The Historical Situation of Situationism at Harvard Law

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

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

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

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

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

You can download the paper for free here.

Related Situationist posts:

• The Situation of Chicago School “Law and Economics”
• Science and Situationism Praised on Huffington Post Blog
• Dan Kahneman on Fast and Slow Thinking
• ‘Situation’ Trumps ‘Disposition’- Part II
• Law and Economics Primer
• Jon Hanson on Law and Mind Sciences
• Situationism at University of Chicago Law
• Tushnet on Teles and The Situation of Ideas – Abstract
• Deep Capture – Part X
• Behavioral Economics and Policy

Humility and Helpfulness

From the University of Maine Press Office:

Helping one another in times of need is a cornerstone of quality human relationships, according to a University of Maine psychology researcher who has determined that humility trumps arrogance when it comes to offering assistance.

In a three-part research project involving 310 students at Baylor University in Texas, UMaine psychology lecturer Jordan LaBouff and colleagues found that people determined to be humble were more willing to donate time and resources to a hypothetical student in need. The results held true even when researchers controlled the study for potential influencers like empathy, agreeableness and other personality traits.

“The finding is particularly surprising since nearly 30 years of research on helping have demonstrated that the situation, not the person, tends to predict whether someone in need will receive help,” says LaBouff, who also is a UMaine Honors College preceptor.

“This research builds upon a growing body of evidence that humility is an important trait that results in a variety of pro-social and positive outcomes,” says LaBouff, the lead author of an article on the study with Baylor researchers Wade Rowatt, Megan Johnson and Jo-Ann Tsang in Texas. “It also suggests that if we can encourage humility in our communities, people may be more helpful to those in need.”

The researchers believe the study is one of the first laboratory studies to document a correlation between a personality dimension like humility or narcissism with willingness to help others. Humility could be a personality trait that is linked with altruistically motivated acts of helping, according to LaBouff.

Researchers reached their conclusions by measuring participant humility through self-reporting, or answering questions about their perceived sense of humility, in addition to gauging reaction time on tasks designed to measure implicit humility, LaBouff says. Participants were then introduced to a fictitious classmate who had suffered a personal tragedy and was requesting help to overcome the tragedy with time and resources from each participant.

“Participants who were more humble were most likely to help their peers, even when social pressure to do so was lowest,” says LaBouff. “That is, humble people were most likely to help even when they had the fewest external pressures to do so.”

The study results are reported in the January 2012 issue of The Journal of Positive Psychology.

More.

Related Situationist post:

• Holier Than Thou
• Students’ Situations Leave Them Less Empathetic (Situationist)
• Racial bias clouds ability to feel others’ pain
• The Neuro-Situation of Violence and Empathy
• The Situation of Morality and Empathy
• The Situation of Caring
• New Study Looks at the Roots of Empathy

Dan Rather Reports on the Brain’s Plasticity

Related Situationist posts:

• Phillippe Golden on Emotions
• Imagine You Could Change Your Brain. Oops, You Just Did!
• Joseph LeDoux on the Neural Situation of Emotion and Memory
• The Interior Situation of Complex Human Feelings
• The Situation of Practice
• The Situation of Memory
• The Interior Situation of Complex Human Feelings
• Accidentally Us
• The Neuro-Situation of Violence and Empathy
• The Affective Situation of Ethics and Mediation
• Situating Emotion

Justice for Trayvon

For The Situationist, Sabreena El-Amin (Harvard Law School student and President of the Student Association for Law and Mind Sciences (SALMS)), has authored the following legal analysis of the Trayvon Martin shooting and situationist analysis of the “stand your ground” doctrine.  We are pleased to publish it and look forward to more contributions from Sabreena and other members of SALMS.

The Trayvon Martin incident is of particular importance to me: not only as a Black person, not only as a law student, not only as a mother, but as a big sister. My younger brother is currently attending school at Barry University in Miami, Florida. He, like myself, loves Arizona Ice Tea. We are also both big fans of Skittles, though we have a particular preference for the sour kind. Most importantly, we both wear hoodies. I am now more nervous than ever for my brother: a 19-year-old black man walking the streets of Miami with a camera. With laws like the “Stand your Ground” statute, vigilantes like Zimmerman are free to roam the streets in Florida, singling out young black men and killing them seemingly without repercussions.

My argument will focus on two main points: 1) Zimmerman should have been arrested as the prosecution will likely be able to meet their burden of proof that his action was not in accordance with the statute; and 2) the Stand Your Ground statute should be repealed because a) it encourages armed individuals to respond to situations violently and b) it sanctions the attack of Blacks.  I will begin the article by outlining the facts as I know them. I understand that there are several different fact patterns floating around and the story is being developed daily. My arguments will be based solely on the facts mapped out below. I will continue by discussing why the facts would support the prosecution’s case, if one were to be brought, focusing mainly on a piece by Governor Granholm of Michigan. I will then go on to discuss the “Stand Your Ground” statute based on two psychological studies that show the statute endorses more violence than is reasonably necessary.

Facts*

Trayvon Martin, a 17-year-old Black male, was walking to his father’s home in a gated community in Sanford, FL after returning from a 7-Eleven convenience store. En route, 28-year-old self-appointed Neighborhood Watchman, George Zimmerman, spotted Trayvon and telephoned police that there was a suspicious young black man walking around. Zimmerman informed the police that the young man looked like he was on drugs and appeared to be reaching for something in his waistband. Initially Zimmerman claimed that the young man was coming right at him, and then that Trayvon was getting away. Zimmerman complained that “they” always get away. Dispatcher informed Zimmerman that they did not need him to follow Trayvon and Zimmerman said okay. Several residents of the area called in shortly after Zimmerman’s call to report that they heard screaming. In some cases, callers reported a black male lying on the ground. Each caller also heard gun shots and heard the screaming stop. One caller reported that there was a man in a white shirt on top of someone lying on the ground.

