From the hyper-civilized French comes a new game show:

Game show contestants turn torturers in a new psychological experiment for French television, zapping a man with electricity until he cries for mercy — then zapping him again until he seems to drop dead.

“The Game of Death” has all the trappings of a traditional television quiz show, with a roaring crowd and a glamorous and well-known hostess urging the players on under gaudy studio lights.

But the contestants did not know they were taking part in an experiment to find out whether television could push them to outrageous lengths, and which has prompted comparisons with the atrocities of Nazi Germany.

The better analogy is [...]]]>

At least Milgram Wasn't Doing It For Profit

From the hyper-civilized French comes a new game show:

Game show contestants turn torturers in a new psychological experiment for French television, zapping a man with electricity until he cries for mercy — then zapping him again until he seems to drop dead.

“The Game of Death” has all the trappings of a traditional television quiz show, with a roaring crowd and a glamorous and well-known hostess urging the players on under gaudy studio lights.

But the contestants did not know they were taking part in an experiment to find out whether television could push them to outrageous lengths, and which has prompted comparisons with the atrocities of Nazi Germany.

The better analogy is Stanley Milgram’s Yale experiments, which were the direct inspiration for this show.  Though the article blames television’s “absolutely terrifying power” to compel obedience here, I think the result can be explained much more simply as depending on the power of authority itself.

Maybe we need an IRB for reality show producers.

The argument is fairly easily to follow. She argues that tort liability, because it is prospective and systemic, motivates providers to invest in precautions that are general and non-rivalrous: a collective good.  Thus, medical safety investments will be underproduced if left to the incentives of individual contracting parties, since each patient will want to free-ride off others’ choices to purchase “liability” from their doctors.  Moving liability to managed care organizations [...]]]> Jennifer Arlen came to Temple on Monday to workshop her paper, Contracting Over Malpractice Liability, forthcoming in the Penn Law Review.  I was her commentator.  Prof. Arlen uses fairly traditional economic analysis, assuming that patients are rational, to argue that it not welfare maximizing to permit patients to contract out of the background medical malpractice regime.

The argument is fairly easily to follow. She argues that tort liability, because it is prospective and systemic, motivates providers to invest in precautions that are general and non-rivalrous: a collective good.  Thus, medical safety investments will be underproduced if left to the incentives of individual contracting parties, since each patient will want to free-ride off others’ choices to purchase “liability” from their doctors.  Moving liability to managed care organizations doesn’t help matters, it turns out, because it would simply permit the company to segregate between consumers who need liability protection (ones who are, or are likely to become, sick) and those who don’t (the young and healthy).  Under such a system, MCOs will package “good” health insurance together with liability, meaning that healthy individuals with a taste for liability coverage will need to pay a premium to access it.  This again leads to insufficient amount of liability protection over all patients.

It’s an important paper, not least because the form of argument may generalize to other kinds of contracting over private law.  Isn’t it true for most forms of negligence protection that the benefits are non-rivalrous and hard to exclude?  If so, permitting any contracting out of tort law likely results in a net loss of socially optimal deterrence.  Similarly, contracting out of civil procedure may lead to loss in societal benefits (like, for example, the litigation-generated-spillovers resulting from more information about the content and operation of legal rules.)  That said, as I commented to Prof. Arlen, it’s not clear whether she really maintains that patients are rational maximizers, since some of the argument relies on facts about the world (e.g., bad monitoring by insurance companies, insufficient lawsuits) that are difficult to square with rational choice theory. Also, what does medical error mean anyway?

I thought it would be worthwhile to bring this paper to your attention, since we’re living in a world where contract law’s dominance over torts is becoming ever more evident.  As this law firm circular points out, doctors are requiring patients to sign enforceable arbitration clauses.  It’s my sense that the bleak view that Arlen’s paper gives of contracting out of liability entirely also extends to such agreements.

*Whether they are a true public good or rather a club good is a little bit obscure in the paper.

In Free, The Future of a Radical Price, Chris Anderson leverages a few behavioral psychology experiments to assert that companies ought to embrace free distribution as a business model.  In particular, he highlight’s Dan Ariely’s work with Hershey kisses.  As Malcolm Gladwell explained Arielly’s work in his review of Free:

Ariely offered a group of subjects a choice between two kinds of chocolate—Hershey’s Kisses, for one cent, and Lindt truffles, for fifteen cents. Three-quarters of the subjects chose the truffles. Then he redid the experiment, reducing the price of both chocolates by one cent. The Kisses were now free. What happened? The order of preference was reversed. Sixty-nine per cent of the subjects chose the Kisses. The price difference between the [...]]]>

Even Tastier When They're Free

In Free, The Future of a Radical Price, Chris Anderson leverages a few behavioral psychology experiments to assert that companies ought to embrace free distribution as a business model.  In particular, he highlight’s Dan Ariely’s work with Hershey kisses.  As Malcolm Gladwell explained Arielly’s work in his review of Free:

Ariely offered a group of subjects a choice between two kinds of chocolate—Hershey’s Kisses, for one cent, and Lindt truffles, for fifteen cents. Three-quarters of the subjects chose the truffles. Then he redid the experiment, reducing the price of both chocolates by one cent. The Kisses were now free. What happened? The order of preference was reversed. Sixty-nine per cent of the subjects chose the Kisses. The price difference between the two chocolates was exactly the same, but that magic word “free” has the power to create a consumer stampede.

On this narrow reed Anderson concludes that free goods create extraordinary psychic effects.  Both Gladwell and Matt Yglesias, otherwise quite critical of Anderson, embrace the point.  Ygelesias argues that companies will compete away any behavioral effects, and that costs will never actually get to zero.  He observes that, “the whole subject could stand to benefit from a little less good writing and a bit more plodding distinction-drawing.”

Well, I think I am well qualified to be a worse writer than Malcolm Gladwell, so I’ll try plodding for a bit.  To begin with, folks should read the paper.  It offers a readable description of the experimental series.  Or, if you’ve a copy of Ariely’ book, he apparently synopsizes the results.  After you’ve read the paper, return here for three quick questions about the general applicability of Ariely’s work:

First, we don’t know whether those effects are robust.  Even if companies aren’t well-situated to compete away the “free” bonus, is it a universal attribute of human cognition, or something contingent and culturally fleeting?  My sense is that the modern economy makes it much harder for ordinary consumers to know the worth/value of goods.  (I bet this is testable: have people gotten worse, as I’d guess, at the “Final Showcase” estimates at the Price is Right over time?)

