On Joining the Harvard Law Faculty:
On Life After the Bench:
On Being a Passionate Advocate:
On Women and the Law:
Insights from the Federal Bench:
Posted by The Situationist Staff on September 13, 2011
On Joining the Harvard Law Faculty:
On Life After the Bench:
On Being a Passionate Advocate:
On Women and the Law:
Insights from the Federal Bench:
Posted by The Situationist Staff on September 9, 2011
Justin Levinson and Danielle Young posted their excellent article, “Implicit Gender Bias in the Legal Profession: An Empirical Study” (Duke Journal of Gender Law & Policy, Vol. 18, No. 1, 2010) on SSRN. Here’s the abstract.
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In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.
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Download article for free.
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Posted by Adam Benforado on September 4, 2011
As a number of Situationist contributors have chronicled, bringing research from psychology and neuroscience to legal problems has been met with quite a lot of resistance over the years. One of the major impediments has been that this research often tells us things about ourselves and our system that we do not want to hear.
That said, there have been some success stories and it is interesting to think about the particular circumstances that brought them about. The eyewitness identification revolution is just such an example and, as I’ve argued in a recent article, I think the growing advances in this regard have a lot to do with the ability of eyewitness identification researchers “to apply the insights in concrete ways that do not entirely destabilize or threaten the system”:
In a number of cases, legal scholars have managed to negate the anxiety and discomfort entailed in research that calls into question the legitimacy of our existing institutions, structures, or process of justice, by offering the findings cautiously (such that the footings of our legal system are shaken, but not irreparaly cracked) and by translating studies into readily implementable changes that police departments, courts, and others can implement without throwing their operations into disarray. For example, researchers challenging naïve models of how memory works and suggesting that existing eyewitness identifications were deeply flawed, were subsequently able to offer a set of reforms shown to significantly increase identification reliability, including introducing sequential lineups as an alternative to simultaneous lineups, choosing foils that all match the witness’s initial description of the perpetrator, and having police officers use open-ended questions rather than leading ones.
The practical results have been impressive. In 1999, the U.S. Department of Justice issued an 8000-word national guide on the collection and preservation of eyewitness evidence. Some major police departments, like those in Denver and Dallas, have taken aggressive steps to combat the problem. And in mid-August, the New Jersey Supreme Court issued a sweeping 134-page decision that honestly acknowledged the scope and gravity of the problem:
Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country
As a result, the Court ordered judges to consider numerous problematic factors that can impact of the reliability of witness identifications and to inform jurors of the risks of misidentification.
New Jersey is a leader in the area of criminal law and the hope is that this decision will have a cascading effect.
I am hopeful that the evidence has just become too overwhelming to ignore and that national change is on the horizon. In the last three decades, there have been more than 2,000 studies on eyewitness identifications and the best estimates suggest that roughly a third of the 75,000 annual eyewitness identifications turn out to be wrong. Indeed, University of Virginia Law Professor Brandon L. Garrett has found that there were 190 mistaken eyewitness identifications out of the first 250 DNA exonerations.
Those are shocking statistics, but, in truth, the battle for meaningful reform has a long way to go. The U.S. has more than 16,000 independent law enforcement agencies that deal with eyewitness identifications and many of them are still doing things exactly as they have always done things. The Supreme Court is set to take up its first eyewitness identification case in 34 years this November, but it’s on a limited issue and presents a poor case for the type of sweeping national agenda-setting that is necessary to truly protect the accused.
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Posted by The Situationist Staff on August 23, 2011
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This documentary murder mystery examines the death of an Afghan taxi driver at Bagram Air Base from injuries inflicted by U.S. soldiers. In an unflinching look at the Bush administration’s policy on torture, the filmmaker behind Enron: the Smartest Guys in the Room takes us from a village in Afghanistan to Guantanamo and straight to the White House. In English and Pashtu.
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Posted by The Situationist Staff on August 11, 2011
On the steamy first day of August 1966, Charles Whitman took an elevator to the top floor of the University of Texas Tower in Austin. The 25-year-old climbed the stairs to the observation deck, lugging with him a footlocker full of guns and ammunition. At the top, he killed a receptionist with the butt of his rifle. Two families of tourists came up the stairwell; he shot at them at point-blank range. Then he began to fire indiscriminately from the deck at people below. The first woman he shot was pregnant. As her boyfriend knelt to help her, Whitman shot him as well. He shot pedestrians in the street and an ambulance driver who came to rescue them.
The evening before, Whitman had sat at his typewriter and composed a suicide note:
I don’t really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts.
