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Policy Implications of Implicit Social Cognition

Posted by The Situationist Staff on August 4, 2011

Situationist Contributor Brian Nosek and Rachel Riskind recently posted their paper, “Policy Implications of Implicit Social Cognition” on SSRN.  Here is the abstract.

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Basic research in implicit social cognition demonstrates that thoughts and feelings outside of conscious awareness or conscious control can influence perception, judgment and action. Implicit measures reveal that people possess implicit attitudes and stereotypes about social groups that are often distinct from their explicitly endorsed beliefs and values. The evidence that behavior can be influenced by implicit social cognition contrasts with social policies that implicitly or explicitly assume that people know and control the causes of their behavior. We consider the present state of evidence for implicit social cognition and its implications for social policy. We conclude that considering implicit social cognition can contribute usefully to policy, but that most uses of implicit measures themselves as selection or evaluation devices is not easily justified.

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Download the paper for free here.

Related Situationist posts:

For a list of Situationist posts discussing the research on implicit bias and the IAT, click here.


Posted in Abstracts, Implicit Associations, Law, Legal Theory, Situationist Contributors | Tagged: , , , , , , | Leave a Comment »

Culture, Creativity & Copyright

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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Clarifying Judicial Understanding of “Stereotyping”

Posted by The Situationist Staff on July 20, 2011

Kerri Lynn Stone recently posted her article, “Clarifying Stereotyping”  (59 Kansas Law Review 2011) on SSRN. Here’s the abstract.

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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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Implicit Bias Symposium (with links to videos)

Posted by The Situationist Staff on July 19, 2011

UCLA (March 3, 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

Video: Panel 2: State of the Field (Institutional Responses So Far)

ROOM 1447
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.

Video: Public Interview with Anthony Greenwald, Inventor of IAT

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

Video: Panel 3: Possibilities and Complications: Theoretical and Practical, Legal and Scientific

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

Video: Panel 4: Back to Reality – Rountable Discussion: Concrete Solutions and Next Steps

Posted in Events, Implicit Associations, Law, Legal Theory, Situationist Contributors, Video | Leave a Comment »

Thinking Big

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:

  • Deb Anker: “Dreamers” at Harvard University and beyond: Individual representation and advocacy for social change
  • Randy Kennedy: “History of Race Relations Law in the United States”
  • John Manning: “Text and Purpose in Legal Interpretation”
  • Mark Roe: “Chaos and Evolution in Law and Legal Development” or “Chaos and Evolution in Law and Economics”
  • Ron Sullivan: “Ethical Dimensions of Criminal Defense”
  • Adrian Vermeule : “Constitutional Precautions”
  • Jon Hanson: “Why Thinking Big Matters: An introduction to Law and Mind Sciences”

Posted in Events, Law, Legal Theory | Leave a Comment »

The Situation of Criminal Blaming

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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Canons of Confabulation

Posted by The Situationist Staff on April 4, 2011

From the Law and Mind Blog, here’s an excellent post by Michael Lieberman about a chapter (forthcoming in Ideology, Psychology, and Law (ed, Jon Hanson, 2011) authored by Situationist Contributors Eric Knowles and Peter Ditto.

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Knowles and Ditto’s chapter on Preference, Principle, and Causistry – detailed elsewhere on this blog – bears a striking resemblance to Karl Llewellyn’s famous critique of the use of canons of construction in judicial opinions.  Given the title of this blog, how can we not explore such a clear intersection of the mind sciences and the law?

Canons of construction are interpretive tools invoked by judges to discern the meaning of statutes.  To couch this in Knowles and Ditto’s terms, the universe of canons exists as a menu of principles upon which judges can draw in seeking guidance in matters of statutory interpretation.  For example, imagine a statute that allows tenants to withhold rent upon the discovery of “rats, mice, termites, or other pests.”  The ejusdem generis (“of the same kind”) canon teaches that “other pests” refers to pests of the same kind as those listed before it; thus, a tenant could not withhold rent due to an annoying next-door neighbor who could also be described as a “pest” in the dictionary sense of the word.