Second, will the result will hold up against debiasing?  Most of the studies conducted involved relatively quick decisions in an noisy environment (a school cafeteria).  Would you get the same result if you told people about the “free effect” before exposing them to the choice? I tend to think not — doesn’t engaging in this kind of behavior make the subject into a bit of a sucker?

Third, what about heterogeneity? Ariely doesn’t tell us much about individuals who continued to prefer truffles.  Are the different demographically from the switching individuals?  There’s a very strong nomothetic theme in Ariely’s work (like most BLE work).  But not all individuals fall prey to the pull of free goods.  Maybe we ought to study those who don’t want kisses, before we reform our marketing (and our law) to exploit (or protect) those that do.

Cass Sunstein argues in his new book Going to Extremes: How Like Minds Unite and Divide that extremism is a phenomenon that is enhanced when people of like minds get together to talk. When we think of people that lie at the extremes of society, our minds are often drawn to reclusive characters. People like John the Baptist living in the wilderness “wearing clothes made of camel hair, eating locusts and wild honey;” (Matt. 3:3-4) or people like Raskolnikov from Fydor Doystoyveski’s Crime and Punishment – a reclusive character who develops a radical and warped sense of morality in response [...]]]> Going to Extremes: How Like Minds Unite and Divide, by Cass Sunstein. Oxford University Press: New York 2009. Pp. 171. $21.95

Cass Sunstein argues in his new book Going to Extremes: How Like Minds Unite and Divide that extremism is a phenomenon that is enhanced when people of like minds get together to talk. When we think of people that lie at the extremes of society, our minds are often drawn to reclusive characters. People like John the Baptist living in the wilderness “wearing clothes made of camel hair, eating locusts and wild honey;” (Matt. 3:3-4) or people like Raskolnikov from Fydor Doystoyveski’s Crime and Punishment – a reclusive character who develops a radical and warped sense of morality in response to his perception of society’s values. In reality, people that live on the extremes are rarely alone. They are surrounded by a network of like thinkers who confirm the attitudes, beliefs and interpretations of sensory data that those persons embrace as normal. Extremes are about information. That is, where you get your information from; whether you believe that information to be reliable, and how willing you are to accept information outside of your preferred source.

Going to Extremes is about how, when and why extremes develop in communities. The theme of the book is that “[w]hen people find themselves in groups of like-minded types they are especially likely to move to extremes” (p. 2). Sunstein’s work fits into the genre of human behavioral psychology proposed by James Sidanius and others that views extremists’ cognitive complexity as more complex than moderates. See James Sidanius, Functioning Sociopolitical Ideology Revisted, 6 POLITICAL PSYCHOLOGY 637, 639 (1985). This is in contrast to extremism theory, which largely assumes that political extremists display less-sophisticated cognitive behavior than moderates. About the form of extremism we call terrorism, Sunstein writes at one point,

it is tempting to think that terrorism is a product of extreme poverty, lack of education, or a kind of mental illness. It turns out that all of these thoughts are quite wrong. Most of the time, [terrorists] come from middle-income families. Nor have terrorists lacked education. There is no evidence that they suffer from mental illness…. Alan Krueger argues that terrorism is a form of political protest, and those who lack civil rights and civil liberties not having other means of engaging in protest resort to terrorism. To Krueger’s point, we might add that when civil liberties do not exist citizens have only one prominent source of information – the state – and that source cannot be trusted. (p. 115)

Terrorism then becomes a reaction against information that the extreme positions assume can’t be right. Thus, in Sunstein’s work, the why and how of extremisms (like terrorism) can be associated with how individuals interact in communities – the trust they place in the information received, the confidence they derive from like-minded members, and the authority or submission they respond to as a member of the community.

Sunstein supports his theme with various empirical anecdotes, studies and discussion. Sunstein begins by describing how people and groups gravitate towards extremism by polarizing their positions. (pp. 1-20). Chapter two describes how polarization occurs, considering factors that increase the likelihood of extremities; namely, Sunstein describes the role of assimilation, confidence, rhetorical speech, time, authority, and medium in the facilitation of polarization. (pp. 21-98). Chapter three considers several extremist movements and how those extreme movements have impacted American discourse (pp. 99-125). Chapter four considers how extremism can be prevented by traditionalism (pp. 127-135); systems of checks and balances (pp. 135-140) and the role of deliberative democracy. Sunstein’s final chapter illustrates some good consequences of extremism, namely its propensity for creating dialogue across the political spectrum.

This review makes two points regarding Sunstein’s work. One critique about Sunstein’s work as a whole is that it does not define extremism, but implies that extremism is a relative concept to community and time. Second, Sunstein’s work does a nice job, though scattered at times, of describing how information leads to confidence in communities, largely through anecdotal evidence. I want to focus on just one aspect of information based confidence – the role of technology in making information available and engendering confidence.

First, Sunstein does not offer or propose to offer a definition of extremism. At best, Sunstein implies that extremism is a function of communities. (In Sunstein’s defense, the work is not about defining extremism or how to recognize extremes). Nevertheless, the lack of a definition reduces the conversation to a question of community or political dynamics. I find two distinct problems with this approach. First, without a definitional starting point, the notion of extremism does not account for movements over time. Sunstein implies that extremism can have the effect of moving the middle over time. Sunstein says:

For any nation, second-order diversity may be especially important, certainly in the long run. If many organizations are allowed to exist, and if each of them is made up of like-minded people, the nation will ultimately benefit from the greater range of views and practices that emerge. Inevitably, several of those groups will be extreme, but their very extremism will enrich society’s argument pool and thus promote sensible solutions. (pp. 150-51).

I believe that Sunstein’s point is to say that extremism is a context dependent idea. That is, apart from the community or the time in which the community exists, it is difficult to pinpoint an exact meaning of what it means to be an extremist. If this is in fact Sunstein’s point, I think support can be found in a variety of places.

Second, assuming that Sunstein’s definition is community dependent (which I believe it is), the second definitional problem is how do you define the community in which extremism develops. Or, more problematically, can the community self-select itself. These two definitional problems of boundaries and self-selection are exemplified by looking at two American Jurisprudential Groups of the last thirty years – the Crits and the rise of religiously oriented law schools in the 1990s.

In the 1970’s the Critical Legal Studies movement sat on the left fringe of the American Legal Academy as a result of dissatisfaction with the legal academy’s approach to the law. Yet, the Crits were not necessarily welcomed members of the legal academy. As Neil Duxbury suggests, the Crits sought refuge from the law school culture in annual conferences, meetings and conventions, in which Crit ideology was not only embraced, but exacerbated. Eventually, the once-fringe movement, became an accepted part of the legal academy. Two narratives can be told of the Crit movement. One narrative is that the Crit movement forced the legal academy to move further to the left by its continuation over time, so that as more Crits infiltrated the ranks of the academy, the middle shifted. The second narrative is that the Crits self-selected a move to the middle. In other words, one story of Crit acceptance is that the Crits had to moderate their message in order to be accepted into the broader legal community. The other story is that the academy self-selected the crits as a known fringe part of the broader law school community.

