Recently, I did a TEDx talk on implicit bias titled “Immaculate Perception?” It’s only about 13 minutes long, which made it quite a challenge. Enjoy!
Here’s a guide to my related scholarship.
Posted by The Situationist Staff on January 24, 2014
When governments want advice on the likely impact of their policies, they traditionally turn to economists. Psychologists have been less in demand. The reasons are understandable: Economists have seemed to offer relatively clear and well developed models for predicting behavior, notably “expected utility theory.” In contrast, the lessons from psychology have often seemed less clear-cut, no matter how interesting or suggestive they may have been.
This situation is now changing. Officials are recognizing that their policies may stand or fall on social, cognitive, and emotional factors that economists have traditionally neglected. Given their position at the top table, it is perhaps unsurprising — if ironic — that economists themselves have communicated this point. Behavioral economics, essentially a combination of economics and psychology, has provided a new bridge between policymakers and psychological findings.
Read more here.
Posted by JH on January 18, 2014
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To be sure, King is most revered in some circles for quotations that are easily construed as dispositionist, such as: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Taken alone, as it often is, that sentence seems to set a low bar. Indeed, some Americans contend that we’ve arrived at that promised land; after all, most of us (mostly incorrectly) imagine ourselves to be judging people based solely on their dispositions, choices, personalities, or, in short, their characters.
Putting King’s quotation in context, however, it becomes clear that his was largely a situationist message. He was encouraging us all to recognize the subtle and not-so-subtle situational forces that caused inequalities and to question (what John Jost calls) system-justifying ideologies that helped maintain those inequalities.
King’s amazing “Letter from a Birmingham Jail” is illustrative. While being held for nine days, King penned a letter in response to the public statement of eight prominent Alabama clergymen who denounced the Birmingham civil rights demonstrations. The prominent clergymen called King an “extremist” and an “outsider,” and “appeal[ed] to both our white and Negro citizenry to observe the principles of law and order and common sense.”
Regarding his “outsider” status, King insisted that the us-and-them categories were flawed, and that any meaningful distinction that might exist among groups was that between persons who perpetrated or countenanced injustice, on one hand, and those who resisted it, on the other:
“I am in Birmingham because injustice is here. . . .”
“Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
“You deplore the demonstrations taking place In Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative.”
In terms of his methods, too, Dr. King was a situationist. He understood that negotiating outcomes reflected the circumstances much more than the the disposition, of negotiators. The aim of demonstrations was to create a situation in which questions otherwise unasked were brought to the fore, in which injustice otherwise unnoticed was made salient, and in which the weak bargaining positions of the otherwise powerless were collectivized and strengthened:
“Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. . . . Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct-action program is to create a situation so crisis-packed that it will inevitably open the door to negotiation.”
In the letter, King expressed his frustation, not just with the egregious racists, but also — no, moreso — with the moderates who were willing to sacrifice real justice for the sake of maintaining the illusion of justice. King put it this way:
“I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Councilor or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’ . . . .”
And King recognized the role that laws could play in maintaining an unjust status quo. Of course, he criticized the laws that literally enforced segregation, but he didn’t stop there. He criticized, too, the seemingly neutral laws, and the purportedly principled methods of interpreting and applying those laws, that could serve as legitimating cover for existing disparities:
“Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.”
King explained that many churches, too, were implicated in this web of justification — caught up as they were in making sense of, or lessening the sting of, existing arrangements:
“So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s silent and often even vocal sanction of things as they are.”
So, yes, Reverend King urged us all to help create a world in which people were “not . . . judged by the color of their skin but by the content of their character.” But King said much more. He recognized and tried to teach those who would listen that getting to that world would mean examining and challenging the situation — including our beliefs, our laws, our ideologies, our religious beliefs, our institutions, and existing allocations of opportunity, wealth, and power.
Judging those who are disadvantaged by the content of their character is not, taken alone, much of a solution. It may, in fact, be part of the problem. As Kathleen Hanson (my wife) and I recently argued, the problem “is, not in neglecting character, but in attributing to ‘character’ what should be attributed to [a person’s] situation and, in turn, to our system and ourselves.” Or, as Martin Luther King, Jr. put it, far more effectively: “True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.”
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For a sample of related Situationist posts, see
Posted by The Situationist Staff on December 3, 2013
Paul Bloom, Professor of Psychology and Cognitive Science at Yale University and contributing author of the 2012 Annual Review of Psychology, talks about his article “Religion, Morality, Evolution.” How did religion evolve? What effect does religion have on our moral beliefs and moral actions? These questions are related, as some scholars propose that religion has evolved to enhance altruistic behavior toward members of one’s group. But, Bloom argues, while religion has powerfully good moral effects and powerfully bad moral effects, these are due to aspects of religion that are shared by other human practices. There is surprisingly little evidence for a moral effect of specifically religious beliefs.