By the time the police shot him dead, Whitman had killed 13 people and wounded 32 more. The story of his rampage dominated national headlines the next day. And when police went to investigate his home for clues, the story became even stranger: in the early hours of the morning on the day of the shooting, he had murdered his mother and stabbed his wife to death in her sleep.
It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and she has been as fine a wife to me as any man could ever hope to have. I cannot rationa[l]ly pinpoint any specific reason for doing this …
Along with the shock of the murders lay another, more hidden, surprise: the juxtaposition of his aberrant actions with his unremarkable personal life. Whitman was an Eagle Scout and a former marine, studied architectural engineering at the University of Texas, and briefly worked as a bank teller and volunteered as a scoutmaster for Austin’s Boy Scout Troop 5. As a child, he’d scored 138 on the Stanford-Binet IQ test, placing in the 99th percentile. So after his shooting spree from the University of Texas Tower, everyone wanted answers.
For that matter, so did Whitman. He requested in his suicide note that an autopsy be performed to determine if something had changed in his brain—because he suspected it had.
I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt [overcome by] overwhelming violent impulses. After one session I never saw the Doctor again, and since then I have been fighting my mental turmoil alone, and seemingly to no avail.
Whitman’s body was taken to the morgue, his skull was put under the bone saw, and the medical examiner lifted the brain from its vault. He discovered that Whitman’s brain harbored a tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath a structure called the thalamus, impinged on the hypothalamus, and compressed a third region called the amygdala. The amygdala is involved in emotional regulation, especially of fear and aggression. By the late 1800s, researchers had discovered that damage to the amygdala caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with amygdala damage often neglected or physically abused their infants. In humans, activity in the amygdala increases when people are shown threatening faces, are put into frightening situations, or experience social phobias. Whitman’s intuition about himself—that something in his brain was changing his behavior—was spot-on.
Stories like Whitman’s are not uncommon: legal cases involving brain damage crop up increasingly often. As we develop better technologies for probing the brain, we detect more problems, and link them more easily to aberrant behavior. Take the 2000 case of a 40-year-old man we’ll call Alex, whose sexual preferences suddenly began to transform. He developed an interest in child pornography—and not just a little interest, but an overwhelming one. He poured his time into child-pornography Web sites and magazines. He also solicited prostitution at a massage parlor, something he said he had never previously done. He reported later that he’d wanted to stop, but “the pleasure principle overrode” his restraint. He worked to hide his acts, but subtle sexual advances toward his prepubescent stepdaughter alarmed his wife, who soon discovered his collection of child pornography. He was removed from his house, found guilty of child molestation, and sentenced to rehabilitation in lieu of prison. In the rehabilitation program, he made inappropriate sexual advances toward the staff and other clients, and was expelled and routed toward prison.
At the same time, Alex was complaining of worsening headaches. The night before he was to report for prison sentencing, he couldn’t stand the pain anymore, and took himself to the emergency room. He underwent a brain scan, which revealed a massive tumor in his orbitofrontal cortex. Neurosurgeons removed the tumor. Alex’s sexual appetite returned to normal.
The year after the brain surgery, his pedophilic behavior began to return. The neuroradiologist discovered that a portion of the tumor had been missed in the surgery and was regrowing—and Alex went back under the knife. After the removal of the remaining tumor, his behavior again returned to normal.
When your biology changes, so can your decision-making and your desires. The drives you take for granted (“I’m a heterosexual/homosexual,” “I’m attracted to children/adults,” “I’m aggressive/not aggressive,” and so on) depend on the intricate details of your neural machinery. Although acting on such drives is popularly thought to be a free choice, the most cursory examination of the evidence demonstrates the limits of that assumption.
Alex’s sudden pedophilia illustrates that hidden drives and desires can lurk undetected behind the neural machinery of socialization. When the frontal lobes are compromised, people become disinhibited, and startling behaviors can emerge. Disinhibition is commonly seen in patients with frontotemporal dementia, a tragic disease in which the frontal and temporal lobes degenerate. With the loss of that brain tissue, patients lose the ability to control their hidden impulses. To the frustration of their loved ones, these patients violate social norms in endless ways: shoplifting in front of store managers, removing their clothes in public, running stop signs, breaking out in song at inappropriate times, eating food scraps found in public trash cans, being physically aggressive or sexually transgressive. Patients with frontotemporal dementia commonly end up in courtrooms, where their lawyers, doctors, and embarrassed adult children must explain to the judge that the violation was not the perpetrator’s fault, exactly: much of the brain has degenerated, and medicine offers no remedy. Fifty-seven percent of frontotemporal-dementia patients violate social norms, as compared with only 27 percent of Alzheimer’s patients.
