Louis K. Bonham, counsel to the defendant, has done so.  He reports that the case has now been dismissed – but for want of personal jurisdiction.  According to the docket, Judge Miller’s decision issued on October 23.  It rests on the observation that the only contact that the defendant had with Texas was the airing of [...]]]> I’ve  posted on a lawsuit out of Texas, in which a law student plaintiff sued a lawyer defendant for failing to live up to a “promise” to pay $1,000,000 to any television viewer who could prove him wrong about his theory of a case.  I opined the case was a classic example of puffery, unlikely to reach the merits on that ground.   I challenged readers to prove me wrong.

Louis K. Bonham, counsel to the defendant, has done so.  He reports that the case has now been dismissed – but for want of personal jurisdiction.  According to the docket, Judge Miller’s decision issued on October 23.  It rests on the observation that the only contact that the defendant had with Texas was the airing of a television broadcast: personal jurisdiction on these grounds would make him subject to national jurisdiction where it wasn’t otherwise anticipated.

Incidentally, the underlying motion documents suggest that plaintiff’s claim was even weaker on the merits than I’d argued, as the unedited transcript of of the boast is different than the version in the complaint.  Here’s what plaintiff asserted was said:

NBC’s Ann Curry asked whether there was enough time for [Mason's client] to commit [a crime]. An unidentified person said, “The defense says no.”

“I challenge anybody to show me,” Mason said. “I’ll pay them a million dollars if they can do it.”

But here’s what was actually said:

… And from there to be on the videotape in 28 minutes. Not possible. Not possible. I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State’s burden of proof. If they can do it, I’ll challenge ‘em. I’ll pay them a million dollars if they can do it.

NBC Transcript, p. 3

This kind of qualifying language makes it even more obvious that the statement was a mere puff. Congrats to Mr. Bonham on his win!

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!

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.”

In describing the job of law professor, Stuart Benjamin (http://www.law.duke.edu/fac/benjamin/) once told me that “We teach for free and grade for money.” I’m sure it is not his originally, but it’s particularly fitting for this time of year as we face exam and paper piles of various heights and teeters begging our attention. As someone who spent a few years in a PhD program, this feels to me a bit like being a pledge for life—to borrow a phrase from fraternity culture. I spent all those years grading blue books [...]]]> Thanks so much to Dan, Danielle, and the Concurring Opinions crew for this invitation. This is all pretty new to me, but I am looking forward to a fun and interesting month.

In describing the job of law professor, Stuart Benjamin (http://www.law.duke.edu/fac/benjamin/) once told me that “We teach for free and grade for money.” I’m sure it is not his originally, but it’s particularly fitting for this time of year as we face exam and paper piles of various heights and teeters begging our attention. As someone who spent a few years in a PhD program, this feels to me a bit like being a pledge for life—to borrow a phrase from fraternity culture. I spent all those years grading blue books for others’ classes with the promise that some bright-eyed hopeful would someday clean up my messes only to enter law teaching, where we carry our own water. Hard to sigh too hard, of course, but the fact remains that few of us love grading.

It was while putting off grading that I read this interesting and timely article by Paul Bloom in The Atlantic Monthly, cum “The Atlantic,” on models of the self. Anyone with even a moderately complicated internal life is familiar with the subjective phenomenon of wars in our heads between competing goals and desires. Be it a battle between Dionysus and Apollo or André Soltner and Jenny Craig, we all experience the competing pulls of devils and angels, and so it is with grading. I should really grade ten more exams, but I want to see Virginia in the . . . no wait, Virginia wasn’t even Bowl eligible . . . but there are games on, and I’ll have plenty of time to grade once the dust settles from the holidays.

The Freudian account of these moments invites us to think of ourselves as more-or-less holistic beings with competing drives, goals, desires, and interests. I want to be a responsible professional and I also want to kick back with a beer and some leftovers from the New Year’s party. Most of us have been brought up to deal with the conflict by training our super egos to rank, order, and govern so we delay the gratification of our baser desires while nurturing and advancing our higher selves.

Bloom thinks this holistic view both unpersuasive and wanting for descriptive force. In his view, there is no single self, but, rather, a host of competing selves. Part of his account is temporal. There is my “now” self, which tends toward the Dionysian, and my future self, who is, frankly, a bit boring. Part of it is ethical. We all desire both achievement and pleasure. But what’s most interesting about Bloom’s account is his suggestion that there often is a real empathy gap among these various selves. I am happy to leave the grading to my tomorrow self because my today self will not suffer the consequences. And, of course, there are more than just two competitors. Bloom postulates a cacophonous meeting hall of different selves bouncing around and fighting for time on the dais and control of the pulpit, each of them ready to take what they want and leave others to suffer the consequences.

Most of us are fully aware that these many selves are mutually implicated and understand the consequences of choices made now on other valued selves, though varying degrees of dissociation are a given. Some of us have imaginary friends—here Bloom reminds us of a young girl whose imaginary friend, Charlie Ravioli, was “a hip New Yorker whose defining quality was that he was always too busy to play with her,” god I love that—and others talk about our weakness for chocolate cake in the metaphor of a demon, but for the most part the self at the fore feels a sense of duty to and responsibility for other selves as a function of psychic and physical continuity. Thus blame and shame. But we also recognize that this continuity has its limits as metaphor. The concept of reform, after all, entails the idea of a new and different self. Similarly, most of us at some point shed the feelings of guilt for youthful indiscretions.

