Concurring Opinions » Donald Braman

Horse Racing the Democratic Endgame — Spoiler Alert?

Donald Braman — Sat, 08 Mar 2008 01:23:56 +0000

First, I should disclose that I’m an Obama supporter, and I have been from the outset. I’ve given his campaign money, I’ve made calls, I hit the streets, I even worked the legal boiler room in Austin last week for his campaign in Texas (I also punched in some phone lines, bought donuts, and did about a dozen other things — and if you’ve ever worked a campaign, you’ll know how that goes). My hope is that he is our next president, and if he wins in Pennsylvania, I think there’s a fair chance he will be.

But I’m also a realist and, after Texas and Ohio, I’m starting to look around for alternative endings. Here’s one that seems, at least for the moment, not as horrific as the Democratic implosion many are predicting.

Let’s say Clinton, by orchestrating a rerun in Florida and Michigan (she’ll pay for it herself if she has to), comes out ahead in delegates and popular votes. Were that the case, she’d be the presumptive nominee. Who should she offer the VP slot to? Obama, of course; she’d be a fool not to. If she doesn’t, she’ll alienate many of his supporters and, in all likelihood, lose the general election. Of course she’ll have to put up with him stealing her thunder whenever they’re together, but that’s a small price for her to pay to sit in the Oval Office. She needs Obama to win.

And he’ll accept; he’d be a fool not to. He’d be the presumptive nominee in eight years with all the “executive experience” anyone could want from him — and he’ll still be relatively young for a nominee. I think he also wouldn’t have much of a choice. If he were to refuse, he’d be seen as an election spoiler.

Of course, he may well be the nominee — in which case he would offer her the VP slot. At her age, though, I’m not sure she’d be willing to take one for the team. And I don’t think she’d worry overly about spoiling the election for the Democrats.

Female Genital [fill in the blank]

Donald Braman — Sat, 26 Jan 2008 21:10:00 +0000

The debate over Female Genital Mutilation/Cutting (an earlier round of which was blogged about here by Sarah Waldeck), continues at Teirneylab. I won’t recount all the arguments and evidence on both sides. Instead, I want to ask a legal question: How should evidence of FGM/C weigh in a custody hearing? Should evidence that a immigrant mother has had her daughter ritually cut support an inference of poor parenting? What if the mother hasn’t yet cut the child, but plans to in the future (perhaps by returning to her country of origin)? Is the inference obvious, or does it depend on context? Were an adverse party to raise the issue against your client in a custody case, what would you do?

As you think about your answer, also ponder the role that cultural cognition might play in resolving this kind of legal question. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. I, for example, find myself interrogating studies showing that women who undergo FGM/C are no less likely to have fulfilling sexual lives and pleasurable sexual experiences far more intensely and critically than I do those that suggest the rituals produce long-lasting trauma. I am not in a position to evaluate the primary evidence myself and, when I reflect on my own reactions, I’m not a neutral evaluator of the secondary evidence. Can we expect a judge or social worker to be immune to the same cognitive biases?

Here’s another question to close the loop: Apparently I think that FGM/C is harmful, at least in part, because I think it is base — but I also think it is base because I think it is harmful! And if I (admittedly) can’t trust my intuitive assessment that it is really harmful, can I trust my normative evaluation of the practice as wrong?

The issue is undoubtedly complex, and a thoughtful evaluation would view the FMG/C not as a single practice, but as a collection of very different practices, with normative and welfare evaluations depending on medical conditions, the extent of cutting/mutilation and the tissue cut/mutilated, the meaning attached to the act by the person being cut/mutilated, the social meaning of the act, consent, and so on. But this only makes the problem of assessing the practice in legal settings more complicated. And, because we tend to believe that our moral positions are based on objective assessments of harm, once we see that those harm assessments are based on our moral positions, we’re in a bit of a pickle. So what to do?

The answer, I think (as do other folks working on these issues) is that we need to create conditions in which people can more dispassionately assess empirical data (not just about FGM/C, but about all manner of contentious matters of policy grounded in assertions of fact). The way to do this, it turns out, is not to throw empirical studies at people. If you follow the debate over at Tierneylab, you’ll see that people tend to ignore those studies or use the ones that support their position — or just make more assertions about harm and morality. Very few are actually interested in or troubled by the fact that the studies point in several directions. Empirical studies have a place, but they are best evaluated in a context where people don’t feel like their cultural commitments, values, or identity are on the line. But how to create such conditions?

One strategy for overcoming this sort of problem is to have people who share the values of the skeptic vouch for the information being presented. For example, the fact that at least some of the women who experience some forms of FGM/C actually value it and find that it doesn’t effect their sexual lives pushes me to think about the issue in a more balanced manner. I still think there might be a use for a bright line rule about FGM/C in the US, but I’m also open to the idea that, when done safely and when not physically traumatizing/destructive (at least when it is no more physically injurious than the typical male circumcision) and when done in a social context that lends it positive meaning, it may not be as abominable as I was previously inclined to think.

But is vouching of that sort possible in an adversarial legal setting?

The New Scholars of Judicial Partisanship

Donald Braman — Fri, 25 Jan 2008 16:13:33 +0000

These days it seems like everyone is a legal realist. Or are they?

For example, I can’t decide whether Miles and Sunstein are or aren’t. They’ve undoubtedly made major contributions to the empirical study of caselaw. Sunstein, Miles, and others have extended, for example, the path-breaking work of Ricky Revesz on partisanship and judging in the area of environmental law to a host of other areas, and have done some fascinating work on panel effects and deliberation. They do great work.

I can’t help but puzzle a little, though, over the title to their new piece, The New Legal Realism. Now legal realists provide several rich accounts of how legal actors made decisions. Because the law is often indeterminate, legal realists argue, judges have to draw (and often heavily) on values and social norms to resolve questions of law and fact. Indeed, legal realists can be credited as the first sophisticated theorists of how values, norms and cognition interact in judicial decision-making. But Miles and Sunstein’s account of The New Legal Realism seems, at least to my eye, closer to what many critics of legal realism mistakenly take it to be: an accusation that judging is just partisanship dressed up in legal rhetoric and opportunistic precedent selection.

So what would an accurate account of legal realism look like?