In contrast, the rise of religiously affiliated law schools similarly came out of dissatisfaction with the legal academy. By religiously affiliated law schools, I am referring not to those schools that affiliate with a religious institution, but those institutions that endeavor to teach law from a religious perspective. For example, Regent University, Liberty University, and Ave Maria primarily come to mind. These schools emerged similarly to the Crits – beginning in smaller gatherings and then emerging as whole communities of legal training. Their isolation, though was different from the Crit isolation of the early 1980’s. First, the time was different. The Crits isolated themselves in enclaves for weekends at a time or in smaller less formal meetings when conventions were not possible. Afterwards, they returned to the world in which, no doubt, they themselves became moderated, and the non-crits became Crit-i-fied. The Crits thus found themselves as members of multiple communities – members of the academy during most of the year, and members of a Crit community when the enclave was able to meet (whether there be two or more were joined together). It seems that the opposite may be true for those religiously oriented schools I have named. Most of their time is spent as a member of a particular ideological community, with more limited time spent as a part of a mainstream group (perhaps at conferences and other larger community gatherings of American law schools). At this point, if the definition of extremism is dependent on what constitutes community, whether either of these groups are deemed extremists at any point in time depends largely on perception. Because being an extremist is so tied to community, defining both extremism and community would be useful in understanding what it means to be an extremist. These are questions not addressed by Sunstein’s work.

Second, the best part of Sunstein’s work is the description of information as a catalyst for community movement. Sunstein points out that the “key to extremism in all forms is the exchange of new information. Group polarization often occurs because people are telling one another what they know, and what they know is skewed in a predictable direction.” (p. 21). Sunstein ties extremism to confidence in information; when people are less confident in their information, they tend to moderate their views; however, when multiple trusted sources confirm information, people tend to become more extreme. (p. 23). The rise of the Internet and social networks has aided the ease by which people are able to find communes that instill confidence in one position or another. Importantly, these social online networks are not passive engagements, but rather are types of mediums that require regular investment by the participant. By regularly investing his or her time reading and contributing to the activity, participants become quietly both less moderate and more confident in their extremism. (p. 25)

The internet’s instant access allows people to by-pass what we might term general interest media, and instead focus on specialized media that is directly targeting one particular viewpoint or another. (The same problem could be associated with the rise of cable news directed to individual interests). One problem with this analysis is that it ignores the fact that the general interest media may have been the mainline media simply because there was no other option. Sunstein’s assumption that the general interest media would remain the general interest media in the context of choice may not be right. Nevertheless, his primary point on access is a good one. As people find like-minded people on the internet, communities based on interest as the single unifying principle begin to emerge into a homophilized zone of rhetoric. This is not necessarily out of the ordinary from interactions outside of the internet. People attend churches, mosques and synagogues that they find a theological correlation of beliefs and attitudes. Political parties are largely comprised of people that maintain shared interests in government, whether those interests derive from geographic, moral, financial or constitutional concerns. (p. 83-84) The internet does bring two new forms of interaction to the traditional community. First, individuals can build confidence derived mostly from anonymity. Thus, the internet can effectively allow someone to build a different sense of confidence in a community than they would if that community interacted in person. We saw this effect in December when local community members were shocked to learn a young doctor who wore blue jeans and baseball caps led a double life an Islamic jihadist online; they of course learned this after the doctor carried out a bombing that killed himself and seven CIA agents. The internet for good and for bad allows people to segregate their identities into convenient communes.

Second, the community, in theory, is always meeting online. In the form of forums, blogs and list-serves, people can express their views to the community or read the community’s views anytime that is convenient. Thus, the internet becomes a perpetual community, which may be accessed anytime, and confirm the views that the individual already believes.

Sunstein’s work on extremism is simple and intuitive, but also very thoughtful and artistic in its assessment of extremist behavior. Sustein demonstrates not only the detrimental effects of extremism but also its positives. To wit, Going to Extremes makes a distinctive contribution to the literature of human behavioral economics, and deserves attention by academics, judges and attorneys alike.

__________________________________________________

Marc Roark is Assistant Professor of Law, University of La Verne College of Law. He would like to thank Brannon Denning, Daniel Solove, Malana Jones, and Chuck Doskow for reading prior drafts and Allen Easley, John Linarelli, and Diane Uchimiya for thoughtful comments and discussion of this material.

(H/T: Noted surveyor D.B.)

“You agree to pay Google an equipment subsidy recovery fee (the “Equipment Recovery Fee”) equal to the difference between the full price of the Nexus handheld device without service plan and the price you paid for the Nexus handheld device if you cancel your wireless plan prior to 120 days of continuous wireless service. For example, if the full price of the Nexus [...]]]> Tech blogs are astir today at the fine print in Google’s Nexus One’s terms of sale. Turns out, if you buy a subsidized phone through google and cancel your phone contract “early”, not only must you pay a fee to the carrier, but google also wants you to pay it the difference between the list price of the phone and the sale price.

“You agree to pay Google an equipment subsidy recovery fee (the “Equipment Recovery Fee”) equal to the difference between the full price of the Nexus handheld device without service plan and the price you paid for the Nexus handheld device if you cancel your wireless plan prior to 120 days of continuous wireless service. For example, if the full price of the Nexus handheld device without service plan was $529 USD and the price you paid for the Nexus handheld device was $179 USD with a service plan, the Equipment Recovery Fee you pay will be $350 USD in the event you cancel within the first 120 days of carrier service . . . You authorize Google to charge the Equipment Recovery Fee directly to your credit card, or other payment method used to purchase the Nexus handheld device, upon cancellation of your wireless plan . . .

You agree that the Equipment Recovery Fee is not a penalty but is for liquidated damages Google will incur as a result of such cancellation. These damages may include, but are not limited to, loss of compensation and administrative costs associated with such cancellation or changing of wireless service provider(s), market changes, and changes in ownership. Please note that the Equipment Recovery Fee is imposed by Google and not your chosen carrier and is in addition to any early termination fees that may be charged by your chosen carrier in connection with termination of your wireless plan prior to fulfillment of your chosen carrier’s service agreement term.”