Find the article here.
Related Situationist posts:
Posted by JH on November 26, 2013
This post was first published on November 21, 2007.
Thanksgiving has many associations — struggling Pilgrims, crowded airports, autumn leaves, heaping plates, drunken uncles, blowout sales, and so on. At its best, though, Thanksgiving is associated with, well, thanks giving. The holiday provides a moment when many otherwise harried individuals leading hectic lives decelerate just long enough to muster some gratitude for their harvest. Giving thanks — acknowledging that we, as individuals, are not the sole determinants of our own fortunes seems an admirable, humble, and even situationist practice, worthy of its own holiday.
But I’m interested here in the potential downside to the particular way in which many people go about giving thanks.
Situationist contributor John Jost and his collaborators have studied a process that they call “system justification” — loosely the motive to defend and bolster existing arrangements even when doing so seems to conflict with individual and group interests. Jost, together with Situationist contributor Aaron Kay and several other co-authors, recently summarized the basic tendency to justify the status quo this way (pdf):
Whether because of discrimination on the basis of race, ethnicity, religion, social class, gender, or sexual orientation, or because of policies and programs that privilege some at the expense of others, or even because of historical accidents, genetic disparities, or the fickleness of fate, certain social systems serve the interests of some stakeholders better than others. Yet historical and social scientific evidence shows that most of the time the majority of people—regardless of their own social class or position—accept and even defend the legitimacy of their social and economic systems and manage to maintain a “belief in a just world” . . . . As Kinder and Sears (1985) put it, “the deepest puzzle here is not occasional protest but pervasive tranquility.” Knowing how easy it is for people to adapt to and rationalize the way things are makes it easer to understand why the apartheid system in South Africa lasted for 46 years, the institution of slavery survived for more than 400 years in Europe and the Americas, and the Indian Caste system has been maintained for 3000 years and counting.
Manifestations of the system-justification motive pervade many of our cognitions, ideologies, and institutions. This post reflects my worry that the Thanksgiving holiday might also manifest that powerful implicit motive. No doubt, expressing gratitude is generally a healthy and appropriate practice. Indeed, my sense is that Americans too rarely acknowledge the debt they owe to other people and other influences. There ought to be more thanks giving.
Nonetheless, the norm of Thanksgiving seems to be to encourage a particular kind of gratitude — a generic thankfulness for the status quo. Indeed, when one looks at what many describe as the true meaning of the holiday, the message is generally one of announcing that current arrangements — good and bad — are precisely as they should be.
Consider the message behind the first presidential Thanksgiving proclamation. In 1789, President George Washington wrote:
“Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be—That we may then all unite in rendering unto Him our sincere and humble thanks—for His kind care and protection of the People of this Country . . . for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the tranquility, union, and plenty, which we have since enjoyed . . . and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions . . . . To promote the knowledge and practice of true religion and virtue, and the increase of science among them and us—and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.”
Existing levels of prosperity, by this account, reflect the merciful and omniscient blessings of the “beneficent Author” of all that is good.
More recently, President George W. Bush offered a similar message about the meaning of the holiday:
“In the four centuries since the founders . . . first knelt on these grounds, our nation has changed in many ways. Our people have prospered, our nation has grown, our Thanksgiving traditions have evolved — after all, they didn’t have football back then. Yet the source of all our blessings remains the same: We give thanks to the Author of Life who granted our forefathers safe passage to this land, who gives every man, woman, and child on the face of the Earth the gift of freedom, and who watches over our nation every day.”
The faith that we are being “watched over” and that our blessings and prosperity are the product of a gift-giving force is extraordinarily affirming. All that “is,” is as that “great and glorious Being” intended.
Fom such a perspective, giving thanks begins to look like a means of assuring ourselves that our current situation was ordained by some higher, legitimating force. To doubt the legitimacy of existing arrangements is to be ungrateful.
A cursory search of the internet for the “meaning of Thanksgiving” reveals many similar recent messages. For instance, one blogger writes, in a post entitled “Teaching Children the Meaning of Thanksgiving,” that:
your goal should be to move the spirit of Thanksgiving from a one-day event to a basic life attitude. . . . This means being thankful no matter what our situation in life. Thankfulness means that we are aware of both our blessings and disappointments but that we focus on the blessings. . . . Are you thankful for your job even when you feel overworked and underpaid?”
