Docketology in Print

I'm happy to point out that my article, Docketology, District Courts and Doctrine, is now in print in Volume 85 of the Washington University Law Review. You can find previous discussion of the piece on this blog, starting here. The final version is significantly improved over the drafts, so I hope you'll check it out. If anyone is motivated by the article to try some dockets research, let me know know, and I will tell you all the ways I've messed it up in the past!

Coming next: Docketology, Part II.

Posted by Dave Hoffman at 03:41 PM | Comments (0) | TrackBack

Who Wants to Think They're Millionaires?

Lots of Americans, apparently:

A Time Magazine poll in 2000 found that 19 percent of those surveyed believed themselves to be among the richest 1 percent of Americans. Another 20 percent said they expected to one day be among the richest 1 percent.

But as Citizens for Tax Justice estimates, "This year, the best-off one percent will have an estimated average income of $1.5 million each. Just to get into this elite group requires an income greater than $466,000." And the middle class of, say, ABC debate moderator Charlie Gibson is also pretty expansive--it includes people with adjusted gross income over $250,000, though CTJ notes that only about 2% of taxpayers fit that category.

As the "millionaire's amendment" in our tattered campaign finance laws comes under attack, misperceptions about wealth feed into Supreme Court arguments as well:

Consider Tuesday’s oral arguments over the so-called Millionaires’ Amendment, the federal law that lifts some political fundraising limits for candidates facing wealthy self-funded opponents, defined as those who pour at least $350,000 of their own cash into their campaign.

Justice Antonin Scalia suggested that practically anybody had that cash available for political activism, if he or she really wanted to tap some family assets. “Are we talking wealthy people here? What’s the average price of a home in the United States? I think it’s a good deal above $350,000, isn’t it?” he said.

Actually, it’s nowhere near that. According to provisional figures from the National Association of Realtors, the average single family home price last month was $246,000. And falling.

As I noted two years ago, even the assumption that everyone has $200 to spare for a political campaign is pretty objectionable. And it is downright nonsensical to deny that donating $200 "hurts" a poor family far more than one with disposable income to spare (just think of the parable of the widow's mite). The legitimacy of our current "dollar primary" politics probably rests in large part on the erroneous perception of 38% of the population that they are (or someday will be) in the top 1% of earners.

UPDATE: Given my title, I should note that about 3% of the US population are millionaires (i.e., have assets over and above principal residence that are worth over a million dollars). Nevertheless, given that the median net worth of the top 10% in the U.S. was $833,600 in 2001, and that of the bottom ten percent was below $7,900, Americans live in very different economic worlds.

UPDATE 2: I forgot to add in one good part of the CTJ report, which helps explain the source of misperceptions like Scalia's:

We have heard anecdotally that people who work for members of Congress (from both parties) in Washington tend to overestimate the percentage of Americans with incomes over $200,000 a year. We also have seen people in the media, like Charlie Gibson, express their belief that families at this income level are “middle-class.” Why?

Part of the reason surely is that the people who influence the political discourse — people working in the media or in politics — tend to live in or around cities where incomes and the cost of living are higher than elsewhere in America. These cities include New York, Washington, D.C., Los Angeles, Boston and San Francisco. In these cities and their suburbs, owning a house and two cars and raising two children who go to good schools — what many people consider the American Dream — is thought by some to require a six-figure salary.

There could be other reasons as well. Perhaps the people who work in politics and media are disproportionately highly educated people who come from wealthier families, which could result in expectations of higher incomes and higher standards of living than are enjoyed by the true “middle-class.”

Posted by Frank Pasquale at 08:38 PM | Comments (1) | TrackBack

The Neuroimaging of Persuasion: Selling Babies

I've argued (here, here, & here) that there is a gap between how jurists generally imagine that consumers behave (and should be protected) and the technological tools available to clever marketers. The slogan I've come up with is total persuasion: "a society in which most speech that you hear is designed to persuade you to consume."

Today's W$J offers an interesting article along this line. According to researchers at Oxford, we're hard-wired to respond to baby faces in positive ways:

Using a technique called magneto-encephalography that measures brain signals, the Oxford researchers found that a baby's face can seize our attention in milliseconds, activating an unusual mental organ called the fusiform gyrus that responds to human faces. Moreover, these distinctive infant features, unlike the mature features of an adult, trigger a sense of reward and good feeling in a seventh of a second. Picture Bambi's saucer-size eyes or those of Mickey Mouse.

And from later in the article:

Through brain-scanning experiments, researchers have located the neurochemical essence of our face expertise in a strip of temporal-lobe tissue about two inches long and three-quarters of an inch wide. Studying this face recognition area in macaque monkeys, neurobiologist Doris Tsao at the University of Bremen, Germany, reported in Science that the tissue consisted almost entirely of neurons that responded just to faces.

To understand how the tissue develops, Yoichi Sugita at Japan's Neuroscience Research Institute raised infant monkeys for two years without ever showing them a face. Lab workers wore hoods. When faces were finally revealed to them, the monkeys could readily tell them apart, Dr. Sugita reported in January in the Proceedings of the National Academy of Sciences.

"It is mind-blowing," Dr. Kanwisher said. "If you had to bet, you would bet it is innate."

What can/should the law do about these findings, which, after all, confirm common intuitions. See Steven Jay Gould's A Biological Homage to Mickey Mouse, in The Panda's Thumb.

