The Situationist

Posts Tagged ‘negligence’

Fiery Cushman at Harvard law School – Video

Posted by The Situationist Staff on September 8, 2010

From The Harvard Law Record (Sept. 2009):

On September 21st, Fiery Cushman, a newly-minted PhD recipient and post-doctoral fellow at Harvard’s Mind, Brain and Behavior Initiative, presented some of his recent research at an event titled “Outcome vs. Intent: Which Do We Punish, and Why?” Cushman’s work suggests that at a gut-level, people assess whether a behavior was morally right or wrong by looking at the actor’s intentions, but when assigning punishment, people are overwhelmingly interested in outcomes, even if an outcome was accidental.

Cushman described several experiments where he was able to look at a participant’s intentions in isolation from the actual outcome of the participant’s actions. In one case, participants were given the choice of dice that would later be rolled to assign rewards to a second, receiving party. When given the opportunity, the recipient would consistently punish more often when the dice produced less favorable rewards, even if the initial participant intended to provide rewards generously. This work has interesting implications for tort law, explaining in part why findings of negligence lead to large compensatory rewards even in the absence of any intentional action.

Below is the video of that fascinating talk.

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For a sample of related Situationist posts, “Law Students Flock to Situationism,” “Fiery Cushman at Harvard Law School,” Attributing Blame — from the Baseball Diamond to the War on Terror,” “John Darley on ‘Justice as Intuitions’ – Video,” “The Situation of Punishment in Schools,” Why We Punish,” “Kevin Jon Heller on The Cognitive Psychology of Mens Rea,” Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast),” and “Situationist Torts – Abstract.”

Posted in Social Psychology, Video | Tagged: , , , , , , , , | 1 Comment »

Moral Grammar and Intuitive Jurisprudence – Abstract

Posted by The Situationist Staff on November 5, 2008

brain-cog-imageJohn Mikhail’s recently posted his forthcoming chapter, “Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge” (forthcoming in The Psychology of Learning and Motiation: Moral Cognition and Decision Making (D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., 2009) on SSRN.  Here’s the abstract.

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Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of crime and tort, particularly Terry’s five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

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For related Situationist posts, see “Moral Cognitions - Abstract” and “Moral Psychology Primer.”

Posted in Abstracts, Law, Legal Theory, Morality | Tagged: , , , , , , , , , , , , , | Leave a Comment »

Self-Handicapping and Managers’ Duty of Care – Abstract

Posted by The Situationist Staff on August 8, 2008

David Hoffman‘s intriguing new article, “Self-Handicapping and Managers’ Duty of Care,” just came out in Wake Forest Law Review. It is also available on SSRN. Here’s the abstract.

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This symposium essay focuses on the relationship between managers’ duty of care and self-handicapping, or constructing obstacles to performance with the goal of influencing subsequent explanations about outcomes. Conventional explanations for failures of caretaking by managers have focused on motives (greed) and incentives (agency costs). This account of manager behavior has led some modern jurists, concerned about recent corporate scandals, to advocate for stronger deterrent measures to realign manager and shareholder incentives.

Self-handicapping theory, by contrast, teaches that bad manager behavior may occur even when incentives are well-aligned. Highly successful individuals in particular come to fear the pressure of replicating past success. To avoid the regret associated with the future failure that they anticipate, such individuals then create hurdles (through active or passive self-sabotage) or excuses. When failure comes, individuals hope to shift attention from their merits to the handicap. Research shows that self-handicapping works. Indeed, managers in failing firms who self-handicap may escape with their reputations and compensation burnished.

In this essay, I summarize an extensive body of research on self-handicapping that surprisingly has not been well explored by corporate law theorists. I then suggest that modern corporate scandals traditionally understood as products of failures of monitoring – like Enron – might be better explained in part as a function of self-handicapping by managers. This explanation supports recent efforts to move beyond a purely carrot-and-stick model of corporate governance. Finally, I briefly discuss mechanisms to reduce self-handicapping by corporate officers, in particular, making them self-aware and selecting executives less prone to engage in this type of wasteful activity. The law has a potential role to play in this process, but its proper focus is directors’ negligence in hiring, not managers’ failures in taking business risks.

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


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