Another piece, entitled “The Real Meaning of Thanksgiving” includes this lesson regarding the main source of the Pilgrim’s success: “It was their devotion to God and His laws. And that’s what Thanksgiving is really all about. The Pilgrims recognized that everything we have is a gift from God – even our sorrows. Their Thanksgiving tradition was established to honor God and thank Him for His blessings and His grace.”
If we are supposed to be thankful for our jobs even when we are “overworked and underpaid,” should we also be thankful for unfairness or injustice? And if we are to be grateful for our sorrows, should we then be indifferent toward their earthly causes?
A third article, “The Productive Meaning of Thanksgiving” offers these “us”-affirming, guilt-reducing assurances: “The deeper meaning is that we have the capacity to produce such wealth and that we live in a country that affords us our right to exercise the virtue of productivity and to reap its rewards. So let’s celebrate wealth and the power in us to produce it; let’s welcome this most wonderful time of the year and partake without guilt of the bounty we each have earned.”
That advice seems to mollify any sense of injustice by giving something to everyone. Those with bountiful harvests get to enjoy their riches guiltlessly. Those with meager harvests can be grateful for the fact that they live in a country where they might someday enjoy richer returns from their individual efforts.
Yet another post, “The Meaning for Thanksgiving,” admonishes readers to be grateful, because they could, after all, be much worse off:
[M]aybe you are unsatisfied with your home or job? Would you be willing to trade either with someone who has no hope of getting a job or is homeless? Could you consider going to Africa or the Middle East and trade places with someone that would desperately love to have even a meager home and a low wage paying job where they could send their children to school without the worry of being bombed, raped, kidnapped or killed on a daily basis?
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No matter how bad you think you have it, there are people who would love to trade places with you in an instant. You can choose to be miserable and pine for something better. You could choose to trade places with someone else for all the money they could give you. You could waste your gift of life, but that would be the worst mistake to make. Or you can rethink about what makes your life great and at least be happy for what you have then be patient about what you want to come to you in the future.
If your inclination on Thanksgiving is to give thanks, I do not mean to discourage you. My only suggestion is that you give thanks, not for the status quo, but for all of the ways in which your (our) own advantages and privileges are the consequence of situation, and not simply your individual (our national) disposition. Further, I’d encourage you to give thanks to all those who have gone before you who have doubted the status quo and who have identified injustice and impatiently fought against it.
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Related Situationist posts:
To review the full collection of Situationist posts related to system justification, click here.
Posted by The Situationist Staff on November 17, 2013
From Yale News (by Phoebe Kimmelman):
On Thursday evening, Harvard psychologist Mahzarin Banaji delivered a talk entitled “Group Love” where she demonstrated that the audience held an implicit bias for Yale over Princeton.
Banaji, who worked as a professor of psychology at Yale from 1986-2002 before taking a similar post at Harvard, focused in her talk on how group affiliations, or lack thereof, affect the ways in which we see the world and interact with others. In her research, Banaji has helped bring Freudian theories of the subconscious in the psychology laboratory to be empirically tested.
University President Peter Salovey delivered introductory remarks, saying Banaji had been the “heart and soul” of the Yale psychology department during her 16 years there.
“She is of those scientists who changes her field with her insights and her empirical data with a deep sense of social responsibility to her colleagues, her students and her field,” Salovey said.
In the lecture to roughly 100 people, Banaji first discussed an experiment she did in 2006 at Harvard that involved monitoring participants’ brain activity while they answered random questions about two hypothetical people, presented with only their political preferences. Neuroimaging showed that the subjects used different areas of the brain to make predictions about people with whom they agree and those with whom they disagree. Banaji used this study to introduce the idea of love of the in-group, a preference people have for a group of people who think the way that they themselves do.
Through presenting multiple studies, Banaji demonstrated the magnitude of positive bias towards the in-group in subjects ranging from sports fans to elementary school students. While we may not be able to eliminate our biases, Banaji said certain cognitive strategies can “outsmart” them. For instance, Banaji said she rotates among her computer screensavers images that defy racial and gender stereotypes.
“It’s not that we hate people of another group, but it’s love for the in-group that’s paramount,” she said.
Salovey and Banaji, who started as faculty at Yale on the very same day, were close friends and next door neighbors, he said. Salovey recalled that he and Banaji were each other’s “support systems” while writing PSYC 110 lectures together.