Police collected Trayvon’s body, tested him for drugs, ran a background check, labeled him John Doe and placed him in the morgue where he would lie for over 24 hours before he was identified. Trayvon was unarmed and in fact only had a can of Arizona Ice Tea and a bag of Skittles. Zimmerman was questioned after the shooting, but never arrested. Zimmerman weighed 250 pounds and had a history of vigilantism.

Zimmerman claims that he shot Trayvon in self defense. Florida has a statute (Fla. Stat. § 776.013, also called the “Stand Your Ground” statute) which states (in relevant part):

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Zimmerman’s claims he was justified in his use of force based on this statute. It is not clear which clause Zimmerman’s defense is connected to.

Zimmerman has, since the incident, secured legal counsel. Zimmerman’s lawyer asserts that Zimmerman is not a racist and that he in fact mentors Blacks. His lawyer also stated that Zimmerman is currently in hiding, but has not fled the country. According to Zimmerman’s father, Zimmerman identifies as Hispanic.

Currently, Florida Governor Jed Bush does not believe Zimmerman’s actions are covered by the statute. There is a Department of Justice investigation in regards to the failure of the Sanford Police Department to arrest Zimmerman, President Obama has called for justice for Trayvon, and Sanford’s chief of police has stepped down. People across the country are expressing their distaste for the response to Trayvon’s murder and are, via protest, Facebook, articles, etc., calling for “Justice for Trayvon”.

Justice for Trayvon: Bringing Charges against Zimmerman

The “Stand Your Ground” statute essentially creates a presumption of self-defense in certain situations. Zimmerman has yet to be arrested because authorities do not believe there is enough evidence to rebut this presumption. I would like to focus this aspect of my piece on the following arguments: a) the facts of the case do not support a claim of self defense alleged pursuant to Fla. Stat. § 776.013(3) as Zimmerman appears to have been the attacker and not the victim, and b) the facts of the case do not support a claim of self defense pursuant to Fla. Stat. § 776.013(1) as Trayvon was unarmed and Zimmerman was likely acting unlawfully in his pursuit of Trayvon by misleading officials. Admittedly, only Zimmerman knows exactly what transpired during his altercation with Martin, and thus this argument may be moot after Zimmerman’s account becomes public.

Section 3 of the “Stand Your Ground” statute allows someone who is being attacked to respond with force and does not require them to first attempt to flee. Under a possible account of the facts, Zimmerman’s actions were self defense because he was attacked by Trayvon. Michigan Governor Jennifer M. Granholm wrote a piece on March 21, 2012 outlining several reasons why this account is unsupported by the facts as publicly known. In her piece Governor Granholm discusses five key pieces of evidence which refute Zimmerman’s claim:

• 1.The call from Zimmerman to law enforcement, and the officers telling Martin not to pursue. Zimmerman whispers what many have described as a racial slur under his breath.
• 2.There is a 911 call where you can hear a voice yelling for help and a firearm shot.
• 3.Trayvon’s father identified his voice on that 911 call on Al Sharpton’s Politics Nation program on MSNBC.
• 4.The account of the girlfriend, who says Trayvon told her by cellphone that he was being followed.
• 5.Trayvon was not armed and weighed between 75-100 pounds less than Zimmerman.

The evidence that we know of — the public evidence — establishes that Zimmerman was the pursuer, and not the victim.

In addition to this evidence, a 9-11 caller reported a man in a white shirt on top of a man lying on the ground. Another caller reported a man lying on the ground screaming “Help” and hearing gun shots go off before he got the chance to go to the man for help. Trayvon’s parents have identified this voice as their sons on the tape. Zimmerman, however, claims that this is his voice, but in connection with the other evidence (e.g., that he was the heavier of the two and that Trayvon was unarmed), this will likely be refuted. Based on the facts as alleged, the situation seems to have been initiated by Zimmerman. Even if Trayvon fought back after being pursued, his actions were justified based on the same statute that Zimmerman is currently hiding under.

Section 1 of the “Stand Your Ground” statute creates a presumption of self defense if a person is doing something unlawful and the person using force knows or reasonably believes that an unlawful act is occurring or about to occur. There has been some discussion at my law school that if Zimmerman asserts that he witnessed Trayvon about to break into someone’s home then Zimmerman may likely have a claim. I think this is unlikely for two reasons. First, Trayvon was unarmed and, based on all available evidence, innocently walking home from the convenience store. In order for the presumption in section 1 to be triggered, the attacked must have been in the process of committing certain crimes. There has been no evidence advanced indicating that Trayvon was participating in any crime. In fact the evidence points to Trayvon being engaged in innocent activity. Second, section (2)(c) asserts that this presumption is unavailable if the attacker is engaged in an unlawful activity at the time of the attack. As the 911 tape shows, Zimmerman was told not to follow Trayvon and said “okay.” This act can be seen as misleading police officers, who were likely told by dispatch that Zimmerman would be waiting for them to arrive before doing anything further. This act is likely in violation of Fla. Stat. § 843.06, which makes the “neglect or refusal to aid peace officers” “in the preservation of the peace” unlawful. Zimmerman’s false compliance with the order may have delayed the response time of the dispatched officers and been the reason why the police were unable to respond to Zimmerman’s call in time to save Trayvon’s life. Arguably, Zimmerman’s actions show  neglect to assist a peace officer and thus could qualify as unlawful acts that will exclude Zimmerman from the protection of Fla. Stat. § 776.013(1).

