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Archive for the ‘Law’ Category

The Deeply Captured Situation of “Defensive Medicine”

Posted by The Situationist Staff on September 28, 2012

Sidney Shapiro, Thomas Owen McGarity, Nicholas Vidargas, and James Goodwin, have recently published their White Paper, titled “The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice ‘Reform’” on SSRN.  Here’s the abstract.

In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.

Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.

This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents.

The evidence reveals that “defensive medicine” is largely a myth, proffered by interests intent on limiting citizen access to the courts for deserving cases, leaving severely injured patients with no other recourse for obtaining the corrective justice they deserve. These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors. Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions. On the other hand, buying into this myth has very real and dangerous consequences. Allowing civil justice opponents to pretend that constraining the civil justice system equates to meaningful health care reform distracts us from doing the things that must be done to fix the system, including avoiding the 98,000 deaths caused by preventable medical errors every year and reducing the unacceptable number of uninsured Americans.

Download report for free here.

For a related recent briefing book assembled by the Center for Justice & Democracy click here

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Nancy Gertner on The Situation of Dispositionist Criminal Sentencing

Posted by The Situationist Staff on September 8, 2012

From Cognoscenti:

There is a canned, formulaic newspaper story about any criminal case. It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number). The prosecutor argued for 10 (or higher than the number the judge gave). The victim’s family is appalled. When interviewed, they stridently proclaim their outrage at the judge. The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded. So when the judge sentences the defendant to less, they cry foul. Another lenient judge! Another liberal! Another blow against the “tough on crime” mentality!

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers – five, 10, 15, 20 – without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime. They don’t consider alternative approaches. They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration.

These numbers only reflect the public’s and the district attorney’s spleen – and so whatever the number was before the sentencing of this defendant, they “must” be higher in the next case, with the next defendant. There is, in short, no end.

Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We lead the world in imprisonment not just by a little — but by several orders of magnitude. Our nearest competitors are Rwanda and China, hardly good company. And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents. This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000).

Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime.

But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in.

And not just the public. By the late 1980s, crime issues were part and parcel of the political debate — think of the role of the Willie Horton ads in the 1988 presidential election. A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

Some of the blame surely goes to the media. Take the case of Kenneth Belew of Somerville, Mass. On the evening of April 21, 2011, after drinking too much, Belew got behind the wheel and lost control of the car. Of the five passengers – two tragically died. The judge sentenced Belew to five years; the prosecutor had wanted eight to 10.

A Boston Globe columnist excoriated the judge in all too familiar terms: He was insensitive and unduly lenient for not imposing the sentence the prosecutor wanted. But what the prosecutor wanted was hardly the measure of fairness. The presumptive range of sentences under the Massachusetts Sentencing Guidelines was about three and a half to five and a half years.

Those guidelines were established by a Sentencing Commission consisting of prosecutors, defense counsel, public safety and correctional officials, and victim-witness advocates. And the judge accompanied the sentence with an elaborate recitation of the reasons for the sentence — on the record and in public.

The prosecutor cannot be so monitored. He picks a number and does not have to explain it, beyond justifying it in the particular case. There are no public, transparent guidelines for prosecutors, no Sentencing Commission, no standards. He cannot be easily reviewed to see if he is biased, choosing mandatory minimums for defendants of color more than for those who are white, or simply going with his gut.

Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences. When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence? The answer is never.

And, to a shocking degree, the prosecutor is picking numbers out of the air. Twenty years ago, we considered five years a very long sentence. In most European countries that is still the case. But now, in the United States, we increase sentences by fives. It’s like a betting game. Five does not send a message if it is what the defense lawyer wants. OK, I’ll raise you five more. Why five? Why not 10?

When sentences had to bear some relationship to outcomes – what worked to prevent recidivism, for example – there were limits. With retribution, there are few.

To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences. They are beginning to notice the disproportionate sentences for African Americans and Hispanics. And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective.

But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) – not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate.

That is the only explanation of why, just when punitive states like Texas and Mississippi are repealing “three strikes” laws, Massachusetts just passed one, after two highly publicized and tragic crimes: the murders of Melissa Gosule and Officer Jack Maguire. Three strikes is nothing more than a baseball metaphor – not social policy.

Read the entire article, including the 5 myths echoed in the press and among legislators, here.

Related Situationist posts:

To review a collection of Situationist posts discussing Nancy Gertner‘s work, click here.