Banaji came to campus for this year’s Silliman Memorial Lecture, an annual speakership that began in 1888 and has brought such prominent scientific figures to campus as J.J. Thomson and Ernest Rutherford. Though a committee of faculty from Yale science departments usually chooses a speaker whose research is in the hard natural sciences, committee chair and Sterling professor of molecular biophysics and biochemistry Joan Steitz said that her colleagues were eager to hear from Banaji this year. Though the lecture has no affiliation with Silliman College, the endowment is named for the mother of Benjamin Silliman, a scientist after whom the college is named.
“If you think about the impact that psychology and neurobiology and brain science [are] having these days, the committee did not consider it at all inappropriate to be going in that direction with this particular lecture,” Steitz said.
Since leaving Yale in 2002, Banaji has served as a professor of social ethics in Harvard’s psychology department, where she has continued her research on how unconscious thinking plays out in social situations.
Nick Friedlander ’17 said he found the lecture “eye-opening” because it revealed biases he did not know he held before.
For Zachary Williams ’17, the lecture demonstrated how little of the conscious mind controls mental processes.
“It was truly a treat to be able to sit in close quarters with such a fantastic paragon of academia and hear her talk about such relevant topics,” he said.
Banaji’s most recent book is entitled “Blindspot: Hidden Biases of Good People.”
Related Situationist posts:
Posted by The Situationist Staff on November 15, 2013
The American Constitution Society Northeast Regional Student Convening will bring together lawyers and law students from across the Northeast to hear leading practitioners, government officials, judges, and academics discuss a progressive vision for the future of equality across a number of salient policy issues. Learn more here.
Posted by The Situationist Staff on November 8, 2013
From TEDxMidAtlantic, 2011. Eldar Shafir is the William Stewart Tod Professor of Psychology and Public Affairs in the Department of Psychology and the Woodrow Wilson School of Public and International Affairs at Princeton University. His research focuses on decision-making, and on issues related to behavioral economics, with an emphasis on empirical studies of how people make decisions in situations of conflict and uncertainty.
Related Situationist posts:
Posted by The Situationist Staff on November 2, 2013
By Bjorn Carey (Stanford News)
Nalini Ambady, a Stanford professor of psychology, died Oct. 28 after a long battle with leukemia. Her passing followed a yearlong, worldwide effort by family, friends and students to find a bone marrow donor match. She was 54.
A distinguished social psychologist, Ambady was well known for her research showing that people can form accurate first impressions about others based only on seconds-long observations of their nonverbal behavior.
“Thin slices,” as these quick impressions are known, are now a staple of social science textbooks, and were popularized by Malcolm Gladwell in his 2005 bestselling book, Blink: The Power of Thinking Without Thinking.
Ambady was born in Calcutta, India, and earned her bachelor’s degree at Delhi University. She came to the United States for her master’s degree in psychology, from the College of William and Mary, and later received her PhD in social psychology from Harvard. While at Harvard, she met her future husband, Raj Marphatia, who was studying at Harvard Law School.
After earning her PhD in 1991, she quickly joined the ranks of academia by accepting a position as an assistant professor at the College of the Holy Cross; she would go on to become an associate professor at Harvard and a professor at Tufts University. Ambady joined the Stanford faculty in 2011, becoming the first person of Indian origin to teach in Stanford’s Department of Psychology.
Ambady’s work on thin slices was fueled by her passion for nonverbal behavior. She argued that nonverbal behavior is important because it is a quick, efficient and relatively effortless way of obtaining information about others. At birth, humans respond to and produce nonverbal cues and nonverbal behavior that can serve as a primary mechanism of socialization across the lifespan. As she put it, “Nonverbal behavior offers a means of adapting to the social world.”
She put these concepts to the test in one of her first publications, in 1993. She created 30-second, silent video clips of college professors delivering a lecture and asked people who had never seen the professors before to assess their teaching effectiveness. Remarkably, the scores from independent raters fell in line with those of students who had actually spent an entire semester in the professor’s class. The results held even when she shortened the clip to 10, 6 and 2 seconds.
The work demonstrated that perceptual judgments made on the basis of very brief observations of nonverbal behavior can be surprisingly accurate and can influence a person’s long-term impressions. The findings challenged established wisdom that intuitive reasoning is typically wrong and became a basis for the growing appreciation of the usefulness of nonconscious or “fast” thinking.
Ambady believed that even without conscious awareness, initial evaluative impressions can influence whom we sit next to in a subway, whom we hire for a job and, perhaps, even whom we marry. Her follow-up studies showed that similar snap evaluations can accurately predict a person’s sexual orientation or political affiliation or a CEO’s company profits.