Justice for Blacks in Florida: Repeal the Stand Your Ground Statute

I would like to start this section by clarifying two points. First, Florida is not the only state to have a version of the “Stand Your Ground” statute. According to the above-mentioned piece by Gov. Granholm, who describes the statute as “part of the American Legislative Exchange Council (ALEC)’s cluster of pro-NRA bills that shot through legislatures in the past few years”, Florida is only one of 17 states to have a statute of this kind. Secondly, studies suggest that it is very possible for Zimmerman to be a rational, tolerant, even intelligent, person and still to have reacted in the manner that he did. Many people have labeled Zimmerman a racist and even called him sadistic for his response to an innocent young boy. Sadly, while this may be true for Zimmerman, it does not have to be. Due to the freedom that this law opens up for people to act upon their fears, which may be based on their predisposition to certain opinions, I believe this law should be repealed immediately. Every minute that this law and laws like it remain on the books another Black person’s life is in jeopardy.

Guns Breed Violence

In a piece entitled “Holding a Gun Influences You to Think Others are Armed,” David DiSalvo discusses psychological research that suggests Zimmerman may have reasonably believed that Trayvon was armed. As the title of the piece indicates, James Brockholm’s study, which will be published in the upcoming edition of Journal of Experimental Psychology, supports the idea that the possession of a gun will influence your opinion of whether those around you are armed. Brockholm’s conclusion is that a person’s ability to act upon certain impulses can “bias their recognition of objects… in dramatic ways.” In the study, individuals holding toy guns were more likely to believe a person had a gun than those who were holding a ball and who simply had guns in the room, but not in their hand. The article describes this as the “blending of perception and action representations” which cause those holding guns to believe others are too.

The statute and others like it (e.g. Wisconson’s Castle Doctrine under which a homeowner recently shot and killed 20-year-old, unarmed Bo Morrison, without being charged) is meant to provide a means for people to protect themselves when actually threatened. Based on Brockholm’s research, the statute is actually allowing people to act upon perceived threat that is automatically enhanced by their ability to act against the threat. This research supports the idea that individuals with guns are likely to act frequently because they can act, and not because there is an actually threat. In Bo’s case, his hands were both in the air. In Trayvon’s case, he was walking with a cell phone, an Arizona Ice Tea, and Skittles. Neither youth was armed. Neither was attempting to harm anyone. But two lives are lost, and importantly, two men have taken a life because they were able to, not because they had to. These statutes encourage violence by giving gun holders the right and encouraging them to “meet force with force” when the force they perceive will always be equal to the force they are capable of exerting themselves. These types of laws should be repealed immediately in order to prevent more innocent people from losing their lives and others from taking lives.

People Focus on Blacks when on the Look-out for Criminal Activity

Recently, I took a photograph with some of my Black classmates at Harvard Law School. We wore hoodies and held signs asking “Do we look suspicious?” Unfortunately, research completed by Jennifer Eberhardt, Valerie Purdie, Phillip Goff, and Paul Daves in 2005 concludes that for many people the answer to that question is yes. “Seeing Black: Race, Crime, and Visual Processing” asserts that stereotypes are bidirectional. The article states:

the mere presence of a Black man…can trigger thoughts that he is violent and criminal. Simply thinking about a Black person renders these concepts more accessible and can lead to misremember the Black person as the one holding the razor. Merely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to mis-categorize harmless objects as weapons, or to shoot quickly . . . .

The studies show that not only does thinking about Blacks make people think of crime, but thinking about crime makes people think of Blacks. These studies were intentionally done with both civilians and police officers. The officers were as susceptible to this association. Importantly, the study showed that when one is told to look out for crime, their visual attention focuses on Black faces. They may thus unconsciously avoid criminal activity of non-Black actors. For instance, when experimenters asked police officers “Who looks criminal?,” the officers choose Black faces more often than White faces. The study makes it clear that racial animus is not required. The association is automatic and is even sparked in Blacks and others minorities.

Based on this research, Zimmerman may have associated Trayvon with criminality without having any negative opinions of Blacks. As a neighborhood watchman put on guard to look out for crime, he was likely looking for Blacks. Zimmerman was attempting to crack down on several robberies that had occurred in his neighborhood, and the possibility of criminal activity was salient in his mind, when Trayvon walked innocently by. Zimmerman may have reasonably believed that Trayvon was about to engage in unlawful behavior, but this belief was based on stereotypes and not supported by what was actually occurring. Section 1 of the statute protects people who seek out criminals and prevent their crimes from being completed. As people often unconsciously associate African Americans with crime, they may seek out African Americans engaging in ambiguous behavior percieve it as criminal. Acting upon this perception, they may attack (as Zimmerman did), under the protective shield of the Stand Your Ground Statute, leading to the harm of either themselves or innocent individuals. Based on this research it is clear that the first section of the statute puts a target on Blacks.