Posted in Law, Video | 1 Comment »

Racial Bias Among Criminal Defense Lawyers

Posted by The Situationist Staff on August 31, 2012

Andrea Lyon recently posted her article, “Race Bias and the Importance of Consciousness for Criminal Defense Attorneys” (Seattle University Law Review, Vol. 35, p. 755, 2012) on SSRN. Here is the abstract.

The problems of racial bias pervade the criminal justice system. In this paper a subject that is not much talked about — the issue of how racial bias affects defense attorneys and the need for defense attorneys to acknowledge implicit and explicit racial biases as a matter of practice — is examined. Specifically, the paper covers problems of racial bias when defense attorneys make assumptions about (1) their clients, and (2) veniremen during voir dire.

Download the paper for free here.

Related Situationist posts:

Implicit Bias in the Law Conference – This Thursday

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Bias in Fortune 500 Legal Departments

Posted by The Situationist Staff on August 29, 2012

From ABA:

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

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

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

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

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

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

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

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

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

Related Situationist posts:

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Law and Social Cognition – Abstract

Posted by The Situationist Staff on August 10, 2012

Barbara Spellman and Frederick Schauer recently posted their illuminating chapter, “Law and Social Cognition” on SSRN:

The body of research on law and psychology is vast, but the overwhelming proportion of it is on jury decision making, especially in criminal cases. In this chapter for the forthcoming Oxford Handbook on Social Cognition (D. Carlston ed.), we attempt to broaden this research agenda. We survey briefly the existing state of psychological research on jury decision making, but show that, even with respect to factual determinations, the jury is a less important decision maker than most psychologists appear to believe. Thus, further research on factual determination by judges, of which there is some but not much, could substantially enrich our understanding of the psychological dimensions of legal decision making. Moreover, the role of judges in finding, interpreting, and applying the law is itself a task necessarily involving social cognition, and we explain both this connection and how further research on the social cognition dimensions of legal reasoning and legal argument could be highly valuable. Finally, we explain how numerous issues of substantive law – questions of intent, reasonableness, and knowledge, to give just a few examples – are themselves dependent on assumptions about the social and cognitive psychological reasoning of the people affected and governed by the law. There is very little psychology research on such questions, and the agenda of law and psychology could usefully be expanded to include such themes.

Download the chapter for free here.

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Self-Control and Crime

Posted by The Situationist Staff on August 1, 2012

Rebecca E. Hollander-Blumoff has recently posted her excellent paper, “Crime, Punishment, and the Psychology of Self-Control” (Emory Law Journal, Vol. 61, No. 501, 2012) on SSRN.  Here’s the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

Related Situationist posts:

Image from Flickr.

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The Historical Situation of Situationism at Harvard Law

Posted by The Situationist Staff on July 24, 2012

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

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

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

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

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

You can download the paper for free here.

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

Will John Roberts Drift?

Posted by Adam Benforado on July 10, 2012

A number of years ago, Jon Hanson and I wrote an article for Boston Review on the situations that lead Supreme Court justices to drift (or not drift) from their previous ideological moorings, which has gained new relevance in light of Chief Justice John Roberts majority opinion on the constitutionality of the new national health care law.

I am personally skeptical of speculation that this is a sign that Roberts is shifting.  However, I am somewhat more compelled by Richard Posner’s argument that the reaction to his opinion by the Court’s most conservative justices, Republican members of Congress, and the right-wing media may itself lead Roberts to rethink his ingroup allegiances:

Because if you put [yourself] in his position … what’s he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position.

In an interesting interview with NPR, Posner explains how he himself has been influenced politically by a negative reaction to what he characterizes as a growing “goof[iness]” of the Republican Party.  Listen to the interview here.

Also, for those dedicated few interested in how Posner’s situation may have influenced his worldview, check out The Costs of Dispositionism: The Premature Demise of Situationist Law and Economics, in which Jon and I compare the situations of two founders of the law and economics movement, Posner and Guido Calabresi.

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Implicit Bias in Employment Discrimination Litigation

Posted by The Situationist Staff on July 5, 2012

Judge Nancy Gertner and Melissa Hart have recently posted their chapter, titled “Implicit Bias in Employment Discrimination Litigation,” (in Implicit Racial Bias Across the Law, Cambridge University Press, 2012) on SSRN.  Here is the abstract.

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.

Download the chapter for free here.

