Site Meter

Category: Law and Psychology

0

Neurocriminology: The Monsters are in the Molecules

Is the brain indeed the prime suspect when it comes to horrific crimes? Does our molecular structure or DNA determine our destiny, for the benevolent best or the malovent worst?

Such questions and others are explored in Dr. Adrian Raine’s book titled The Anatomy of Violence: The Biological Roots of Crime (Pantheon, 2013). This mind-opening book by a University of Pennsylvania professor of psychiatry and chairman of the department of criminology is the focus of an online symposium just posted on the Washington Independent Review of Books Gb4yObYARcACwebsite.

To help flesh out some of the instructive and provocative points raised in Dr. Raine’s illuminating book, NYU professor of Clinical Psychiatry Laurence R. Tancredi (who holds MD and JD degrees) and a University of Minnesota law professor Francis Shen (who specializes in neuroscience and the law) wrote commentaries. In the spirit of a free exchange of ideas, Dr. Raine authored a reply. I wrote the foreword to the symposium.

0

The Dualities of Freedom and Innovation

What a rollercoaster week of incredibly thoughtful reviews of Talent Wants to Be Free! I am deeply grateful to all the participants of the symposium.  In The Age of Mass Mobility: Freedom and Insecurity, Anupam Chander, continuing Frank Pasquale’s and Matt Bodie’s questions about worker freedom and market power, asks whether Talent Wants to Be Free overly celebrates individualism, perhaps at the expense of a shared commitment to collective production, innovation, and equality. Deven Desai in What Sort of Innovation? asks about the kinds of investments and knowledge that are likely to be encouraged through private markets versus. And in Free Labor, Free Organizations,Competition and a Sports Analogy Shubha Ghosh reminds us that to create true freedom in markets we need to look closely at competition policy and antitrust law. These question about freedom/controls; individualism/collectivity; private/public are coming from left and right. And rightly so. These are fundamental tensions in the greater project of human progress and Talent Wants to Be Free strives to shows how certain dualities are pervasive and unresolvable. As Brett suggested, that’s where we need to be in the real world. From an innovation perspective, I describe in the book how “each of us holds competing ideas about the essence of innovation and conflicting views about the drive behind artistic and inventive work. The classic (no doubt romantic) image of invention is that of exogenous shocks, radical breakthroughs, and sweeping discoveries that revolutionize all that was before. The lone inventor is understood to be driven by a thirst for knowledge and a unique capacity to find what no one has seen before. But the solitude in the romantic image of the lone inventor or artist also leads to an image of the insignificance of place, environment, and ties…”.  Chapter 6 ends with the following visual:

 

Dualities of Innovation:

Individual / Collaborative

Radical/Incremental

Accidental /Deliberate

Global /Local

Passion / Profit

Art/Science

Exclusive/Shared

Inscribed/Tacit

 

And yet, the book takes on the contrarian title Talent Wants to Be Free! We are at a moment in history in which the pendulum has shifted too far. We have too much, not too little, controls over information, mobility and knowledge. We uncover this imbalance through the combination of a broad range of methodologies: historical, empirical, experimental, comparitive, theoretical, and normative. These are exciting times for innovation research and as I hope to convince the readers of Talent, insights from all disciplines are contributing to these debates.

0

The Hard Questions about Talent, Market Regulation, and the World of Work

Each in his own sharp and perceptive way, Brett Frischmann, Frank Pasquale and Matthew Bodie present what are probably the hardest questions that the field of human capital law must contemplate. Brett asks about a fuller alternative vision for line drawing between freedom and control. He further asks how we should strike the balance between regulatory responses and private efforts in encouraging more openness. Finally, he raises the inevitable question about the tradeoffs between nuanced, contextual standards (what, as Brett points out, I discuss as the Goldilocks problem) versus rigid absolute rules (a challenge that runs throughout IP debates and more broadly throughout law). Frank and Matt push me on the hardest problems for any politically charged debate: the distributive, including inadvertent and co-optive, effects of my vision. I am incredibly grateful to receive these hard questions even though I am sure I am yet to uncover fully satisfying responses. Brett writes that he wanted more when the book ended and yes, there will be more. For one, Brett wanted to hear more about the commons and talent pools. I have been invited to present a new paper, The New Cognitive Property in the Spring at a conference called Innovation Beyond IP at Yale and my plan is to write more about the many forms of knowledge that need to be nurtured, nourished, and set free in our markets.

