Author: Adam Benforado

2

A Compelling Plot

At many law schools around the country, the deluge of the hiring season has arrived: job talks, dinners, interviews, oh my.

I actually kind of enjoy the opportunity to read articles I wouldn’t otherwise consider opening and there are worse things than sharing a meal with a candidate at Zahav (try the crispy haloumi cheese) or Amada (pulpo a la gallega!).

That said, there are moments when the whole process begins to grate on me, particularly when it comes to probing the character and disposition of the candidate. You know you’re in trouble when you begin to find your own questions nit-picky and inane.

Indeed, this week, I noticed myself asking a question that I’m not at all sure that I care about concerning the “common thread” tying together a person’s various projects, positions, and pursuits.

Why did I ask this question? Was it because other faculty members seem to ask it (or one of its cousins) with startling regularity or because I’d fielded “tell us what the theme is” questions many times when I was on the market?

Perhaps, but that doesn’t seem like a sound excuse. I think the question is only really justified if people with a consistent narrative trajectory actually turn out to better professors (that is, more productive academics, stronger teachers, and more collegial colleagues).

Maybe that’s true and maybe it’s not. (I’m very curious to hear what others think.)

Certainly, there is a danger that those whose paths through life have been circuitous and multidimensional will end up being dilettantes and dabblers, nipping about the edges of issues and never producing any seriously-engaged work—or, worse still, that such folks will lose interest in being legal academics altogether (either pre- or post-tenure). However, there seems to be an equal danger that a person with a very convincing “theme” answer may prove to be limited and narrow, unable to adapt to a changing legal landscape and lacking in the creativity and broad curiosity to make a significant and novel impact on the field. In addition, such a person may have little interest (or ability) in offering comments on colleagues’ work that doesn’t directly overlap with her own.

Next job talk perhaps I’ll ask the candidate why they always write on the same topic and why they never got an MFA in poetry . . .

0

Soldier Salaries

I’ve been intrigued by people’s responses to monetary incentives ever since I first became interested in behavioral research.

What is more effective in encouraging good food choices, carefully labeling items in a vending machine based on how healthy each is or raising the price of unhealthy snacks by five cents?

Does imposing a fine on parents who drop their kids off late to school result in less tardiness or more?

Do participants paid $20 after completing an extremely boring experiment report more or less satisfaction with the dull task than participants paid only $1?

Findings in this area prove to be a complex web to untangle and commonsense intuitions are often contradicted by experimental data.

Last evening I came across an article that presented the question of whether paying higher salaries increases military recruitment. The American commander in charge of Afghan security force training, Lt. Gen. William B. Caldwell IV, suggested that the answer appeared to be yes, at least with respect to Afghan Army recruits.

Without carefully controlling for various variables, it’s impossible to know if the significant rise in recruits this December (2,600 Afghans in the first seven days of the month) was actually caused by an announcement to increase the pay of soldiers from $180 to $240, but that seems highly plausible. Even if that’s true, however, it would likely be a mistake to conclude that to build a more effective military force in Afghanistan you just need to increase salaries.

Paying very high salaries during the U.S. occupation may actually have the effect of decreasing soldiers’ allegiance to the cause, in the same way that participants who were paid more in the boring experiment mentioned above reported less satisfaction with the dull task than those paid very little. It is possible that soldiers paid little may face a stronger dissonance than those paid a lot threatening their ability to see themselves as autonomous, coherent choosers who make good decisions. To bring their feelings about being in the military (i.e., it’s tiring, dirty, dangerous, frightening work) into alignment with their actions (i.e., I’ve chosen to serve in the military for a low salary), the best approach may be to change their attitudes (i.e., being in the military is honorable and vitally important and brings me great satisfaction). Those being paid high salaries are likely to experience considerably less dissonance: their choice to engage in the difficult and often unpleasant work of being a soldier is readily justified by the significant money they are receiving.

All of this aside, I must say that what really shocked me was learning that the Taliban pays better than the (U.S.-backed) Afghan army!

According to the article, the Taliban frequently provides insurgents with $250 to $300 a month.

Given the strong connection between the opium trade and the Taliban, perhaps it shouldn’t be all that surprising, but as the U.S. gears up to send more troops to the region, this seems deeply troubling.

2

Wow, Lawsuits Really Take a Long Time . . .

I was pretty “stoked” three years ago when I received a notice informing me that I was a potential claimant in a settlement against BAR/BRI (having purchased a bar review course from the company between August, 1997 and July 31, 2006, during which time BAR/BRI was allegedly violating federal antitrust laws). Not only was it a settlement involving real money ($100+), but the entity getting dinged was one that I associated with pain in my life. Ah, sweet revenge!