Posted by Dave Hoffman at 02:11 PM | Comments (1) | TrackBack

Bear(ish) Blogging

As Larry Ribstein, Gordon Smith, Jeff Lipshaw (below) and others have pointed out, the rise of Bear Stearns' stock price after the announcement of its deal with J.P. Morgan creates some really complex corporate law problems. Today's close, $5.33, is around 2.5 times the offer price (2.30 a share). Whether the Delaware Chancery Court will enforce "Bear's Put" (as Steven Davidoff coined it) seems to me to be underdetermined by caselaw and instead likely will depend on the state of the financial markets. In a less edgy environment, normal rules - like Quickturn - should apply and DE Courts inclined to strike down the clause, even over the Fed’s objection. Indeed, the case would be a good platform to reassert Delaware's dominance! But if current market volatility remains unabated when these issues are decided, I imagine that the no-shop, multiple-vote, clause will be upheld. Thus, J.P. Morgan would be wise to push hard to close the deal sooner, while the market remains turbulent and a potential jurist pliant. (I’m rooting for assignment to V.C. Strine, if we want a wide-ranging opinion to teach in a few years). Useless speculation? Sure!

A distinct part of this evolving story is the buyers of Bear's stock. Some are probably bondholders. Another group, according to today's W$J, are Bear's employees, free (now) to trade and encourage others to buy up the firm. They are reported to believe that several hedge funds, having shorted Bear several weeks and months ago, then broke the bank by withdrawing business from its prime brokerage in the last week or so. Those withdrawals in turn resulted in downgrading Bear's investment rating and putting its ability to trade in jeopardy. (It's the Enron story, but without a Fastow or JEDI, that we know of.) Maybe they think that the SEC will bring some kind of market manipulation case against the shorting funds, which seems like a long-shot. Another possibility could be civil suits seeking disgorgement from the funds, on the theory that they have some kind of fiduciary duty not to provoke a bank run. On what theory such a lawsuit would proceed, I can’t imagine, but I wouldn’t underestimate the creative power of a hungry mob of lawyers. Finally, we’ll almost certainly see a lawsuit against Bear’s directors. I, like Lipshaw, have "some sympathy" for these folks, especially those on the outside, who can't possibly have foreseen the magnitude of the events that overwhelmed the institution.

Third, as many have noted, Bear’s executives aren’t going to walk away with much cash. Their options are under-water, and their guaranteed compensation has been intentionally set at a low level to promote firm performance. Now, some, including Jack Dolmat-Connell, an executive compensation expert, are criticizing this equity-heavy pay schedule for encouraging Bear “to take on too much business risk.” (Again, from today’s W$J). I don’t buy this. Is the idea that if their pay were fixed, they’d have been more risk averse because their upside would have been limited? This seems (to me) to be an unrealistic account how investment bank executives are likely to behave. More than most, such executives are the product of the tournament model, likely to be extremely overconfident and risk-seeking no matter what their compensation structure. (The easy cite here, of course, is Liar's Poker.)

Finally, you've got to wonder what lessons to draw from the last two weeks. In 1966, Henry Manne argued that legalizing insider trading would have several pro-social consequences, among them that it would lead to more accurate prices and thus substitute for public disclosure in circumstances where it might not otherwise occur. There is (admittedly) limited empirical evidence that insider purchases have strong price effects, but insider sales are generally stronger signals. Last Monday, investors valued Bear at between $60 and $70 a share, but there was obviously non-public information that made the price unsustainable. Maybe had insiders been permitted to trade on their knowledge of Bear's financial condition, its decline would have been less precipitous, giving the bank more time to approach the Fed for help before its fire sale became necessary. [Update: Paul Krugman's analogy is a good one. In describing the run on Bear and other like institutions, he says "In other cases, the bank is fundamentally unsound — but the bank run magnifies its losses. It’s as if someone calls “Fire!” in a crowded theater, and there really is a fire — but the stampede kills people who would have survived an orderly evacuation." Exactly - would insider trading have made the run more orderly?] Just a thought, as folks start to think about ways to avert tomorrow’s crisis.

Posted by Dave Hoffman at 08:28 PM | Comments (2) | TrackBack

Spitzer's Cheating Heart. Or Hormonal Brain. Or Misunderstood Situation.

What motivates adultery? It's a question that dominated the news (while I was away on Spring Break) and probably quite a few dinner table conversations. "How could he?" "Why was he so foolish?" "Why did she have to stand with him in front of the cameras?" It struck me how neatly explanations for Elliot Spitzer's bad conduct dovetailed with current attempts in the law reviews to model behavior generally.

1. Emotions

This is an oldie, but goodie. For Hank Williams, adultery set off a storm of negative emotion:

Your cheatin' heart will pine someday/
And crave the love you threw away/
The time will come when you'll be blue/
Yuur cheatin' heart will tell on you.

But it isn't all negative. I posted on Richard Dawkins' really bad arguments for the evolutionary utility of adultery back in December (a post that provoked a comment that wins the prize for (either) most ironically funny, or most inane: "I think people tend to think of the amount of love (or passion) they can give as a pie: it's finite, and the more you give, the less there is for everyone else. I think the pie paradoxically expands, the more you give, the more you can give, because giving love creates more.")

2. Cognition and Neurochemistry

Hot in law, hotter in explaining Spitzer's fall. As Shankar Vedantam helpfully explained, "an area of Spitzer's brain known as the medial orbitofrontal cortex" caused him to pay "a prostitute $5,000, as opposed to $500 or $50." Or perhaps it was the levels of his monoamine oxidase A, as Mary Carmichael, explained in this week's Newsweek. "[Adulters] have lower levels of monoamine oxidase A, which regulates the brain's levels of dopamine"; they see themselves as risk-seekers possibly because they are overcharged with testosterone. Indeed, the article makes you suspicious of any male politicians who don't cheat:

"Alpha males are high on testosterone, the hormone that underlies almost all the typical traits of the politico-sexual animal: high levels of testosterone make for a high sex drive, a love of risks, aggressiveness and competitiveness."
"Men . . .have more of a biological imperative to spread their genes far and wide--the kind of privilege that often comes with being an alpha male."
"In our evolutionary history, men who had lots of resources and status and power were able to have more than one partner. Your body is basically saying if you have this power, you should use it . . ."