Notwithstanding the language of agreement that this is a liquidated damages clause, I’m pretty sure that customers could legitimately challenge this fee in court as a penalty .  As many have noted, customers will end up paying more in termination fees than the cost of the phone (since both google and the carrier can charge in this model).  As we all know, liquidated damages must be either a fair estimate of an uncertain harm, or be relatively close to the actual damages suffered by the promisee.  The harm here isn’t at all uncertain, and I don’t think that charging more than the sales price constitutes a good measure of the seller’s actual damages.  Notably, we can’t simply use the difference between list price and sales price as the lost expectation, since the sales price is inflated by the business model (sort of like health care costs charged by hospitals).

The collection method that google built into contract here is also a problem.  It’s a form of self-help which customers ought to be able to challenge with their credit card companies.  Indeed, the clause is so riddled with obvious legal issues that I started to wonder whether google wrote it seeking to take advantage of behavioral research suggesting that liquidated damages clauses change individuals’ feelings about breach.  What do you think?  Is google’s new slogan “Don’t be evil.  But if you must be evil, be really good at it?”

Here’s another example I’ve been thinking about lately: the claim that offensive linemen are smarter than other players on the field.  Think about it.  Doesn’t it just feel true?  And here’s the graph that popularized the claim:

Ben Fry, a smart fella by [...]]]> There are many candidates for the best visual display of quantitative information.  But how about a prize for worst display of information?  Call it the anti-Tufte. There has been some competition of late.  The graph can’t be merely misleading, or distracting. That’s too darn easy! A really bad display has several characteristics: (1) it has to overstate the certainty of the underlying data; and (2) by using pictures, it must reinforce our biases.  A recent example is the Obama Cabinet/Private Experience graphic.

Here’s another example I’ve been thinking about lately: the claim that offensive linemen are smarter than other players on the field.  Think about it.  Doesn’t it just feel true?  And here’s the graph that popularized the claim:

Ben Fry, a smart fella by all accounts, created the graph.  The size of the circles represent mean scores by position on the Wonderlic, a 12 minute, 50-question, intelligence test which players take during the combine before the NFL draft.  This graphic is often deployed to support the cliché that players closer to the ball have to be smarter. But closer examination has led me to believe that the claim – and the graph – are bunk.  And bunk of a particular sort: misleading empiricism of the sort that reinforces racial stereotypes.

The figure derives the mean scores by position from Wikipedia, which cites a 1985 (!!) book. We have no sense of the population sizes for the means.  More recent positional breakdowns provide different statistics.  For example, this page purports to release the Wonderlic scores for some entrants in the 2009 draft.  Centers scored highest (above QBs), but kickers and punters (who aren’t particularly close to the ball) were next, while offensive guards, fullbacks, outside linebacks and long-snappers scored about the same  There’s no way to know, so far as I can see, what a significantly different score looks like without more information about the sizes of each cell.  That is, I don’t think we can know that a score of a 24 is meaningfully different from a score of a 23 in a population this small.  And since the only scores we have are means, the size of outlier effects is hidden.

A second criticism relates to selection.  What possible mechanism would make the players “closer to the ball” “smarter” than those farther from it?  The baseline hypothesis is that linemen need superior decision making skills: quick judgments about blitzes, better memory of the intricacies of the plays and blocking schemes, etc. But this seems hard to swallow: doesn’t the running back need those exact skills? And why does the punter, whose job seems pretty one-off.   And the operation of this idea is weird, however popular it might be: the idea seems to be that there’s an undifferentiated mass of football players in pop-warner leagues. Some are smarter than others.  The smarter ones get pushed to the o-line and the QB position; the less smart ones are pushed to become little wide-receivers. Then, what happens?  In a feat of unprecedented lamarckian  adaptation, the little o-linemen become huge o-linemen; the little wide receivers become lithe, tall, or very, very fast.

Big Mike

Or maybe the selection operates over time in a different way: dumb o-linemen, notwithstanding their physical characteristics, are selected out of the football tournament; wide-receivers are encouraged to be stupid.  You might have thought football was a game about bashing the other guy, being a freakish physical specimen, and being willing to sacrifice your body and brain for the team. On this hypothesis, it isn’t: it’s a selection process for decisionmaking skills.   Look, I guess this is possible, but it seems quite unlikely

So I don’t understand the selection story. And that makes me doubt whether the Wonderlic test measures anything of relevance to football, as opposed to a particular kind of test taking skill which might result in a persistent bias in scores based on position.  Of course, I’m not the first person to make either of these observations.

Many teams no longer rely on the Wonderlic since it appears to do a bad job of measuring performance.  The teams that continue to rely on the test appear, to me, to be seeking empirical justification for some kind of gut decision making about character.

With respect to bias, start first with the observation that offensive linemen are disproportionately white in a league that is mostly (70% or so) composed of African-American players.  The Wonderlic, unfortunately, produces scores that are racially skewed. As law professor Michael McCann argues in Using Social Psychology to Evaluate Race and Law in Sports

“Research by Stanford University social psychologist Claude Steele on “stereotype threat” may help explain the discrepancy in performance [between African-American and White players]. Broadly speaking, “stereotype threat” refers to a self-fulfilling prophecy where “anything one does or any of one’s features that conform to [the stereotype] make the stereotype more plausible as a self-characterization in the eyes of others, and perhaps even in one’s own eyes.”  … When the stereotype concerns intelligence, the perceived threat of confirming the negative stereotype about one’s own group may be so strong that it diminishes performance.  Applying stereotype threat to the test-taking scenario, the general idea is that before a person takes an examination, he or she has certain preconceived notions about likely success on the test. If this person believes that he or she will do poorly on the test, perhaps because this person is a member of group which tends to do poorly on that test, then, according to Steele and others, he or she will likely feel more anxious while taking that test and, unsurprisingly, be less likely to do well.

Steele and his co-authors have found that stereotype threat negatively impacts African- Americans taking standardized tests. Stereotype threat affects other groups as well. For instance, it has been repeatedly observed when women take math and science tests. In one such study, a math test was administered to one group of women and men after they were informed that the test had produced gender-differentiated results in the past; meanwhile, the control group was told that the same test had produced no gender-based differences. The results were unsurprising: women in the informed group “significantly underperformed in relation to equally qualified men” whereas uninformed women performed statistically equally with the men. White men are also known to suffer from stereotype threat. Joshua Aronson, a psychologist at New York University, and his co-authors conducted a similar study of math and science performance, this time among Caucasian and Asian men. Aronson found that when the white male test-takers were reminded of the stereotype that Asian-Americans tend to outperform Caucasians on math and science tests, the Caucasian males subsequently performed worse than their uninformed counterparts in the next room.”