Changes in the balance of brain chemistry, even small ones, can also cause large and unexpected changes in behavior. Victims of Parkinson’s disease offer an example. In 2001, families and caretakers of Parkinson’s patients began to notice something strange. When patients were given a drug called pramipexole, some of them turned into gamblers. And not just casual gamblers, but pathological gamblers. These were people who had never gambled much before, and now they were flying off to Vegas. One 68-year-old man amassed losses of more than $200,000 in six months at a series of casinos. Some patients became consumed with Internet poker, racking up unpayable credit-card bills. For several, the new addiction reached beyond gambling, to compulsive eating, excessive alcohol consumption, and hypersexuality.
What was going on? Parkinson’s involves the loss of brain cells that produce a neurotransmitter known as dopamine. Pramipexole works by impersonating dopamine. But it turns out that dopamine is a chemical doing double duty in the brain. Along with its role in motor commands, it also mediates the reward systems, guiding a person toward food, drink, mates, and other things useful for survival. Because of dopamine’s role in weighing the costs and benefits of decisions, imbalances in its levels can trigger gambling, overeating, and drug addiction—behaviors that result from a reward system gone awry. Physicians now watch for these behavioral changes as a possible side effect of drugs like pramipexole. Luckily, the negative effects of the drug are reversible—the physician simply lowers the dosage, and the compulsive gambling goes away.
The lesson from all these stories is the same: human behavior cannot be separated from human biology. If we like to believe that people make free choices about their behavior (as in, “I don’t gamble, because I’m strong-willed”), cases like Alex the pedophile, the frontotemporal shoplifters, and the gambling Parkinson’s patients may encourage us to examine our views more carefully. Perhaps not everyone is equally “free” to make socially appropriate choices.
Does the discovery of Charles Whitman’s brain tumor modify your feelings about the senseless murders he committed? Does it affect the sentence you would find appropriate for him, had he survived that day? Does the tumor change the degree to which you consider the killings “his fault”? Couldn’t you just as easily be unlucky enough to develop a tumor and lose control of your behavior?
On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are free of guilt, and that they should be let off the hook for their crimes?
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Posted by The Situationist Staff on August 9, 2011
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Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?
Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned antitrust’s political, social, and moral goals, in their quest for a single economic goal. Second antitrust policy increasingly relied on an incomplete, distorted conception of competition. Adopting the Chicago School’s simplifying assumptions of self-correcting markets composed of rational, self-interested market participants, the courts and enforcers sacrificed important political, social, and moral values to promote certain economic beliefs.
With the anger over taxpayer bailouts for firms deemed too-big-and-integral-to-fail, the wealth inequality that accelerated over the past thirty years, and the current budget cuts and austerity measures, the United States is ripe for a new antitrust policy cycle.
This Article first summarizes the quest during the past 30 years for a single economic goal. It discusses why this quest failed. Four oft-cited economic goals (ensuring an effective competitive process, promoting consumer welfare, maximizing efficiency, and ensuring economic freedom) never unified antitrust analysis. After discussing why it is unrealistic to believe that a single well-defined antitrust objective exists, the Article proposes how to account antitrust’s multiple policy objectives into the legal framework. It outlines a blended goal approach, and the benefits of this approach in providing better legal standards and reviving antitrust’s relevance.
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Download the paper for free here.
Sample of related Situationist posts.
Posted in Abstracts, Behavioral Economics, Distribution, History, Law | Tagged: Antitrust, Behavioral Economics, Clayton Act, Mergers, Monopoly, Sherman Act, Too-Big-To-Fail, well-being | Leave a Comment »
Posted by The Situationist Staff on July 30, 2011
Situationist friend David Simon recently posted his forthcoming article “Culture, Creativity & Copyright” (Cardozo Arts & Entertainment Law Journal, Vol. 28, 2011) on SSRN. Here’s the abstract.
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Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.
A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator’s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright’s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.
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You can download the paper for free here.
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Posted by The Situationist Staff on July 20, 2011
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People make comments all the time that include or invoke stereotypes. Sometimes those comments are indicative of their belief systems or values. Sometimes they are feeble – or genuine – attempts at humor or wit. Sometimes people speak rashly and in anger. Many times, people are misunderstood, and their true feelings are belied by a clumsy choice of words. Much of the law of employment discrimination necessarily implicates a searching probe into the often undisclosed – sometimes even to oneself – motivations, beliefs, and intentions that underlie an impel acts alleged to have been discriminatorily premised on someone’s race, gender, or protected class status. Rarely in this day and age does one who suspects that discrimination has befallen him have a “smoking gun” or an admission to that effect. Generally, the undisclosed mindset of a discriminatory decision-maker, far from a simple hidden secret, is actually a complex tapestry of unvoiced beliefs, assumptions, and associations. This tapestry, a victim of discrimination soon realizes, is typically too tightly woven to easily extricate the needed, discrete strand of thought that shows a predisposition to see or judge certain groups differently.