Huh. Did Truman and Carter have small medial orbitofrontal cortexes? Or maybe their medulla oblongatas made them insufficiently ornery?

3. The Situation

As Jon Hanson and Michael McCann argue here, moral sentiments about adultery are motivated by a dispositionalist outlook, while individuals' behavior is often based on the situation:

American attitudes toward adultery are sort of like American attitudes toward unhealthy, highly-caloric food. We claim to not want that “junk,” and sometimes manage to avoid it; still, most of us find ourselves eating something we wish we hadn’t from time to time — perhaps most of the time. In America, we curse our cake and eat it too. And also in America, we blame the obesity epidemic on the bad choices and dispositions of the obese . . . [Rather than criticize politicians who cheat, Hanson and McCann argue] perhaps these instances might be used as teaching tools — examples to the Vitters [and Spitzers and Clintons and Gingriches] of the world that although the disposition may be strong, the situation is often stronger. If we could stop pretending that people’s behavior and their condition in life is a product solely of their character or preferences, then perhaps we could begin to have more meaningful debates about topics that really matter.

While situationalism doesn't discount entirely the importance of personality, it does suggest that attributions of blame must be carefully considered:

[Hanson and McCann continue that critics of situationalism] seem nervous that if situation is taken too seriously we might lose our ability to hold the people who engage in bad activities responsible by no longer conceiving of them as “bad apples.” We might lose our ability to make easy normative distinctions between good apples and bad apples—the sort of distinctions that provide the legitimating, normative punch behind everything from the individualistic (dispositionistic) criminal justice system to ideologies and blame frames that justify vast inequalities. . . Sometimes bad apples need to be removed—in part because they are contaminating. But if a bad apple can harmfully effect the situation of good apples, then don’t we owe it to the “bad apple” to consider whether its condition itself reflects a contaminating environment? If we don’t like “bad apples” or their effects, shouldn’t we at least endeavor to examine the tree, it’s roots, the soil, the air quality, the parasites, the orchard, the toxins, and, in a word, the situation.

I don't know. I am really fascinated by the emerging situationalist scholarship, but this strikes me as possibly a theory taken too far -- or applied without much concrete evidence of how the situation promotes adultery. After all, to borrow another pop-psych fad of late, maybe Spitzer was just the sociopath (next door) in the governor's mansion.

Posted by Dave Hoffman at 12:01 AM | Comments (3) | TrackBack

The Revenge of the Real on the Weightless Economy

Though I've been critical of some recent popularizations of economic thought, Dan Ariely's Predictably Irrational looks like a quality addition to the genre. As NPR relates, the book "explains how the reasoning behind [common economic] decisions is often flawed because of the invisible forces at work in people's brains: emotions, expectations and social norms." Ariely's research shows that a series of random numbers can heavily influence estimates of the worth of various options. Elizabeth Kolbert's review in the New Yorker gives some striking examples (drawing on both Ariely's work and the new Sunstein & Thaler book, Nudge).

[The] effect is called “anchoring,” and, as Ariely points out, it punches a pretty big hole in microeconomics. When you walk into Starbucks, the prices on the board are supposed to have been determined by the supply of, say, Double Chocolaty Frappuccinos, on the one hand, and the demand for them, on the other. But what if the numbers on the board are influencing your sense of what a Double Chocolaty Frappuccino is worth? In that case, price is not being determined by the interplay of supply and demand; price is, in a sense, determining itself.

***

When it comes to public-policy decisions, people exhibit curious—but, once again, predictable—biases. . . . [T]hey tend to ignore whole orders of magnitude. In an experiment demonstrating this last effect, sometimes called “scope insensitivity,” subjects were told that migrating birds were drowning in ponds of oil. They were then asked how much they would pay to prevent the deaths by erecting nets. To save two thousand birds, the subjects were willing to pay, on average, eighty dollars. To save twenty thousand birds, they were willing to pay only seventy-eight dollars, and to save two hundred thousand birds they were willing to pay eighty-eight dollars.

These effects are curious, and if taken too seriously, can lead one to question the viability of the two major organizers of our common life--the market, and democratic government. Nevertheless, I have a sense that our "weightless economy" is now facing some trends that will lead to a real "anchoring" of prices.

As the US appears to be entering a stagflationary period, investing in basic commodities has come back into vogue. The US's low rate of saving and investment is leading it to, in Parag Khanna's words, "wave goodbye to hegemony." Even writers at conservative newsweeklies like the Weekly Standard are tentatively questioning the bases of US economic power. Describing a new class of "fun consultants" (or "funsultants") who are paid to bring levity to the workforce, Matt Labash asks:

So who's to say the funsultants are worse than anything else that's happened to the American [corporation] over the decades? After all the paradigm-shifting and diversity-training and outsourcing and TQM'ing and synergizing and empowering and value-adding and globalizing and downsizing and full-frontal lobotomizing, maybe finger puppets are just the logical terminus.

As for the funsultants themselves, they're truly living the American dream. They've beat the system. As Lord of the Deal Mark Doughty explains, "I work very hard not to have a real job." Is that the work ethic that made America great? Probably not. But who am I to judge? I make a living writing about funsultants.

I turn to another old friend of mine, much more steeped in business culture than I am. He's my college buddy Don McKinney, a creative director/advertising hotshot responsible for campaigns like Nissan's "Shift." When I ask him what all this means, he strikes an optimistic note: "When you and I were born, there were 2 billion people in the world. Today there 6 billion. Maybe there are only 2 billion real jobs and all the rest of us are being relegated to [nonreal] jobs, like fun coaches and creative directors. If we took away all the [nonreal] jobs, our economy would collapse."