In 1999, she received the Presidential Early Career Award for Scientists and Engineers from President Bill Clinton in recognition of this work. In February, she will be posthumously awarded the prestigious Carol and Ed Diener Award in Social Psychology, a recognition give by the Society for Personality and Social Psychology to scholars whose work has added substantially to the body of knowledge of the field.
As a researcher, Ambady had a reputation for being collaborative and encouraging a very collegial lab space.
“Nalini had incredible energy, a very positive spirit,” said Hazel Markus, a professor of psychology. “She was brilliant and held herself and others to very high standards. She loved social psychology so much that people were very attracted to working with her.”
Ambady made her students and research assistants feel as though they were an extension of her family. When a first-generation college student from a low-income family was having difficulties getting to campus, Ambady took her to buy a bike. She bought a textbook for a struggling student who couldn’t afford it. And when she learned that some of her lab members either lived too far away or couldn’t afford to fly home for Thanksgiving, she invited them to dinner at her house.
She took immense pride in her students, said Marphatia, her husband, and was thrilled to see them rise to tenured professorships throughout academia. When her leukemia returned last November, she stayed deeply involved with her students’ work. She met with students at home and in the hospital while she was receiving treatment, and insisted on helping researchers with their grant proposals.
“Even though she was sick, she had this tremendous focus toward others,” said Brent Hughes, a postdoctoral scholar in Ambady’s lab. “She would stay on top of us in a really deeply caring way to make sure that we had everything we needed to do well.”
Upon coming to Stanford, one of her priorities was establishing a research center called SPARQ, designed to bring social psychological answers to real-world questions.
“She was the galvanizing force behind SPARQ,” said Jennifer Eberhardt, associate professor of psychology. “We now have a clinic which pairs practitioners with researchers and an online solutions catalog which describes effective interventions for a variety of social and environmental problems. This all happened within a year of Nalini coming to Stanford, and she continued to push hard on it until days before the end of her life.”
“She said, ‘Let’s take our academic research and findings and see if we can apply it to make changes in the real world,'” said Marphatia. “SPARQ is one thing that she was really looking forward to working on with her colleagues, and it is particularly disappointing that she won’t have a chance to work on that.
“It was the joy of her life to be at Stanford,” he said. “She thought it is such a wonderful environment to do research, with people inspiring each other and collaborating. It brought out the best of her professional abilities.”
One of the first projects that SPARQ-affiliated scientists will engage on will be done with Ambady in mind: A “Be the Match” initiative will aim to develop actionable ways to increase participation in bone marrow donor programs.
Ambady was originally diagnosed with leukemia in 2004, but treatment drove the disease into remission. When it returned last November, doctors told her that she needed a bone marrow transplant. Unfortunately, South Asians – and minorities in general – are severely underrepresented in bone marrow donor registries in the United States.
Students and friends began fundraising drives, including Nalini Needs You, to purchase and distribute the cheek swab kits used to identify potential donor matches, both in the United States and near her birthplace in India, where doctors believed there might be a better chance of locating a genetic match.
These efforts identified previously unregistered matches for seven other people in desperate need of a bone marrow transplant, for which Ambady was exceptionally pleased. Of the roughly dozen people who were potential matches for Ambady, however, half turned out to be incompatible or only superficial matches.
The others chose not to donate, a result that is common in bone marrow transplant cases. There are many reasons people ultimately decide not to donate, including cultural taboos or fears of pain or inconvenience. (Donating bone marrow is only slightly more complex than donating blood, though it requires multiple visits.) Some people’s contact information simply falls out of the system, especially the case with college-age donors who frequently change addresses.
Eberhardt and Markus said that SPARQ will partner with bone marrow registries to develop strategies for enrolling more people, and especially minorities, to participate in cheek swab tests, and also to encourage people to actually donate later on when they are identified as a match.
Ambady is survived by her husband, Raj Marphatia, and two daughters: Maya, who will enroll at Stanford next fall, and Leena, a sophomore at Castilleja School in Palo Alto.
Details of a memorial have yet to be finalized. Donations can be made to the Nalini Ambady Memorial Fund, care of the Department of Psychology, Jordan Hall, Building 420, Stanford University, Stanford, CA 94305. Make checks payable to Stanford University.
Nalini Ambady was, among other things, a long-time Situationist friend who made two presentations of her extraordinary research at Harvard Law School over the years. Her brilliance and warmth left a lasting impression on all who had the privilege of attending those talks. Our hearts go out to her family and loved ones.