This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It then explains the widespread extrapolation of Hopkins by lower courts and the framework in which the case now operates.
This Article posits that Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. The Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred and how various courts’ failures to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. The Article aims to dispel the myth, propagated in part by courts’ misreading of Hopkins, that there is such a discrete cause of action as “stereotyping.” At the same time, it reviews the myriad of cases that have tried to decide, as a matter of law, when a stereotyped comment sufficed to create an issue of fact as to intentional discrimination and breaks down this complex question. Courts appear to have no real uniform standards for evaluating when a statement alleged to have stereotyped a plaintiff is probative and when it can only reasonably be seen as a misspeak, a mistake, or otherwise too “stray” to suffice as evidence that impermissible discrimination took place.
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Download the article for free here.
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Posted by The Situationist Staff on July 19, 2011
Welcome & Introduction by Dean’s Office
- Kirk Stark, Vice Dean, UCLA, Law
Implicit Bias and the Courts — Substantive Framing and Introduction
- Jerry Kang, Co-Director PULSE, UCLA, Law
1. State of the Science – Implicit Biases / in the Courtroom. This panel will share and present findings from psychology about how biases, including but not limited to implicit biases measured through reaction-time instruments, may influence the courtroom and related judicial institutions. This panel will provide attendees with a state-of-the-art description of the predictive and ecological validities of various bias measures, with careful exposition of which theories, mechanisms, and findings enjoy which sorts of scientific “consensus.”
- Nilanjana Dasgupta, U. Mass Amherst, Psychology
- Justin Levinson, U. Hawaii, Law
- Anthony Greenwald, U. Washington, Psychology
Moderator: Phillip Atiba Goff, UCLA, Psychology
Video: Substantive Framing & Panel 1: State of the Science: Implicit Biases in the Courtroom
(volume is quite low — you will have to turn up your speakers; volume for other streams are normal)
2. State of the Field — Institutional Responses So Far. This panel will focus on the various ways in which legal institutions, including the judiciary and legal procedures, have responded to the emerging evidence of implicit biases. Judicial educators, judges, and academics will describe and assess what has been done, and to what effect– given various economic, political, and scientific constraints.
- David Faigman, UC Hastings, Law
- Pam Casey, National Center on State Courts
- Dist. Court Judge Mark Bennett, N.D. Iowa
- Judge Michael Linfield, LA Superior Court
Moderator: Ingrid Eagly, UCLA, Law
1 – 2:20 pm
Box Lunch and Public Interview with Anthony Greenwald, U. Washington, Psychology (Inventor of the Implicit Association Test). Interviewers: PULSE co-directors Jerry Kang & Jennifer Mnookin.
2:20 – 4 pm
3. Possibilities and Complications: Theoretical and Practical, Legal and Scientific. The morning panels will have brought the audience up to speed on the state of the art. This panel pulls back the lens to explore the various theoretical possibilities and practical complications connected to measuring biases, measuring their consequences, and implementing potential debiasing strategies. Both legal and scientific complexities will be addressed.
- Rachel Godsil, Seton Hall Law
- Jeffrey Rachlinski, Cornell, Law
- Devon Carbado, UCLA, Law
- Jerry Kang, UCLA, Law
Moderator: Jennifer Mnookin, UCLA, Law
4:00 – 4:30 pm
Afternoon break & refreshments
4:30 – 6 pm
4. Back to Reality — Roundtable Discussion: Concrete Solutions and Next Steps. The last panel will bring back all the panelists for a final robust, interdisciplinary, and unscripted conversation about the challenges and opportunities highlighted throughout the day. What can and should be done now? What research agenda will provide the knowledge necessary to lessen the impact of implicit bias within the courtroom and the judiciary? What forces, besides the scientific merits, might drive the conversation and debate?
Moderator: Jerry Kang, UCLA, Law
Posted by The Situationist Staff on June 28, 2011
[Situationist Contributor] Susan Fiske of Princeton University discusses the psychology of stereotyping in her keynote address to Columbia Business School’s research symposium, “Inclusive Leadership, Stereotyping and the Brain,” co-sponsored by the Program on Social Intelligence and the Sanford C. Bernstein & Co. Center for Leadership and Ethics. Professor Fiske is introduced by Professors Malia Mason and Bruce Kogut of Columbia Business School.
