace
• Nancy Gertner on the Situation of Feminism
• Judge Nancy Gertner on her Situation
• The Gendered Situation of Recommendation Letters
• The Double-Binded Situation of Even Women Lawyers
• Examining the Gendered Situation of Harvard Business School
• A Rose by any other Name Might Become a Judge
• Not Just Whistling Vivaldi
• The Nerdy, Gendered Situation of Computer Science
• The Situation of “Opting Out”
• The Gendered Situation of Science & Math
• The Situation of Sexism
• Sexual Harassment at Wal-Mart?
• Women’s Situation in Economics

Contracting Blame

Eric Zacks has a superb new situationist article, titled “Contracting Blame,” (forthcoming in the University of Pennsylvania Journal of Business Law, Vol. 15, 2012) available for free download on SSRN.  Here’s the abstract.

This Article explores the impact of the cognitive biases of judges and juries in the context of contract preparation and execution. From rental car contracts to mortgage forbearance agreements, contract preparers include provisions and formatting characteristics that appear to add little to the material terms or understanding of the agreement. These features, however, make perfect sense if one considers the implications of attribution theory, which is based on our tendency to attribute blame for an event to another’s disposition or personality. We are predisposed to blame the victim, which makes us susceptible to misjudgment when examining another’s actions. This Article makes a novel link between behavioral literature and contract preparation and suggests that contract preparers may be able to manipulate adjudicators’ cognitive biases systematically. Exclusive of the economic bargain, contract provisions can provide attributional ‘clues’ about the contracting context that inform and reassure judicial interpreters that a particular contracting party is more blameworthy than another. For example, multiple signature blocks, boldfaced or highlighted warnings, and recitals depicting a particular version of events all reinforce our tendency to perceive the contracting party as being able to act freely without being influenced by his or her situation. In counterproductive fashion, however, these features are often irrelevant to a party’s decisions in the contracting context. In light of the significant implications of the existence and prospective use of such attributional clues for contract law theory and judgment, this Article proposes a broader contextual and adjudicative focus when contemplating contract law reforms.

Download the article here.

Related Situationist posts:

• Seduction by Contract
• Taking the Situation of Consumers Seriously
• The Situation of Creating a Consumer Financial Protection Bureau
• Hey Dove! Talk to YOUR parent!
• Tamara Piety on Market Manipulation
• Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List
• Promoting Smoking through Situation
• The Big Game: What Corporations Are Learning About the Human Brain
• Warren on the Situation of Credit
• The Financial Squeeze: Bad Choices or Bad Situations?
• No Contract for Old Men
• The Situation of Subprime Mortgage Contracts – Abstract

Gender, Weight, Stereotypes, and Prejudice

From Slate:

This month a team of Yale psychologists released a study indicating that male jurors—but not female jurors—were more likely to hand a guilty verdict to obese women than to slender women. The researchers corralled a group of 471 pretend peers of varying body sizes and described to them a case of check fraud. They also presented them with one of four images—either a large guy, a lean guy, a large woman, or a lean woman—and identified the person in the photograph as the defendant. Participants rated the pretend-defendant’s guilt on a five-point scale. No fat bias emerged when the female pretend peers evaluated the female pretend defendants or when either men or women assessed the guilt of the men. But when the male pretend peers pronounced judgment on the female pretend defendants, BMI prejudice reared up. . . .

The study offers further depressing insights. Not only did the male pretend jurors prove “significantly more likely” to find the obese female defendants—rather than the slim ones—guilty, but the trim male participants were worst of all, frequently labeling the fat women “repeat offenders” with “awareness” of their crimes. And because the effect disappeared when the photographs depicted a man, the hypothesis that subjects were simply layering class-based assumptions—such as “poor people are more often overweight” and “poor people commit more crime”—on top of one another falls a bit short. (On the other hand, as one of the researchers, Dr. Natasha Schvey, explained to me over the phone, fat women are more likely to be perceived as coming from lower socioeconomic backgrounds than fat men. Somehow I don’t find that consoling.)

“What’s going on?” I asked her. Schvey suggested that stereotypes about obese people paint them as greedy, selfish, and thus prone to defrauding checks.

Read the rest of the article, including the author’s alternative theories here.

Related Situationist posts:

• The Situation of Body Image
• Hey Dove! Talk to YOUR parent!
• Shades of Fairness and the Marketing of Prejudice
• Prejudice Against the Obese and Some of its Situational Sources
• Fitting in and Sizing up
• Jury Selection
• The Implicit Situation of Criminal Justice
• The Situation of Gender in the Workplace
• Implicit Bias in the Courtroom
• Implicit Bias Symposium (with links to videos)
• Nancy Gertner on the Situation of Feminism
• Judge Nancy Gertner on her Situation
• The Gendered Situation of Recommendation Letters
• The Double-Binded Situation of Even Women Lawyers
• Examining the Gendered Situation of Harvard Business School
• A Rose by any other Name Might Become a Judge

Image from Flickr (by Eric Molinsky).

Gary Wells on Improving the Accuracy of Eyewitness Identification

Related Situationist posts:

• The Situation of Eyewitness Identification
• The Norfolk Four and the Situation of False Confessions
• Memory Biases as Source of Prejudice
  
• The Situation of False Confessions