In the face of optimism about a "weightless economy," I see two groups essentially reminding us of the real price of goods. First we have military warnings about the "resource wars" that could erupt if there is a general failure of conservation of resources (or development of more efficient technology). As one review of Michael Klare's work notes,

Distancing himself from ruminators like Samuel Huntington, whose Clash of Civilizations and the Remaking of World Order (1996) maintained that cultural differences, such as between Muslim and Christian, will drive post-cold war international politics, Klare contends that power struggles over petroleum, water, gems, and timber will be the engines. Indeed, where oil and water are concentrated in Asia and Africa--the Persian Gulf, the Caspian Sea, and the South China Sea in the former; the Nile, Jordan, Tigris-Euphrates, and Indus River regions in the latter--Klare notes marked increases in military activity. Saber sharpening, rattling, and use have their provocations in increasing worldwide demand, driven by economic and population growth, for oil and clean water.

Second, an environmental movement persistently tries to ensure that externalities are reflected in prices.

Both of these groups might be alarmed by this statistic from Kolbert's review:

A few weeks ago, the Bureau of Economic Analysis released its figures for 2007. They showed that Americans had collectively amassed ten trillion one hundred and eighty-four billion dollars in disposable income and spent very nearly all of it—ten trillion one hundred and thirty-two billion dollars. This rate of spending was somewhat lower than the rate in 2006, when Americans spent all but thirty-nine billion dollars of their total disposable income.

We can only hope that this "predictable irrationality" eventually provokes the "nudges" toward fiscal responsibility that Sunstein and Thaler prescribe. . . before stagflationary pressures shove us toward a path of forcibly decreased consumption.

Posted by Frank Pasquale at 04:25 PM | Comments (0) | TrackBack

PainStation: A Clockwork Lemon?

I've previously covered technological and legal responses to the ever-increasing cell phone din. Now some inventive designers are imagining new scenarios for noise control. For example, Social Mobile 5 (SoMo5) "launches sound bombs into other people's annoying conversations." Authorities may outfit repeat offenders with SoMo1, which "delivers an electric shock whose intensity varies depending on how loudly the person at the other end of the line is speaking." (Be sure to check out the online video. I wonder if they'll submit it to future rulemakings on the issue?)

When I saw these darkly fanciful ideas on display at the Museum of Modern Art's show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, which would raise the stakes of videogaming by making players' left hands suffer "heat, electric shocks, or a quick whipping" after mistakes.

These ideas reminded me of a great Dan Burk article title: A Clockwork Lemon. I doubt they'll be built, but they subversively suggest the way individuals may move from reluctantly submitting to technologies of control to expecting them. As Julian Dibbell noted in his book on Chinese "gold farmers" (individuals who perform repetitive tasks in online games in order to sell game points to wealthier purchasers), some of the gold farmers would relax after 84-hour weeks of game playing by . . . playing more games.

I suppose on some libertarian angle we should celebrate this merger of freedom and necessity in the future. The glittering, perfectly designed interfaces at MOMA suggest as much. But the occasional project highlighted the darker side of technologies of control, and the "future farms" that the spontaneous order of the market will inspire. I'll describe those more in a bit.

Photo Credit: wallyg, photo of Umberto Boccioni's Unique Forms of Continuity in Space.

Posted by Frank Pasquale at 02:01 PM | Comments (2) | TrackBack

Persuasion in the Virtual Shopping Mall

I just came across an interesting paper, Empirical analysis of consumer reaction to the virtual reality shopping mall , 24 Comp. Hum. Beh. 88, by Kun Chang Lee and Namho Chung. Here's the abstract:

The Internet shopping mall has received wide attention from researchers and practitioners due to the fact that it is one of the most killing applications customers can find on the Internet. Though numerous studies have been performed on various issues of the Internet shopping mall, some research issues relating to the user interface of VR (virtual reality) shopping malls still await further empirical investigation. The objective of this study is to investigate whether the user interface of the VR shopping mall positively affects customer satisfaction in comparison with the ordinary shopping mall. For this purpose, we developed a prototype of the VR shopping mall for which the user interface consists of both 3D graphics and an avatar, using it as an experimental medium. 102 valid questionnaires were gathered from active student users of the ordinary shopping mall, and two research hypotheses were then tested to prove whether the three explanatory variables such as convenience, enjoyment, quality assurance improve in the VR shopping mall, and whether customer satisfaction is also significantly enhanced in the VR shopping mall in comparison with the ordinary shopping mall. Additionally, we conducted the PLS (partial least square) analysis to test whether the customer satisfaction is explained significantly by the three explanatory variables or not.

Not surprisingly, products in the VR malls were seen as better, and customers enjoyed shopping more. As the authors point out later in the paper, "VR is a medium capable of yielding immersion," which should increase customers' ability to evaluate brand quality, and thus increase sales. Indeed, the effect becomes more robust the more time you spend at the VR mall! Lee and Chung claim that their approach has "immediate managerial applications": to me, it gives a sense of why and how we'd move toward an omni-persuasive consumer experience.

Posted by Dave Hoffman at 01:52 PM | Comments (1) | TrackBack

Are You an Intuitive or a Deliberative Information Processor?