Matt describes his forthcoming paper where he demonstrates that “employment” is reliant on our theory and idea of the firm: we have firms to facilitate joint production but we need to complicate our vision of what that joint production, including from a governance perspective, looks like. “Employers are people too” Matt reminds us, as he asks, “Do some of the restrictions we are talking about look less onerous if we think of employers as groups of people?” And my answer is yes, of course there is a lot of room for policy and contractual arrangements that prevent opportunism and protect investment: my arguments have never been of the anarchic flavor “let’s do away with all IP, duties of loyalty, and contractual restrictions”. Rather, as section 2 (chapters 3-8) of Talent Wants to Be Free is entitled we need to Choose Our Battles. The argument is nicely aligned with the way Peter Lee frames it: we have lots of forms of control, we have many tools, including positive tool, to create the right incentives, let us now understand how we’ve gotten out of balance, how we’ve developed an over-control mentality that uses legitimate concerns over initial investment and risks of opportunism and hold-up to allow almost any form of information and exchange to be restricted. So yes: we need certain forms of IP – we have patents, we have copyright, we have trademark. Each one of these bodies of law too needs to be examined in its scope and there is certainly some excess out there but in general: we know where we stand. But what about human capital beyond IP? And what about ownership over IP between employees and employers?

So yes, we need joint inventorship doctrines for sure when two inventors work together. But what about firm-employee doctrines? Do we need work-for-hire and hired-to-invent doctrines? Here we arrive to core questions about the differences between employment versus joint ventures or partnerships between people. And even here, the argument is that we continue to need during employment certain firm protections over ownership. But the reality is that so many highly inventive and developed countries, diverse as Finland, Sweden, Korea, Japan, Germany, and China, all have drawn more careful lines about what can fall under “service inventions” or inventions produced within a corporation. These countries have some requirement for fair compensation of the employee, some stake in inventions, rather than a carte blanche to everything produced within the contours of the firm. The key is a continuous notion of sharing, fairness and boundaries that we’ve lost sight of. Intense line-drawing as Brett would have it that is based on context and evidence, not on an outdated version of the meaning of free markets.

What about non-competes and trade secrets? Again, my argument is that these protections alternate, they should be discussed in relation to one another, and we need to understand their logic, goals, and the cost/benefit of each given that they exist in a spectrum. Non-competes is the harshest restriction: an absolute prohibition post-employment to continue in one’s professional path outside the corporation. This is unnecessary. The empirics are there to support their absolute ban rather than the fine dance that of balancing that is needed with some of the other protections. Sure it makes life momentarily easier for those who want to use non-competes, but over time, not only can we all live without that harsh tool, we will actually benefit from ceding that chemical weapon in the battle over brains and instead employ more conventional arms. And yet, even in California, this insight doesn’t and shouldn’t extend to partnerships. The California policy against non-competes is limited to the employment context. If two people, as in Matt’s hypo, are together forming a business, their joint property rights in that business suggest to us that allowing some form of a covenant not to compete will be justified. There will still be a cost to positive externalities but the difference between the two forms of relationships allow for absolute ban in one and a standard of reasonableness for the other. And yes, as Brett alludes to, the world is not black and white and we will have to tread carefully in our distinctions between employees and partners.

I completely agree with Matt and Frank that there are fundamental injustices created by our entire regime of work law. Talent Wants to Be Free takes those deep structures into account in developing the more immediate and positive vision for better innovation regimes and richer talent pools. Matt writes that a more radical alternative lies within Talent but “deserves more exegesis: namely, whether we should eliminate the concept of employment entirely.” What if people will always be independent contractors?, he asks. The reforms promoted in Talent Wants to Be Free, allowing more employees more control over their human capital, indeed bring these two categories – employees and independent contractors – closer together in some respects. But far more would be needed to shift our work relations to be more “democratic and egalitarian: a post-industrial Jeffersonian economy.” As both Frank and Matt show, in their own scholarship and in their provocative comments here, this will require us to rethink so much of the world we live in.