This formulation seems to imply a rational, objective process of decision-making: judges confronted with an ambiguous statute resolve that ambiguity by selecting the applicable principle (i.e. canon), applying it to the statute, and, voila, a resolution emerges (ambiguity -> principle -> answer).  Llewellyn, however, like Knowles and Ditto, is not quite so optimistic about the decision-making process.  Llewellyn argues that there are two opposing canons on almost every point, and as such, the canons serve as (in the words of Knowles and Ditto) post hoc intellectual justifications of one’s initial intuitions. Choosing which canon to apply is not the objective, detached process that the above description would suggest.  Instead, judges determine the answer first, guided by their internal preferences, and then select the canon capable of justifying the conclusion they find most emotionally satisfying (ambiguity -> answer -> principle).

On this view, then, the canons are widely utilized not for their helpfulness in ascertaining answers, but rather for their utility in justifying answers.  Why do judges go through this dance, then?  Knowles and Ditto point to a psychological need to view one’s self as objective and rational: “we are clearly sensitive to the plausibility of our beliefs and work to maintain what some researchers call an ‘illusion of objectivity’ about the nature of our judgments.”  As my fellow blogger put it, we all want to be the hero of our own story, and as such, we do not want to acknowledge that our decision-making process may be driven by emotion and intuition rather than consistent, objective principles.  Additionally, notions of the role of the judiciary as an objective branch of government that interprets (rather than creates) the law requires, at the very least, an appearance of objectivity.

How, then, do judges convince themselves that they are being objective when, according to Knowles & Ditto, their selected principles/canons are mere confabulations?  The answer lies in the process – judges do indeed look to principles to make their decisions, but they go about the process in a biased fashion such that certain principles are ‘favored’ in a given judgment context because they are consistent with, and provide intellectual support for, the conclusion that is most preferred in that context.  That is to say, judges may attempt to follow the first formulation of the decision-making process (ambiguity -> principle -> answer), but when searching the menu of principles/canons, will subconsciously place more value on the ones that support their favored outcome.  Through this process, judges can “select the [canon] capable of justifying the conclusion they find most emotionally satisfying—while at the same time preserving the view of self as a logical and well-meaning thinker.”

Does this insight lead to the inescapable conclusion that the use of canons in statutory interpretation is inherently invalid?  Not exactly.  First, abolishing the use of canons would do nothing to solve the “problem” of results-based reasoning—judges could simply rely on other tools, such as legislative history, to provide post hoc rationalizations of their preference-based decisions.  Legislative history is subject to the same critiques as the canons of construction; namely, that there is often legislative history support both sides of a debate, allowing judges to, as Justice Scalia put it,“look over the heads of the crowd and pick out your friends.”  This argument is somewhat defeatist in that it seems to concede that the human decision-making process is inherently flawed.  However, decision-making on the basis of intuition is not inherently invalid, and may actually “reflect adaptive insights accumulated over the course of human evolution.”

Further, our system requires judges to do more than simply declare “yes” or “no.”  Federal Rule of Civil Procedure 52(a) requires judges to explicitly state their findings of fact and conclusions of law; this rule has three important ramifications to our topic.  First, the very act of committing their reasoning to paper may reveal a judge’s logical inconsistency or suboptimal use of a canon to him or herself.  Second, writing an opinion allows dissenting judges to file their own opinions in response; these dissents may reveal stronger arguments to judges in the majority.  Finally, our appellate system allows incorrect legal conclusions made at the lower levels of the court system to be corrected by the high courts.  This doesn’t entirely overcome the defeatist position, as having many biased decision-makers arguing about differing biased decisions solves very little in a search for an objective truth, but that stance presupposes the very existence of an “objective truth” – a topic far beyond the scope of this post.  For now, we can take solace in the fact that even if Knowles and Ditto are correct in that the individual decision-making process isn’t quite as objective as we’d like, any judge’s individual decision must survive several rounds of checks and balances before becoming law.