Implications

The implications of the research that I have outlined in this section are that people who carry guns and seek out criminal activity will be searching for Blacks and will automatically associate ambiguous behavior with criminal activity. Laws like the “Stand Your Ground” statute give these individuals the right to act upon their perception and harm these Black people regardless of what they are doing. This means that Blacks in such situations will likely have no control over being shot or attacked. Even worse it means that individuals will be searching for Blacks and may unconsciously overlook true criminal activity in an attempt to find images that support their perception. We should not provide support for individuals to act upon irrational conclusions that are not supported by the circumstances. This does not mean that there should be no protection of individuals who respond reasonably to imminent danger, but we should require their perception to be supported by fact and not stereotype and thus require them to be able to connect their fear to something more than the person’s race. We should deem this on a case by case and remove the blanket approval of such behavior. People should be instructed to call police when observing unlawful behavior or to attempt to retreat when in fear of being attacked. Thus the statute should be repealed and self-defense should return to being a defense of murder, and not a presumption of innocence that must be rebutted.

Conclusion

What happened to Trayvon Martin is an all too familiar story to many Blacks. We are profiled regularly based on stereotypes that we have no control over. As many of us mourn Trayvon’s death and remember many of our other brothers and sisters who have fallen victim to racial stereotyping, there is a concurrent legal movement attempting to shed some hope on the issue by bringing charges against Zimmerman. This movement should also focus on repealing the Florida statute. Once these actions are taken, we will be one step closer to Justice for Trayvon.

*I would like to thank Anisha Queen, David Korn, James Smith, and Professor Jon Hanson for their assistance and inspiration with this piece.

** The facts have been compiled from the following articles:

• http://www.foxnews.com/us/2012/03/24/lawyer-advising-trayvons-killer-denies-racism-as-prosecutor-vows-were-going-to/
• http://www.craigboyce.com/w/2012/03/trayvon-martin-shooting-911-call/
• http://www.slate.com/articles/news_and_politics/crime/2012/03/why_george_zimmerman_trayvon_martin_s_killer_hasn_t_been_prosecuted_.html
• http://www.huffingtonpost.com/jennifer-m-granholm/5-reasons-zimmermans-stan_b_1371554.html

Related Situationist posts:

• New Research on the Dangers of Private Law Enforcement
• Race, Guns, and the Danger of Private Law Enforcement
• If Guns Don’t Kill People, Sometimes Gun-Saturated Situations Do
• The Psychology of Guns and Race
• Why Race May Influence Us Even When We “Know” It Doesn’t
• He’s a Banana-Eating Monkey, but I’m Not a Racist
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• The Situation of Handguns on Urban Streets-Abstract
• The Situation of First-Person Shooters
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• Banaji & Greenwald on Edge – Part IV

Image from Flickr.

Science and Situationism Praised on Huffington Post Blog

From Huffington Post and Cornell Sun (By Sebastian Deri):

As someone who was better at English and history than math and science in high school, what I chose to study in college was partly an effort to shy away from the latter fields and take refuge in “softer” subjects. “Leave the questions of science to the scientists, I am concerned with justice and morality,” we, who chose humanities, said! These two domains were exclusive — “non-overlapping magisteria” as Stephen Jay Gould might say. No meaningful dialogue between the disciplines was possible or necessary.

This attitude, however, is lazy and destructive — or at best, hopelessly antiquated.

The scientific study of human behavior is shedding new light on our actions and inner life. To ignore these insights is not just a mistake. It is criminal.

I’m on our school’s mock trial team and have done mock trial for seven years now. There was a point at the beginning when I really felt that I was crusading on the side of righteousness in a system optimized for delivering justice. But eventually, I came to realize the solutions being offered in the courtroom simply could not get to the heart of the matter in the way science could. This realization came not from inside a courtroom, but rather from a brain scientist writing in a magazine.

In an article in The Atlantic, “The Brain on Trial,” David Eagleman makes the case that we must wade out of the swamp of the medieval machinations of our legal system — obsessed with the ancient and largely useless preoccupation with assigning blame.

He cites a seemingly straightforward pedophilia case. Eagleman describes the case of a 40-year-old man who “developed an interest in child pornography” and began to make “subtle sexual advances toward his prepubescent stepdaughter.” Eventually he was sent to prison. It was only after the discovery and successful removal of a tumor in his brain that he was able to abandon his pedophilia. Eagleman explains, “When your biology changes, so can your decision-making and your desires. The drives you take for granted… depend on the intricate details of your neural machinery.” Eagleman argues that “we can build a legal system more deeply informed by science, because when modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without taking what we’ve learned into account.”

But, David Eagleman is a neuroscientist. Of course he would be inclined to make such a grandiose claim for his discipline. Well, we are hearing the same calls from within the law.

Jon Hanson is Law Professor at Harvard. He has a bachelor’s degree in Economics and a degree in law. Yet, eventually his studies in law — and specifically the tobacco industry — led him to abandon this field for the study social psychology, social cognition and other mind sciences.

He has since founded “The Project on Law and the Mind Sciences” at Harvard Law School and advocates for his version of the theory he calls “situationism.” As though it were coming straight from the mouth of Eagleman, Hanson writes that situationism “is premised on the social scientific insight that the naïve psychology… on which our laws and institutions are based is largely wrong. Situationists… seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines.”

And those insights are impossible to ignore. Take the MAO-A gene. Having a certain form of this gene (the low MAO-A gene), when combined with childhood mistreatment, significantly increases your chances of becoming violent. Yet, I have only ever heard of one case where such evidence was even up for discussion. In response to that evidence, the D.A. said, “The more of this information that you put before a jury, the [greater the] chances of confusing them.” In other words, the claim is not that such evidence is irrelevant, but rather we are too stupid to handle it. How condescending and pessimistic. Even the prosecution’s rebuttal expert claimed “it’s way too early to use this research in a court of law.” If we are ever to progress morally and socially we cannot afford to hold such views.