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Fear of Flying and NBA Players

Posted by The Situationist Staff on July 1, 2012

Michael McCann recently posted his article, “Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Phobias” (to be published in the Pepperdine Law Review, Vol. 41, 20103) on SSRN.  The article is about Royce White, who will be entering the NBA next season, and what impact his severe fear of flying will have on his NBA career. The article also considers the legal mechanisms that may be available to White under the Americans with Disabilities Act.

Here is an excerpt:

* * *

If fear of flying constitutes a disability for White under the ADA, he could argue that the NBA or his team should accept any reasonable request for accommodation. They may disagree about what constitutes “reasonable”. Allowing White to take a train from Boston to New York City, or even a ship to Europe, would probably be reasonable so long as White does not miss meetings, practices or games. Then again, White as a rookie traveling alone, might not gain valuable insight from conversations with coaches and teammates or develop camaraderie with them.

Seemingly less reasonable would be allowing White to miss a road trip. Unless he is injured, suspended or assigned to the D-League (the NBA’s minor league), White will be contractually obligated to play 82 regular season games, along with four to six pre-season games, up to 28 postseason games, and possibly a handful of summer league games. No player signs a standard contract to play in “some games.” Consider the impact of such an arrangement on White’s coach: if White’s only an occasional player, his coach might struggle to set his rotation. On the other hand, professional leagues have carved out exceptions for players to miss road games. This has been true of NBA players recovering from injury. Gilbert Arenas, returning from a knee injury in 2009, was allowed a flexible schedule whereby he would play in all home games but only some road games. Other circumstances have led to similar arrangements. Last year the Central Hockey League allowed Rapid City Rush forward Brett Nylander, a second lieutenant in the Air Force, to only play home games because his military service limited travel.

* * *

To read the rest, click here.

Sample of related Situationist posts:

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The Situation of the Self

Posted by The Situationist Staff on June 28, 2012

Rebecca Hollander-Blumoff recently posted her intriguing article, “Law and the Stable Self”  (published in the St. Louis University Law Journal, Vol. 54, No. 1173, 2010) on SSRN.  Here is the abstract.

In this Article, I examine several findings in social psychology related to individuals’ preferences, and I explore how those findings subvert the Enlightenment vision of a stable and knowable self in ways that are quite relevant to law. I first explore one well-known finding in the cognitive bias literature, the status quo bias, and marshal some of the research suggesting ways in which this bias may affect individuals’ behavior vis-a-vis legal systems. Second, I discuss the potential ways in which temporal construal research-research on the way in which individuals see things differently depending on the time frame in which the events will occur-may relate to legal systems. Finally, I address how well some of the fundamental premises of our litigation system dovetail with psychological research on what individuals want. Our civil legal system is predicated on the recovery of money for harm done, but research suggests that money damages may be inadequate to meet some basic human desires.

Download the article for free here.

Sample of related Situationist posts:

Image from Flickr.

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The Situation of State Judiciaries

Posted by The Situationist Staff on June 26, 2012

From The Anerican Scholar:

The hearing room of the Wisconsin Supreme Court could be a Beaux-Arts museum, exhibiting images of justice as idealized in America for centuries: ornate, dignified, above reproach. Light pours in through a huge leaded-glass skylight, radiating off veined white marble. Large murals set high off the floor dominate each wall, depicting the venerable sources of Wisconsin law—Roman, English, Native American, and federal. The one to the left of the room’s mahogany bench portrays King John of England reluctantly granting the Great Charter, or Magna Carta, which, in June 1215, ended his lawless seizure of nobles’ land and began an era of legal rights embodied in English, then American, common law.

Article 40 of the Magna Carta pledged, “To no one will we sell, to no one will we refuse or delay right or justice.” But recently, in a string of expensive and increasingly contested elections, candidates to be justices of the Wisconsin Supreme Court have flouted the not-for-sale principle, demeaning the courtroom’s grandeur.

Wisconsin is not alone. In state after state, campaign contributions and related spending by special interests have risen dramatically in the past decade and are expected to swell in the wake of the U.S. Supreme Court’s 2010 Citizens United decision, which removed any limits on independent spending. Wisconsin is one of 22 states that elect judges to their highest courts, or one of 38 if you count states that have so-called retention elections by which appointed judges run to retain their seats. In all of them, independent spending threatens to overwhelm the system of electing judges, making them and the candidates running against them dependent on private money and eroding the public’s confidence in the courts.