Quick -- take this test:
(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?
____ cents
(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?
____ minutes
(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?
____ days
(see below for answers)

In an interesting new article, Blinking on the Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich report the answers of 252 Florida trial judges to this Cognitive Reflection Test (CRT), which is designed to have a "correct answer that is easy to discern upon reflection, [as well as] an intuitive--but incorrect--answer that almost immediately comes to mind." The judges scored, well, slightly better than the average undergraduate student subject at Michigan and slightly worse than the average undergraduate student subject at Harvard. Almost one-third of these judges didn't answer any of the questions correctly; another third answered one question correctly; less than a quarter of the judges answered two questions correctly; and only one seventh answered all three correctly. Their mean score of 1.23 compares unfavorably to student subjects at MIT (2.18), Carnegie Mellon (1.51), and Harvard (1.43).

So what does this all mean? Looking to this data alongside other studies, the authors argue that judges often make decisions intuitively rather than deliberatively. This is not always a problem; indeed the authors note that the "conversion of deliberative judgment into intuitive judgment might be the hallmark of expertise." But, judges who respond intuitively, as the test results show, might make inaccurate decisions. The paper concludes with several suggestions as to how to limit "bad" intuitive decisionmaking --more time and resources, requiring written opinions, training and feedback, use of scripts and checklists, and separating out decision-making authority-- very similar to suggestions that my co-authors and I made in our recent article, Refugee Roulette, which describes disparities in decision-making in the asylum process. Sounds like we might need to stop those asylum adjudicators from blinking on the bench . . .

So could you cut it amongst those MIT students? Here are the answers:

(1) Five cents. If the ball costs five cents, the bat costs $1.05, and the total is $1.10. The intuitive and incorrect answer is that the ball costs ten cents -- but then of course the bat costs $1.10 and the total is $1.20

(2) Five minutes. The intuitive and incorrect answer is 100 minutes; each machine makes one widget in 5 minutes, so increasing the number of machines increases the number of widgets accordingly.

(3) Forty-seven days. The intuitive and incorrect answer is 24 days -- if the patch of lily pads doubles each day and covers the entire lake on the last day, it must cover half the lake the day before.

Posted by Jaya Ramji-Nogales at 04:45 PM | Comments (6) | TrackBack

Tipping Points and Viral Law

Which channels for legal authority are most efficient? This enforcement-efficacy question is a tough one, understudied by traditional L&E and even BL&E. Most instrumentalist theories of law spend relatively little time thinking about the costs of distributing legal rules, and the likelihood that their recipients (citizens) will internalize them. Indeed, the basic L&E approach to criminal law (Becker's) is frankly dismissive of law's signaling function, and equates criminal and civil wrongs as taxable infractions.

The problem is not confined to criminal law, of course. Imagine that we want to promote good behavior by a corporate officer. Traditional corporate law doctrine says that we should do so by tinkering with legal rules ("the duty to auction should attach at a Revlon moment"; "Revlon doesn't happen unless control transfers apart from a distributed market transaction"; "officers must seek Board approval for corporate opportunity taking"; etc.) These doctrinal choices are framed against an incentive problem (principal agent). Richer motivational accounts complicate the story: maybe officers won't be incented to avoid negligence by imposing a care rule; maybe monitoring rules will increase distrust). But even behavioral law and economics assumes that the way that law is pushed out to its targets is basically immaterial to whether it is effective.

This is the standard, hierarchical, model of distributing law. Different approaches, born out of network theory, are of course possible. Malcolm Gladwell's The Tipping Point illustrates the point. Gladwell popularized the idea of the "law of the few": "The success of any kind of social epidemic is heavily dependent on the involvement of people with a particular and rare set of social skills." He further identified connectors (people who "link us up with the world ... people with a special gift for bringing the world together"; mavens ("people we rely upon to connect us with new information."); and salesmen ("persuaders"). Finally, he suggested that some messages are more sticky than others. (Source for the quotes: Wikipedia) .

How would these insights apply to law? Well, obviously, we might imagine Judge Hercules thinking about a change in the law. She has some criterion to evaluate the goodness of that change. [Be it Kaldor-Hicks efficiency, or something as subtle as de-biasing a pernicious cognitive error, or maybe a fMRI readout of a few brain scans, or maybe she just flipped a coin. Don't be distracted by the mechanism, stick with the story!] Once she's made the decision, however, she wants the greatest number of people in society to follow her new rule, so as to maximize the benefits she thinks flows from the change. L&E and BL&E have, to date, said almost nothing about this distribution and enforcement problem. (Indeed, as I learned from Alex Rasholnikov's workshop at Temple this week, tax folks haven't done much on enforcement either.) So, she follows the conventional wisdom, issuing her decision in an opinion, or an order if she thinks it likely to be unappealled, and assumes that individuals will learn about the new legal rule in the traditional ways - the media, by word-of-mouth, and by personal experience with the policeman's stick.

Gladwellians, however, might imagine the legal change as a proposed social epidemic, and the judge's goal to make that epidemic travel as fast, and as widely, as possible. She also wants the epidemic to stick - to embed itself in individuals' daily behavior, so that post-hoc enforcement costs are low. Thus, she might want to find connectors to send her decision to (bloggers!); talk with mavens about the rules so they can explain them to others (law professors!); and then somehow enlist salesmen to her cause (friendly litigants). To make the message as sticky as possible, she might want to dress it up with provocative rhetoric, or maybe even embed some multimedia in the opinion itself. In short, Gladwell can explain many of the features of the way that the common law today is distributed, and makes sense of, say, the Delaware Supreme Court's tremendous success at increasing their market share: the justices of Delaware understand the law of the few!

There's just one problem with this story: it may not be right. Duncan Watts performed a large-scale experiment to test whether nodes improved virus transmission:

In 2001, Watts used a Web site to recruit about 61,000 people, then asked them to ferry messages to 18 targets worldwide. Sure enough, he found that Milgram was right: The average length of the chain was roughly six links. But when he examined these pathways, he found that "hubs"--highly connected people--weren't crucial. Sure, they existed. But only 5% of the email messages passed through one of these superconnectors. The rest of the messages moved through society in much more democratic paths, zipping from one weakly connected individual to another, until they arrived at the target.