Not just our legal system, but our political system too could use an injection of scientific reasoning. Many political claims are testable scientific hypotheses and ought to be treated as such. To support the “war on drugs,” for example, under the claim that it reduces crime and drug use is to make a scientifically testable and falsifiable hypothesis. Of course, the data is messy and experiments hard to come by, but the very act of framing these as scientific questions will help us hack through this choking epistemic relativism in which everyone is entitled to an opinion by virtue of the fact that their justification may correspond to a possible version of reality. The world is not essentially unknowable. And the tools of science can help us peer into the eyes of reality. And from that reality, we should build our society.

I’m not worried that we run the risk of ignoring science as a great tool in our legal system, political debates or moral reasoning. Its encroachment into these domains is inevitable. The question is how quickly we’re going to embrace it rather than resist it at the cost of progress. With great gusto and speed, not only must scientists become lawyers, politicians and preachers but lawyers, politicians and preachers must become scientists.

Sample of related Situationist posts:

• Jon Hanson on Law and Mind Sciences
• Situationism at University of Chicago Law
• David Eagleman on the Brain and the Law
• Brain and Blame
• Allegations of Ideological Bias are Anti-Scientific
• Interview with Professor Joshua Greene
• Daniel Dennett on the Situation of our Brain

Enclothed Cognition

From Miller-McCune:

That’s the implication of a newly published study, which found wearing a white lab coat — a piece of clothing associated with care and attentiveness — improved performance on tests requiring close and sustained attention. Importantly, the effect was not found when the garment in question was identified as a visual artist’s coat.

“The clothes we wear have power not only over others, but also over ourselves,” Northwestern University scholars Hajo Adam and Adam Galinsky write in the Journal of Experimental Social Psychology. While much research has looked at how our wardrobe influences the way we’re perceived, their study examines its impact on our own thinking and behavior.

Adam and Galinsky call this internal dynamic “enclothed cognition.” That’s a play off the term “embodied cognition,” a line of research that examines the ways bodily sensations influence our thoughts and emotions. For instance, a 2010 study found assuming a body position connoting power leads people to feel and act more confident, even raising testosterone levels.

Could wearing items of clothing that have specific symbolic meaning have a similar effect? To test their thesis, the researchers chose a lab coat, since it is “the prototypical attire of scientists and doctors. Wearing a lab coat thus signifies a scientific focus (and conveys) the importance of paying attention to the task at hand and not making errors.”

The first of their series of three experiments featured 58 undergraduates, half of whom wore a disposable white lab coat. (Participants were told their predecessors had worn these jackets during an earlier round of the study to protect their clothing from construction-related dust. They were asked to put on the garments so that everyone took the test under identical conditions.)

Selective attention was measured by a Stroop task, the classic test in which participants are instructed to name the color of a word flashed on a computer screen, while ignoring the word itself.

Twenty of the 50 words were presented in incongruent colors, such as the word “red” spelled out in green letters. On those confusing items, people wearing the lab coats made around half as many errors as their peers.

But a white coat can mean different things to different people. To address that issue, the researchers conducted an experiment featuring 99 students. One-third were asked to wear what was identified as a medical doctor’s coat, while another third wore an identical jacket that was described as the sort of attire worn by a visual artist while he or she is painting.

The others wore their normal clothing, but a coat described as the sort M.D.s wear was displayed on a desk in front of them. As the experiment began, they were asked to write a short essay about the specific, personal meaning such a coat has for them.

All were then asked to complete four visual-search tests that featured two nearly identical pictures placed side by side. There were four minor differences between the two images; participants were instructed to find the discrepancies and write them down as quickly as possible.

Those told they were wearing a doctor’s coat found more differences than those told they were wearing a painter’s coat. Since they all took about the same amount of time to finish the test, the researchers attributed their higher scores to “heightened attention” rather than simple persistence.

So wearing the simple garment focused their minds, but only when it was associated with medicine rather than artistic expression. Those who had looked at and thought about the doctor’s coat, but didn’t actually wear one, scored in between the other two groups.

“The main conclusion that we can draw from the studies is that the influence of wearing a piece of clothing depends on both its symbolic meaning and the physical experience of wearing the clothes,” Adam and Galinsky write. “There seems to be something special about the physical experience of wearing a piece of clothing.”

More.

Related Situationist posts:

• The Milgram Experiment Today?
• The Embodied Situation of our Cognitions
• Money Priming
• Shared Human Experiences
• Body Image and Materialism
• Law, Competition, Self-Interest
• The Situation of Being Green
• The Situational Effects of Hand-Washing
• Unclean Hands
• The Color of Sex Appeal
• The Primitive Appeal of The Color Red
  
• Memory and Morality
• The Body Has a Mind of its Own
• The Situational Effects of Hand-Washing
• Unclean Hands
• The Embodied Situation of Power
• The Situational Power of Appearance and Posture
• George Lakoff on the Metaphorical Situation of Moral Politics
• Embodied Rationality
• The Situation of Touch
• The Embodied Cognition Bonanza!
• The Embodied Situation of Metaphors
• Our Metaphorical Situation
• The Situation of Metaphors

Image from Flickr.