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Preference, Principle, & Casuistry

Posted by The Situationist Staff on April 2, 2011

From our sister blog, Law & Mind, here is an excellent post by Harvard Law LL.M. candidate David Simon. Simon summarizes a fascinating chapter by Situationist Contributors Eric Knowles and Peter Ditto (forthcoming in “Ideology, Psychology, and Law” (Jon Hanson, ed., 2011).

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[T]he attribution of principle or its absence is more than an evaluative stance; it is also a lay-psychological hypothesis concerning the causes of another’s behavior.

Eric D. Knowles & Peter H. DittoPreference , Principle, & Casuistry

We often value people who act on their principles  more than those who act solely on their preferences. In other words, we value behavior that is justified by reasons rather than emotions. This shouldn’t be much of a surprise to anyone. It’s ostensibly why people don’t like politicians who “flip-flop,” whether they be “liberal” or “conservative.” So, when people make decisions based on emotion, rather than reason, we think they are “biased” or “irrational.” (Knowles and Ditto call this the principle-preference dichotomy.) What’s strange, though, is that we often view our political opponents as emotional decision-makers, while we view people of our own political leanings as principled decision-makers.

The question Knowles & Ditto want to answer is, why?

They offer two reasons. First, they  argue that this results from the “actor-observer bias”: the tendency to see one’s own actions as based on beliefs and others’ as based on desire. Imagine, for example, Political Candidate is running for office. Her platform is to “make government smaller by cutting taxes and entitlement programs.” When Margo decides to support Political Candidate, Margo thinks she does so because of her beliefs about small government. Jim, on the other hand, views Margo’s behavior as merely reflecting her desires. Jim might say that Margo supported Political Candidate merely because she will receive more money in tax breaks while Margo might claim she dislikes lots of government regulation. The reason for the discrepancy, according to the authors, is one’s access to mental states: Margo has access to her own mental states (sort of), and Jim does not. Margo’s view of her own behavior is therefore privileged; Jim’s is epistemologically impoverished. As a result, she views her own choice as one of principle while Jim views it as one of desire.

Further reinforcing this view is individuals’ desire to see themselves and members of their group positively. As the authors note:

[T]he preference-principle dichotomy is powerfully reinforced by individuals’ desire to hold a positive view of themselves, as well as of others who share their attitudes and group memberships.

To achieve this end, people become “naive realists,” perceiving themselves as  “reasoned and free from bias.” In other words, individuals view their own attitudes as “reasoned,” “objective,” and, therefore, principled. That provides them with a much more flattering picture of themselves than one in which they make decisions based (solely) on preferences. Forget the somewhat false dichotomy for a moment and just ask yourself: Do you see yourself as someone who makes reasoned, as opposed to emotional, judgments? Do you see those who disagree with you differently?

There’s still a problem, though. Individuals often seem to be seeking self-interested goals while offering principled reasons. This

should, at least in principle (no pun intended), destroy the “objectiveness” people purport to adhere to when making decisions. Put another way, one must at least appear to be objective to gain credibility (with themselves or others). Preserving this appearance happens in two ways. First, we approach judgments “without an explicit sense that we are trying to construct a justification for one conclusion over another.” Instead, our “preferences” are part of cognitive structures: satisfying them produces greater coherence than not satisfying them. So, many times our interpretation of information produces preference-satisfying conclusions.

Second, our cognitive structures can lead us to preference-satisfaction in another, sometimes unconscious way: “‘shifting the standards’ by which a preferred conclusion is defined.” Because we do this somewhat intuitively and seemingly without pretense, Knowles & Ditto call it implicit casuistry.  By this they mean there are “circumstances in which individuals unwittingly select principles that happen to provide intellectual justification for preferred conclusions.” We are not good at being conscious reaonsers, always assessing problems objectively. Our brains select principles that cohere with our preferences. The principles–by way of implicit casuistry–serve in some ways to mask our preference-seeking behavior.