A more detailed cultural (think of The Cheyenne Way) and psychological (think of the emphasis on individual variation) conception of what constitutes law would help, one that doesn’t reduce personality to party, race, and resume; and one that doesn’t reduce law to courtroom judging, but also includes policing, administration, and the informal resolution of legal disputes by private parties. A more faithful conception of this New Legal Realism would, I think, thus be broad enough to encompass the work of folks who do values-informed analyses (like Ricky Revesz), qualitative and quantitative studies of social norms (like Dan Kahan and Tracey Meares), and studies of psychological biases and heuristics (like Tom Tyler and Jeff Rachlinski). In other words, I think that most of the people who do systematic work investigating the extra-doctrinal influences on legal decision-making are legal realists.

And, in their own way, so are Miles and Sunstein. They’re just not very good at telling us what legal realism itself.

Grimmelmann — Lawyers, Blogs, and Money

Donald Braman — Fri, 18 Jan 2008 06:48:31 +0000

James Grimmelmann has an interesting post about the problems that (might) arise when legal scholars mix blogging with money. Curious what all of you think of this point: “Perhaps no posts have suffered from sponsorship, but it’s in the nature of such conflicts of interest that I might never see the damage. Indeed, the damage can take place without anyone at all being consciously aware of it.” I’ve had informal conversations with legal bloggers (not of this blog) where generating money for the time they put in was a significant (which is not to say the primary) issue that they paid attention to. Again, though, again, it wasn’t clear whether this was, on net, a bad thing. Anyway, this whole post is just an excuse to get you to click this link — just be sure to let them know I sent you!

UPDATE: Jon Garfunkel rightly calls my attention to the fact that Frank Pasquale responded to James over at the laboratorium.

Steven Pinker channels Mary Douglas

Donald Braman — Thu, 17 Jan 2008 23:10:20 +0000

Steven Pinker has an interesting article in the New York Times that lines up nicely with recent research into cultural cognition and develops (unwittingly) the ground-breaking work of Mary Douglas. Leaving aside the (minor and entirely unnecessary) bits about Chomsky, evolution, and biology, the piece comes down to a broad-ranging discussion of the ways that people tend to be sensitive to clusters of moral concerns. He talks in particular about widespread values like harm-avoidance, fairness, community, authority and purity. Part of what is nice about the Pinker discussion is his acknowledgment that these values are almost always contingent on culture — it’s culture that determines what is perceived as harmful, what is fair, who one’s community is, when (and what forms of) authority should be respected, and what makes something pure, what contaminated.

This is precisely the point that anthropologists have long been making and, were Pinker an anthropologist his not mentioning Douglas would be unforgivable. But Pinker makes and effort and does draw on a number of recent anthropological studies to make his points. He also notes that the content of these values not only vary across communities, but change over time (smoking becomes impure, homophobia becomes unfair, and so on). If this is the sort of thing that floats your boat, then I’ll point you to a study by Dan Kahan, James Grimmelmann, and your truly that goes one step further, suggesting how these shifts occur and why they occur in recognizable patterns. And if you want to read from one of the giants on whose shoulders Pinker and the rest of us value-scholars stand, have a look at two Mary Douglas classics: Purity and Danger and (with political scientist Aaron Wildavsky) Risk and Culture. We miss you Mary!

Whose Eyes in Scott v. Harris? KHB Reply

Donald Braman — Mon, 14 Jan 2008 20:59:17 +0000

Over on Volokh Conspiracy, Orin Kerr has posted a thoughtful and fair-minded response to our study of public interpretations of the Scott v. Harris video (previously blogged on Concurring Opinions here and here). Orin generously credits our empirical study with succeeding in making the “broad point [that we] want to make,” and that he says he himself “completely” accepts: that “videos can be construed in different ways,” that “it’s too easy for [people] to look at a video and see what [they] want to see,” and that as a result “[w]e”—presumably, including judges—“need to step outside of our preconceptions and be aware of how other people might construe the facts” revealed in such a medium. Nevertheless, Orin suggests that our study suffers from a “significant methodological error” because the study “ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used.”

To keep the debate going, we’ll make three points to make in response:

1. We did ask the subjects to address, in a plain and straightforward way, the key factual predicate of the Court’s decision.

Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris’s driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 (“the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury”); id. at 1778 (“it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians …, to other civilian motorists, and the other officers”); id. at 1779 (“The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise”). In contrast, Justice Stevens, in dissent, repeatedly stated that he didn’t perceive such a risk. See id. at 1783 (“passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction”); id. (“This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’ ”).

As Orin notes, we asked our subjects to pick sides in this dispute by indicating their level of agreement or disagreement with two propositions: that “Harris drove in a manner thatput members of the public at great risk of death,” and that he “drove in a manner thatput the police at great risk of death.” Orin says he objects to “great risk,” even though it’s among the hodge podge of different phrases Scalia himself used. We chose that phrase because it struck us as a characterization of the necessary degree of heightened risk that would be familiar to, and likely understood in uniform ways by, ordinary people. One would have to impute to our subjects fairly strange motivations to twist normal language—to a degree that would make even a sophistic lawyer blush—to worry that those who shared Scalia’s view of the tape would think they should nevertheless report disagreement with him.

Indeed, as Orin observes, the vast majority of subjects, far from being steered away from Scalia’s position by this question wording, did report agreement with him on this point. Contrary to how Orin summarizes our position, then, we don’t mean to criticize the Court for “privileging a conservative white male view of the case.” Rather we take up the more subtle normative issue of whether, in a summary judgment setting, courts should ever send a case to a jury in order to assure that the majority considers the factual perceptions of an admitted minority, whose members nevertheless share a common set of identifying characteristics, experiences, and values.

2. We asked subjects additional questions because the Court’s analysis, and the apparent bright-line rule it settles on for evaluating deadly-force termination of high speed chases, turned on additional issues.

In addition to soliciting our subjects’ perceptions of the degree of risk, we also solicited their reactions to a number of additionalmatters, all of which were integral to Justice Scalia’s reasoning. Some of these related to what Justice Scalia called the “relative culpability” for the lethal risk associated with the chase (127 S. Ct. at 1778 & n. 10). Indeed, Justice Scalia found such weighting to be the fulcrum on which he decided the case: "So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability." Because Justice Scalia, on the basis of the video and the background facts of the case, concluded that Harris, the fleeing driver, was entirely at fault, we asked our subjects to indicate agreement or disagreement with the statement that the decision to pursue Harris wasn’t worth the risk to the public, and also to apportion fault for risk between Harris and the police. We also asked our subjects to state their level of agreement or disagreement with the proposition (the outcome of the case, essentially) that use of deadly force to terminate the chase was warranted in light of the risk that Harris’s driving posed to the public and the police. As Orin notes, we found, again, that a majority took positions consistent with that of the Scott majority, although on these issues there was even sharper dissent among demographically and culturally defined groups.