Ideology, Psychology, and Law – Introduction

On SSRN, you can now download the introductory chapter of Ideology, Psychology, and Law (published in 2012 by Oxford University Press and containing chapters from numerous Situationist Contributors and edited by Situationist Editor Jon Hanson).

Here’s a quick description.

Formally, the law is based solely on reasoned analysis, devoid of ideological biases or unconscious influences. Judges claim to act as umpires applying the rules, not making them. They frame their decisions as straightforward applications of an established set of legal doctrines, principles, and mandates to a given set of facts. As most legal scholars understand, however, the impression that the legal system projects is largely an illusion. As far back as 1881, Oliver Wendell Holmes, Jr. made a similar claim, writing that “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

More than a century later, we are now much closer to understanding the mechanisms responsible for the gap between the formal face of the law and the actual forces shaping it. Over the last decade or so, political scientists and legal academics have begun studying the linkages between ideologies, on one hand, and legal principles and policy outcomes on the other. During that same period, mind scientists have turned to understanding the psychological sources of ideology. This book is the first to bring many of the world’s experts on those topics together to examine the sometimes unsettling interactions between psychology, ideology, and law, and to better understand what, beyond and beneath the logic, animates the law.

This introductory chapter describes why this volume came together when it did and provides an overview of the general sections and the individual chapters and comments in the book. It begins with a brief, loose, and highly stylized history of the relationships between ideology, psychology, and law—a history premised on the oversimplifying assertion that something changed around the year 2000.

Download the chapter for free here.

Learn more about the book here.

The Situation of Social Justice

This book review appeared earlier this week in the American Scientist:

THE FAIR SOCIETY: The Science of Human Nature and the Pursuit of Social Justice. Peter Corning. xiv + 237 pp. University of Chicago Press, 2011. $27.50.

After decades of exclusion from meaningful social and political discourse, themes of social justice are making a serious comeback. One can point to several recent examples from the disciplines of political science, economics and philosophy, including, respectively, Larry M. Bartels’s Unequal Democracy: The Political Economy of the New Gilded Age (Princeton University Press, 2008), Amartya Sen’s The Idea of Justice (Harvard University Press, 2009) and Derek Parfit’s massive two-volume tome On What Matters (Oxford University Press, 2011). These books have arrived to coincide with the apparent awakening of the sense of injustice in popular movements from Arab Spring to Occupy Wall Street.

Peter Corning, who was trained as a biologist and is now the director of the Institute for the Study of Complex Systems, joins the conversation at just the right time. His most recent book, The Fair Society, was published in early 2011, and—like Joseph Stiglitz’s Vanity Fair article “Of the 1%, by the 1%, for the 1%”—it has turned out to be remarkably prescient. Several chapters read like an annotated list of complaints made by the most well-informed campers in Zuccotti Park last fall. Corning notes, for example, that in the United States, “since the 1980s, some 94 percent of the total increase in personal income has gone to the top 1 percent of the population”; at least 25 million Americans (17.2 percent of the workforce) are presently struggling with unemployment or drastic underemployment; “close to 50 million Americans experienced ‘food deprivation’ (hunger) at various times in 2009”; and as many as 75 million Americans (25 percent of the population) live in poverty. Adding insult to injury, the top 10 percent of income earners in the United States live 4.5 years longer on average than the bottom 10 percent.

In a nutshell, Corning’s thesis is that human nature has evolved in such a way as to create a natural revulsion to states of affairs like these. In the opening chapters, he recounts various evolutionary arguments for the notion that our hunter-gatherer ancestors possessed a deep sense of fairness and developed “a pattern of egalitarian sharing” in which “dominance behaviors were actively resisted by coalitions of other group members.” He draws eclectically on studies of baboons, descriptive anthropological accounts of hunter-gatherer societies and, in a few cases, the fossil record. With this biological framework in place, Corning endeavors to show that the capitalist system as currently practiced in the United States and elsewhere is manifestly unfair. His beef is not solely with laissez-faire capitalism, however; he claims that socialism is just as unfair, although in different ways, and that efforts to develop a “third way” that avoids the excesses of capitalism and socialism have been “anemic” and “unable to confront the status quo” of class-based inequality. In place of these failed institutions, he proposes a new type of society founded on a biosocial contract, which he describes as a “truly voluntary bargain among various (empowered) stakeholders over how the benefits and obligations in a society are to be apportioned among the members” that is “grounded in our growing understanding of human nature and the basic purpose of a human society.” Such a contract, he writes, must be focused on fairness and the obligation to address the “shared survival and reproductive needs” of our species.

Corning draws most heavily on evolutionary biology, behavioral economics and anthropology, but experimental social psychology would also back him up—and quite a bit more directly. Indeed, some of his ideas seem to have been inspired by the work of Morton Deutsch, who suggested, in a well-known 1975 article in the Journal of Social Issues, that human beings are finely attuned to three major principles of justice: equity, equality and need. Corning offers a slightly modified list. He defines fairness in terms of equality (in the satisfaction of basic needs, not necessarily in outcomes), equity (or merit) and reciprocity. The core thesis of The Fair Society was also anticipated by Melvin Lerner, who argued in 1977 that a universal “justice motive” compels individuals to pursue fairness goals to rectify unfairness and—only if these routes are blocked—to engage in victim-blaming and other defensive strategies to maintain the desired belief that we live in a just world (even if we do not). Although Lerner was perhaps more sensitive than Corning to the perverse consequences of caring passionately about the appearance of justice (for instance, blaming victims of rape, poverty or illness for their misfortune so as not to give up cherished illusions about personal deservingness), the two writers share the assumption that justice concerns are an essential part of human nature.