If Watts is more right than Gladwell, it poses a challenge for jurists: what is the most efficient way to distribute legal rules, where you can't rely simply on nodal governance. Because this blog post is already too long, I think I'll leave the question open to solicit your thoughts.

(Image Source: The Sick Doctor, Jehan Georges Vibert)

Posted by Dave Hoffman at 04:57 PM | Comments (3) | TrackBack

The Future of Sensory Jurisprudence

[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we've made clear, our ultimate claim is not (cf. Kerr) that "Justice Scalia was privileging a conservative white male view" of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It's a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I'm going to make a bigger claim, one which isn't so much based on the paper or my co-authors' views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it's my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove's well-known post – and subsequent highly downloaded article – about the "I've nothing to hide" problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence ["SE"] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: "look, it's obvious!"

The connection between SE and surveillance is (ironically) made stark in a video ... but to see it, you'll need to read past the jump.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the "facts" a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of "what happened."

This isn't to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey's Judges as Film Critics: New Approaches to Filmic Evidence)

Posted by Dave Hoffman at 01:00 PM | Comments (2) | TrackBack

Behavioral Biases in Electoral Coverage

John F. Harris and Jim VandeHei have a great article up on Politico explaining why they (and others) did such a bad job of pre-reporting Hillary Clinton's win in New Hampshire. The article provides a real-world example of a litany of behavioral biases - availability cascades, source bias and other information processing errors, overconfidence, etc. - and could provide a nice illustration for folks attempting to illustrate these phenomenon outside of laboratory settings.

Posted by Dave Hoffman at 07:25 PM | Comments (0) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

The Law and Economics of the Secondary Market in Structured Settlements

I saw a television ad while working out a bit ago in the fitness room at the New York Hilton, and it must be the influence of all the legal scholars around me, but even though I've seen it a zillion times, it now struck me as something that ought to be somebody's research topic.

The ad is for J.G. Wentworth, which buys structured settlements. There's a pitchman who ought to be every law firm's managing partner (gray hair, jut jaw, gravelly voice) and the tag line "It's Your Money; Use It When You Want It." Structured settlements are appealing to insurance companies and tort defendants because of the gap between the absolute value of the settlement to the recipient and the present value to the payor. It's effective to close out a negotiation where, say, the plaintiff is at $800,000 and the defendant is at $500,000 by structuring a settlement that is closer to $800,000 in total dollars paid over the life of the settlement but closer to $500,000 in present value.

Let's take my hypothetical numbers as an example. The plaintiff gives up $300,000 in present value to get a settlement. I suspect there is risk averseness at play there in two respects - the certainty of settlement versus trial, and the greater value of the current money to the later money. I don't know how much of the discount is due to litigation risk and how much is time value of money, but there's no doubt some of each.

So the plaintiff gets the structured settlement, decides she needs the money now, and goes to J.G. Wentworth, which factors it for her. That means J.G. Wentworth is going to take an additional [?] discount [?] to give the plaintiff a lump sum now and collect in the plaintiff's name over the balance of the structured settlement. This is speculation, but I suspect plaintiff now collects less than the $500,000 the defendant/insurer was willing to pay in present value originally. Would Wentworth's discount rate, if you applied it to the original $800,000, tell us how much of the $300,000 haircut was due to litigation risk and how much due to time value? I don't know and I'm quickly getting in over my head here.

I'd be the last person in the world (perhaps) to suggest that there ought to be a governmentally imposed restriction on the right of anybody to sell a financial instrument. I'd also be skeptical of attempts to regulate the practice by cognitive means like disclosures and warnings. But this strikes me a weird market, and if an SSRN key word search and a Westlaw search of the form [(structured /2 settlement) /p (secondary /2 market)] are any indication, nobody has written on it.

Posted by Jeff Lipshaw at 11:40 AM | Comments (8) | TrackBack

Too Much Happiness?

Increasingly, the study of “happiness” is making its way into legal academic writing. In some analyses it is framed as an alternative to money as a measure of welfare; in others as a focus on addressing the recurring problem of law firm associates’ pessimism. It is applied to tax policy, the calculation of pain-and-suffering damages, democratic institutions, and more. And happiness is making its way into law schools—well, in a sense anyway—with seminars being offered at Yale and Temple Law Schools on, for instance, “Law, Happiness, and Subjective Well-Being.” The study of happiness, and the related research program in positive psychology, are becoming increasingly prominent in law and policy.

The connection to the also-burgeoning literature on paternalism is clear; to the extent different interventions might be able to increase people’s happiness and welfare, is government justified in promulgating such interventions (or even obligated to do so)? That’s a can-of-worms type of question that I won’t get into in this post, but it connects with an interesting new article that indirectly raises the question whether such intervention—even if justified—might in fact backfire. That article, “The Optimum Level of Well-Being: Can People Be Too Happy?,” suggests that even though higher happiness seems to correlate with higher success in other areas, simply continuing to increase happiness might not increase that success consistently. The abstract follows:

Psychologists, self-help gurus, and parents all work to make their clients, friends, and children happier. Recent research indicates that happiness is functional and generally leads to success. However, most people are already above neutral in happiness, which raises the question of whether higher levels of happiness facilitate more effective functioning than do lower levels. Our analyses of large survey data and longitudinal data show that people who experience the highest levels of happiness are the most successful in terms of close relationships and volunteer work, but that those who experience slightly lower levels of happiness are the most successful in terms of income, education, and political participation. Once people are moderately happy, the most effective level of happiness appears to depend on the specific outcomes used to define success, as well as the resources that are available.