Frank Pasquale’s review is so rich that I hope he extends and publishes it as a full article. Frank says that “for every normative term that animates [Orly’s] analysis (labor mobility, freedom of contract, innovation, creative or constructive destruction) there is a shadow term (precarity, exploitation, disruption, waste) that goes unexplored.” I would agree that the background rules that define our labor market, at will employment, inequality, class and power relations, are not themselves the target of the book. They do however deeply inform my analysis. To me, the symmetry I draw between job insecurity and the need for job opportunity is not what Frank describes as a “comforting symmetry”. It is a call for the partial correction of an outrageous asymmetry. And yes, as I mentioned at the very beginning of the symposium, I hoped in writing the book to shift some of the debates about human capital from the stagnating repetition of arguments framed as business-labor which I view not only as paralyzing and strategically unwise but also as simply incorrect and distorting. There is so much more room for win-win than both businesses and labor seem to believe. On that level, I think Frank and I actually disagree about what we would define as abuse. I do in fact believe that many of us can passionately decide to give monetary gains in return for a job that provides intangible benefits of doing something we love to do. Is that always buying into the corporate fantasy? Is that always exploitation? Don’t all of us do that when we become scholars? Still, of course I agree with many of the concrete examples that Frank raises as exploitation and precarious work – he points to domestic workers, which is a subject I have written about in a few articles (which I just realized I should probably put on ssrn - Family Geographies: Global Care Chains, Transnational Parenthood, and New Legal Challenges in an Era of Labor Globalization, 5 CURRENT LEGAL ISSUES 383 (2002) and  Class and Care, 24 HARVARD WOMENS LAW JOURNAL 89 (2001)]. Frank describes a range of discontent in such celebrated workplaces as Silicon Valley giants, which I too am concerned with and have thought about how new hyped up forms of employment can become highly coercive. Freeing up more of our human capital is huge, but yes, I agree, it doesn’t solve all the problems of our world and by no means should my arguments about the California advantage in the region’s approach to human capital and knowledge flow be read as picturing everything and anything Californian as part of a romantic ideal.

 

1

A Time for Action: The Double Gain of Freer Regions and the Double Speak about Talent Droughts

As Catherine Fisk and Danielle Citron point out in their thoughtful reviews here and here, the wisdom of freeing talent must go beyond private firm level decisions; beyond the message to corporations about what the benefits of talent mobility, beyond what Frank Pasquale’s smartly spun as “reversing Machiavelli’s famous prescription, Lobel advises the Princes of modern business that it is better to be loved than feared.” To get to an optimal equilibrium of knowledge exchanges and mobility, smart policy is needed and policymakers must to pay attention to research. Both Fisk and Citron raise questions about the likelihood that we will see reforms anytime soon. As Fisk points out — and as her important historical work has skillfully shown, and more recently, as we witness developments in several states including Michigan, Texas and Georgia as well as (again as Fisk and Citron point out) in certain aspects of the pending Restatement of Employment — the movement of law and policy has actually been toward more human capital controls rather than less. This is perhaps unsurprising to many of us. Like with the copyright extension act which was the product of heavyweight lobbying, these shifts were supported by strong interest groups. What is perhaps different with the talent wars is the robust evidence that suggests that everyone, corporations large and small, new and old, can gain from loosening controls. Citron points to an irony that I too have been quite troubled by: the current buzz is about the intense need for talent, the talent drought, the shortage in STEM graduates. As Citron describes, the art and science of recruitment is all the rage. But while we debate reforms in schooling and reforms in immigration policies, we largely neglect to consider a reality of much deadweight loss of through talent controls.

The good news is that not only in Massachusetts, where the governor has just expressed his support in reforming state law to narrow the use of  non-competes, but also in other state legislatures , courts and agencies, we see a greater willingness to think seriously about positive reforms. At the state level, the jurisdictional variations points to the double gain of regions that void or at least strongly narrow the use of non-competes. California for example gains twice: first by encouraging more human capital flow intra-regionally and second, by its willingness to give refuge to employees who have signed non-competes elsewhere. In other words, the positive effects stem not only from having the right policies of setting talent free but also from its comparative advantage vis-à-vis more controlling states. This brain gain effect has been shown empirically: areas that enforce strong post-employment controls have higher rates of departure of inventors to other regions. States that weakly enforce non-competes are on the receiving side of the cream of the crop. One can only hope that legislature and business leaders will take these findings very seriously.