Anyone who is capable of critical perspicacity with regard to capitalist economic systems and practices is obliged to agree with Corning’s observation that the massive upswing in economic inequality over the past 30 years is at odds with nearly every conception of justice since Plato and, in that sense, is difficult (if not impossible) to justify on normative philosophical grounds (although some conservative libertarians have tried). Let us also grant that humans are prepared to experience moral outrage in the face of unjustified inequality (or gross inequity). Even capuchin monkeys show “inequity aversion,” refusing to participate in games in which other monkeys are given greater rewards for equal effort, as Sarah F. Brosnan and Frans de Waal showed in a 2003 article in Nature. Corning connects such observations to the present socioeconomic situation, writing, “Defection is the likely response to an exploitative, asymmetrical interaction,” and “No wonder there were protests and even riots at WTO [World Trade Organization] meetings.”

There is only one problem, and it is one that has given social scientists fits: What took so long? Why have U.S. citizens, for instance, put up with starkly increasing inequality and the kind of economic policies that only a dyslexic Robin Hood could embrace? There is a joke, often attributed to economist Paul A. Samuelson, which goes, “Economists have correctly predicted nine of the last five recessions.” I would say that sociologists, political scientists and others who study protest movements suffer from a similar problem, to wit: “Social scientists have correctly predicted nine of the last five revolutions.” The great political theorist Ted Robert Gurr, for instance, wrote in 1970 that “Men are quick to aspire beyond their social means and quick to anger when those means prove inadequate, but slow to accept their limitations.” If this were true in a deep psychological sense, rebellion would be far more common than acquiescence, but this is simply not the case.

My own, admittedly incomplete answer to the social scientists’ conundrum has emphasized a human motivation that is frequently on a collision course with Lerner’s justice motive and Corning’s biosocial contract, namely, system-justification motivation: the (typically nonconscious) desire to defend, justify and rationalize existing systems, institutions and widespread practices, even if (from a more objective point of view) they violate standards of justice, including equity, equality and need. Corning grants that our sense of fairness can be “easily subverted,” quotes Dr. Pangloss’s rosy rationalizations in Voltaire’s satire Candide, and touches—but only lightly—on beliefs and ideologies that blunt the sense of injustice. To my mind, the problem of system justification in U.S. public opinion about economic inequality (especially among political conservatives) is addressed far more satisfactorily in chapter 5 of Bartels’s Unequal Democracy.

Despite this conspicuous omission, much of what Corning has written is both important and accurate. The Fair Society is wide ranging and covers many areas of scholarship in a useful, integrative, insightful manner. It is an edifying book—not least because it offers a tremendous collection of memorable quotations from justice scholars over the centuries—more than a groundbreaking one. One could reasonably wonder whether his proposed biosocial model, which draws heavily on aspects of stakeholder capitalism and closely resembles that of Swedish society, is really enough of an improvement over the socialist and capitalist systems he so effectively lambastes in earlier chapters of the book. Even if one accepts Corning’s goal, there are huge obstacles standing in the way of its implementation. He recognizes, quite correctly, that “conservatives with vested interests in the status quo will no doubt dismiss the idea of a Fair Society as just another utopian scheme,” but it is far from clear how proponents of social and economic justice will ever overcome conservative skepticism. “There must be a broad political consensus that social justice is a core social value,” he writes, but this is precisely the problem; such a consensus does not exist. “How do the roughly 70 percent of us who support the principle of fairness and social justice overcome the formidable power of the 30 percent who largely control our politics and our wealth and who will fiercely defend the existing system, and their self-interest?” he asks. How, indeed? The difficulty, in my view, is that no one, including Corning himself, offers a convincing answer to this question.

At this moment in history, when our problems are so much clearer than their solutions, it is a genuine contribution to offer clearheaded analysis and moral encouragement to take much-needed steps in the direction of social and economic justice. I admire Corning’s attempt to develop a normative theory of justice that is “built on an empirical foundation”—that is, knowledge gleaned from the social and behavioral sciences, including aggregate sociological data from research on social indicators. Along very similar lines, psychologist Aaron Kay and I have advocated “naturalizing” the study of social justice, thereby integrating descriptive and normative insights gleaned from psychology, social science, philosophy, law and other disciplines.

Given the thick walls that separate academic scholarship from popular concern and policy outcomes, it is probably too much to expect rapid implementation of the specific recommendations made in The Fair Society, such as these, which address taxation: “Eliminate property tax deductions for second (vacation) homes, tax capital gains at the same graduated rate as earned income, and eliminate the expanded home equity line of credit loan provisions.” Nevertheless, one hopes that those who wish to occupy places of power on behalf of the 99 percent will heed Corning’s sage advice about what to do and—just as important—what not to do in planning for a better, more just society.

More.

Related Situationist posts:

• Choice and Inequality
• The Blame Frame – Abstract,
• Thanksgiving as “System Justification”
• Psychology of Inequality
• A Discussion about (In)Equality
• The Situational Effects of (In)Equality,
• The Inherited Situation of Racial Inequality
• Barbara Ehrenreich on the Sources of and Problems with Dispositionism,
• The Motivated Situation of Inequality and Discrimination
• The Unequal Situation of Seperation
• Examining Why Estimated “Costs” of Racial Inequality Vary by Race,
  
• The Situational Consequences of Poverty on Brains
• The Interior Situational Reaction to Inequality
• A System-Justification Primer
• Rationalize or Rebel?
• Accept or Rebel?
• Barbara Ehrenreich on the Sources of and Problems with Dispositionism,
• The Motivated Situation of Inequality and Discrimination,
• John Jost on System Justification Theory,
• John Jost’s “System Justification and the Law” – Video
• Independence Day: Celebrating Courage to Challenge the Situation
• Cheering for the Underdog
• Patriots Lose: Justice Restored!
• Psychology of Inequality
• Self-Fulfilling Doomsday Prophecies
• The Cause of Rioting? That’s Easy: Rioters!
  