The reason implicit casuistry seems to work so well is because all ideologies seems equally susceptible to it. Indeed, small changes in factual situations can influence the way people use different standards. The authors give examples where subjects use either deontological (or rights-based) standards and consequentialist standards to justify certain behavior or conclusions. They show that people, regardless of their political preferences, will employ these reasoning strategies depending on the outcome that best accords with their political preferences.

Moving into the legal realm, Knowles & Ditto note that people’s views of judicial decisions often correlate with the extent to which the decision satisfies their preferences. They also note that judges may manipulate canons of constitutional interpretation to server various preferences. That, of course, is in line with a mature body of scholarship on judicial behavior. Scholars like Lee Epstein, Thomas Walker, Michael Giles, Ryan Owens, Ryan Black, et al. have shown that judges often seek policy preferences when deciding how to resolve a particular case.

Of course, casuistic reasoning occurs in other domains as well. Knowles & Ditto show how casuistic reasoning occurs in the context of race. Political preferences influence how people react to and justify their decisions when race becomes an issue. They note that frequently scholars disagree about why people hold particular racial attitudes. Some scholars claim disagreements of principle cause rifts; others claim that the disagreement results from claims to competing claims for finite goods (e.g., wealth, education). Knowles & Ditto argue it’s both:

The illusion of contraction may fade if one adopts a casuistic-reasoning model in which principles are frequently brought to bear dynamically in support of preferences.

In other words, people may use principles to justify their racial preferences. “Colorblindness,” for example, may serve as the principle that justifies an opposition to affirmative action.

In concluding, the authors note that casuistic judgments may have temporal effects. That is, using one principle may increase the probability of using that principle in the future. In lawyer speak, we might say people have a built-in stare decisis mechanism; it’s just not clear how strongly it operates in various situations or across time. Knowles & Ditto also are careful to explain that casuistic judgments are not per se illegitimate. (Here they venture into philosophy, essentially taking an hedged intuitionist stance.) Their claim is that attitudes are likely based on some form of intuition, and that intuition isn’t–in and of itself–a reason to reject a claim. For this reason, they argue that casuistic judgments may be legitimate.

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Talk on the Situation of Retribution

Posted by The Situationist Staff on April 1, 2011

Title: “Punishing Jaws: Experiments  on  Retribution  Against  Nonhuman  Perpetrators”

When: Today – April 1st, at 12PM

Where: Griswold 110, Harvard Law School

Who: Situationist Contributor and Drexel Law School Professor Adam Benforado and University of Pennsylvania Psychology Professor Geoff Goodwin will discuss historical and empirical research regarding retributive punishment imposed upon animals.  They will then use this evidence to draw inferences about human intuitions regarding punishment.

Free burritos!

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Related Situationist posts:

Posted in Emotions, Events, Legal Theory, Situationist Contributors | Tagged: , | 2 Comments »

The Situational Effects of Iqbal

Posted by The Situationist Staff on March 30, 2011

Victor Quintanilla recently posted his paper, “Beyond Common Sense: A Social-Psychological Study of Iqbal’s Effect on Claims of Race Discrimination”  on SSRN.  Here’s the abstract.

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This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social-psychological perspective, and empirically studies Iqbal’s disparate effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.

Decades of social-psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit associations will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.

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Download the paper for free here.

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

SALMS Lecture – Tonight

Posted by The Situationist Staff on March 29, 2011

Jon Hanson Evening Lecture and Reception

On Tuesday, March 29th, Professor Jon Hanson will give a lecture entitled “Law, Psychology, and Inequality” at 6PM in Harvard Law School’s Austin East.  A reception with free food and drink will follow!

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Psychology of Inequality

Posted by The Situationist Staff on March 25, 2011

Elaine McCardle wrote a terrific review of last month’s Fifth Annual PLMS Conference.  Her article is the spotlight piece on the Harvard Law School website and includes several excellent videos, photos, and links.  Here’s the story.

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While equality is a fundamental principle of American law and the bedrock of the national psyche, inequality has actually increased in the past four decades in the distribution of wealth, power, opportunity, even health. Yet the topic of inequality has received relatively little attention from legal theorists, and, for the most part, it is ignored in the basic law school curriculum.