To learn more about this symposium, click here.
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Posted by The Situationist Staff on June 24, 2011
Wendy Parker posted her article, “Juries, Race, and Gender: A Story of Today’s Inequality” (Wake Forest Law Review, Vol. 46, pp. 209-240, 2011), on SSRN. Here’s the abstracst.
The Civil Rights Act of 1991 was supposed to be a victory for employment discrimination plaintiffs – a dramatic expansion of their rights. Twenty years later, however, we are told that the news for employment discrimination plaintiffs has gone “from bad to worse.” This essay, a reflection on the twenty-year history of the 1991 Act, explores how just how bad it is. In doing so, this essay discovers some optimistic news (but not much): Plaintiffs today are more likely to win at trial than before the 1991 Act. This is likely because of the 1991 Act’s expanded right to a jury trial. Yet, this is not a story of optimism – or equality – for all plaintiffs. The essay’s original study of 102 jury trials reveals that some plaintiffs do much worse than other plaintiffs. African Americans and Latinos claiming race discrimination, for example, have the lowest jury win rates. Many who study jury behavior would have predicted this outcome. From this, the essay argues that the evidence is strong that the status quo is not race neutral, and neither are juries.
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Posted by The Situationist Staff on June 22, 2011
Rio Pierce wrote this post for Law & Mind Blog:
Marbury v. Madison, Miranda, and Brown v. Board of Education are hallmarks of a judicial canon that preaches a heroic vision of Constitutional Law arbitrated in our highest tribunal. These cases tell a story of the judicial process that reflects a flattering normative vision of the American government. These are the cases that may be most likely to be emphasized when a middle or high school student is first introduced to judicial review. Running concurrently alongside this set of cases is an antinomian canon, constituted of cases such as Dred Scott, Plessy v. Ferguson, and Bush v. Gore, that tells a story of the court as a political institution, embedded in the culture of its time. A particularly notable subset of these decisions occur during wartime. In cases such as Korematsu, the Supreme Court upholds dramatic, discriminatory suspensions of civil liberties that are justified on the basis of necessity, created by a perceived existential threat. Then, inevitably, the existential threat disappears, the threat that the case generated begins to seem overblown and ridiculous, the decision is dismissed as an unfortunate mistake, there’s a general sense that we’ll ‘do better next time’, and then next time comes, and the whole cycle inevitably repeats itself. Particularly notable, in cases such as Korematsu, is our general view of WWII – a heroic time for the ‘Greatest Generation’, and our relative shame about the Korematsu decision. This bifurcation is a more complicated stance than the universal scorn that we now hold for slavery, and a representative decision of that stance, such as Dred Scott. But is there more to these judicial opinions than mere hypocricy?
The rhetoric of the judicial opinions in these cases themselves is intriguing; these judges state, at least in their opinions, that they are making a neutral balancing between the rights of the individual and the needs of society at large. The opinions insist that the individual, a member of the group producing the existential threat, may win; although the balancing seems to be conducted on a rigged scale.
For instance, in Justice Black’s majority opinion in Korematsu he states that ‘all legal restrictions which curtail the civil rights of a single racial group are immediately suspect…..Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.’ But of course, here there was a pressing public necessity to detain indefinitely a large group of American citizens of Japanese dissent… “In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.”
Justice Frankfurter’s concurrence in Dennis, a First Amendment case concerning the imprisonment of members of the American Communist party who were advocating the overthrowal of the government’ develops this argument further. Frankfurter insists that Federal sovereignty is not unlimited ‘But even the all-embracing power and duty of self-preservation are not absolute. Like the war power, which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional limitations.’ After conducting an extensive examination, Frankfurter ultimately concludes that the constitutional limitations do not happen to be applicable.