It’s true, as Orin notes and as we discuss in the paper, that these issues wouldn’t be submitted to a jury under the apparent, bright-line rule that Justice Scalia announced: “A police officer’s attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” 127 S. Ct. at 1779. But Justice Scalia’s justification for such a rule was that there was only one reasonable way to assess the balance of risks in a case like Scott. We wanted to find out whether ordinary people—whose judgments presumably are part of the reasonableness calculus—would agree. Our finding that in fact members of diverse subcommunities balance the risks differently (from one another and from the Court majority) raises the normative question whether the Court should have formulated a test that bars a jury from considering this matter.

Rather than ask these additional questions, we could, of course, have asked our respondents merely to “decide” Scott based on “the test the Supreme Court used,” as Orin urges. But since we were interested in facilitating an evaluation of whether that test is a good one (the usual ambition of scholarly commentary on legal doctrine), doing that wouldn’t have advanced our aims. We also think a survey limited to that issue wouldn’t have yielded results nearly as interesting and rich as the ones we obtained.

3. It’s Not Just About Scalia.

Orin says we “miss the mark” in our critique of Scalia. But we’d say that Orin misses, or at least characterizes too narrowly, the mark of our critique.

“Whose eyes” is a reference to a quip made by Justice Breyer, who, referring to the videotape in the oral argument, taunted Harris’s counsel by telling him that the lawyer that his characterization of the chase put Breyer in mind of “Chico Marx’s old question … ‘Who do you believe, me or your own eyes?’ ” In his concurring opinion, Justice Breyer, too, stated “the video footage of the car chase made a difference to my own view of the case” and invited “the interested reader [to] take advantage of the link in the Court’s opinion and watch it.” 127 S. Ct. at 1780. However, Justice Breyer also stated that he “disagree[d] with the Court insofar as it articulates a per se rule that permits police to use deadly force to terminate high-speed chases, id. On this point, he sided with Justice Ginsburg, who in her concurring opinion stated that decision in such cases should turn on a “situation specific” consideration of all the factors considered in the majority opinion, 127 S. Ct. at 1779.

Under the approach of Justices Breyer and Ginsburg, then, all the issues, including relative culpability and the balance of risks associated with conducting a high-speed chase of someone like Harris, would be issues of fact in a suit like this one. These two Justices, moreover, agreed with the Court that no “reasonable juror” who viewed the videotape could decide these facts for the plaintiff. Accordingly, all of the questions we asked our subjects are relevant to assessing the grounds for Justice Breyer’s and Justice Ginsburg’s confidence that no “reasonable juror” could have seen something different from what they saw in the tape. Based on the data and arguments we present in the paper, we’d say that they are guilty of failing to do exactly what Orin agrees we all should do in a case like Scott: “step outside of our preconceptions and be aware of how other people might construe the facts.”

****

Actually, we have one final point to make.

Orin amusingly speculated in responses to one of the comments on his post that maybe the “cultural cognition worldview of liberal academics” had motivated us to take the position we do in our paper. Again, the paper acknowledges that most of our subjects agreed with the Court majority on all the dispositive issues, as well as with the outcome. Although we argue that the Court shouldn’t have decided the case on the ground that “no reasonable” jury could disagree with its own perceptions of the risks of the chase, we recognize in the paper that this is a complicated question and others could construe our own data to support a different conclusion (as we take it Orin does). Indeed, one of us (Kahan) fervently believes the case was correctly decided, and in fact filed an amicus brief on behalf of states and municipalities urging reversal.

All this said, we don’t resent Orin reminding us (particularly given how good-natured he was about it) to think hard about how our own cultural predispositions might have influenced us. We just hope, too, that the various readers of Volokh Conspiracy who immediately posted comments attacking our study and our motives will do the same as they actually take the time to read and reflect on our paper!

Of course, Concurring Opinions readers don’t need any reminding, as critical self-reflection just comes naturally to them.

Going Laptopless: Larry Mitchell Faces the Naked Masses and Likes What He Sees

Donald Braman — Fri, 11 Jan 2008 21:39:47 +0000

To kick things off, I thought I’d report the findings of Larry Mitchell (a colleague and author of, most recently, The Speculation Economy), who decided to teach laptopless in two of his classes this semester. Here’s what he had to say about it in an email to me earlier today:

For the first time, I banned laptops in my classrooms (my courses this semester are Jurisprudence and Corporate Finance; yes, I banned laptops in Finance, and they didn’t kvetch). Anyway, only a week of classes has passed, but I can unscientifically report that this was the best opening week of classes I’ve had in longer than I can remember. Typically on first days, even in Jurisprudence, it’s like pulling teeth to get them to say anything, I have to call on them, they give limited if any responses, and the time passes about as quickly as glaciers used to melt.

What a difference. I asked one question in Jurisprudence at the beginning of class. Two hours (and 12 volunteer participants of 16 students later), I felt like we had hardly begun. They were engaged, their remarks were excellent, and they were clearly excited. Over three 55 minute Corporate Finance classes, I had easily 15 or so (of 60) volunteers, and one day was a single case on which I kept a single student for almost the entire class. Again, the comments were good and required very little prompting.

I was pretty sure that banning laptops would improve classes, but I couldn’t possibly have imagined how much. While it’s early, I’d be very surprised if it didn’t continue, especially now that my students have set the tone and pace for themselves.

A few comments. First, this is not a new issue (see, e.g., here, here, here, and here). Second, Larry’s students actually seem smarter to him without their laptops. I have to say, I had the same reaction (well, the reverse reaction) when I allowed laptops in my class for the first time this year. The dynamic is completely different in class, and students seemed far less sharp when hidden behind their laptops. I’d imagine (though can’t say for sure) that they must feel the same way about each other, and that (subjectively, anyway) going laptopless would increase the average quality of students’ experience of law school.