A conference last month at HLS, “The Psychology of Inequality,” presented by the Project on Law & Mind Sciences (PLMS), stepped into that vacuum, bringing together scholars, law students, and others to examine inequality from the standpoint of the latest research in social science, health science, and mind science, and to reflect on the implications of their findings for law. The HLS Student Association for Law and Mind Sciences (SALMS), together with a group of roughly 20 students, were instrumental in organizing the conference.

“Inequality matters in ways that are not commonly understood, including in how people see and make sense of the world,” saysJon Hanson, the Alfred Smart Professor of Law and Director of PLMS. “Indeed, the way people respond to instances of inequality – either by equalizing, or by rationalizing – appears to be a very significant factor in how they view markets, regulation, and many important policy and social issues. So when we engage in policy debates, mustering all our best arguments and evidence in favor of a given policy conclusion we shouldn’t be perplexed when our opponent doesn’t budge,” says Hanson. “Such recalcitrance on both sides of a discussion often reflects, not the inadequacy, but the irrelevance, of the reasons being exchanged. Behind it all may be a conflict between largely subconscious urges: some people would rather rationalize inequality while others lean toward equalizing.”

Hanson was one of more than a dozen scholars who spoke at the Feb. 26 conference, the fifth annual conference by PLMS, founded by Hanson six years ago to promote interdisciplinary exchange and collaboration between the mind sciences and the l

egal community. PMLS supports research, writing and conferences in order to dislodge the prevailing “dispositionist” approach of law – which holds that human beings, for the most part, make rational choices based on logical preferences – in favor of a “situationist approach.” Situationsim recognizes that social sciences and mind sciences, including social psychology, social cognition, and cognitive neuroscience, have repeatedly demonstrated that human behavior is influenced by countless factors ignored by the dispositionist approach, which collectively are known as “situation.”

Jaime Napier, an assistant professor of psychology at Yale University, presented her research on the ways in which high-status and low-status groups differ in their rationalizations of inequality. High-status people tend to place blame on individuals for their lot in life, while low-status people tend to see theirs as the natural order of things. Eric Knowles, an assistant professor of psychology and social behavior at the University of California, Irvine, discussed his theory of “malleable ideologies,” through which different groups with a same core ideology – say, “life is sacred” – can come to different outcomes on issues such as abortion or the death penalty. Adam Benforado ’05, a former student of Hanson’s and an assistant professor at the Earl Mach School of Law at Drexel University, presented on the mind-body connection in decision-making, including how seemingly innocuous environmental influences such as room temperature might have significant influence on decisions made by juries and judges. Ichiro Kawachi, a Professor of Social Epidemiology and Chair of the Social/Behavioral Sciences Department at the Harvard School of Public Health, discussed research showing that people of lower social status lead shorter, sicker lives, while other speakers discussed ways that social disparities influence health, how even young children favor high-status individuals, and the drive among humans to view the world as essentially fair.

In addition to national experts in the areas of health, psychology, and mind sciences, a number of HLS faculty contributed to the discussion from their areas of expertise in a panel discussion (see video below), including John Palfrey ’01, the Henry N. Ess III

Professor of Law and Vice Dean for Library and Information Resources, an expert on the internet; Lucie White ’81, the Louis A. Horvitz Professor of Law, who specializes in poverty law and international economic and social rights; Robert C. Bordone ’97, the Thaddeus R. Beal Clinical Professor of Law and Director of the Harvard Negotiation & Mediation Clinical Program; Stella Burch Elias, a Climenko Fellow and Lecturer on Law and Andrew Woods ’07, a Climenko Fellow and Ph.D. candidate in politics at Cambridge University.

In that discussion, Hanson shared some provocative ideas. The good news, he said, is that humans have an egalitarian impulse, so that inequality causes them discomfort; some resolve the conflict by redistributing so that there is more equality, while others rationalize with reasons that explain the inequality. The bad news, Hanson added, is that it’s not terribly hard to move someone away from the equalizing impulse.