At the federal level, in a novel approach to antitrust the federal government recently took up the investigation of anti-competitive practices between high-tech giants that had agreed not to poach one another’s employee. This in fact relates to Shubha Gosh’s questions about defining competition and the meaning of free and open labor markets. And it is a good moment to pause about the extent to which we encourage secrecy in both private and public organizations. It is a moment in which the spiraling scandals of economic espionage by governments coupled with leaks and demand for more transparency require us to think hard. In this context, Citron is right to raise the question of government 2.0 – for individuals to be committed and motivated to contribute to innovation, they need some assurances that their contributions will not be entirely appropriated by concentrated interests.

0

Input Knowledge, Output Information, and the Irony of Under the Radar Expansion of IP

Peter Lee’s thoughtful review of Talent Wants to Be Free goes straight to the heart of the issues. Peter describes a “central irony about information” – so many aspects of our knowledge cannot lend themselves to traditional monopolization through patents and copyright that their appropriation is done under the radar,  through the more dispersed and covert regimes of talent wars rather than the more visible IP wars. We’ve always understood intellectual property law as a bargain: through patents and copyright, we allow monopolization of information for a limited time as a means to the end of encouraging progress in science and art. We understand the costs however and we strive as a society to draw the scope of these exclusive rights very carefully. and deliberately. We have heated public debates about the optimal delineation of patents, and we are witnessing new legislative reforms and significant numbers of recent SCOTUS cases addressing these tradeoffs. But patents are only a sliver of all the information that is needed to sustain innovative industries and creative ventures. Without much debate, the monopolization of knowledge has expanded far beyond the bargain struck in Article I, Section 8 of the Constitution.  Through contractual and regulatory law, human capital – people themselves - their skills and tacit knowledge, their social connections and professional ties, and their creative capacities and inventive potential are all the subject to market attempts, aided by public enforcement, of monopolization. Peter refers to these as tacit versus codified knowledge; I think about inputs, human inventive powers versus outputs – the more tangible iterations of intangible assets – the traditional core IP, which qualifies patentability to items reduced to practice (rather than abstraction) and copyrightable art to expressions (rather than ideas). Cognitive property versus intellectual property, if you will.

Lee is absolutely correct that university tech transfer and its challenges and often discontent is highly revealing in this context of drawing fences around ideas and knowledge. Lee writes “in subtle ways, Orly’s work thus offers a cogent exposition of the limits of patent law and formal technology transfer.” Lee’s recent work on tech transfer Transcending the Tacit Dimension: Patents, Relationships, and Organizational Integration in Technology Transfer, California Law Review 2012 is a must read. Lee shows that “effective technology transfer often involves long-term personal relationships rather than discrete market exchanges. In particular, it explores the significant role of tacit, uncodified knowledge in effectively exploiting patented academic inventions. Markets, patents, and licenses are ill-suited to transferring such tacit knowledge, leading licensees to seek direct relationships with academic inventors themselves.” And Lee’s article also uses the lens of the theory of the firm, the subject of the exchanges here, to illuminate the role of organizational integration in transferring university technologies to the private sector. I think that in both of our works, trade secrets are an elephant in the room. And I hope we continue to think more about how can trade secrets, which have been called the step child of intellectual property, be better analyzed and defined.

4

Race Talk and the Government Shut Down

Since last night I have been writing and re-writing this blog about race and the fiscal crisis.  My link to the New York Times page keeps changing – though the content remains essentially the same.  As the Senate moves toward a deal to reopen the government and avert a default, the Times reports that the House balks.

What explains the continued opposition to a deal, despite the seemingly obvious catastrophic consequences of a government default?  Racial anxiety may be playing a role, suggests  Shutdown Power Play:  Stoking Racism, Fear of Culture Change to Push Anti-Government Agenda.  The article describes an analysis by Democracy Corp (a research group led by Stan Greenberg and James Carville) of focus groups with three groups comprised of Evangelicals, Tea Party Republicans, and moderates.  The Democracy Corp concludes that “base supporters” of the Republican Party fear that they are losing to a Democratic Party of big government that is creating programs that “mainly benefit minorities.  Race remains very much alive in the Republican Party.”

So here we are again.  Encouraging mistaken beliefs that only a particular few benefit from government programs – and perpetuating the continued division of “us” and “them” on racial grounds has long been a political strategy.  Ronald Reagan’s “welfare queen” is a stereotype that continues to live on in some corners.  Even though welfare, like most government programs, including the Affordable Care Act, stands to benefit large numbers of whites.  Indeed, according to 2011 census figures, 46.3% of all uninsured people are non-Hispanic white while 16% are black.

Why has the blog taken so long?  Because the counter-strategy is challenging.