One cautionary note about going laptopless for those who are considering the move — it can leave both students and professors feeling a bit exposed. A crowd of people looking at screens and a crowd of people staring directly at you are two very different things. Still, I’m leaning towards switching back to laptopless teaching next year.

I say “leaning” because there is some worry in the administration about how students will feel about the move. Why worry? It’s not a concern about academic engagement — that seems to cut in favor of ditching the devices. Larry hasn’t had any complaints, and many of my students, far from complaining when I did it, appreciated the move and expressed that they enjoyed class more without laptops. The concern is that we, like most law schools, require every student to purchase a laptop; barring them from the classroom thus strikes some to be inconsistent with the requirement.

I see the point, but can’t really say much more than that without some more data. So let’s collect some data: What do you think about ditching laptops? Are you a student, and have you been in a laptopless class? Are you a teacher who’s tried it both ways? If you couldn’t shop for shoes during a boring class would drop out of law school, or would you find meaning in the class?

A Call for a Cease Fire in the Gun Debate

Donald Braman — Thu, 19 Apr 2007 20:34:57 +0000

We’ve all been flooded with information about the horrible shootings at Virginia Tech. Perhaps you’ve heard from friends or politically minded bloggers about what this means about guns and gun control. As part of a team of researchers that studies the way people process information about firearms and their regulation, I can tell you that this is a natural way to react to tragedy.

But if you look at public opinion following each major school shooting over the last twenty years, can you guess which way the shootings have driven public opinion on gun control? Neither way. That’s right, each school shooting has had exactly no effect on public opinion regarding gun control.

How can that be? Because culture is cognitively prior to risk perception. The same cultural norms that construct each individuals vision of the world around them also determine which risk — either that insufficient control of concealed weapons will make citizens vulnerable to shootings or that excessive control leaves citizens helpless to defend themselves — will loom larger in each person’s mind.

This is why the culture wars are so intractable: Americans not only prize different principles, they view the world as working in fundamentally different ways. In fact, it’s probably a good bet that using this kind of emotionally laden illustration of just how good or bad guns are at protecting or harming people is certain to not make headway in the gun debate. Because people conform their understandings of the way the world works to their deepest cultural commitments, claims that school shootings clearly supporting one side of the debate strike opponents as profoundly deceptive and disingenuous because to them the opposite inference is just as obviously supported by the same facts.

Opposing parties come away from this sort of debate not just believing that their opponents prize different values (say autonomy, martial prowess and individual self-reliance v. collective responsibility, pacifism and reliance on the state for protection, for example), but that the other side is decidedly deluded or untrustworthy when it comes to the facts. And the less trustworthy or more deluded the opponents in this debate believe each other to be, the less willing they are to make even reasonable concessions for fear that if they give an inch, they’ll be taken for a mile. As a result, those claiming that school shooting “prove” something are having the paradoxical effect of hardening their opposition and further polarizing the debate. And that’s a shame because it decreases that chance that reasonable, moderate measures will prevail.

So how should we engage the gun debate? As Dan Kahan and I have argued, by preceding empirical claims with respect. We don’t have to adopt the views or values of our opponents, but we do need an idiom for talking about guns and gun control that’s less vituperative. If we can treat each other as deserving the kind of respect that a pluralistic society requires — that’s an American value we can all agree on — then we will have already won half the battle, because reasoned compromise can follow respectful dialog.

And there’s no better time than now to do so. This should be a time for mourning, reflection, and healing. It would be a shame to waste it on recriminations that only harden the cultural war over guns.

Neuroscience and Law

Donald Braman — Mon, 12 Mar 2007 07:41:12 +0000

Jeffery Rosen has a fascinating article in this week’s New York Times Magazine. While the article is balanced and careful, the “buy me, read me” headlines and several of the researchers that Rosen quotes suggest that a law-and-neuroscience revolution is brewing. I want to add my voice to the skeptics that Rosen quotes, though with a different perspective. To my mind, recent findings in the field of neuroscience will change law only at the margins; and its main contribution will be to confirm the central tenets of legal realism, and will thus have only minor effects on most legal concerns.

Take for example this (for lack of a better word) “discovery” about human cognition by Harvard’s Joshua Greene (who is a major figure in the article): “[M]oral judgments are not a single thing; it’s intuitive emotional responses and then cognitive responses that are duking it out.” I couldn’t agree more, but my first encounter with this perspective wasn’t in reports from a laboratory; I found it in the classic accounts of legal realism (which also happen to overlap with classical accounts in legal anthropology). It turns out that legal realists were, well, quite realistic about the way fact-finders and legal interpreters process information in legal cases. In fact, Dan Kahan and I recently wrote a piece describing how nicely the new research on human cognition was lining up with the central tenets of legal realism.

What does this science-based legal realism mean for the law? Not much, I think. This is, in part, because over the last half century legal realists have reconstructed a substantial part of the law to reflect their assumptions. Within the Uniform Commercial Code (not to mention many of the major reforms in the criminal law and torts) beats a legal realist heart. For the curious, I recommend a recent and straightforward post on the subject by Brian Tamanaha over at Balkinization.

But the new neuroscience isn’t just about the cognition of legal actors, it’s also (at least ostensibly) about the responsibility of law-violators. Here the finding of note is that some people may be neurologically prone to some types of illicit behavior — a finding that, it is suggested, will alter our basic conceptions of moral agency, making neuroscience defenses commonplace and potentially freeing many bad actors from responsibility for their actions. As Greene puts it: “The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.”

Whatever the official line might be, the legal system has long dealt with precisely these kinds of claims. Take, for example, the failure of most of most “uncontrollable urge” defenses in the criminal law: Addicted? Have a violent temperament? Intoxicated? Psychotic? Only in the rarest of instances will the law let you off the hook. Even where someone is clearly deranged, incompetent, and suffering from various volitional constraints, many feel justified in handing down a death sentence. And attempts to restructure the law in light of volitional constraints have, by and large, failed (have a look, e.g., at the history and politics of California’s death penalty jurisprudence).

All of this makes sense if you view the law in expressive or evaluative terms: Judges and juries aren’t just trying to figure out whether the individual defendant did something that is deontologically wrong, they are also trying to figure out whether what the individual did expresses a disregard for morals the rest of us prize. The private moral life of the offender is only marginally relevant here; the real action is in evaluating the social meaning of the act and the social meaning of the legal system’s response. Moreover, even if the factfinder or sentencer thinks only terms of both deterrence and desert, the effects of the new neuroscience seem likely to be a wash. Any diminishing of moral responsibility will at least be partially offset by concerns about future bad acts, the message sent by a lenient sentence to other offenders, and so forth. And, as Rosen points out at the end of the article, the debates over what the law should do remain intact.