“When you experience fear and threat – personal threat, group threat, system threat – you become a hardcore dispositionist,” said Hanson, snapping his fingers, “just like that!”

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More here. Related Situationist posts:

Posted in Distribution, Education, Embodied Cognition, Events, Ideology, Implicit Associations, Legal Theory, Situationist Contributors, System Legitimacy | Tagged: , , , | 2 Comments »

SALMS Liveblogs PLMS Conference

Posted by The Situationist Staff on February 27, 2011

Read James Wang’s excellent notes from yesterday’s terrific conference here.

Posted in Distribution, Events, Ideology, Implicit Associations, Law, Legal Theory, Politics | 1 Comment »

The Criminals that Other Criminals Punish

Posted by Adam Benforado on February 16, 2011

This week, inmates in Sao Paulo broke into a cell block where prisoners convicted of rape and pedophilia were held and killed six people, including a man, Jose Agostinho Pereira, convicted of imprisoning his daughter for twelve years and having seven children with her, two of whom he also sexually abused.  Using makeshift knives, the attacking inmates, decapitated Pereira and three of the other prisoners.

Extreme overcrowding in the prison seemed to be one cause of the violence – a number of inmates, unhappy with their poor conditions, attempted to escape, which precipitated a riot.  However, the level of brutality and the focus of the harm seem to tell another story.  Indeed, it’s important to note that the men who were killed had been kept apart from the general population for their protection, a practice which is common at many prisons both abroad and in the United States.

Once imprisoned, child sex offenders become prime targets for violence by other inmates and it’s interesting to think about how much of that abuse might be retributive in nature.

Do prisoners who decapitate child molesters feel they are delivering “justice”?  And, if so, on behalf of whom do they believe they are acting?

As I’ve mentioned previously, I’m currently working on a set of experiments with Penn cognitive psychologist Geoff Goodwin regarding intuitions about punishment and one of the recurring themes in our research (and that of others interested in retribution) is that people’s motives to punish often do not align with what legal scholars assume them to be and that there is still much left to uncover in the study of “responsive harm.”  For better or for worse, that additional research may lead us to some troubling truths.

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Related Situationist Posts:

Posted in Conflict, Emotions, Legal Theory, Morality | 1 Comment »

Patrick Shin at Harvard Law School

Posted by The Situationist Staff on February 6, 2011

On Tuesday, the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Suffolk Law professor Patrick Shin entitled “Unconscious Bias and the Legal Concept of Discrimination.”

Professor Shin is a professor of law at Suffolk University Law School. He conducts research into the meaning and value of diversity in antidiscrimination law. He has applied psychology to real-world problems of employment discrimination law.

Professor Shin will be speaking in Austin East from 12:00 – 1:00 p.m.

Free burritos will be provided! For more information, e-mail

Posted in Events, Implicit Associations, Law, Legal Theory | Tagged: , , , , | 1 Comment »

System Justification Theory and Law

Posted by The Situationist Staff on February 5, 2011

Over at the new Law & Mind Blog, several Harvard Law students have been blogging about about system justification theory.  In the first post on the topic (copied below), third-year student Rachel Funk summarizes a chapter by Gary Blasi and Situationist Contributor John Jost (forthcoming in Ideology, Psychology, and Law, edited by Situationist Contributor Jon Hanson).

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In System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, Gary Blasi and John Jost outline a model of social psychology they call system justification theory (SJT). According to Blasi and Jost, in addition to the well-established theories of ego justification (that is, our psychological need to think well of ourselves) and group justification (our psychological need to think well of the groups that we identify and associate with), there is a third related phenomenon: namely, system justification. While ego justification accounts for our tendency to privilege ourselves above others and to think and behave in ways that are self-serving, and group justification accounts for our tendency to give preference to members of our group over outsiders, Blasi and Jost argue that system justification is needed to fill out the picture, because we need to account for why marginalized members of society tend to support the current social order, even though it disadvantages them, thus defying the rational actor model inherent in our social institutions, particularly the legal system.