No, receiving the check wasn’t likely to feel the same as winning a judgment against the bar examiners of the state of New York for spoiling what could have been a relaxed and pleasant month of July, but it was going to be deeply satisfying nonetheless.

Well, it’s been three years and my day of glory has still not arrived.

According to the class action website:

(1) “Over 88,000 Claim Forms representing claims for over 130,000 BAR/BRI courses have been processed by the Claims Administrator”;

(2) “Under the terms of the Settlement, Defendants deposited forty-nine million U.S. dollars ($49,000,000) into an interest-bearing account for the benefit of the Class”; and

(3) “On November 2, 2009, Plaintiffs’ Motion for Final Distribution of the Net Settlement Fund and Approval and Distribution of Attorneys’ Fees and Expenses came on for regular hearing before the Honorable Judge Manual L. Real. The Court, on its own motion, continued the hearing to December 7, 2009. NO CLAIMS CAN BE PAID UNTIL THE DISTRICT COURT HAS ISSUED A DISTRIBUTION ORDER AND THERE HAS BEEN A FINAL RESOLUTION OF ALL APPEALS.”

Sigh. Those 100 bucks really would have come in handy this month. I guess the orphans are going to have to go without presents for another year . . .

10

Reforming the Non-Medical IRB: A Shift from Preventing Harm to Doing Good

As some of you know (grandma), my area is law and mind sciences. To date, most of my scholarship has involved applying existing insights from social psychology, social cognition, and other fields to legal topics. However, over the last few months, I’ve been working on designing a set of experiments with a cognitive psychologist and, as a result, I have had a chance to engage the institutional review board process for the first time.

I must say that while the people running the IRBs at Drexel and Penn seem well-intentioned and nice enough, the process is utterly befuddling to me. As has been noted on this blog previously, more legal academics are doing work that is potentially covered by IRBs than ever before and it is worth pausing to think about whether radical changes to the existing approach are not appropriate.

(I certainly do not purport to be the first person to advocate reform in this area or to have thought about it as much as others; my hope is that this post will provoke some readers to consider their experiences and whether they feel like the current IRB process is worth its costs.)

I’d like to focus on the non-medical IRB (covering social and behavioral research, ethnography studies, etc.) and I’d like to propose eliminating review completely in this area. No more paper work, no more calls, no more meetings. Instead, we will simply rely on professional norms to channel behavior and existing legal mechanisms to deter the most harmful conduct. (I will leave to the side, in this post, the sticky issue of university liability.)

Now, this doesn’t mean that everyone is off the hook. All of the money and energy that universities currently expend on the IRB process will simply be redirected. The idea is to use resources to directly improve people’s lives, rather than to try to avoid harms that may or may not arise. All of the time previously spent on filling out paperwork, on the phone asking and answering questions, taking human subjects tests, and filing updates, among other things, would now be spent actively participating in socially-beneficial endeavors.

As a licensed attorney, what if I used every hour I would expend on IRB compliance volunteering at a legal aid clinic instead? Or what if I used that time to help high school students in north Philadelphia work on their college essays or removing trash from the Schuylkill River? What if all of the staff at the Office of Research Compliance spent their days finding and coordinating opportunities for professors to volunteer in the community? I would argue that the social good likely to result would considerably outweigh the potential costs of not subjecting non-medical experiments to formal review.

The truth is that the new regime would not be perfect—people would occasionally be harmed—but the magnitude of this threat might be less than imagined. When a person goes to design a psychology experiment there are many factors that act as constraints on the design: Do my colleagues approve of my proposal? Will members of my field look favorably on this experiment? Will resulting harms negatively impact my tenure review (remember that Stanley Milgram was denied tenure at Harvard)? Does this align with my sense of morality? Will my friends/parents/wife/children think less of me if someone is hurt on my watch? How does this experiment compare to other experiments that were conducted in the past and how did people react to those projects?

The IRB process is not the primary reason why the vast majority of non-medical experiments today do not pose major risks to human subjects. It would seem to me that while the process prevents some harms, it does not prevent enough to justify its existence and thinking of alternative uses of the resources currently dedicated to IRBs has the potential to leave us all better off.

0

Let Down Your Golden Hair!

The academic. Sequestered in an ivory tower. Alone with his books. Deep in thought. Tome to his left, pipe in hand, Abyssinian in lap.

While this does describe me to a T, I’m trying to change. I’ve already removed some of the elbow patches from my tweed jackets in hopes of better feeling the world and I’m thinking over my policy about responding to the public.

In truth, I write a fair number of op-eds and short commentaries for popular markets and one of the issues that arises is whether to write back to people who read my work and pen a response. Many newspapers like to post your email address these days and as I tend to address controversial topics, I often get notes back. They vary from insightful questioning of the data I rely on to ALL-CAPS RANTS ABOUT MY CORRUPTED SOUL AND MY PC B*LLSH*T NONESENSE!!!