Because judicial elections occur on different cycles and are subject to the push and pull of different forces in different jurisdictions, Citizens United has not increased spending uniformly in each state. But across the country, the ruling has caused spending to continue to rise at an ever-accelerating rate. This year, races in Florida, Michigan, and West Virginia have already set new highs for independent spending. Nowhere, though, are the pernicious effects more evident than in Wisconsin, which stands as a warning of just how bad things can get.

In 2007, in a Wisconsin Supreme Court race in which the two candidates spent a total of $2.7 million and special interests spent $3.1 million, Annette Kingsland Ziegler was elected and kept for conservatives a seat being vacated by another judge. The following year, the two candidates together spent “only” $1.2 million, joined by $3.4 million from special interests, much of it on distorted attack ads, which helped Michael Gableman defeat Louis Butler, the court’s first African-American justice, and swung the seven-member bench from liberal to conservative. And things have only gotten worse—over the past five years, special interests in Wisconsin have spent $14.8 million on TV ads to influence judicial elections, more than in any state except Pennsylvania, which has more than twice Wisconsin’s population.

After his defeat, Butler appeared at a conference on judicial selection reform. Holding up a copy of John Grisham’s 2008 novel, The Appeal, he said, “Welcome to my world.” In the novel, a chemical company’s industrial waste poisons the water in a Mississippi town, causing widespread cancer and death. The company stage-manages and heavily funds a successful campaign to replace a liberal justice with a conservative one, who shifts the state supreme court from left to right and casts the deciding vote to overturn a $41 million verdict against the company. The ads that defeated the liberal incumbent attacked her record on crime and other social issues, but really it was her lack of favoritism to business that led the company to take her down.

Like Grisham’s successful challenger, Michael Gableman was a little-known county trial judge with thin credentials, recruited by business to run against Butler. He became the first candidate to defeat a sitting justice since 1967; only three other justices in state history had been defeated in the previous 115 years—in 1947, 1908, and 1855.

Gableman’s TV ads accused Butler of having worked “to put criminals on the street,” pointing to the rapist of an 11-year-old girl. The ad was so misleading that the Wisconsin Judicial Commission charged Gableman with misconduct for “reckless disregard for the truth.” As a judge or justice, Butler never heard a case involving the rapist. But as a public defender years before, he had unsuccessfully sought a new trial for the man because of a breach of criminal procedure in a rape case. The rapist served out his time, and after his release, when he was no longer Butler’s client, he sexually assaulted another girl. Nevertheless, a review board rejected the misconduct charge against Gableman, finding that each individual assertion in the ad was true, so their sum could not be false.

Butler was not targeted for his views on crime, however. Gableman shifted the Wisconsin court to the right and cast the pivotal vote in 2011 when, by 4-3, the court overturned a trial court’s stay of a Republican-backed state law curbing the collective bargaining rights of public employees, effectively upholding the law—the legal fight that made Wisconsin a battleground between the rabid new right and the outraged old left in American politics.

Read the entire article here.

Related Situationist posts:

For a PBS Frontline website on “Justice for Sale,” click here. To download the “New Politics for Judicial Elections Report for 2006,” by the Justice at Stake Campaign, click here. For an NPR interview (audio) of Justice O’Connor about judicial independence by Nina Totenberg, click here. For a PBS interview (transcript, audio, or streaming video) of Justices O’Connor and Breyer on the topic of judicial independence, click here.

Posted in Deep Capture, Law, Politics | Leave a Comment »

Rebecca Onie on the Situation of Health (and Health Care)

Posted by The Situationist Staff on June 22, 2012

From

Rebecca Onie asks audacious questions: What if waiting rooms were a place to improve daily health care? What if doctors could prescribe food, housing and heat in the winter? At TEDMED she describes Health Leads, an organization that does just that — and does it by building a volunteer base as elite and dedicated as a college sports team.

Related Situationist posts:

Posted in Distribution, Education, Law, Life, Morality, Video | Leave a Comment »

Implicit Bias in the Law Conference – This Thursday

Posted by The Situationist Staff on June 12, 2012

Date: Thursday, June 14, 2012, 9:00 AM
Location: Austin Hall, Ames Courtroom, Harvard Law School
Address: 1515 Massachusetts Ave., Cambridge, MA

Presenters include Situationist Contributors Mahzarin Banaji, Jon Hanson, Jerry Kang.