The instinctive response is to call out those distorting the facts as racist.  This tactic has the benefit of moral clarity, and is emotionally satisfying. But calling out those who oppose the implementation of the Affordable Care Act as “racist” will not move people in the political middle. This group is likely to consider someone “racist” only if they publicly disclose old-school-George-Wallace-like animus toward people of color.  The political debate about the role of government in people’s lives—particularly the less fortunate—is much murkier territory, filled with subterranean, unspoken dynamics and assumptions. It does not resemble the image of ardent segregationists proudly flaunting their bigotry.

But simply ignoring the role race is still playing and pretending that we are all “color-blind” is also inadequate.  Social science research has shown that most people carry a set of stereotypical assumptions about race – and that these stereotypes are most  likely to influence decision making when race is right below the surface but not expressly mentioned.  A set of juror studies by Sam Sommers and Phoebe Ellsworth provides powerful evidence of this phenomenon (for a short description of these studies, see this recent piece by Sommers).

The juror studies suggest that when mock jurors confront inter-racial incidents in which racially charged language is used, white jurors were no more likely to convict a black than a white defendant.  When an incident involved a white victim and a black defendant but was otherwise not racially charged, white jurors were more likely to convict a black defendant than a white defendant.  Why?  Because only in the incident in which racial language was used were white jurors conscious that race may come into play — which triggered them to work to be fair.  Donald Bucolo and Ellen Cohn in their study, Playing the race card: Making race salient in defense opening and closing statements, found similar effects in inter-racial trials:  when defense attorneys explicitly mention race, white juror bias toward black defendants is reduced.

The findings in the juror studies are heartening – they provide an empirical foundation for the idea that most white people want to be racially egalitarian.  And they suggest a way forward in policy discussions even if they do not provide play-by-play instructions.  The goal, as john powell aptly states, is to allow people to maintain a self-concept as egalitarian while drawing attention to behaviors that are inconsistent with those values.

I have found listeners of all races to be extremely receptive to this social science in talks at public libraries as well as law schools.   White listeners express relief that they are not being accused of racism –  and once this anxiety is alleviated, the defensiveness melts away.  Listeners of all races seem very interested in the facts about who benefits from government programs and how race operates in the unconscious.

This material is harder to translate into a sound-bite.  But it seems to be the best way forward to an honest conversation about race.

6

Are any white people poor?

Today’s New York Times lead story, “Millions of Poor Are Left Uncovered by Health Law,” reports on the devastating effect that states’ decisions not to expand Medicaid is having on poor people.  This article is accompanied by an image – on the jump page 18 in print and featured online – of two poor families, one in Mississippi and one in Texas.  Neither family is white.  

The imagery leads the reader to presume that white people are unaffected by the failure to expand Medicaid and also perpetuates the general stereotype that most poor people are Black or Latino.  The census figures released in 2013 tell a different story:  18.9 million non-Hispanic whites live in poverty and 8.4 million live in deep poverty.  The next largest demographic group living in poverty is Latino – with 13.6 million living in poverty and 5.4 million living in deep poverty.  The smallest group of people living in poverty – by over 8 million — are Black people, with 10.9 million living in poverty and 5.1 living in deep poverty.  These numbers are staggering and shameful.  And it is true that a larger proportion of African Americans and Latinos live in poverty than whites by a significant margin.  However, the decision to depict only Black and Latino families in an article about poverty is itself problematic on a number of fronts.

Living in poverty should not be seen as an individual or group failure.   Most of us have lived in poverty at some point in our own lives or in our families’ history.  And undoubtedly the authors of the article and the editors who chose the picture have sympathy for poor people and hope that their news story and the image will elicit concern and moral outrage.   This result is unlikely.  Instead, research in social psychology suggests that news stories and images of this sort generally have exactly the opposite effect.

In an article entitled Justifying Inequality:  A Social Psychological Analysis of Beliefs about Poverty and the Poor,  Heather Bullock at the University of California, Santa Cruz explains that:  “single mothers and ethnic minorities, most notably African Americans, are the public face of poverty. Consequently, poverty is viewed not only as a “minority” problem (Gilens 1999; Quadagno 1994) but a reflection of weak sexual mores and the decline of the nuclear family (Lind 2004; Orloff 2002). Stereotypes about the poor and ethnic minorities mirror each other with intersecting characterizations including laziness, sexual promiscuity, irresponsible parenting, disinterest in education, and disregard for the law.”  So the imagery in the NYT article and the discussion of the particular effects on single mothers and “poor blacks” simply confirms negative stereotypes.   And the stereotypes are not rooted in fact.    The vast majority of African Americans and Latinos in the United States — over 70% — are not poor.