There are a number of tantalizing teasers about what neuroscience might one day reveal (thought-reading machines, precise lie detectors, and so on); but while fun to think about such speculations are, well, speculative.

So what to make of the legal implications of the new neuroscience? The new neuroscience deserves the attention of legal experts and the public. But I think it is miscast as producing “revolutionary,” Minority Report style changes; rather it’s furnishing additional evidence for claims that, by and large, we already accept as given. As for the future, perhaps we will have reason to worry, celebrate, or change our mind some day, but that day (sadly or thankfully) exists now only in science fiction.

Global Warming, Nukes, and the Cultural Police

Donald Braman — Tue, 06 Mar 2007 08:15:53 +0000

There are plenty of good reasons for those who believe they are shepherds of God’s creation to care about global warming; and there are plenty of good reasons for environmentalists to prefer nuclear power over fossil fuels, given the relative ecological impact. So why are prominent members of the religious right complaining about the growing environmentalism among evangelicals? And why are some environmentalists inflamed by the warming of greens to nuclear power?

One common complaint by the disgruntled is that their wayward brethren are simply mistaken about the facts. Plenty of those on the right complain that global warming hasn’t been conclusively demonstrated; or they argue that even if it is occurring, that it isn’t necessarily a bad thing. And plenty of environmentalists argue that nuclear power hasn’t yet been proven safe. This kind of hyper-skepticism, though, doesn’t exactly pervade the reasoning of either group on other issues. Indeed, we are all selectively skeptical in this way about certain things. So why some things and not others?

Here, I think, the theory of cultural cognition can help.

One way to think of cultural cognition is as a set of values-based heuristics and biases – mental shortcuts that are often helpful and sometimes harmful. Consider, for example, how ordinary citizens form political attitudes. Individuals can’t pay attention to all the issues that political leaders must address, so they attend selectively to a few issues that serve as proxies for broader values. They then use these values-indicating issues as proxies for broader interests. A person might, for example, say: “If this candidate agrees with me on guns, gays, abortion, and the environment, I’ll trust that she has my interests at heart on the other (boring and complicated) stuff.” This, as the late Aaron Wildavsky pointed out, allows citizens to form highly affective perceptions of candidates and issues very quickly based surprisingly little information.

But for cultural heuristics to operate in this manner, a community needs a relatively stable set of values-related issues to use as proxies for interests. Objections to changes in attitudes on these issues may thus be a conscious form of cultural-political regulation in which a community leaders try to keep members from wandering too far off the symbolic reservation. As Tony Perkins, President of the Family Research Council put it: “We’re saying what is being done here is a concerted effort to shift the focus of evangelical Christians to these issues that draw warm and fuzzies from liberal crusaders.”

The job of the cultural police is made easier by a host of cognitive mechanisms that help individuals evaluate factual evidence quickly in much the same way they evaluate politicians and policies. It is simply easier to believe that that which is base is also dangerous; and that which is noble is benign. When confronted with evidence that doesn’t conform to this pattern – especially if it is from someone who doesn’t share our values – we are more likely to dismiss it as biased and untrustworthy. That’s why it’s actually quite hard—cognitively speaking—for many on the right to credit evidence about the dangers of global warming and for many on the left to credit evidence about the benefits of nuclear power.

All the more reason, then, for the cultural police to worry when members of their community start to talk like the cultural opposition—it heralds the potential of cultural cascade. When evangelicals translate environmental issues into the language of scripture, for example, they turn many of these cognitive heuristics around, making it far easier for members of their community to credit risks that they might otherwise reject. Moreover, because they are members of the community to which they speak, they are granted more implicit trust than are cultural outsiders. By lowering the cognitive barriers to cultural change, this kind of innovation can be particularly threatening to the stability of cultural politics in which a communities leadership is heavily invested.

So what’s my point? If cultural hard-liners in both camps have cause for concern, they may be overlooking significant unintended victories. As has been hypothesized by the folks over at the Cultural Cognition Project (Dan Kahan, John Gastil, Geoff Cohen, Paul Slovic, Doug Kysar, and others including myself), recasting nuclear power as ecologically beneficial might make some greens think twice about it, but it is also likely to make conservatives think differently about global warming. In a series of experiments now underway, project members are testing the hypothesis that conservatives who would otherwise be dismissive of information about global warming become more receptive when the solution set includes cultural congenial elements like nuclear power — and even more convinced when it comes from someone who shares their values. If this turns out to be true, then one way environmentalists can convince conservatives that global warming really is a serious problem is to tell them that nuclear power is, at least potentially, part of the solution.

In a similar vein, I wouldn’t be surprised if progressives start to warm to Christianity in a similar fashion. So while watching the documentary Mountain Mourning might change some evangelists’ ideas about environmental issues, it can also effect attitudes of non-evangelical environmentalists toward evangelicals and faith. I can only give anecdotal evidence here, but some of my died-in-the-wool green friends are starting to think about the evangelical community in a different light.

What’s the moral of the story? It’s not that we should give up cultural politics — we can’t. It’s too deeply woven into our social and cognitive lives to be overcome. But cultural politics can be more interesting and innovative than many assume. The cultural police don’t have a monopoly on what is said, and the level of cultural-cognitive innovation seems, at least on some fronts, to be heating up. Should make for some interesting times!

Back for a week or two

Donald Braman — Tue, 06 Mar 2007 08:10:19 +0000

I’ve been lured back to post a few items over the next few weeks. Fun!

Kahan on the illiberal state

Donald Braman — Thu, 01 Mar 2007 17:00:02 +0000

Dan Kahan has written another fascinating piece developing his long-running discussion about the predicament of liberalism. Moving from criminal law, which he covered in his well known piece, The Secret Ambition of Deterrence Talk, he takes on risk regulation. This time, though, he does so in light of recent research into cultural cognition (research on which, I should disclose, Kahan and several other folks around the country – including myself – are collaborating). If you haven’t read his prior work in this area, well, you should.

On another note, this will be my last post. Thanks to Concurring Opinions and all the readers!