According to the rational actor model, members of disadvantaged groups should be trying to undermine the current regime, since, by definition, it disadvantages them. Instead, as demonstrated by various empirical studies, they seem to be zealous advocates (so to speak) of the status quo. Blasi and Jost argue that SJT can account for this seeming contradiction because, unlike the rational actor model, it posits that people will generally support the status quo, regardless of whether it advantages or disadvantages them.

In fact, our defense of the status quo becomes even more ardent when we perceive the current system to be threatened. For instance, Blasi and Jost cite one study in which people were asked to assign punishments to hypothetical defendants. For crimes that the researchers represented as being common but rarely punished — and thus an implicit threat to the existing social order — people assigned much more severe punishments to defendants accused of that crime than to defendants accused of crimes represented as being more frequently successfully prosecuted (129-30). However, we have the opposite reaction to the status quo when we view the regime change as “inevitable” (134-35), which may explain the phenomenon we are now seeing with regard to Americans’ changing attitudes to same-sex marriage, although it is unclear what is needed for a regime change to be considered “inevitable.”

So what happens when we endorse the status quo and adopt system-justifying ideologies? Studies show that in the short term, the acceptance of the status quo by disadvantaged members of society results in greater satisfaction at work and at home, indicating that system justification serves a “palliative function” (132). However, in the long run, their support of the status quo leads to cognitive dissonance, because their need to think well of themselves and their social groups necessarily conflicts with their low status in society. In other words, for disadvantaged members of society, ego justification and group justification will inevitably conflict with system justification because members of these groups will not be able to reconcile their positive perception of themselves and their social groups with their simultaneous support of a system that marginalizes them.

One of the reasons that society may be resistant to this model, as Blasi and Jost suggest, is that it necessitates accepting that our biases can be implicit (that is, unconscious) as well as explicit. The rational actor model is more comforting, because it assures us that we are in full control of our beliefs and behavior. If we have control over them, we can change them. And if we don’t change them, that must be because they are fine the way they are (and of course they are fine, because why else would we have them?).

Overall, SJT provides a persuasive account of the phenomena that Blasi and Jost seek to explain in the chapter. In the same vein as theories like “belief in a just world”, SJT offers a further insight into how we conjure up rationalizations for our situation in life because we do not want to believe — or cannot believe — that it is random or out of our control. Blasi and Jost also suggest a variety of ways in which SJT could be incorporated into the legal system, something that is desperately needed if the law’s foundational view of human behavior — which is to say, the rational actor model — is so far off the mark.

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Read the students’ discussion of the chapter here.

Related Situationist posts:

To review the full collection of Situationist posts related to system justification, click here.

Posted in Law, Legal Theory, Situationist Contributors, Situationist Sports, Social Psychology, System Legitimacy | Tagged: , , , , | 4 Comments »

Tom Tyler on “Moving away from Instrumentalism”

Posted by The Situationist Staff on December 12, 2010

Here is an informative interview of Situationist Contributor Tom Tyler by Harvard Law student (now alum) Michal Rosenn. The interview lasts 24 minutes. It was conducted as part of the Law and Mind Science Seminar at Harvard taught by Situationist Editor Jon Hanson.

Vodpod videos no longer available.


Professor Tyler is the University Professor of Psychology and Chair of Psychology at NYU.  He received his B.A. in Psychology from Columbia in 1973, and his M.A. and Ph.D. in social psychology from UCLA in 1974 and 1978.  At NYU, he heads the Tyler Lab, where he and his students research the dynamics of authority and motivations within groups, organizations, and societies.  Much of Prof. Tyler’s work centers on social justice and the psychology of procedural justice — the topics addressed in this interview.

Table of Contents

0:17 — Tell us a little about your general research interests.

1:11 — Can you tell us about your research methods?

2:23 — Can you tell us about your work on procedural justice?

4:24 — What is your argument about an instrumentalist versus a values-based system as it applies to criminal law?

7:21 — What do you see as the reasons behind America’s move away from rehabilitation in the prison context?

9:43 — How do you see a values-based approach being implemented in the criminal justice system?

11:19 — How does your research on instrumentalism apply to anti-terrorism efforts?