This article and many others in the media contribute to a set of negative stereotypes about people of color and render invisible the enormous numbers of whites who are poor.  Sadly, the combined effect, as Bullock explains, appears to be a growing tolerance for economic inequality and a willingness to support decisions that harm the poor (such as the rejection of Medicaid expansion).

The negative stereotypes, as I will discuss in future posts, underlie a set of psychological phenomena such as implicit bias, that underlie discriminatory behavior even among those with egalitarian values and create significant obstacles for progress toward racial equality.   As an academic and  as a civil rights litigator in my previous life, I have focused on legal and policy change as a means toward racial equality.  More recently, I have been part of a consortium, the American Values Institute, linking social scientists with lawyers, legal academics, and the media to recognize the significance of culture.  Law, as we all know, is in part a creature of culture.  So long as our culture is infused with distorted facts and images about race, law reform is a vastly more difficult task.

 

14

The Good Life and Gun Control

Like many of you, I’ve been horrified by the events in Newtown, and dismayed by the debate that has followed.  Josh Marshall (at TPM) thinks that “this is quickly veering from the merely stupid to a pretty ugly kind of victim-blaming.”  Naive realism, meet thy kettle!  Contrary to what you’ll see on various liberal outlets, the NRA didn’t cause Adam Lanza to kill innocent children and adults, nor did Alan Gura or the army of academics who helped to build the case for an individual right to gun ownership.  Reading discussions on the web, you might come to believe that we don’t all share the goal of a society where the moral order is preserved, and where our children can be put on the bus to school without a qualm.

But we do.

We just disagree about how to make it happen.

Dan Kahan’s post on the relationship between “the gun debate”, “gun deaths”, and Newtown is thus very timely.  Dan argues that if we really wanted to decrease gun deaths, we should try legalizing drugs.  (I’d argue, following Bill Stuntz, that we also/either would hire many more police while returning much more power to local control).  But decreasing gun deaths overall won’t (probably) change the likelihood of events like these:

“But here’s another thing to note: these very sad incidents “represent only a sliver of America’s overall gun violence.” Those who are appropriately interested in reducing gun homicides generally and who are (also appropriately) making this tragedy the occasion to discuss how we as a society can and must do more to make our citizens safe, and who are, in the course of making their arguments invoking(appropraitely!) the overall gun homicide rate should be focusing on what we can be done most directly and feasibly to save the most lives.

Repealing drug laws would do more —  much, much, much more — than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public  (I’d vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn’t trade on tacit hostility toward or mere incomprehension of  whatever contribution owning a gun makes to their experience of a meaningful free life); closing the “gun show” loophole; extending waiting periods etc.  Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren’t otherwise interfering with liberties that we ought, in a liberal society, to respect.”

Dan’s post is trying to productively redirect our public debate, and I wanted to use this platform to bring more attention to his point.  But, I think he’s missing something, and if you follow me after the jump, I’ll tell you what.

Read More

6

Unrepresentative Turkers?

Like many others, I’ve been using Amazon Mechanical Turk to recruit subjects for law & psychology experiments.  Turk is (i) cheap; (ii) fast; (iii) easy to use; and (iv) not controlled by the psychology department’s guardians.  Better yet, the literature to date has found that Turkers are more representative of the general population than you’d expect — and certainly better than college undergrads! Unfortunately, this post at the Monkey Cage provides a data point in the contrary direction:

“On Election Day, we asked 565 Amazon Mechanical Turk (MTurk) workers to take a brief survey on vote choice, ideology and demographics.  . . . We compare MTurk workers on Election Day to actual election results and exit polling.  The survey paid $0.05 and had seven questions:  gender, age, education, income, state of residence, vote choice, and ideology.  Overall, 73% of these MTurk workers voted for Obama, 15% for Romney, and 12% for “Other.”  This is skewed in expected ways, matching the stereotypical image of online IT workers as liberal—or possibly libertarian since 12% voted for a third party in 2012, compared to 1.6% percent of all voters. . .  In sum, the MTurk sample is younger, more male, poorer, and more highly educated than Americans generally.  This matches the image of who you might think would be online doing computer tasks for a small amount of money…”

Food for thought.  What’s strange is that every sample of Turkers I’ve dealt with is older & more female than the general population.  Might it be that Turk workers who responded to a survey on election habits aren’t like the Turk population at large?  Probably so, but that doesn’t make me copacetic.