Pragmatically, Frankfurter’s rhetoric seems to border on the absurd. Will the United States relinquish its power of self-preservation because of ‘constitutional limitations.’ It’s a pretty, Kantian vision of the constitution as a categorical imperative which the United States will follow, if necessary, into oblivion. But of course, there is enough slack in the constitution, and enough nimble reasoning in any Supreme Court Justice’s pen to assure that in a time of seemingly existential power, the constitutional limitations, just in this instant case of course, are not so stringent as to require oblivion. Furthermore, these judicial decisions seem to happen when all, or almost all of society is united, against an external threat. (Society at large seems to be mimicking, in these times, the famous Robbers Cave experiment, where two groups of boys at camp, induced into conflict by the manipulations of observational psychologists, united together when their overall community seemed to be under threat.) In such instances, the judiciary has no strong minority upon which to base their support. Furthermore, the judiciary is constituted of individuals who are members of the community, to expect them not to be swept up by the larger rhythms of the community seems to embrace an utterly unrealistic portrayal of the act of judging. The judiciary also must depend on other branches of the government in order to enforce its orders; to overturn a detention, and then lack an enforcement mechanism, would mockingly reveal the gaps and assumptions that underlie our system of divided government. The judiciary is designed to be countermajoritarian, but to expect it to be counter-consensus, considering all of these factors, seems to be ridiculous. I believe, however, that something more is going on in these opinions, although it may just be a theoretical gloss on this cynical take.
Terror Management Theory is a growing body of scholarship that discusses a human, or a society’s reaction, in a time of existential threat. The scholarship finds that political, and other belief systems give people a sense of value when they need it most; when themselves or the society they belong to seems to be under threat of annihilation. Awareness of one’s mortality, as is obviously produced by a global war or the events of 9/11, has been found to produce ‘greater patriotism, a stronger endorsement of the unique validity of one’s own religion, greater attention to established norms of procedural fairness, and a generally stronger preference for aggressive responses to individuals and groups who are perceived as threatening to the cultural worldview.’
When society as a whole experiences these responses, the judiciary is left in a unique position. First, an existential threat will make our society unify itself around the concept of ‘America’ and ‘American values.’ Much of what defines America, in our self perception, is our constitution, perhaps the closest thing we have to a secular religion. As our society searches for a way to define itself in contrast to the hostile other, the constitution, and its embedded values, seems the natural object upon which we can justify our own ‘unique validity.’ Furthermore, TMT suggests that we will continue to value at least theoretically, ‘procedural fairness’; this seems particularly likely in this circumstance, as the procedural values of the constitution are one of its distinctive and most emphasized values. But, of course, at the same time, we will also want to aggressively respond to anyone that we perceive as threatening our existence. The judges, as upholders of the constitution and by extension ratifier of our own ‘specialness’, have a critical role to play in the response dictated by TMT. On one hand, they must act in a way that affirms our specialness, they must demonstrate that we are ‘better than the other guy’, that the secular religion of the constitution is genuine. Yet, at the same time, the decision they reach must, on a zero sum level, ratify the aggressive response we wish to enact upon our enemies. The opinions, in cases such as Korematsu, can be seen to fulfill both of these contradictory goals. On the one hand, the judge affirms that ‘Our Constitution has no provision lifting restrictions upon governmental authority during periods of emergency, although the scope of a restriction may depend on the circumstances in which it is invoked’ or that ‘The First Amendment…..exacts obedience even during periods of war; it is applicable when war clouds are not figments of the imagination no less than when they are.’ On the other hand, the judge reaches the necessary result, and upholds the ultimate punishment of our enemies. The judiciary is producing the response that our society psychologically needs at such a time, it is beautifullyreiterating our values even as it affirms actions that, when our passions have cooled, will seem to contradict the values that we find.
‘Legal interpretation takes place in a field of pain and death’ wrote Robert Cover in his memorable essay, Violence and the Word. The decisions discussed above, consciously written during times of terror, seem to directly acknowledge the pain and death they inflict. There is, impressionistically, a certain thinly veiled pride in these opinions; the judges seem to see themselves as soldiers in a larger societal struggle, playing their part to uphold the society, just as surely as the soldier with his gun. The above paragraphs have painted, I think, a pessimistic view of the role of the judiciary in these moments of existential crises. There is a more sympathetic interpretation available.
Martha Minow, in a response to Cover’s essay wrote of the possibilities of ‘rights discourse.’ Minow focused on the transformative possibilities of rights discourse for minority communities. Rights discourse allowed minority communities to participate in a broader community dialogue. By staking rights claims, these minority groups were able to participate in a broader communal dialogue. Furthermore, rights talk emphasizes the power of words to restrain community action, to stay state power, and to work as a form of persuasion which reconfirms community. To Minow, ‘legal language can be the possessions of the dispossessed.’