We know that “money doesn’t buy happiness”—that simply increasing financial success doesn’t directly correlate with happiness above a certain (surprisingly low) point; here’s an interesting suggestion that above a certain point, happiness doesn’t “buy” success.

Posted by Jeremy Blumenthal at 02:13 PM | Comments (2) | TrackBack

This is Your Brain on ... the New York Times

A recent NY Times bit talks about “neurorealism,” that is, people’s increased tendency to believe psychological or other scientific assertions when those assertions are accompanied by images from brain scans. The piece quotes Deena Weisberg, who wrote an article in the Journal of Cognitive Neuroscience documenting this empirically (in both laypeople and, if I remember the article correctly, in experts, though to a lesser extent), and the neologizer, Eric Racine. The piece mentions a newspaper article “about how high-fat foods activate reward centers in the brain,” and asks, “Couldn’t we have proced that with a slice of pie and a piece of paper with a check box on it?” Brian Leiter also noted the Times piece, with a plug for his paper criticizing legal academics’ use of evolutionary biology.

But the Times bit, and these scholars, conflate two very different points. The first is the “credulousness” issue—that people believe the assertions when accompanied by brain images. That’s an important point, especially in the legal context, where judges, jurors, or policy-makers might be exposed to such scans and misled by such scientific “explanations” of behavior. (Of course, it’s not enormously surprising, given past concerns about jurors’ understanding of complex scientific evidence.)

But that’s quite a different point from the dismissive “check box” question, criticizing even the usefulness of such neurological research. fMRI and other such scans can of course provide important and useful evidence, and certainly can tell us more than simple self-reports or even other behavioral studies. Matt Lieberman, a psychologist at UCLA [disclosure: we were in grad school together] and one of those most prominently associated with the newish field of social cognitive neuroscience, has addressed this well, in answering whether SCN provides something more than conventional social psychology. Summarizing just one of his papers on the issue: he points out that fMRI can provide evidence that “two psychological processes that experientially feel similar and produce similar behavioral results, but actually rely on different underlying mechanisms,” such as memory for social and non-social information. It can document “processes that one would not think rely on the same mechanisms, when in fact they do,” such as the common neurological pathways in the experience of both physical and social pain. And more speculatively, he suggests, as “more is learned about the precise functions of different regions of the brain it may be possible to infer some of the mental processes that an individual is engaged in just from looking at the activity of their brains.” This is an important advantage to overcome potential difficulties in, for instance, self-report.

There is of course danger in over-selling fMRI and similar neurological evidence—whether evaluating psychiatric patients, capital defendants, or others—and documenting people’s susceptibility to such over-sell is important. But it’s quite a different question whether such scans can be useful, and to dismiss them out of hand is just as obviously a mistake.

Posted by Jeremy Blumenthal at 10:57 AM | Comments (2) | TrackBack

Fabulists and Cognitive Illiberalism

Politicos are talking about National Review blogger Thomas Smith's admission of having misreported from Lebanon. In one post, Smith claimed that "a few days ago, between 4,000 and 5,000 HezB gunmen deployed to the Christian areas of Beirut in an unsettling 'show of force.'" In the face of some severe doubts, Smith has now written:

In retrospect, however, this is a case where I should have caveated the reporting by saying that I only witnessed a fraction of what happened (from a moving car), with broader details of what I saw ultimately told to me by what I considered then — and still consider to be — reliable sources within the Cedar Revolution movement, as well as insiders within the Lebanese national security apparatus . . . I have not been able to independently verify that “thousands” of armed Hezbollah fighters deployed to the Christian areas of Beirut in late September, but my sources continue to insist that it happened.

Glenn Greenwald has labeled Smith a "fabulist," noting that NRO had led the attack on The New Republic's Scott Thomas Beauchamp, but has now downplayed similar charges of motivated reporting. (NR's response here.) He fumes:

And now, here is the leading conservative magazine, outright inventing facts about Hezbollah's military conduct in Lebanon. And -- in stark contrast to the transparent efforts of Franklin Foer to investigate and disclose what he learned -- National Review's editors do everything possible to obscure what happened and to justify the falsehoods, praising the reporter who did it and keeping him on. Will attention be paid to this obviously serious -- and quite representative -- episode of journalistic fabrication by National Review?

As Greenwald noted, not all conservative bloggers have held their powder. Michelle Malkin is tough here. And Glenn Reynolds . . . well, he provided a pretty classic passive-aggressive link. (I say that with all possible love, Glenn, and I'm grateful for the recent reference.)

Hypocrisy is a common charge in political debates. But, as I commented a while back, we should be careful to distinguish the vice of hypocrisy from the venal sin of not having principles at all. And, to the extent possible, it is useful to separate what Kevin Heller, commenting on my previous post, called intentional "covert hypocrisy" and less culpable states of mind.

That is, in this Smith-dispute, liberals like Greenwald assume that any attempts to downplay wrongdoing result from an intentional monologue by wingnut conservatives that probably sounds a little like this: "Yes, our actions were the same as those we previously castigated. But we never actually were outraged before: it was all just politics. In politics, you use the tools that come to hand. And, when we're done here, we're thinking about a nice nap and then spending the afternoon clear-cutting a rainforest. Go pound sand." Similarly, when conservatives catch liberals in seeming inconsistencies – the perjury charges against Scooter Libby v. the perjury charges against President Clinton, or the proper role of the Senate's procedural delay mechanisms come to mind – they believe that liberals are unprincipled moonbats who are advancing their secular, immoral, pro-drugs and anti-police agenda.