0

Convicting the Innocent: A powerful force for change

I also thank Danielle and Brandon for including me in this symposium, and am very happy to join the discussion of four very important works on the state of the criminal justice system in America today.

The reference to the Central Park Five in Danielle’s original post highlights one of the most important qualities of Convicting the Innocent: it uses the powerfully told stories of the exonerated to bring to life the new and important detail about the causes of wrongful convictions that Garrett’s research has uncovered. The result is the fullest picture to date of the scope of the “nightmarish reality” that has led to 301 DNA-based exonerations in this country.  Convicting the Innocent is not only a great read for lawyers and lay people alike, it is also a powerful tool for bringing about much-needed systemic change. Dan Medwed’s post appropriately asks whether the works being discussed here urge change that is gradual and specific or change that is revolutionary, going to the heart of the adversary system. In the context of eyewitness misidentification – the leading contributing cause of wrongful convictions, occurring in (as Garrett found) 75 percent of the first 250 exonerations – we see great success in effecting change in both courts and police precincts alike. Brandon Garrett’s research has been critical to these successful reform efforts.

As the attorney responsible for the Innocence Project‘s work in the area of eyewitness identification, I have relied on Convicting the Innocent in my efforts to educate attorneys, judges and policy makers about the perils of misidentification and the flaws in the current legal framework for evaluating identification evidence at trial that is applied in nearly all jurisdictions in the United States. That legal framework, set forth by the Supreme Court in Manson v. Brathwaite, directs courts to balance the effects of improper police suggestion in identification procedures with certain “reliability factors” – the witness’s opportunity to view the perpetrator, the attention paid by the witness, the witness’s certainty in the identification, the time between the crime and confrontation and the accuracy of the witness’s description. (These factors are not exclusive, but most courts treat them as if they are.)

Psychological research in the area of perception and memory has offered conclusive evidence that the identified reliability factors are not well-correlated with accuracy; do not objectively reflect reality to the extent that they are self-reported; and – most critically – are inflated by suggestion, leading to the perverse result that the more suggestive the identification procedure, the higher the measures of reliability under the Manson test.

Garrett’s work in Convicting the Innocent adds an important dimension to the psychological research – and makes even more urgent the call to reform the Manson test – by demonstrating that the Manson test failed in the cases of the 190 exonerees who were convicted based, at least in part, on identification evidence that was either not challenged or admitted as reliable under Manson. Garrett’s work shows just how the Manson reliability factors fail to ensure reliability: in most cases reviewed by Garrett, the witnesses had poor viewing opportunities; had only a few seconds to see the perpetrator’s face, which was often disguised or otherwise obscured; made identifications weeks or months after the crime; and provided descriptions that were substantially different from the wrongly accused’s appearance. In addition, almost all of the witnesses in the cases reviewed by Garrett expressed complete confidence at trial – stating for example that “there is absolutely no question in my mind” (Steven Avery’s case); that “[t]his is the man or it is his twin brother” (Thomas Doswell’s case) – although DNA later proved that these witnesses were entirely wrong. Perhaps most striking of all of Garrett’s research findings in the area of eyewitness misidentification is that in 57 percent of the trials with certain eyewitnesses, the witnesses had expressed earlier uncertainty (strongly suggesting that the identification was unreliable), but only 21 percent of these witnesses admitted their earlier uncertainty.

The Innocence Project has relied on Garrett’s research in advocating for the reform of the legal framework for evaluating identification evidence in courts around the country, from the U.S. Supreme Court (Perry v. New Hampshire) to state supreme courts from Oregon (State v. Lawson) and Washington (State v. Allen) to New Jersey (State v. Henderson) and Pennsylvania (State v. Walker). In two of these cases – Henderson and Lawson – high courts found that Manson fails to ensure reliability and implemented new legal tests that better reflect the scientific research and, we hope, will better prevent wrongful convictions based on eyewitness misidentification. Both the Henderson and Lawson courts cited Convicting the Innocent in rendering their decisions, demonstrating just how powerful a force for change Garrett’s work is.