13:18 — How does neuroimaging research complement your research findings?

14:09 — How does a values-based approach account for differences in values among a population?

18:33 — Is an over-reliance on instrumentalism a distinctly American phenomenon, or is it more universal?

19:04 — Does the relevance of your work extend beyond the context of criminal law?

20:34 — Do you have any recommendations to lawyers based on the research you’ve done?

22:29 — How do you see the relationship between law and psychology developing in the future?

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For a sample of related Situationist posts, see “Andrew Papachristos Explains Why Criminals Obey the Law – Video,” The Legal Situation of the Underclass,”The Situation of Criminality – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and Tom Tyler on “Strategies of Social Control” – Video.”

Posted in Law, Legal Theory, Morality, Social Psychology, Video | Tagged: , , , , , | Leave a Comment »

Sam Sommers on “Empirical Perspectives on Jury Diversity”

Posted by The Situationist Staff on November 28, 2010

Tufts Psychology Professor Sam Sommers speaks at Harvard Law School about his research on the interaction between the legal system and the psychology of race, stereotyping, and diversity.

Watch the video here.

For a sample of related Situationist posts, see “Sam Sommers at Harvard Law School” or click here.

Posted in Implicit Associations, Law, Legal Theory, Social Psychology, Video | Tagged: , , , | Leave a Comment »

The Situation of Creating a Consumer Financial Protection Bureau

Posted by Adam Benforado on November 15, 2010

In the wake of the worst economic crisis in the United States since the Great Depression, there has been a drive to reconfigure the regulatory state and renegotiate the relationship between Americans, business, and government.

In a new article, just posted on SSRN, I argue that the ultimate formulation of that relationship turns, to a significant degree, on our basic attributional tendencies, particularly where we look to assign causal responsibility when things go wrong.

Who or what engendered the shanty town that appeared in Sacramento, California in 2008?  Who blackened the pelican and closed the beach of Pensacola?  What lies behind the rise in diabetes in elementary school students?

The answers that we give drive our remedial responses and our prophylactic measures—and in doing so, define the interactions between our regulatory institutions, business entities, and members of the public.

If you believe that business causes—or, at least, significantly contributes to—a lot of these types of harms in society, then you are likely to want a government that gets tough and restrains corporations to protect the public.  If you think that business is largely blameless, then you are likely to be in favor of free markets with little or no regulation.

The Article begins by summarizing evidence from the mind sciences concerning our basic attributional framework, before investigating its value to business as a ready means to (1) manipulate our environments to encourage profitable consumer behavior and (2) avoid regulation and liability.

As a case study of the ways in which corporations play on our basic attributional proclivities to manage negative outcomes, the Article focuses on the intense – and often nasty — recent battle over the creation of the Bureau of Consumer Financial Protection.

Download a free copy of the article here!

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For a sample of related Situationist posts see “Attributional Divide – Top 10,” Legal Academic Backlash – Abstract,” “Naïve Cynicism in Election 2008: Dispositionism v. Situationism?,” “The Great Attributional Divide – Abstract,” “The Situation of ‘Common Sense’,” The Situation of Political Animals,” and Naïve Cynicism in Election 2008: Dispositionism v. Situationism?

Posted in Abstracts, Conflict, Ideology, Legal Theory, Naive Cynicism, Politics, Situationist Contributors | 2 Comments »

Sam Sommers at Harvard Law School

Posted by The Situationist Staff on November 5, 2010

Today the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Tufts psychology professor Sam Sommers entitled “Empirical Perspectives on Jury Diversity.”

Professor Sommers has extensively studied the interaction between the legal system and the psychology of race, stereotyping, and diversity and has served as an expert witness on racial bias and eyewitness testimony in a number of trials.

Professor Sommers will be speaking in Hauser 102. Free bagels will be provided!  For more information, e-mail

You can review a list of Situationist posts discussing Professor Sommers’s work by clicking here.

Posted in Implicit Associations, Law, Legal Theory, Social Psychology | Tagged: , , | 1 Comment »

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