Testing the Expressive Theory of Punishment

Donald Braman — Sat, 24 Feb 2007 19:37:13 +0000

Kenworthey Bilz, an assistant professor of law at Northwestern, has been busy developing a series of empirical tests of expressive theories of criminal law. In particular, she focuses on Jean Hampton’s concern with status and punishment. I thought I’d preview it here as it promises to be a significant contribution to empirical studies of punishment generally.

Hampton, for those who aren’t already familiar with her work, argued that just as criminal acts express a disregard for victims, punishment could express a regard for the value of victims by condemning offenders. This is, in an important way, a public rather than private conception of punishment. The objective isn’t – or at least isn’t only – to make the offender suffer, but to do so in a way that certifies the relative status of the victim as equal or superior to the offender in the public’s mind. By giving expression to their relative stata in this way, punishment serves an important educational and socially integrative role.

Bilz evaluated this theory through a series of innovative experiments. Indeed, I think it’s safe to say that her work is the first to examine, experimentally, the distinctive effects of punishment and non-punishment on both victims and offenders — and as icing on the cake, she does so in a way that reveals differences in social meaning across context. She hasn’t yet published the findings, so all sorts of caveats apply. But with her permission I’d like to give you a sneak preview of them here. Feel free to send her comments if you want more details.

In one experiment, Bilz evaluates the way individuals recall losses that are the result of accident and intentional criminal acts. Overall, consistent with Hampton’s theory, she finds that people tend to speak in different terms about the two, focusing predominantly on material harms resulting from accidents (saying things like “I lost items I paid for with my money.”) and dignitary harms resulting from crimes (saying things like “I lost my social standing with my friends.”).

In another experiment, she divided participants into two groups. Both groups were asked to rate the change in social standing of offenders and victims following a rape trial; the only difference between the groups was that while in one scenario the offenders were convicted of rape, in the other scenario the offenders pleaded to a lesser offense. The group exposed to the rape conviction scenario significantly increased their rating of the victims social status and decreased their ratings of the offender’s social status. The group exposed to the lesser pleading scenario registered a non significant change in their assessment of the social status of either victim or offender in the opposite direction, indicating that, if it did anything at all, the relatively small punishment further injured the social standing of the victim and bolstered the social standing of the rapists.

And in yet another experiment, Bilz tested the idea that the perceived status of both an individual and a social group can be affected by punishment and non-punishment. In this experiment three groups were told to imagine that they were the victim of a criminal “hit and run” car accident. In one group, after a sincere and thorough search, the offender was not found. In a second group the offender was found and punished. And in a third group, the offender was found but not punished. To test in-group/out-group effects, half the participants in each scenario were told that the trial of the perpetrator took place in a foreign country and in the other half that it occurred in the U.S. As expected, the group that was asked to imagine the trial occurring in the US felt that the outcome (punishment or nonpunishment) reflected significantly on their own individual standing and those asked to imagine the trial occurring in another country felt that the outcome reflected significantly on the standing of their social group (Americans).

I think the findings are fascinating and am especially intrigued by the link between punishment and group status. Bilz’s findings hint at the differential effects that punishment might have where, as is the case in many trials in the United States, offenders are tried and convicted by judges and juries that are, on average, wealthier and whiter than those being tried. I would love to see what the relative effects on victim and community/group status are in those kinds of cases as well.

And it is precisely why I like this work so much: It allows us to move beyond universal conceptions of crime and punishment to more nuanced conceptions of punishment that incorporate variations in social meaning across context and community. I’m curious to hear about other research you might have heard of along these lines.

Close the Education Gap with Advertising?

Donald Braman — Sun, 11 Feb 2007 17:15:00 +0000

What if a technology company like Microsoft supplied a school with computers students could use for free? Self-interested, maybe, but certainly there could be a convergence of interests there. Well, what if the company then required that the computers not run any alternative software? A little less nice, but in a country where income, education, and opportunity are closely intertwined, poor schools would have to think seriously about turning down such an offer. Well, what if the company then implemented a technology that required students to watch enough advertising to justify the use of computers and repossessed the computers if students didn’t watch enough ads? I’m not dismissing this model as, on net, bad for students — I’d want to see some data on that. But I find the mixture of commercial interest and education more than a little disturbing.

(FYI, I first read about the Microsoft patent on Slashdot.)

Better than the real thing?

Donald Braman — Sun, 11 Feb 2007 00:53:19 +0000

This lovely story about a man who not only impersonated a cop, but created a facsimile of a police station in which to interrogate suspects he apprehended, got me to thinking (apparently it takes a lot these days): What, exactly, are the limits of citizen law enforcement? I recall be fascinated by the idea of a citizen’s arrest as a child, and little investigation revealed the following. I’d be curious to know if any of you out there have first-hand experience with it.

According to the iWisdom aggregator, all states, except for North Carolina, allow citizens to make an arrest if they witness a felony, and the practice is allowed in most of Europe as well. Citizens’ arrests are distinct from police arrests in some interesting ways. They are not, for example, subject to the same procedural restrictions (indeed, abiding by Miranda requirements might get a citizen in trouble for impersonating a police officer). Evidence obtained during illegal citizen arrests and through warrantless searches and seizures by citizens are admissible. The apprehended suspect might bring a private claim after a mistake, but a mistaken arrest itself wouldn’t provide basis for a claim so long as it was reasonable, didn’t involve excessive force, etc. (Add a hurricane and some guns, though, and the definition of arrest can get a little, well, stretchy.)

In any case, I’m glad to see I don’t need any special training to for this kind of thing…I’m off to fight crime!

Being Fair to Kant and Bentham

Donald Braman — Fri, 09 Feb 2007 18:55:26 +0000

In my last few posts I suggested that classical retributivist theories ran into trouble when it came to explaining the way people think about punishment. I made the old point that the social meaning of punishment varies across social groups, so there is no single unambiguous form of punishment that will seem deontologically just – conceptions of justice will always be contingent on the meaning of a sanction, and that meaning will depend at least in part on values that vary across communities.

Things didn’t look much better when it came to neoclassical deterrence theory (which seems to be on the decline these days; there just aren’t many folks like Posner out there any more).

In this post I admit to being unfair to both classical theories of retributivism and deterrence. Sort of.