For a way out of this dispiriting swamp, be sure to check out Dan Kahan's new piece from the Stanford Law Review, The Cognitively Illiberal State. In the article, Kahan lays out a theory explaining the persistence of distrust in political debate, and offers some suggestions for policymakers who might want a more pragmatic and constructive discourse. Interestingly, in the same issue of the SLR, Cass Sunstein offers a different account of the relationship between public reaction and deliberation, here in the context of judicial decision making. His If People Would Be Outraged by Their Rulings, Should Judges Care? suggests some (largely consequential and accuracy promoting) reasons that Courts of Appeal ought to consider public reaction as an aspect of rulemaking. (In response, Andrew Coan questions whether Sunstein has engaged in "minimalism in legal scholarship.")

(Photo Credit: The Washington Note.)

Posted by Dave Hoffman at 08:30 PM | Comments (0) | TrackBack

Does the Phillies' Pennant Mean It's Good to be a Philadelphia Plaintiff's Lawyer?

I had the tremendous pleasure of attending yesterday's 6-1 Phillies victory over the Nationals. In the ninth, the crowd learned of the Mets' loss (and consequent, miraculous, Phillies clinching of the National League East pennant) about five minutes before the scoreboard posted that result, demonstrating the quick response time of social networks. I screamed my head off, and as a result will be hoarse for class tonight. Ironically, I'm teaching acceptance by silence.

But I didn't put up this post just to gloat. That would be wrong.

Well after the game, I wondered about the interaction between sports victories and legal decision making. I know there are studies out there that correlate a home-team's victory with a limited bump in local discretionary spending, and that overall wins (and teams) have negligible effects on economic growth. That makes some sense to me. But sports victories certainly have noneconomic effects. Wins change the atmosphere in cities (like Philadelphia) where there are tightly-connected urban communities. Just to relay an anecdote: this morning, on the subway, I observed someone actually give up their place to a woman transporting two small children. I don't think that happens on an ordinary day in Philly.

Does winning matter for law? It's not implausible, and it is relatively easy to test. I bet that jury awards today for prevailing plaintiffs are higher than average, and that judges are slightly less likely to grant summary judgment. (And visa versa. I would not want to open a civil case before a Queens jury today.) Civic noise certainly matters to legal decisionmakers: if the narrative around town is "the underdog has prevailed," that has got to have some impact on the legal system. All of which is to say: plaintiffs lawyers able to choose cases might consider picking clients likely to go to trial in jurisdictions with winning local sports teams.

Posted by Dave Hoffman at 04:17 PM | Comments (3) | TrackBack

Cultural Cognition and High-Definition Politics

Last week, in reaction to the President's latest speech on Iraq, Andrew Sullivan and Kevin Drum highlighted an unexpected consequence of the rise of high-definition television. As Drum puts it:

Just as Richard Nixon "lost" the 1960 debate because, although he sounded fine on radio, he looked bad on TV, so modern politicians are going to have to learn to look good even when they're looming over their audience on 80-inch HD plasma screens. Looking good on a scratchy 32-inch tube doesn't cut it anymore. I predict booming business for a whole new generation of media advisers and skin care consultants.

Approving nods from the blognoscenti followed. Gosh, even guys from the Corner agreed with Sullivan and Drum. Too bad the claim is trivial.

The argument is that like the advent of T.V. itself, high definition television will force politicians to respond to a new set of (superficial) demands; to spend more time primping, and thus (I guess) reduce the likelihood that the candidate of "ideas" will win.

As a historical matter, recent scholarship tends to support what was once thought of as a myth: Nixon lost the 1960 debate and (possibly) the election because he looked tired, hirsute, sweaty and orange in the first '60 Presidential debate. Fair enough: television was indeed a paradigm shift that politicians were not ready for, and Nixon was uniquely vulnerable because he was (until the debate) a huge overdog. But although Nixon won among radio listeners - giving rise to the paradigm shift claim - he likely had a big built-in advantage in that medium: a voice congenial for radio listening. That is, there is no such thing as a neutral medium.

I've learned this first-hand as a part of some research designed to test survey respondents' reactions to a video stream: even on the Internet, subjects with narrow pipe see a very different video than those with broadband, making it difficult to collect a truly apples-to-apples sample. The thing that Drum, Sullivan, and others seem to forget is that we're simply switching one set of distortions for another. Politicians have responded to low definition t.v. with a set of tools: makeup, hair stylists, careful tailors. They will likely respond to clearer t.v. with moves that, at least on one reading, are more substantively related to well-being: working out more, eating better foods, and coming out as hair-challenged.

But even were this new advance in the medium of political communication to be 100% immersive - if we had hyper-realistic media transmission systems that let you smell Fred Thompson's Gucci loafers - the way that we experience politicians, news, indeed, any informational stimulus would still be biased and culturally contingent. That bias isn't external to the viewer, it is all in our heads.

Posted by Dave Hoffman at 12:48 AM | Comments (0) | TrackBack

The Law and Economics of the Doping Scandals

Peter Singer has written a usefully provocative essay, “Why Not Let Doping Close the Gene Gap,” in which he questions the conventional wisdom on steroids’ moral harmfulness. Singer points out that prohibiting doping puts those with inferior genes at a disadvantage, and that the current line between that which sports leagues prohibit and that which they do not is hard to defend. Thus, why not permit athletes to take drugs, whether or not those drugs harm them.

Singer’s arguments are (as they often are) hard to cabin. If steroids, why not artificial legs, lungs, hands, eyes. Though, if not steroids, why caffeine, IVs, Gatorade, and pickle juice. I was left feeling kind of stuck in a swamp, and so I thought, as I often try to do when confronted by a vexing legal problem, WWPD? What would Posner do?

We could ask him, but he’s a busy guy. So, let’s see if we can gin up a back-of-the-envelope look at the law and economics of sports doping.

Starting at the back-end, the classic L&E approach to crime is Becker’s. The model implies that