Similarly, Jason Chung argues

“A study by David Chan et al. noted that African-Americans adults in general have a lower regard in general for aptitude tests than their Caucasian counterparts which caused them to score lower on the tests. After motivation was given to black test-takers their scores improved until there was no discernible difference between black test scores and white test scores.”

Thus, even if Wonderlic scores are measurably different by position, which I doubt, those differences may represent racially-based differences in test-taking performance, not intelligence or decision-making.  This explanation, of course, begs the question of why there are racially-based differences between positions.  (Many commentators suggest that so called “racial stacking” may explain these differences, though that explanation suggests that selection operates in a way I continue to find implausible.)

In any event, I wanted to end this post with a few observations.  The first is that graphics can be both misleading and sticky, and you should be careful when you see a figure that confirms your priors.  Second, whatever the correlation between positions and intelligence, it’s clear that being an offensive lineman is a job that irrevocably destroys your brain.  As Malcolm Gladwell recently wrote:

Much of the attention in the football world, in the past few years, has been on concussions—on diagnosing, managing, and preventing them—and on figuring out how many concussions a player can have before he should call it quits. But a football player’s real issue isn’t simply with repetitive concussive trauma. It is, as the concussion specialist Robert Cantu argues, with repetitive subconcussive trauma. It’s not just the handful of big hits that matter. It’s lots of little hits, too.

That’s why, Cantu says, so many of the ex-players who have been given a diagnosis of C.T.E. [chronic traumatic encephalopathy] were linemen: line play lends itself to lots of little hits. The HITS data suggest that, in an average football season, a lineman could get struck in the head a thousand times, which means that a ten-year N.F.L. veteran, when you bring in his college and high-school playing days, could well have been hit in the head eighteen thousand times: that’s thousands of jarring blows that shake the brain from front to back and side to side, stretching and weakening and tearing the connections among nerve cells, and making the brain increasingly vulnerable to long-term damage. People with C.T.E., Cantu says, “aren’t necessarily people with a high, recognized concussion history. But they are individuals who collided heads on every play—repetitively doing this, year after year, under levels that were tolerable for them to continue to play.”

In sum: offensive linemen are not (necessarily) smarter than anyone else on the field (though they may be better test-takers) but they are getting less smart faster than everyone else.

(H/T: Readers CDP and Ringo)

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 [...]]]> 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.

Suppose that astronomers around the world alerted us that a large asteroid is headed in our direction, and might collide with the earth in the year 2012.  The astronomers cannot give us a precise probability of collision because of many imponderables . . .  To build a defense system—say, rockets that would intercept the asteroid and knock it off course—would cost hundreds of billions of dollars . . . As is always the case, there are a few dissenters . . .   A scandal erupts when emails at the West Anglia Space Research Unit are released, and shows that some scientists tried to arrange a boycott of a journal that published a few articles of the skeptics.  At the same [...]]]> Eric Posner muses about Asteroidgate:

Suppose that astronomers around the world alerted us that a large asteroid is headed in our direction, and might collide with the earth in the year 2012.  The astronomers cannot give us a precise probability of collision because of many imponderables . . .  To build a defense system—say, rockets that would intercept the asteroid and knock it off course—would cost hundreds of billions of dollars . . . As is always the case, there are a few dissenters . . .   A scandal erupts when emails at the West Anglia Space Research Unit are released, and shows that some scientists tried to arrange a boycott of a journal that published a few articles of the skeptics.  At the same time, thousands of astronomers not connected with the West Anglia Unit continue to insist that the risk of a collision is very high . . . A few questions.  In this scenario, would there emerge an industry of non-credentialed “astronomy skeptics” in the press and public comparable to the current batch of “climate skeptics”?  My instinct is that the world would quickly get to work building the rocket system, and disregard the views of the skeptics.  Is this right or wrong?  If it is right, is there some reason to think that climate science and astronomy are different, justifying the skepticism about climate science that does not (yet) exist about astronomy?

This is a clever scenario, and its gives me a launching pad to talk about why climate-change skeptics and believers have reacted so differently to the same set of information: namely the stolen East-Anglia emails.

The Cultural Cognition Project has a perspective on this problem which may be helpful.  Dan Kahan, Don Braman, Paul Slovic, John Gastil, and Geoffrey Cohen wrote a paper called The Second National Risk and Culture Study: Making Sense of – and Making Progress In – The American Culture War of Fact. Using a large random and nationally representative study sample, the paper confirms that Americans are deeply divided over basic questions about the climate, such as “how much risk does global warming pose for people in our society?” Those divisions track the cultural identities that the project has often explored — and which relate back to pioneering work by anthropologist Mary Douglas. That is, group-grid theory.

Of particular interest, Kahan et al. tested the hypothesis that individuals’ perceptions about the same set of facts about the severity of the problem turned on what policy solutions were recommended to deal with it.  When the policy solution was nuclear power, hierarchical and individualist Americans were far less likely to discredit global warming facts than when the solution was an expanded set of anti-pollution measures.  Such individuals find expanded anti-pollution policy threatening to their identities: it suggests restriction of market activities (upsetting to individualists) and it implicitly challenges the legitimacy of the ruling order (upsetting to hierarchs).  Confronted with such a threat, individuals are less likely to credit information about increased risks of warming.  Conversely, egalitarians and communitarians were more likely to see global warming as a severe threat when the solution was anti-pollution control.

What does such research teach us?  Well, for one, it makes reactions to “climate-gate” easier to understand.  We know that people are looking at the benefit/risk calculus in highly polarized ways.  The East Anglia emails, which go to the weight of the evidence about warming, is yet more fodder in that filtered debate.  This  polarization is (notably) neither partisan nor conscious.

More importantly, the research suggest a very concrete strategy for those who worry about climate change and who want to see their position persuade unbelievers: you should be more attentive to finding politically congenial solutions, and spend less energy trying to use data to convince those you disagree with.  Thus, former VP Gore’s approach, which focused on staking out a data-driven position on the scope of the problem, has at best produced a fragile coalition in support of change, which will be undermined quickly when individuals are presented with alternative data, information about imperfect scientists, or threatening policy solutions.

Rounding back to Eric’s post,  the reason that asteroidgate seems like a clear example where an organized opposition would not emerge is that neither the underlying disaster nor the policy solution poses a threat to the identities of large and discrete groups of Americans. Expensive rockets simply aren’t the bogeymen that private-property-destroying pollution controls are.  The case would be different if the solution to our asteroid problem were to unequally burden a minority group.  In that scenario, egalitarians and communitarians would be much less likely to credit the risks of a massive asteroid than would hiearchs and egalitarians.