First, the unfairness. Let’s start with retributivism. My complaint was that deontological theories (in their classical, unreconstructed forms) don’t describe the real world very accurately. This turns out not to be such a terrible thing as long as you take these theories to be normative rather than positive theories. Kant doesn’t tell you how he thinks the world does work, but rather how he thinks it should.

The neoclassical deterrence theorists are in a bit more trouble as they try to have it both ways. First, neoclassicism tells us, we should assume that people behave as if they are rational. If it turns out they don’t, well then, they should. As Richard Posner put it not all that long ago when responding to emerging research showing that people don’t behave like neoclassical rationalists: “Even if [deviation from neoclassical assumptions about cognition and behavior] has biological roots, it should not be impossible to educate people about it. Behavior therapy has enabled many people to overcome their fear of flying, which I suspect has more tenacious biological roots.”

So again, you have a normative rather than a positive theory. Do I share Posner’s normative vision? Not really, but it’s a free country and he can promote neoclassical rationality all he likes.

Problems arise for neoclassicists, however, whenever there is slippage into positive argument. One way to try to resolve this problem is to endogenize social meaning, but this creates a funny way of talking about things: Humans have complex utility functions that include social meaning satisfactions, and the demand curves for those satisfactions vary across groups. Doesn’t this just mean that the kind of punishments people prefer depend on the values they hold?

So what do we do in the face of evidence indicating that some people favor retribution, some deterrence, some rehabilitation, and that most people care about all this and more in varying degrees? One could de-universalize the theories, take retributivism, combine it with a socially-attentive theory of deterrence, and then mix in some other concerns. But pretty soon it starts to sound like ordinary talk about crime and punishment in which people care about diverse things.

In the legal academy, the people who talk in this strangely straightforward way often talk about “social norms” and “expressive” theories of punishment. Thanks in large part to the work of Jean Hampton, Joel Feinberg, Robert Nozick, Dan Kahan, and others, this approach is gaining ground. But while socially-attentive theories have made substantial headway, deterrence and retributivism talk, as Dan Kahan has noted, still “dominate mainstream theorizing,” and “proponents of these accounts frequently deride the expressive theory or, even more contemptuously, ignore it altogether.”

One reason for this might be that the camps are talking different languages. The classical normative theories starting from different first principles aren’t likely to agree on the terms of debate (that’s a basic function of their starting from different first principles), but at least they recognize that the opposition is proceeding from first principles. Still, in order to engage one another somewhere, they are forced onto the common ground of shared experience, and so their normative arguments about the way the world should work bleed into positive arguments about how people actually think and behave. Perhaps, then, when they encounter expressive theories talking about how people think and behave, they attempt to reverse engineer a normative theory and find it lacking a coherent normative first principle. Perhaps they think: “What a shabby theory!”

Of course, though, that would be evaluating the theory with a mismatched metric.

So what would a theory that grows out of empirical findings rather than normative first principles look like? It would have to account for differences in the values people hold. Look at some of the (relatively rare) studies of attitudes towards punishment, and you’ll see that people care about plenty of things: offender accountability, deterrence, desert, rehabilitation, public costs, secondary social effects, and so on. Moreover, they value these things differently depending on their varied experiences and value-commitments. I suspect that it will come as no surprise, for example, to find that studies show that conservatives tend to give more weight to retribution, progressives to rehabilitation and deterrence. Nor will it surprise you to hear that, interviewing folks from around the country over the last few years, I’ve heard people talk about punishment in very different ways.

Admittedly, though, our empirical measures of this variance have been, to date, fairly rough – mostly polls with a few simple experimental studies thrown in. Thankfully, there are researchers doing the (hard, complicated, and slow) work of teasing apart the factors that shape our punishment preferences. I’ll start describing some of this work in my next post. (And, again, let me solicit references to empirical research into punishment preferences. I’m sure I don’t know all of what is being done out there!)

So there you have it. Was I unfair? Kind of.

Should the state put gender under erasure?

Donald Braman — Thu, 08 Feb 2007 18:44:46 +0000

I was delighted to see this story about Chanda Musalman, a Nepalesse person who asked that the census not record his/her gender. The census workers, wanting to put something down, decided that “both” would be more suitable than “none”.

This would be a very interesting move if adopted here in the US. Legal and social classifications, of course, run along a two-way street. A fair portion of equal protection theory and doctrine can be thought of as a response to this fact: Once we realize that laws both reflect and contribute to social classifications that carry different status benefits, the game is on. Part of the fun of watching traditionalist legal actors is watching both how insistent they are that their classifying reflects some natural reality and how nervous they are that legal classifications might work against their preferred social order.

Are there a more sophisticated argument against multi-coding? None come to mind. I’m curious what others think. Political feasibility aside, would you support such a change in our census? How would you classify yourself? Do you know anyone who you think would prefer to cross-classify?

Bentham gets pwned by Kant – or is it the other way around?

Donald Braman — Thu, 08 Feb 2007 18:41:14 +0000

Another post on punishment and what we (don’t) know about it.

A few days ago, I suggested that there are three ways of thinking about the common practice of expensive punishment. If we assume a neoclassical deterrence perspective, there is a puzzle: Neoclassical deterrence theory depends on rationality – the cost of punishment is, after all, what stops criminals from garnering the benefits of crime. But if that is so, then why would individuals impose punishments that are costly to themselves?

One answer that neoclassicists abhor is irrationality – humans, if they have any aims at all, have aims that are not rational. A second answer modifies neoclassicism by suggesting that humans try to behave like neoclassicists suggest, but fail because they are, if not stupid, a little dumb – call this the “bounded rationality” option.

A third option further modifies – indeed you might say subsumes – neoclassicism by proposing that what people maximize includes intangible things like congenial or satisfying meanings. This perspective is both common-sensical, in tune with what little empirical evidence we have regarding punishment-related cognition and behavior, and fairly brutal to most of the theoretical work that has been done to date.

How brutal?

The implications for deterrence are pretty stark: the assumption that punishment has a fixed and measurable function for the recipient, the giver, or society at large depends on the meaning of punishment, and the meaning can vary. There is, on this third approach, no any way to calculate efficient solutions to complex collective action problems without taking social meaning into account. This, in turn, makes economic analysis very, very hard. Most of neoclassical economics, after all, depends on assuming away private and social meaning.