Posted by The Situationist Staff on November 1, 2013
When: Friday 11/01/13 12-1pm
Where: WCC 2012
Today, join Section 6’s Ninja Tortles and the Student Association for Law and Mind Sciences (SALMS) for a talk by Natasha Schvey on bias against overweight defendants in the courtroom. Schvey, a doctoral student in clinical psychology at Yale University, has focused her research on obesity, weight stigma, binge eating, and eating in response to negative affect. She argues that bias against the overweight should be addressed in the legal system through means such as juror selection, jury instructions, and anti-discrimination legislation.
The talk will be held at noon in WCC 2012, and food will be served.
Posted by The Situationist Staff on October 22, 2013
Boston Magazine described McCann as “a Massachusetts attorney who represented Maurice Clarett in his attempt to declare early for the NFL Draft, McCann is as reputable a source as there is on Aaron Hernandez’s trial and future prospects.” McCann is also the director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law and a legal analyst and writer for Sports Illustrated.
McCann’s tweeting on Aaron Hernandez relates to a book project he and Situationist Co-Founder & Editor Jon Hanson are developing on Hernandez and other major news stories.
Related Situationist posts co-authored by Jon Hanson and Michael McCann:
Posted by The Situationist Staff on October 20, 2013
When: Monday 10/21/13 12-1pm
Where: WCC 1010
Professor Jon Hanson will kick off this year’s SALMS speaker series, discussing the significance of mind sciences for law.
Lunch will be provided.
Posted by Fábio Almeida on October 15, 2013
Some recent discoveries in evolutionary biology, ethology, neurology, cognitive psychology and behavioral economics impels us to rethink the very foundations of law if we want to answer many questions remain unanswered in legal theory. Where does our ability to interpret rules and think in terms of fairness in relation to others come from? Does the ability to reason about norms derive from certain aspects of our innate rationality and from mechanisms that were sculptured in our moral psychology by evolutionary processes?
Legal theory must take the complexity of the human mind into account
Any answer to these foundational issues demands us to take into consideration what these other sciences are discovering about how we behave. For instance, ethology has shown that many moral behaviors we usually think that are uniquely displayed by our species have been identified in other species as well.
Please watch this video, a lecture by primatologist Frans de Waal for the TED Talks :
The skills needed to feel empathy, to engage in mutual cooperation, to react to certain injustices, to form coalitions, to share, to punish those who refuse to comply with expected behaviors, among many others – abilities once considered to be exclusive of humans – have been observed in other animals. These traits have been observed in many animal species, especially those closer to our evolutionary lineage, as the great apes. In the human case, these instinctive elements are also present. Even small children around the age of one year old show great capacity for moral cognition. They know to identify patterns of relationships in distributive justice, even if they cannot explain why they came to a certain conclusion (because they even do not know how to speak by that age!).
In addition, several studies have shown that certain neural connections in our brains are actively involved in processing information related to capabilities typical of normative behavior. Think about the ability to empathize, for example. It is an essential skill that prevents us to see other people as things or means. Empathy is needed to respect the Kantian categorical imperative to treat the others as an end in themselves, and not means to achieve other ends. This is something many psychopaths can’t do, because they face severe reduction in their ability to empathize with others. Several researches using fMRI have shown year after year that many diagnosed psychopaths show deficiencies in areas of their brains that have been associated to empathy.
If this sounds like science fiction, please consider the following cases.
A 40 year old man, who had hitherto displayed absolutely normal sexual behavior, was kicked out by his wife after she discovered what he was visiting child porn sites and had even tried to sexually molest children. He was arrested and the judge determined that he would have to pass through a sexaholics rehabilitation program or face jail. But he soon got expelled from the program after inviting women at the program to have sex with him. Just before being arrested again for failing in the program, he felt a severe headache and went to a hospital, where he was submitted to an MRI exam. The doctors identified a tumor on his orbifrontal cortex, a brain region usually associated with training of moral judgment, impulse control and regulation of social behavior. After the removal of the tumor, his behavior returned to normal. Seven months later, he once more showed deviant behavior – and further tests showed the reappearance of the tumor. After the removal of the new cyst, his sexual behavior again returned to normal standards.