As a result of time limitations and a fear of further engaging certain ever-so-slightly threatening individuals, I’ve settled on a policy of carefully reading every email I’m sent and thinking about the contents, but almost never writing back a personal note.

I wonder if that’s the best approach. And I wonder why I don’t employ it to the same degree when I blog.

On a certain level, it would seem prudent to have a more rigorous procedure for my blogging. After all, the emails I get after writing an op-ed are private, whereas anyone can read the feedback I receive on a blog post.

Isn’t the worst policy of all to respond in a haphazard and inconsistent manner? Aren’t people liable to think that since I respond sometimes, my not responding in a particular instance is a signal that I must find the argument of the commenter compelling?

Should I have a policy of only responding to friends? Or only responding to other legal academics? Is not responding a dereliction of duty given the purported merits of “scholarly debate”?

Hmm . . . maybe the answer is to retreat back to the cat, pipe, and tower.

2

When International Sanctions Fail . . . There’s Always the World Cup Draw

As shocking as it might seem, North Korea (or the Democratic People’s Republic of Korea, as it’s known to its friends) will be playing some footie next summer in South Africa.

Denizens of Kim Jong-il’s own private Neverland Ranch were overjoyed when their soccer team qualified for the 2010 World Cup last June and were, like the rest of the globe, eagerly anticipating the draw today.

Unfortunately, their team was cruelly slotted into the “Group of Death” (by a smiling Charlize Theron) along with (1) arguably the best team in the world, Brazil; (2) African-powerhouse, the Ivory Coast (led by the unstoppable Chelsea striker Didier Drogba); and (3) Portugal (a squad which, despite underperforming in qualifying, is ranked 5th in the world by FIFA).

Now, there have been plenty of conspiracy theories out there over the years about World Cup draws, but I personally didn’t see anything nefarious in the picking of the ping pong balls this go around, which means that North Korea could just as easily have landed in “the group of milk and honey.”

That doesn’t seem right. After all, North Korea has been scaring us all for a long time, which leads me to a (not completely-and-utterly unserious) proposal. Countries that fail to abide by international rules when it comes to enriching uranium, torturing dissidents, etc. should receive bad draws for the World Cup group stage.

In support of this proposal, I would point out that people in many countries of the world care more about soccer than just about anything (making this a particularly effective sanction). Yet, the mechanism here is unlikely to actually lead to direct bodily harm to citizens, unlike many traditional sanctions. Moreover, while it does penalize countries for misbehavior, it still encourages engagement with the international community because it does not bar countries like Iran and North Korea from participating in (or even winning) the tournament.

Plus, even if it didn’t work, it might be kind of fun to watch Spain’s Fernando Torres smashing shots straight into the heart of the axis of evil.

(The entire World Cup draw appears after the break.)

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1

In Support of Activist Officiating

Dave’s post earlier today on referees and judging (linking to a fascinating discussion of “whistleblower” bad-boy Tim Donaghy’s new book, Blowing the Whistle) has got me thinking.

While on a certain level, I’m outraged at the thought that refs do not follow the rules of the game with objectivity and dispassion, I’m not sure that I want officials to just call “balls” and “strikes.”

The reason that I never bought into the Chief Justice’s analogy of judging to umpiring is that sports, for me, are not just about fairness and a level playing field. They’re about fun and entertainment. I want to watch a good game and I don’t care if there is a little “tweak” here or there to ensure an enjoyable match for the spectators.

Although it is dangerous to admit in my new home of Philadelphia, I am a party to an abusive lifelong relationship with the Washington Redskins and Wizards (née Bullets). Hoping to break the cycle of repeated psychological mistreatment, a number of years back I started also following English Premier League soccer (I’m a Liverpool supporter, although I tend to watch whatever pops up on Fox Soccer Channel).

In EPL and other European soccer matches, one of the things that always irks me is when a ref sends off a player on the weaker team in the opening minutes. It really doesn’t matter to me that the official was following the letter of the law in giving the red card. When I sit down, my goal is 90 minutes of pleasure. Dismissing a key player in the fourth minute spoils the proceedings. (Of course, I’m advocating “tweaking” here – I’m not asking a ref to turn a blind eye to a deliberate two-footed, studs-up challenge aimed at an opponent’s head).

Yes, I might feel differently if I was a gambling man or if the Redskins returned to their glory days, but maybe not. I’ll always choose an exciting overtime game to a blow out, even if I’m on the right side of the rout.

5

A Rough Commute

For the record, I’m not a natural Huckabeen or Huckabeest or whatever supporters of Mike Huckabee like to go by. I generally find the man amusing—it’s hard not to crack a smile at someone whose resume reads “author, ordained minister, bassist, former-governor, talk show host”—but we just don’t see eye-to-eye on a lot of important issues.