Now one might imagine that retributivists would be inclined to rejoice at this. Humans, it turns out, care about more than costs and benefits – they care about things like justice! The problem is that once you go down the social meaning path, classical (Kantian) conceptions of justice seem more than a little naïve. A punishment that might appear just to those in one social group can appear utterly unjust to those from another social group. There simply is no way, outside of inquiry into social meaning, that one can discern what is just and what is not.

Moreover, the social meaning turn blurs the line between utility and just deserts. If one is just importing a conception of justice into a more complicated utility function, then retribution is really just a part of utility, and retributivism just a part of utilitarianism. As one can imagine, retributivists understandably don’t like the notion of Kant being pwned by Bentham (even – or perhaps especially – if Bentham has turned into an anthropologist).

So where are we? What do we know? We know that people care about social meaning, and that most of criminal legal theory doesn’t take this into account. I’m certainly not the first to point this out, but I do think that the point hasn’t been pressed nearly far enough in revamping theory or practice. More on that in the future.

The Puzzle of Altruistic Punitiveness

Donald Braman — Sat, 03 Feb 2007 19:03:00 +0000

Let’s suppose that that a jerk does something that, while not criminal, is extremely inconsiderate and mean to me. There is only a slim possibility that I will prevail in a civil suit. Oddly I pursue the civil suit anyway. Am I crazy, stupid, or justified? One thing’s for sure, I’m in good company. Real life and laboratory experimental evidence reveal this again and again: many individuals will seek to impose some cost on the jerk despite a significant cost to themselves.

Because classical deterrence theory depends on the notion that people are rational actors who maximize their selfish returns, the practice seems odd. This is, from a deterrence perspective, a puzzling case of altruistic punitiveness. I punish the jerk at my own expense, and the deterrent benefits generated by my costly punitive action accrue largely to others.

There are, of course, a number of possible explanations for this:

1. I’m not trying to maximize my return – I’m “irrational”.

2. I’m just bad at maximizing my return – I have “bounded rationality,” a polite term for faulty rationality or stupidity.

3. In addition to valuing money and tangible goods, I value social meaning – I am a “social meaning evaluator”.

Of the three, the latter two are best supported by the evidence we have of behavior and cognition in the population at large (clearly, though, in my case, the former is also well documented). There are numerous empirical studies indicating that individuals are error-prone when calculating their expected monetary returns. We also have many accounts of individuals who, when asked why they pursue costly law suits, say “to prove a point” or “to get justice” or provide some other answer that suggests they are evaluating something other than money that is of value to them.

Moreover, the puzzle of altruistic punitiveness is really just a specific instance of a much broader phenomenon. Individuals often engage in behaviors that appear to be irrational, but which turn out to be faulty attempts at achieve rational ends or near-perfect attempts at maximizing their “social meaning utility”.

Teasing apart the “bounded rationality” and “social meaning evaluator” explanations is quite difficult, but essential to sound public policy. If people are simply making costly errors, then we should try to discourage them and correct for those errors. But if they are maximizing some value other than wealth, things become far more complicated and the policy response much more difficult to gauge.

I’ll post more on this “teasing apart” problem in future entries. But in this post I just want to note that while our understanding of the second explanation – bounded rationality – is highly developed, our understanding of the third explanation is really still in its infancy. Over the course of the next month, I want to explore research into this third explanation, and would be delighted to hear of any existing or ongoing research that you know of in this area.

Notice, though, that the third explanation also removes the distinction between selfish and altruistic behavior, solving the puzzle — or better yet, making it disappear.

In my next post I’ll discuss why the most common approximation of the third explanation, retributivism, leaves me unsatisfied.

Hello!

Donald Braman — Thu, 01 Feb 2007 18:52:15 +0000

Just a quick note to say that I’m happy to be serving you fresh legal blog entries. No lard or preservatives will be used. And if there’s anything I can do to improve your dining experience, just let me know.

I thought I’d start with a tasty Second Life dish that is making the rounds. For those who don’t know, Second Life is a virtual world in which millions of people do virtual work, go to virtual dance parties, build and sell virtual things, and, well, spend a lot of their real lives in front a computer doing all that.

I’ve never played Second Life and don’t really want to. Nor am I really interested in the legal considerations that normally get Second Life into the news (questions like: “What is virtual property?” and “Can I be taxed on my virtual income?”) Indeed, I think the best thing about Second Life is that it inspired the clever parody site, Get a First Life.

So why am I going on about it?

Having spotted the aforementioned Get a First Life website, Second Life lawyers swiftly sent them a little reminder about fair use law. At first the letter looks like a standard cease and desist letter, citing the appropriate law and so forth. Then things get interesting. I quote here at length because it’s a wonderful example of good lawyering:

It has come to our attention that the website located at http://www.getafirstlife.com/ purports to appropriate certain trade dress and marks associated with Second Life and owned by Linden Lab. That website currently includes a link in the bottom right-hand corner for “Comments or cease and desist letters.”

As you must be aware, the Copyright Act (Title 17, U.S. Code) contains provisions regarding the doctrine of “fair use” of copyrighted materials (Section 107 of the Act). Although lesser known and lesser recognized by trademark owners, the Lanham Act (Title 15, Chapter 22, U.S. Code) protecting trademarks is also limited by a judicial doctrine of fair use of trademarks. Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.

Determining whether or not a particular use constitutes fair use typically involves a multi-factor analysis that is often highly complex and frustratingly indeterminate; however a use constituting parody can be a somewhat simpler analysis, even where such parody involves a fairly extensive use of the original work.

We do not believe that reasonable people would argue as to whether the website located at http://www.getafirstlife.com/ constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.

Notwithstanding the foregoing, it is possible that your use of the modified eye-in-hand logo for Second Life, even as parody, requires license from Linden Lab, especially with respect to your sale of goods with the parody mark at http://www.cafepress.com/getafirstlife/. Linden Lab hereby grants you a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo (as displayed on http://www.getafirstlife.com/ as of January 21, 2007) to identify only your goods and/or services that are sold at http://www.cafepress.com/getafirstlife/. This license may be modified, addended, or revoked at any time by Linden Lab in its sole discretion.

Best regards,

Linden Lab

Yes, that’s right, it’s not a cease and desist letter, it’s a proceed and permit letter. Moreover it’s written in plain English. Well done Linden Lab lawyers! If I ever see you in real life, real drinks are on me.