You could also consider the case of Charles Whitman. Until he was 24, he had been a reasonably normal person. However, on August 1st, 1966, he ascended to the top of the Tower of the University of Texas, where, armed to the teeth, he killed 13 people and wounded 32 before being killed by the police. Later it was discovered that just before the mass killings, he had also murdered both his wife and mother. During the previous day, he left a typewritten letter in which one could read the following:
“I do not quite understand what it is that compels me to type this letter. Perhaps it is to leave some vague reason for the actions I have recently performed. I do not really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I cannot recall when it started) I have been a victim of many unusual and irrational thoughts.”
In the letter, he also requested to be submitted to an autopsy after his death in order to verify if it there was something wrong with his brain. Whitman’s brain was examined and … surprise! … the doctors found a glioblastoma tumor compressing the region of his amygdala, which is associated with the regulation of aggression and fear.
What does this mean for legal theory? At least this means that law, so far, has been based on a false metaphysical conception that t brain is a lockean blank slate and that our actions derive from our rational dispositions. Criminal law theory assumes that an offender breaks the law exclusively due to his free will and reasoning. Private law assumes that people sign contracts only after considering all its possible legal effects and are fully conscious about the reasons that motivated them to do so. Constitutional theory assumes that everyone is endowed with a rational disposition that enables the free exercise of civil and constitutional rights such as freedom of expression or freedom of religion. It is not in question that we are able to exercise such rights. But these examples show that the capacity to interpret norms and to act accordingly to the law does not derive from a blank slate endowed with free will and rationality, but from a complex mind that evolved in our hominin lineage and that relies on brain structures that enables us to reason and choose among alternatives.
This means that our rationality is not perfect. It is not only affected by tumors, but also by various cognitive biases that affect the rationality of our decisions. Since the 1970s, psychologists have studied these biases. Daniel Kahneman, for example, won the 2002 Nobel prize in Economic Sciences for his research on the impact of these biases on decision-making. We can make really irrational decisions because our mind is based on certain heuristics (fast-and-frugal rules) to evaluate certain situations. In most situations, these heuristics help us to make the right decisions, but they also may influence us to make really dumb mistakes.
There are dozens of heuristics that structure our rationality. We are terrible on assessing the significance of statistical correlations, we discard unfavorable evidence, we tend to follow the most common behavior in our group (herd effect), and we tend to see past events as if they had been easily predictable. We are inclined to cooperate with whom is part of our group (parochialist bias), but not so with whom belongs to another group. And those are just some of the biases that have been already identified.
It is really hard to overcome these biases, because they are much of what we call rationality. These flaws are an unavoidable part of our rationality. Sure, with some effort, we can avoid many mistakes by using some techniques that could lead us to get unbiased and correct answers. However, using artificial techniques to do so may be expensive and demands lots of effort. We can use a computer and train mathematical skills in order to overcome biases that causes error in statistical evaluation, for instance. But how can we use a computer to reason about morality or legal issues “getting around” these psychological biases? Probably, we can’t.
The best we can do is to reconsider the psychological assumptions of legal theory, by taking into account what we actually know about our psychology and how it affects our judgement. And there is evidence that these biases really influence how judges evaluate judicial cases. For instance, a research done by Birte Englich, Thomas Mussweiler and Fritz Strack concluded that even legal experts are indeed affected by cognitive biases. More specifically, they studied the effects of anchoring bias in judicial activity, by submitting 52 legal experts to the following experiment: they required them to examine an hypothetical court case, which should determine the sentence in a fictitious shoplifting case. After reading the materials, the participants had to answer a questionnaire at the end of which they would define the sentence.
Before answering the questions, however, the participants should throw a pair of dice in order to determine the prosecutor’s demand. Half of the dice were loaded in order to show always the numbers 1 and 2. And the other half was loaded in order to indicate 3 and 6. The sum of the numbers should indicate the prosecutor’s sentencing demand. Afterwards, they should answer questions about legal issues concerning the case, including the sentencing decision. The researchers found that the results of the dice had an actual impact on their proposed sentence: the average penalty imposed by judges who had dice with superior results (3 + 6 = 9) was 7.81 months in prison, while the participants whose dice resulted in lower values (1 +2 = 3) , proposed an average punishment of 5.28 months .
In another study, it was found that, on average, tired and hungry judges end up taking the easy decision to deny parole rather than to grant it. In the study, conducted in Israel, researchers divided the day’s schedule of judges into three sessions. At the beginning of which of them, the participants could rest and eat. It turned out that, soon after eating and resting, judges authorized the parole in 65% of cases. At the end of each session, the rate fell to almost zero. Okay, this is not really a cognitive bias, but a factual condition – however, it shows that a tired mind and energy needs can induce decisions that almost everyone would consider as intrinsically unfair.