From the conference web page:

Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This conference considers what emerging social science can contribute to the discussion of race in American law, policy, and society. The conference will explore how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, the conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law”, examines both the continued subordination of historically disadvantaged groups and the legal system’s complicity in the subordination.

The conference will bring together scholars, judges, practitioners, and community leaders to explore the issues surrounding implicit racial bias in law and policy. It will begin with a compelling overview of the social science. What does science teach us about automatic biases? And what do we still not know? Leaders in the areas of criminal justice, housing law and policy, education, and health care will then present overviews of the impact of implicit bias in their fields. Attendees will hear federal judges’ and leading scholars’ perspective on implicit bias claims in the courtroom and hear experts’ assessment of the future of implicit bias in the law. A lively afternoon session will include simultaneous break-out sessions and roundtable discussions of specific implicit bias related topics. Audience participation will be welcomed and encouraged. The conference will close with a discussion of setting a forward looking and collaborative implicit bias agenda.”

RSVP for the conference here.

Here is the conference agenda.

Posted in Events, Implicit Associations, Law, Legal Theory, Situationist Contributors | 1 Comment »

Corporations, Cars, the U.S.A., and Us

Posted by The Situationist Staff on June 1, 2012

Benjamin Levin just posted his excellent article “Made in the USA: Corporate Responsibility and Collective Identity in the American Automotive Industry” (forthcoming Boston College Law Review, Vol. 53, No. 3, p. 821, 2012) on SSRN.  Here’s the abstract:

This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bail-out of the major American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted private/public nature of the corporate form and for examining what it means for a corporation to be American and what duties and benefits such an identity confers.

By examining the ways in which consumable myths of the American corporation interact with the institutions and legal regimes that govern American corporations, I argue that the advertised image of the national in the global economy serves as a broad corporate veil, a way of obscuring the consumer’s understanding of corporate identity and corporate accountability. With these overarching issues and questions as a guide, this Article will historically situate the identification of corporate nationality within a broader framework of debates on corporate social responsibility and interrogate the way that we conceive of the American corporation and corporate decision making.

Download the article for free here.

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Posted in Deep Capture, History, Ideology, Law, Marketing, Politics | Tagged: , , , , , , | Leave a Comment »

Review of “Ideology, Psychology, and Law”

Posted by The Situationist Staff on May 30, 2012

Over at The Jury Expert, You can read an insightful review (by Rita R. Handrich, PhD) of Jon Hanson’s recent book, Ideology, Psychology, and Law” (Oxford University Press). [Introductory chapter available, here].

It opens this way:

Trial consultants, and the very best trial lawyers, practice with an awareness of the law, the domain of the case facts, and the way jurors are likely to understand and misunderstand all of it. If these avenues of thought had a single intersection, you would find that Jon Hanson has been living on that corner for 25 years. As a Harvard Law School professor and prolific writer, he has done much to keep me and many others informed of the traffic coming from these diverse directions. . . .

Read the entire review here.

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Posted in Book, Ideology, Law, Politics, Situationist Contributors | Tagged: , , , , | 1 Comment »

Implicit Bias Conference at HLS – More Details Soon

Posted by The Situationist Staff on May 24, 2012

Thursday, June 14, 2012, 9:00 AM
Austin Hall, Ames Courtroom, Harvard Law School
1515 Massachusetts Ave., Cambridge, MA<

Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This conference considers what emerging social science can contribute to the discussion of race in American law, policy, and society. The conference will explore how scientific evidence on the human mind might help to explain why racial equality is so elusive. This new evidence reveals how human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning. Through the lens of these powerful and pervasive implicit racial attitudes and stereotypes, the conference, designed to coincide with the launch of the book “Implicit Racial Bias Across the Law”, examines both the continued subordination of historically disadvantaged groups and the legal system’s complicity in the subordination.

The conference will bring together scholars, judges, practitioners, and community leaders to explore the issues surrounding implicit racial bias in law and policy. It will begin with a compelling overview of the social science. What does science teach us about automatic biases? And what do we still not know? Leaders in the areas of criminal justice, housing law and policy, education, and health care will then present overviews of the impact of implicit bias in their fields. Attendees will hear federal judges’ and leading scholars’ perspective on implicit bias claims in the courtroom and hear experts’ assessment of the future of implicit bias in the law. A lively afternoon session will include simultaneous break-out sessions and roundtable discussions of specific implicit bias related topics. Audience participation will be welcomed and encouraged. The conference will close with a discussion of setting a forward looking and collaborative implicit bias agenda.