Several bloggers have recently discussed Kathy Zeiler and Charles Plott’s work on the endowment effect.  According to Josh Wright, for example:

Each email contained the same information: soliciting is illegal and police want residents [...]]]> Last week I received at least twenty different emails forwarding the same story about a house in my town that was almost burglarized.  A man with a rake who appeared to be looking for work knocked on a front door and realized it was open.  He went to the sidewalk and consulted with his friends.  The owner, who was in the house, locked the door.  After the men returned to the front door and found it locked, they tried to open a back door and then a basement window.  The owner called 911 and the police caught one of the men.  Not exactly high drama, but plenty scary for the owner inside the house.

Each email contained the same information: soliciting is illegal and police want residents to report all solicitors because these individuals might be casing houses.

Almost every email also contained either a subtle or not-so-subtle ratcheting up of the fear.  Some emails lamented that our blocks weren’t safe.  Others warned that criminals need money for the holidays.  One advised that we consider this story as our children start to get older and move around the town without parents.  Another suggested that we watch the movie “Taken” because it would make us rethink letting students travel to Europe.

The upside is that I now know that soliciting is illegal and that the police want me to report it.  I’m also being more careful about locking my doors, a good habit in any event. 

But here’s the downside to this email flurry.   I am discomforted as I move about my town and house in a way that I have never been before.  This is true even though I know about the availability heuristic, i.e., the tendency to think events are more probable if we can recall such an event occurring.  I also know how bad humans are at processing information about low-risk occurrences.   Email  only exacerbates this faulty reasoning.  The Rakeman story is significantly more available to me than it would have been had I heard about it once or twice through old-fashioned word-of-mouth.

Many would argue that discomfort is good.  They are probably right, to a point.  But here is what I would have said if I had allowed myself to respond to all those emails:  Lock your doors.  Be smart.  And relax, because you are a lot safer than you think you are.

Citation studies as a proxy for judicial quality are all the rage.  I concur with Larry that the effort spent often seems disproportionate to the result.  Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.

Exogenous shocks open windows – of limited scope – which may help us penetrate this fog.  There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance.  Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that [...]]]>

Judge food.

Citation studies as a proxy for judicial quality are all the rage.  I concur with Larry that the effort spent often seems disproportionate to the result.  Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.

Exogenous shocks open windows – of limited scope – which may help us penetrate this fog.  There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance.  Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it).  That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.

So what’s the shock?  I think that the period of 2008-2011 will prove, in retrospect, to be bumper years for clerk quality.  Anecdotally, I’ve heard that the clerkship market has never been more competitive: Yale grads have been encouraged to take state court clerkships (the horror); judges in popular jurisdictions are receiving literally four to five thousand applications per clerk year; individuals who before might have taken firm jobs are instead throwing their hats in the ring; magistrate judges are taking clerks previously destined for district judges; alumni in practice for five years are going back into the clerk market and competing with fresh-faced 3Ls.  As an organ of the government, the judiciary simply eats better brains when the economy stinks.

Assuming the effect is real (which we could test by looking at placement statistics), I’d propose that eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following.  The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions.  Notably, we can’t perform this same analysis on the effect of past recessions, as (1) they reportedly didn’t have the same effects on the clerkship market; and (2) opinion collection practices were really sporadic before 1995.  It’s 2018 or bust.  Mitu et al., I call dibs!

1) Increase productive competition in health care? Everyone talks about “increasing competition” among insurers and providers, but there are many ways to compete. Hospitals and doctors can game the reimbursement system. Insurers may not directly discriminate against the sick, but can find other ways to keep high-risk patients out of their plans, as even the most market-oriented health policy experts realize: [...]]]> House and Senate leaders will soon have to reconcile several different versions of health reform bills. The bills are complex, but some simple principles should guide the process of integrating them into a final product. As the press reports on a whirlwind of proposed laws, we need to ask of any particular proposal: Does it . . .

1) Increase productive competition in health care? Everyone talks about “increasing competition” among insurers and providers, but there are many ways to compete. Hospitals and doctors can game the reimbursement system. Insurers may not directly discriminate against the sick, but can find other ways to keep high-risk patients out of their plans, as even the most market-oriented health policy experts realize:

[T]o avoid patients with costly, complicated medical conditions, health plans could include in their networks relatively few doctors who specialize in treating those conditions, said Mark V. Pauly, professor of health-care management at the University of Pennsylvania’s Wharton School.

Both the Netherlands and Switzerland have already experienced problems in this area, even though the Netherlands has implemented risk-adjustment methods (which attempt to deter such “cherrypicking” and “lemondropping”) far more serious than anything proposed in current bills in the US. As Karen Pollitz has repeatedly argued, we’re going to need a much greater investment in insurance regulation to make any reform bill work.

2) Make it easier for uninsured or underinsured individuals to buy coverage? Many of the proposals for allocating and awarding subsidies for coverage sound exceedingly complex. We’re hearing about serious limitations on access to exchanges, subexchanges, burdensome “free rider” provisions, etc. Any particular provision may sound good in the abstract, but taken as a whole they could become an obstacle course that makes obtaining insurance coverage a miserable and exasperating experience for those supposedly aided by reform. During the second Bush administration, hundreds of thousands of children eligible for subsidized health insurance were not enrolled because states failed to make enrollment convenient enough for time- and cash-strapped parents. As Liebman and Zeckhauser remind us, “we must design systems for mere mortals, not the people who inhabit the models of traditional economists.” What seems easy to one of DC’s privileged elite can be very hard for an overworked mom or minimum wage-earning service worker.

I believe that the main reason a solid 2/3 to 3/4 of the country supports a public option is because it is a straightforward, transparent way to provide a backstop of health insurance for everyone. If Congress both rejects a public option and makes subsidies for private insurance as complex as the tax code, health reform risks becoming a model case of government failure. Last week’s negative votes on Rockefeller’s strong and Schumer’s weak public options could easily become a “you broke it, you bought it” moment for centrist Democrats and Republicans on the Senate Finance Committee.

3) Fairly distribute the burdens of reforming the health care system? This is the tax and finance question, and it promises to generate some epic battles on Capitol Hill. However the Senate Finance proposal ultimately evolves, it will be in tension with a House of Representatives that sees progressive taxation as a foundation for financing reform. The Baucus proposal to tax “high end”/Cadillac/”gold-plated” health plans may seem progressive, but it promises to gradually engulf even normal plans. While David Leonhardt offers some good economic arguments for such a tax, policymakers should be guided by Leonhardt’s observations on the propriety of taxing those at the very top of the income scale, who have disproportionately benefited from economic trends and tax cuts of the past decade.