All that said, in the wake of the alleged murder of four police officers Sunday in Washington by Maurice Clemmons, an Arkansas man, whose sentence Huckabee commuted in 2000, I was (relatively) impressed to learn of his commutation and pardon record.

During his 10-years as governor, Huckabee issued more than 1,000 commutations and pardons. To provide some context, even if you added up together all of the commutations and pardons of the three governors who preceded him, Huckabee would still win.

I was even more impressed to see him, this week, defending his decision in the Clemmons case. Speaking on “The Joe Scarborough Show,” Huckabee explained the unfairness that he confronted as governor: “a 16-year-old kid [who] commit[ted] crimes of which normally, there would have been a few years. And if he’d been white and middle-class with a good lawyer he’d have gotten probation, a fine and some counseling. But because he was a young black kid, he got 108 years!”

Acknowledging that race can result in inequitable judicial outcomes? Taking into account the youth of the convict at the time the crimes were committed? Suggesting that situation and not disposition might matter? It all sounds rather like, dare I say it, what a “bleeding-heart liberal” would say . . .

And sure enough, conservative interests have been lashing out at Huckabee just as they did during his 2008 campaign for president when it was revealed that, while governor, he had elected to release Wayne DuMond, who was later convicted of rape and murder.

I guess what really shocks me is that any governor with broader political dreams ever commutes or pardons a criminal. There are such minimal incentives and such immense potential costs. (If you have any doubt about that, consider that yesterday Jason Tolbert, the Arkansas coordinator for Huckabee’s PAC resigned, in part, because of the commutation mess.) In the eyes of the public, if you fail to stop an execution, you make an omission; if you commute someone’s sentence, you take an action. Despite the fact that, in both cases, the governor is making a decision that results in a terrible death, when an innocent man is put to death, the governor is usually way down on the list of blameworthy actors, and when a pardoned man kills, the governor is one of the first to be called out.

Perhaps if the media did not get so whipped up about matters like this or reported stories about the subsequent positive contributions to society of people whose sentences were commuted, it wouldn’t be such a politically-foolish thing to do, but given the current climate, we should expect many more governors like George Bush and way fewer like Mike Huckabee.

All of this pushes me towards supporting moves to place the power of the pardon in a panel of appointed judicial officials who are not politically accountable. Yes, that has its own set of problems, but I just don’t see how the current approach in Arkansas and elsewhere is going to result in equitable outcomes.

7

WWJP (Where Would Jesus Park)?

No Parking SignWith all of the talk over the last few months about “death panels,” nationalizing banks, and the dangers of trying al Qaeda terrorists on U.S. soil, it is easy to believe that attacks on our freedoms are easy to spot, but often they are not.

They can hide on quiet Sunday streets. They can lurk in the shadows of a perfect fall day.

A couple of Sundays ago, I was walking in downtown Philadelphia at around 3PM when I came upon a traffic attendant writing a ticket for a car parked on the north side of Spruce Street just south of Rittenhouse Square. As I often saw vehicles parked up and down the street on Sundays despite the clear “No Stopping Any Time” signs, I decided to ask what the rule was.

I was told by the attendant that the City tickets cars “after church let’s out.” WhenI pressed the attendant on whether that was the official policy, she told me it was.

Doing a little more research (plucky young academic that I am), I found some interesting details at the website of the Tenth Presbyterian Church. According to the site, “The City of Philadelphia generously permits parking by the congregation in designated areas near the church for Sunday services and for certain types of congregational special events.” To enjoy these “[s]pecial relaxed street parking privileges,” a member of the congregation must pick up a church-issued parking placard from one of the church lobbies and display it in the front windshield. The church goes on to offer to “help resolve” any tickets that are received despite displaying the placard.

Yes, perhaps, I’m just frustrated to not be among the chosen—I do covet a good parking spot—but this doesn’t seem, well, “kosher.”

If the city of Philadelphia does not believe that there are enough parking places in Center City on Sundays, there is any easy answer: remove the parking prohibition on Sundays for all Philadelphians—Christians, Muslims, Jews, agnostics, and atheists alike. There is no reason that a tax-paying secular humanist who wants to take her children to the park ought to get a ticket and a tax-paying Christian who wants to attend services ought not.

As this has piqued my interest, I have vague (and unlikely-to-be-realized) plans to fill out a request for information from the City, but before I do that I think it is best to make outrageous claims and reach unfounded conclusions based solely on the above details. What do you think? Is this totally harmless or . . . an affront to the history of Pennsylvania, a violation of the United States Constitution, and a sure sign that the Rapture is already upon us?