And so on. Study after study , research shows that (1) our ability to develop moral reasoning is innate, (2) our mind is filled with innate biases that are needed to process cultural information in relation to compliance with moral/legal norms, and (3) these biases affect our rationality.
These researches raise many questions that will have to be faced sooner or later by legal scholars. Would anyone say that due process of law is respected when judges anchors judicial decision in completely external factors – factors about which they aren’t even aware of! Of course, this experiment was done in a controlled experiment and nobody expects that a judge rolls dice before judging a case. But judge might be influenced by other anchors as well, such as numbers inside a clock, a date on the calendar, or a number printed on a dollar banknote? Or would anyone consider due process was respected even if a parole hadn’t been granted because the case was judged late in the morning? These external elements decisively influenced the judicial outcome, but none of them were mentioned in the decision.
Legal theory needs to incorporate this knowledge on its structure. We need to build institutions capable to take biases into account and, as far as possible, try to circumvent them or, at least, diminish their influence. For instance, by knowing that judges tend to get impatient and harsher against defendants when they are hungry and tired, a Court could force him to take a 30 minute break after 3 hours of work in order to restore their capacity to be as impartial as possible. This is just a small suggestion about how institutions could respond to these discoveries.
Of course, there are more complex cases, such as the discussion about criminals who always had displayed good behavior, but who were misfortunate to develop a brain tumor that influenced the commitment of a crime. Criminal theory is based on the thesis that the agent must intentionally engage in criminal conduct. But is it is possible to talk about intention when a tumor was one direct cause of the result? And if it hadn’t been a tumor, but a brain malformation (as it occurs in many cases of psychopathy)? Saying that criminal law could already solve these cases by considering that the criminal had no responsibility due to his condition wouldn’t solve the problem, because the issue is in the very concept of intention that is assumed in legal theory.
And this problem expands into the rest of the legal theory. We must take into account the role of cognitive biases in consumer relations. The law has not realized the role of these biases in decision making, but many companies are aware of them. How many times haven’t you bought a 750 ml soda for $2.00 just because it cost $0.20 more than a 500 ml one? Possibly, you thought that you payed less per ml than you would pay if you had bought the smaller size. But … you really wanted was 500 ml, and would pay less than you payed for taking extra soda that you didn’t want! In other words, the company just explores a particular bias that affects most people, in order to induce them to buy more of its products. Another example: for evolutionary reasons, humans are prone to consume fatty foods and lots of sugar. Companies exploit this fact to their advantage, which ends up generating part of the obesity crisis that we see in the world today. In their defense, companies say that consumers purchased the product on their own. What they do not say, but neurosciences and evolutionary theory say, is that our “free will” has a long evolutionary history that propels us to consume exactly these kinds of food that, over the years, affects our health. And law needs to take these facts into consideration if it wants to adequately protect and enforce consumer rights.
Law is still based on an “agency model” very similar to game theory’s assumption of rationality. But we are not rational. Every decision we make is influenced by the way our mind operates. Can we really think that it is fair to blame someone who committed a crime on the basis of erroneous results generated by a cognitive bias? And, on the other hand, would it be right to exonerate a defendant based on those assumptions? To answer these and other fringes questions, legal scholars must rethink the concept of person assumed by law, taking into account our intrinsic biological nature.
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Posted by The Situationist Staff on October 13, 2013
Fábio Portela L. Almeida is a 2003 graduate at Universidade de Brasília Law School in Brazil. After graduating, he worked as a lawyer and, in 2006, he has been working as a Clerk in the Brazilian Superior Court of Labour Law. He also earned a Master of Laws Degree in 2007 at the same university, where he wrote a dissertation about constitutional issues arising from religious teaching in Brazilian public schools, which was published as a book in 2008.
In 2011, he earned a M.Phil Degree at the Universidade de Brasília Department of Philosophy. His dissertation, “The evolution of a normative mind: origins of human cooperation,” awarded the ANPOF Prize of best philosophical dissertation in the biennium 2010/2011. Currently, Fábio is a SJD Candidate at the Universidade de Brasília Law School and a Visiting Researcher at Harvard Law School. His research interests are related to the interdisciplinary relationship between legal theory, biology, psychology, moral philosophy, economics, sociology and anthropology.
In his free time, Fábio enjoys writing about stock investing in his personal blog, listening to classical music, reading, traveling, and watching movies. Fabio is a long-term reader of The Situationist, and we are delighted that he is visiting HLS for the year and contributing to the blog as a fellow. Look for his first post soon.