• If It’s Evitable, I Don’t Like It!
• Aaron Kay, “The Psychological Power of the Status Quo, and
  
• System Justification Theory and Law.

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

The Situational Effect of Names

From Eureka Alert:

Having a simple, easy-to-pronounce name is more likely to win you friends and favour in the workplace, a study by Dr Simon Laham at the University of Melbourne and Dr Adam Alter at New York University Stern School of Business, has found.

In the first study of its kind, and published in the Journal of Experimental Social Psychology, researchers analysed how the pronunciation of names can influence impression formation and decision-making. In particular, they demonstrated “the name pronunciation effect,” which occurs when people with easy–to-pronounce names are evaluated more positively than those with difficult-to-pronounce names.

The study revealed that:

• People with more pronounceable names were more likely to be favoured for political office and job promotions
• Political candidates with easy-to-pronounce names were more likely to win a race than those without, based on a mock ballot study
• Attorneys with more pronounceable names rose more quickly to superior positions in their firm hierarchies, based on a field study of 500 first and last names of US lawyers

Lead author, Dr Simon Laham said subtle biases that we are not aware of affect our decisions and choices. “Research findings revealed that the effect is not due merely to the length of a name or how foreign-sounding or unusual it is, but rather how easy it is to pronounce,” he said.

Dr Adam Alter who conducted the law firm analysis said this effect probably also exists in other industries and in many everyday contexts. “People simply aren’t aware of the subtle impact that names can have on their judgments,” Dr Alter said.

Dr Laham said the results had important implications for the management of bias and discrimination in our society.

“It’s important to appreciate the subtle biases that shape our choices and judgments about others. Such an appreciation may help us de-bias our thinking, leading to fairer, more objective treatment of others,” he said.

Researchers conducted studies both in lab settings and in a natural environment using a range of names from Anglo, Asian, and Western and Eastern European backgrounds.

This research builds on Dr Alter’s earlier work, which suggests that financial stocks with simpler names tend to outperform similar stocks with complex names immediately after they appear on the market.

Related Situationist posts:

• A Rose by any other Name Might Become a Judge and
• The Gendered Situation of Recommendation Letters

Judges Are Like . . .

This week I have been trying to catch up on some tasks that have been on my list since early in the semester.  One has been to post some of my recent papers on SSRN.  To this end, I have just put up Color Commentators of the Bench, which may be of interest to certain Situationist readers.  The abstract appears below:

Featuring prominently in the last four sets of Supreme Court confirmation hearings, the judge-as-umpire analogy has become the dominant frame for understanding the role of the Justice and may also now act as a significant constraint on judicial behavior. Strong criticisms from legal academics and journalists attacking the realism of the analogy have had little destabilizing effect. This Essay argues that the best hope for shifting the public conception of the work of a Justice is to offer a counter analogy that draws from an equally intuitive and familiar context, while also capturing the core essence of Supreme Court adjudication—the particular process of creative interpretation and explanation. The metaphor of the Justice as color commentator in the press box not only meets these criteria, but also makes explicit that judges are not robotic, objective arbiters. Moreover, in exposing the myth of judicial rationality and neutrality bolstered by the umpire analogy, the commentator alternative provides the possibility of helping Justices to better control for their biases and reducing damaging episodes of cognitive illiberalism. As further evidence of the appropriateness and robustness of the commentator analogy, the Essay concludes by demonstrating how sports commentating can be critiqued employing the precise implements developed by legal scholars to analyze judicial decision making.

To download a copy of the entire paper, click here.

For a sample of related Situationist posts, see “I’m Objective, You’re Biased,”

The Military Meets the Mind Sciences

Yesterday, Brandon Keim published a disturbing article, “Uncle Sam Wants Your Brain” in Wired Science. We’ve excerpted his introduction below, and recommend the entire article which is here.

* * *

Drugs that make soldiers want to fight. Robots linked directly to their controllers’ brains. Lie-detecting scans administered to terrorist suspects as they cross U.S. borders.

These are just a few of the military uses imagined for cognitive science — and if it’s not yet certain whether the technologies will work, the military is certainly taking them very seriously.

“It’s way too early to know which — if any — of these technologies is going to be practical,” said Jonathan Moreno, a Center for American Progress bioethicist and author of Mind Wars: Brain Research and National Defense. “But it’s important for us to get ahead of the curve. Soldiers are always on the cutting edge of new technologies.”

Moreno is part of a National Research Council committee convened by the Department of Defense to evaluate the military potential of brain science. Their report, “Emerging Cognitive Neuroscience and Related Technologies,” was released today. It charts a range of cognitive technologies that are potentially powerful — and, perhaps, powerfully troubling.

* * *

To read Keim’s summary and analysis, click here. For some related Situationist posts, see “The Situation of Soldiers,” “The Disturbing Mental Health Situation of Returning Soldiers,” “Our Soldiers, Their Children: The Lasting Impact of the War in Iraq,” and “The Situation of a “Volunteer” Army.”