4) Provide incentives for long-term cost-saving and preventive medicine? Comparative effectiveness research is a crucial tool for focusing pharmaceutical research on drugs that save lives. We have a shortage of primary care doctors vis a vis specialists. Reimbursement systems are too easy to game. Insurance markets are concentrated and need more competition and transparency. Any bill that ignores these problems (or fails to empower HHS or another agency to address them) can’t lead to truly sustainable universal coverage.

The health reform fight has been bruising, disappointing, and frustrating for many who care about health policy. Many unwise assumptions are already baked into leading bills. In the Senate, ostensibly Democratic lawmakers are promoting what are essentially Republican ideas and granting enormous subsidies to industries that may well betray them at the next electoral cycle. Nevertheless, there remain many opportunities for improving the final product at the beginning of the end of the legislative process.

X-Posted: HRW.

In the Spring, I asked you folks for some help thinking of examples of true Holmesian agreements, “contracts which, when breached, have a similar psychological profile to a speeding ticket.”  It turned out to be pretty hard to identify such agreements, since most people believe breach to be a morally wrongful activity – not simply an option to pay damages at will.  As Jonathan Baron and Tess Wilkinson-Ryan previously have found, the degree to which individuals find breach to be “bad” is quite manipulable:  breaches to gain are worse than breaches to avoid loss, liquidated damages ameliorate feelings of reprehensibility, etc.  Missing from this research has been a psychological theory of what makes breach so aversive.

Tess and [...]]]>

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In the Spring, I asked you folks for some help thinking of examples of true Holmesian agreements, “contracts which, when breached, have a similar psychological profile to a speeding ticket.”  It turned out to be pretty hard to identify such agreements, since most people believe breach to be a morally wrongful activity – not simply an option to pay damages at will.  As Jonathan Baron and Tess Wilkinson-Ryan previously have found, the degree to which individuals find breach to be “bad” is quite manipulable:  breaches to gain are worse than breaches to avoid loss, liquidated damages ameliorate feelings of reprehensibility, etc.  Missing from this research has been a psychological theory of what makes breach so aversive.

Tess and I came up with a working hypothesis: breach is seen as a form of interpersonal exploitation that makes the breachee a sucker.  We’ve put together a paper that reports on a series of experiments supporting this hypothesis, titled (naturally) “Breach Is For Suckers.“  Check out the abstract, after the jump.

This paper presents evidence from three experiments offering evidence that parties see breach of contract as a form of exploitation, making disappointed promisees into “suckers.” In psychology, being a sucker turns on a three-part definition: betrayal, inequity, and intention. We used web-based questionnaires to test the effect of each of the three factors separately. Our results support the hypothesis that when breach of contract cues an exploitation schema, people become angry, offended, and inclined to retaliate even when retaliation is costly. This theory offers a useful advance insofar it explains why victims of breach demand more than similarly situated tort victims and why breaches to engorge gain are perceived to be more immoral than breaches to avoid loss. In general, the sucker theory provides an explanatory framework for recent experimental work showing that individuals view breach as a moral harm. We describe the implications of this theory for doctrinal problems like liquidated damages, willful breach, and promissory estoppel, and we suggest an agenda for further research.

The paper is a further extension of tons of work on reciprocity in the law, as well as Tess’s own work on the “sucker norm.”  I think it adds a unique contribution to the contracts literature in part because it suggests that studying parties’ behavior in one-shot contracts is worth the investment, and thus challenges the views of relational contract theorists, who hold that such discrete contracts aren’t worth the paper they are printed on.

The paper will be out to the law reviews in the next week.  We welcome any reader comments!

Consider the concept of salvage in admiralty.  Salvage is a liability rule that gives a vessel a claim against another vessel for a reward (determined ex post by a court) when a successful rescue is made.  This is more effective than imposing an affirmative duty on vessels to help others and sanctioning them if they do not, largely because the enforcement costs of such a duty [...]]]> One project that I’m working on (but haven’t written up yet) is about using liability rules to reward socially useful behavior.  The law is replete with civil and criminal sanctions against wrongful conduct.  Public policy is also enthusiastic about using property rights to encourage innovation or investment.  Less attention, though, is given to what I call “rewards” for positive action.

Consider the concept of salvage in admiralty.  Salvage is a liability rule that gives a vessel a claim against another vessel for a reward (determined ex post by a court) when a successful rescue is made.  This is more effective than imposing an affirmative duty on vessels to help others and sanctioning them if they do not, largely because the enforcement costs of such a duty would be prohibitive.  Likewise, there is no property rule that can achieve the worthy objective of preventing ships or their cargo from sinking once they are in distress.  Other rewards are set ex ante by an administrative body and tailored to a particular issue.  For example, the police often offer rewards for information leading to the arrest of a suspect.  This is better than threatening people with accomplice liability.

Why does this matter?  Part of the answer is that there are many areas of law where lack of compliance is a big problem.  Tax evasion, unauthorized downloading of copyrighted material, and companies that hire illegal aliens are three examples.  Sanctioning the people who violate these obligations has not worked well (assuming that people actually want these laws enforced and aren’t just grandstanding).  Property rights also do nothing for these problems.

Here’s a thought experiment.  Suppose the Government said that everyone who paid their income taxes in 2009 would be eligible would a lump sum lottery payout of $100 million drawn randomly.  This (or some equivalent) may induce far more than $100 million in tax payments to the Treasury.  In effect, this is how state lotteries work — it’s a voluntary tax or a probabilistic claim on a liability rule.  Now before you get too excited, there is a problem in that such a plan would have to be accompanied by a credible amnesty for past violations, and people might well reject the scheme on that basis.  The point, though, is that in some of these “lawless” situations we might want to think more creatively about carrots instead of relying on sticks that don’t work.

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in [...]]]>

Beatty Chadwick, Post Release

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.

“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”

Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts.  As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.

But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large.  His conduct (as alleged) created a social harm which his ultimate freedom only made worse.  As the  attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded [...]]]>

Richard Posner. Founder. Latter-Day Apostate?

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?

The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency.  By contrast, students taught by humanists were more generous and also  likely to see fairness as a matter of equity.

These are important results for those interested in legal education.

• First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them.  I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism.  It’s also surprising that Yalies are so impressionable!  I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
• Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine.  As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments.  We should do more work like this!
• Third, and most personally, this makes me nervous.  I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case.  I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions.  But maybe I’m also indoctrinating the students to grab more of the pie for themselves.  Nuts.