The legal arguments of the dispossessed, of Korematsu and Hamdan, seems to clearly qualify as the potentially positive form of ‘rights interpretation’ which Minow believes to be a beneficial practice. Conversely, to term the rhetorical articulations of the judiciary, enacting state power at the behest of the majority will, rights talk seems to border on the perverse. However, the American tribal community is a private community which does not perfectly align with the institutions of government. Furthermore, this tribal community generally lies dormant, a backdrop identity which is assumed but has relatively little weight in intra communal dialogues. Inter communal conflicts, even if the inter is simply a member of the community who can be labeled as an ‘other’, reawaken this community and the normative commitments which it holds dear. The judiciary, and the decisions it writes, engages in a process of ‘rights interpretation’ which emphasizes the possibility of staying state power, and restraining community action. These possibilities serve to define the American community; even if, in the practical reality of a situation such as this, it is so unlikely, as to border on the impossible, for it to be exercised. By engaging in a process of ‘rights interpretation’, even though the game itself is rigged, the Court is reaffirming the normative commitments of the tribe and leaving open the possibility for the exercise of these rights when the psychological demands produced by existential crisis ebb. Publicly discussing the asserted rights of the beleaguered minority who serves the form of the ‘other’ affirms the private community of America. Rights talk, in a time of existential crisis (and perhaps at all times), is a two way street. The minority ‘other’, such as Korematsu, is claiming rights which ‘implicitly invest themselves in a larger community’. At the same time, the majority, driven by psychological need for a reaffirmed vision of the normative possibilities of the American state, derives its own benefit from also speaking a language of rights and balances, emphasizing the presence of community norms that provide self-definition even while allowing conduct which, retrospectively, will be seen as violation of those norms. However, without affirming the presence of these norms and rights in a decision like Korematsu, we wouldn’t have a standard against which to judge violations, retroactively, when our communal psychology is no longer in such a state of strain.
Posted by The Situationist Staff on June 1, 2011
More than half a century after scientists uncovered the link between smoking and cancer – triggering a war between health campaigners and the cigarette industry – big tobacco is thriving.
Despite the known catastrophic effects on health of smoking, profits from tobacco continue to soar and sales of cigarettes have increased: they have risen from 5,000 billion sticks a year in the 1990s to 5,900 billion a year in 2009. They now kill more people annually than alcohol, Aids, car accidents, illegal drugs, murders and suicides combined.
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The West now consumes fewer and fewer of the world’s cigarettes: richer countries have changed – from smoking 38 per cent of the world total in 1990, they cut down to 24 per cent in 2009. Meanwhile, the developing world’s share in global cigarette sales has increased sharply, rising to 76 per cent in 2009.
An investigation by The Independent on Sunday reveals that tobacco firms have taken advantage of lax marketing rules in developing countries by aggressively promoting cigarettes to new, young consumers, while using lawyers, lobby groups and carefully selected statistics to bully governments that attempt to quash the industry in the West.
In 2010, the big four tobacco companies – Philip Morris International, British American Tobacco, Japan Tobacco and Imperial Tobacco – made more than £27bn profit, up from £26bn in 2009.
The price of their profits will be measured in human lives. In the 20th century, some 100 million people were killed by tobacco use. If current trends continue, tobacco will kill a billion people in the 21st century.
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Anna Gilmore, professor of public health at the University of Bath, said: “What most people don’t realise is that, although sales are falling in the West, industry profits are increasing. These companies remain some of the most profitable in the world. This is thanks in part to their endless inventive ways of undermining and circumventing regulation. They’re trying to reinvent their image to ingratiate themselves with governments, but behind the scenes it’s business as usual.”
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In Indonesia alone there are 21 million child smokers. There is little to stop companies promoting cigarettes to young people. In countries such as Nigeria, Ukraine and Brazil, tobacco companies have sponsored club nights or parties aimed at attracting new young users. In Russia, attempts to entice women smokers have included packaging made to look like jewel-encrusted perfume bottles and even selling cigarettes branded by the fashion house Yves Saint Laurent.
Dr Armando Peruga, programme manager for the WHO’s tobacco free initiative, said: “We need to do more. We need to stop the tobacco industry promoting themselves as normal corporate citizens when they are killing people every day. We are lagging behind in establishing comprehensive bans on advertising, marketing, promotion and sponsorship.”
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Laurent Huber, director of the Framework Convention Alliance on tobacco control, said: “In countries like Uruguay, the tobacco industry uses its vast wealth to tie up public health measures in court battles. Win or lose, this has a chilling effect on other governments.”
These tricks are by no means confined to the less-regulated emerging countries. In Australia, which will become the first country to introduce plain packaging for cigarettes by law, the industry has been accused of scaremongering against the measures by threatening to flood the market with cheap fags.
In Britain, the industry is also prone to taking any measures necessary to keep regulation at bay. This autumn a group of tobacco companies is taking the Government to court over its proposals to ban cigarette displays in all shops.