Posted in Events, Implicit Associations, Law, Uncategorized | Leave a Comment »

The Situation of Gender in the Workplace

Posted by The Situationist Staff on May 18, 2012

From Harvard Business Review (part of an op-ed written by Lauren Stiller Rikleen):

The new millennium has not brought much progress for women seeking top leadership roles in the workplace. Although female graduates continue to pour out of colleges and professional schools, the percentages of women running large companies, or serving as managing partners of their law firms, or sitting on corporate boards have barely budged in the past decade.

Why has progress stalled? A recent study suggests the unlikeliest of reasons: the marriage structure of men in the workplace.

A group of researchers from several universities recently published a report on the attitudes and beliefs of employed men, which shows that those with wives who did not work outside the home or who worked part-time were more likely than those with wives who worked to: (1) have an unfavorable view about women in the workplace; (2)think workplaces run less smoothly with more women; (3) view workplaces with female leaders as less desirable; and (4) conside female candidates for promotion to be less qualified than comparable male colleagues.

The researchers also found that the men who exhibited resistance to women’s advancement were “more likely to populate the upper echelons of organizations and thus, occupy more powerful positions.”

Their conclusion? “Marriage structures play an important role in economic life beyond the four walls of the house.” They affect how people view gender roles and how they categorize others. And, as Harvard professor Mahzarin Banaji has documented in her work, using the Implicit Association Test, this can happen even unconsciously.

So even if a male boss explicitly states — and believes — he supports women in leadership, he might still exhibit contradictory behavior or remain oblivious to the obstacles that female colleagues face. Indeed, according to this HBR Research Report from the Center for Work-Life Policy, only 28% of men, compared with 49% of women, see gender bias as still prevalent in the workplace.

I saw this in my own research for Ending the Gauntlet: Removing Barriers to Women’s Success in the Law. Many of the women partners I interviewed described a lack of support and sponsorship from key men in their firms. Several talked to male colleagues who admitted that the success of married women as equity partners invalidated the choices they and their wives had made about how to divide the responsibilities of work and family.

These biases are understandable. It’s natural to seek validation for the choices, and particularly the sacrifices, you have made. But when this expresses itself in attitudes and actions that make it difficult for talented individuals whose choices have been different to advance, it is critical for workplace leaders to intervene.

More.

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Posted in Distribution, Ideology, Implicit Associations, Law, Social Psychology | Tagged: , , , | 1 Comment »

Exciting New Book from Tamara Piety!

Posted by Adam Benforado on April 16, 2012

Situationist friend and Tulsa law professor Tamara Piety’s new book, Brandishing the First Amendment: Commercial Expression in America, has just hit book stores!

It looks to be an engaging read for all of us interested in how commercial entities have shaped and wielded First Amendment jurisprudence to increase profits and secure power.  And it is hard to think of a more important topic as we continue into this election year.

Here is a description:

Over the past two decades, corporations and other commercial entities have used strategic litigation to win more expansive First Amendment protections for commercial speech—from the regulation of advertising to the role corporate interests play in the political process, most recently debated in the Supreme Court case of Citizens United v. Federal Election Commission. Tamara R. Piety, a nationally known critic of commercial and corporate speech, argues that such an expansion of First Amendment speech rights imperils public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment.

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Beginning with an evaluation of commonly evoked philosophical justifications for freedom of expression, Piety determines that, while these are appropriate for the protection of an individual’s rights, they should not be applied too literally to commercial expression because the corporate person is not the moral equivalent of the human person. She then gathers evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies to show how overly permissive extensions of First Amendment protections to commercial expression limit governmental power to address some of the major social, economic, and environmental challenges of our time.

To purchase a copy, click here.

Congrats, Tamara!

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Implicit Bias in the Courtroom

Posted by The Situationist Staff on March 30, 2012

Situationist Contributor Jerry Kang and his numerous co-authors, Mark Bennett, Devon Carbado, Pamela Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony Greenwald, Justin Levinson, and Jennifer Mnookin, have just posted their important paper, “Implicit Bias in the Courtroom” (forthcoming UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN.  Here’s the abstract:

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Download paper for free.

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Posted in Abstracts, Implicit Associations, Law, Legal Theory, Situationist Contributors, Social Psychology | Tagged: , , , , , , | 2 Comments »

 
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