*The method they used to code economic preferences was, to be frank, a little mystifying.  They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set.  Why not simply ask the professors themselves how much they emphasized economic rhetoric in class?  Or the students?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of [...]]]> What’s the connection between law professors and stand-up comics?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of social norms them by inferring their existence from regular behavior and from anecdotal reports. That interplay between observable, objective, and “external” dimensions of an innovation environment and subjective, “internal” dimensions of that environment is central to understanding its mechanics.

In fact, that interplay is probably central to understanding the mechanics of any cultural context. It’s a central theme in the work that I’ve begun on “cultural commons” with Brett Frischmann and Kathy Strandburg. And it connects stand-up comedy and law faculties. More below the fold.

In a comment on my last post, Jacqui Lipton asked about the greatest challenge that I’ve faced as Research Dean at Pitt. The short answer is that it is relatively easy to design, implement, and manage objective, observable dimensions of the faculty’s research and scholarship environment. It is very difficult to change the subjective, “internal” dimensions of that environment. Much of the job reminds me of my years teaching six- and seven-year-olds to play soccer: I could teach the rules of the game. I could teach basic skills and some rudimentary strategy. These were the objective, observable pieces. I could not teach instinct or passion, and I could not teach the idea that individual investment and collective success are inextricably linked. These were the subjective, “internal” pieces. Some girls would collect the ball at their end of the field and tear toward the other goal. Some of these were more skilled than others. Many of them intuited the proposition that individual effort and team success were linked. I’d call these players the naturals, “natural” in the sense that skills would come in time but they had a nose for getting to the right place, at the right pace. Some of them were skilled but selfish, human highlight reels, at least in their own minds, but in roughly equal portions both detrimental and helpful to the team. And there were the dandelion pickers, who would stab at the ball if it happened to roll in their direction.

Much of this maps on to the Research Dean question. (I am not the inaugural Research Dean at Pitt; one colleague held the position before I did. When I was appointed three-plus years ago, however, our (then new) Dean charged me with scaling things up.) On the objective, observable side, we have added a number of things, few of them really unique or innovative but most of them useful in one way or another: We instituted a program of regular faculty workshops, including faculty exchanges with some other law schools. We established an SSRN Research Paper Series and a program of stocking it with faculty scholarship. I built a Faculty Blog (which consists of my posting about my colleagues’ research and scholarship). I produce an annual internal report of faculty research and scholarship, including future research directions, that is independent of the information collected annually by the Dean and that is circulated to the whole faculty. I’ll save for another time, perhaps, the additional two or three paragraphs that would describe the programming and activities that I undertake or support.

All of that, however, is the relatively easy part. The challenging part is persuading the faculty dandelion pickers, as it were, to collect the ball in their own end and tear toward the other goal. The metaphor is a little overwrought, of course; I’m not misdescribing our faculty when I claim that we have no real dandelion pickers. Our faculty does, however, house a group of individuals with a broad range of subjective beliefs and expectations regarding their own research and scholarship and an equally broad range of beliefs and expectations regarding the relationship between their work and the institutional interests of the school. Changing either set of beliefs and expectations, if that is something that I’d like to do (and sometimes, it is) is very, very difficult. I can’t take for granted that every faculty member is motivated by the same goals, or that any of them necessarily subscribes to my goals, or to the Dean’s goals. Every faculty has its own range of beliefs and expectations, and its own history. There can be no assurance, as the saying goes, that lots of objective, observable programs that support research and scholarship will, in fact, produce more or better research and scholarship, or that it will produce more engaged scholars, or that the research and scholarship that a faculty produces will have greater impact in the world.

There are two obvious exceptions.  One is appointments; if a faculty (or a Dean) really wants to turn the ship, then hiring people who bring the desired set of beliefs and expectations with them is a direct way to do so. But there can be no assurance that the views of the Research Dean will have a strong bearing on the conduct of the Appointments Committee. There are always other important interests and goals at work.  Two is the scholarship of the Research Dean.  It’s important, I think, for the Research Dean to model what is expected from the rest of the faculty, and it certainly helps if the objective, observable features of the environment enrich the Research Dean’s beliefs and motivations.  For me, they certainly do.

It’s implicit in what I’ve summarized that some of the pieces of my Research Dean role are in tension with each other. It’s also implicit that if one of the things that I’m trying to do is to nurture the role of a law faculty as a kind of cultural commons (knowledge goes in to a community, gets stirred and shared, and new knowledge comes out), then measuring success – if there is such a thing in this context – requires a long-term perspective.  And it’s implicit that the Research Dean isn’t simply an appointment that any person can fill with equal success; the person who serves as Research Dean is a kind of focal or anchoring personality, a cheerleader as well as a teacher and an organizer.  A law faculty commons, like any commons (11 players, or 22, on a soccer field?), doesn’t simply happen; it’s created and managed, sometimes with greater success and sometimes with less.

In short, my biggest challenge as Research Dean — and probably an insurmountable challenge — is getting my colleagues to behave the way that I described in this older post:

I played competitive soccer until I finished high school. I played on horrible teams and magnificent teams; for coaches I had tactical masters, experienced former professionals, veterans of soccer on several continents. The best pure leader of the bunch, however, was Mark Speckman, who was my coach during my junior year of high school.

Mark was only about five years older than we were, and he was just starting his coaching career. He knew next to nothing about soccer. He had been a football player in college, earning national recognition as a linebacker at Azusa Pacific in the old NAIA. He was hanging around our school helping with the football team, when he was asked to take the reins of the soccer program for a year.

I should mention at this point that Mark Speckman was born without hands.

So picture a non-soccer playing linebacker, without hands, coaching a bunch of kids whose job it was to put a ball in the back of a net — without using their hands. He didn’t teach strategy, or tactics, or skills; he couldn’t. He was smart and a quick study, and he put 11 men on the field in mostly the right places. We did the rest. But at every practice and at every game, he was on fire. En fuego. With his energy and enthusiasm for us and for the cause, and partly simply by his own history and presence, Mark Speckman was a one-man force of nature.   One-to-one, in the group, whatever it took, Mark Speckman goaded us, cheered us, and validated us loudly and publicly whenever we made great plays and sometimes when we were merely OK but he and we all knew that better was there for the taking, with more effort. His was always the loudest, most positive, and most relentless voice on the sideline. No hands for him; no hands for us.

I honestly don’t remember our record, though we did pretty well. We were competing against schools that were five and ten times our size. Occasionally there was a college coach lurking here or there, but to my knowledge none of us went on to college careers (and a number of our opponents did). What I do remember, however, is that just about to a person, we would run through walls for Mark, and for each other.