More often in the UK, though, Big Tobacco’s attempts to alter public opinion are more subtle. A study from Action on Smoking and Health (ASH), out this week, scrutinises the credibility of economic arguments used by the industry to fight back against legislation. For example, when Christopher Ogden, chief executive of the Tobacco Manufacturers Association, said in 2010 that the smoking ban had severely threatened the pub and bingo industry because of lost jobs and livelihoods, the reality was a little different. Data from the Office for National Statistics shows a net increase in the number of people visiting pubs since the smoking ban. When England went smoke-free in 2007, the number of premises licensed for alcohol increased by 5 per cent, and it has continued to grow every year since.
Deborah Arnott, chief executive of ASH, said: “In line with our international treaty obligations, the UK government has not only banned advertising and put health warnings on packs, but also committed to protect public health policies from the commercial and vested interests of the tobacco industry. To get round this, the industry uses front groups to covertly lobby politicians, arguing that smoke-free legislation has destroyed the pub trade, and that putting tobacco out of sight in shops will both be ineffective and put corner shops out of business.
Related Situationist posts.
Posted by The Situationist Staff on May 31, 2011
Dr David Eagleman considers some questions relating to law and neuroscience, challenging long-held assumptions in criminality and punishment and predicting a radical new future for the legal system.
[Eagleman’s examples in the first 15 minutes will strike long-term readers of The Situationist as non-novel. For others, that portion of the video may be a useful primer to neurolaw.]
Related Situationist Posts:
Posted by The Situationist Staff on May 23, 2011
Today, Harvard Law Scholars share their “big ideas” in Austin Hall, beginning at 2:00 p.m.
Confirmed speakers and respective topics for the event are:
Posted by The Situationist Staff on May 20, 2011
Janice Nadler and Mary-Hunter McDonnell recently posted their paper, “Moral Character, Motive, and the Psychology of Blame” (forthcoming Cornell Law Review) on SSRN. Here’s the abstract.
Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor’s intentionality, causal proximity to harm, and the harm’s foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to blame bad people and the desire to blame people whose motive for acting was bad. We report three original experiments that suggest that an actor’s bad motive and bad moral character can increase not only perceived blame and responsibility, but also perceived causal influence and intentionality. We show that people are motivated to think of an action as blameworthy, causal, and intentional when they are confronted with a person who they think has a bad character, even when the character information is totally unrelated to the action under scrutiny. We discuss implications for doctrines of mens rea definitions, felony murder, inchoate crimes, rules of evidence, and proximate cause.
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Download the paper free here.
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Posted by The Situationist Staff on May 17, 2011
Joseph M. Sellers, head of the Civil Rights and Employment practice group at Cohen Milstein, shared his experience working on Dukes v. Wal-Mart Stores, the largest civil rights class action suit in the United States.
Sellers, who is representing a class of more than 1.5 million female employees at Wal-Mart stores in an ongoing sexual discrimination lawsuit, detailed the progress of the case and fielded questions from Harvard Law School students at the talk, hosted by the Harvard Women’s Law Association on April 19, 2011. Watch video here.
The Supreme Court heard oral argument in the case in March, and Sellers said he believes the justices will need to be convinced that Wal-Mart’s corporate culture is responsible for gender discrimination in the company’s personnel practices.
“There were questions during the argument about how you convey bias in the workplace, particularly gender bias,” Sellers said. “They asked, how can you assure us the managers were influenced in some way by the corporate culture?”
Wal-Mart is alleged to have discriminated against women in promotions, pay, and job assignments in violation of the Civil Rights Act of 1964. The case was brought forward in 2000 when a 54-year-old Wal-Mart employee in California named Betty Dukes filed a sex discrimination claim, alleging that she was denied the training she needed to advance to a higher paying position despite six years of employment and excellent performance reviews.
“Gender stereotypes are not unlawful—everybody uses stereotypes,” Sellers said. “What makes it unlawful is managers making decisions based on those stereotypes, and women are consistently underpaid and promoted more slowly than men with the same qualifications.”
Sellers said his firm investigated the claims and interviewed female Wal-Mart employees across the country for about a year before taking on the case.
“We learned through remarkably similar accounts by many women who reported that when they asked about pay raises, they were told such things as men are better managers, women are better off staying home and taking care of the family, men see their jobs as a career, and women are here as a hobby,” Sellers said.
The firm found statistically significant disparities between male and female employee salaries across the country at every level. Additionally, women took twice as long as men to reach manager status.
“Our contention is the company expects managers to follow the corporate culture that includes gender stereotypes, so the managers often exercise discretion consistent with those stereotypes, making women worse off than similarly qualified men.”
Watch video here.
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