Ironically, it’s a huge indulgence to start thinking this way. To start, it leads to a host of fun reveries that are ever more engaging that grading. But it also suggests to us that the line between those who suffer multiple personality disorder and the rest of us who are only moderately dysfunctional is blurry at best, and mostly defined by how sympathetic we are with our other and future selves. Our current President was elected on a narrative of having been reborn, thereby leaving behind the youthful indiscretions of his teens, twenties, thirties, and early forties. He can’t be accountable for that conduct . . . it was someone else who got that DUI. Our current Vice-President suggested a similar entitlement to dissociate when asked about justifications for the War in Iraq after the 2004 election. You can’t blame us for that decision . . . it was made by other people whose existence was made moot by the intervening election and subsequent birth of a new administration. The more dissociation and lack of sympathy among selves we are willing to accept, the less responsibility that carries over between the selves that appear and wane at different points in our days and lives.

I’ll have more to say on these themes in later posts, but for now will simply leave those struggling for a reason to reach for the next blue book with the promise that it feels good to do something for someone else. True, the you grading the papers will get no benefit, but as with all acts of charity there is a pleasure in altruism. At least, that is what I told myself as I finished grades over the weekend. Now, of course, the self at the podium can indulge himself with this blog and reading and writing for his current article. He is not without guilt, of course. After all, classes start next week and someone has to step in front of two new classes. Luckily, it’s not me.

As I watched the celebration gather steam (fireworks! champagne! mosh pits!) I thought back to a post I’d written about watching Naples soccer fans celebrate a soccer victory back in ‘07. Apparently, Naples tied with Genova in a soccer match, resulting in both teams being promoted to Series A soccer, or the major [...]]]> After the Phillies won last night, I went out to Broad Street with tens of thousands of my fellow Philadelphians to celebrate. I felt happy, but in a vaguely distanced way, stunned as I was by the unexpected reality of a major sports team championship in Philly. Because Philadelphia is such a small place (in some ways) I saw three students on the street in fairly quick order. Good times.

As I watched the celebration gather steam (fireworks! champagne! mosh pits!) I thought back to a post I’d written about watching Naples soccer fans celebrate a soccer victory back in ‘07.

Apparently, Naples tied with Genova in a soccer match, resulting in both teams being promoted to Series A soccer, or the major league. This led to a general “celebration” consisting of an impromptu “parade” of thousands of mopeds and cars, flags flying and horns blaring, with the occasional firework (or pistol?) thrown into the mix. I expressed some doubt then and now about the celebratory atmosphere not just because there were some random acts of violence against Genovese fans, but because the scene was decidedly chaotic. I also question whether a parade can occur simultaneously on every main street in town.

Here, again, the naive foreign tourist might think to himself that the law had broken down, resulting in a potentially bad situation, a view itself reinforced by a Napolese citizens who told that tourist that it was “very dangerous” to walk to the train station. But a more realistic analysis demonstrated that so long as that tourist walked at a brisk pace while shouting “Forza Napoli” at intervals, he could effectively comply with the new set of norms and not be sanctioned by passing celebrants. Plus, I hailed a cab halfway through the walk.

This post was accurate, except that “brisk walk” really needs to be re-written as “a terrified shambling run, dragging luggage behind”. I remember thinking, while shambling, that if this were only happening in Philadelphia I wouldn’t be scared, because I would have a better situation sense of what was appropriate celebration and what was rioting. That is, a “riot” is a subjective thing, determined by your own contextual and culturally-determined view of what kind of public behavior is ok. I don’t speak Italian well enough to know what happy screams sound like, and without a nuanced sense of language, smiles start to look like the prelude to a mugging.

This is a long way of saying that while fireworks, smashing bottles, and random people screaming in Naples made me fear for my life, those same activities on Broad Street last night only made me feel closer to my fellow celebrants. I was right: when you are home, raucous celebrations feel entirely appropriate.

That said, it is true that I left the party around 11:30, before a night’s work of drinking kicked in and the scene turned a bit more ugly. (A few upturned cars, some smashed windows, but no reported serious injuries. (Cf. Boston).

(Image Source: Chris Bowers)

Dr. Edward Hallowell, a Massachusetts-based psychiatrist who specializes in the treatment of attention deficit/hyperactivity disorder and has written a book with the self-explanatory title CrazyBusy, has been offering therapies to combat extreme multitasking for years; in his book he calls multitasking a “mythical activity in which people believe they can perform two or more tasks simultaneously.” In a 2005 article, he described a new condition, “Attention Deficit Trait,” which he claims is rampant in the business world. ADT is “purely a response to the hyperkinetic environment in which we live,” writes Hallowell, and its hallmark symptoms mimic those of ADD. “Never in history [...]]]> I’ve been of two minds about multitasking for some time. But growing evidence is suggesting that the very concept is a myth:

Dr. Edward Hallowell, a Massachusetts-based psychiatrist who specializes in the treatment of attention deficit/hyperactivity disorder and has written a book with the self-explanatory title CrazyBusy, has been offering therapies to combat extreme multitasking for years; in his book he calls multitasking a “mythical activity in which people believe they can perform two or more tasks simultaneously.” In a 2005 article, he described a new condition, “Attention Deficit Trait,” which he claims is rampant in the business world. ADT is “purely a response to the hyperkinetic environment in which we live,” writes Hallowell, and its hallmark symptoms mimic those of ADD. “Never in history has the human brain been asked to track so many data points,” Hallowell argues, and this challenge “can be controlled only by creatively engineering one’s environment and one’s emotional and physical health.” Limiting multitasking is essential.

Walter Kirn concurs: “Neuroscience is confirming what we all suspect: Multitasking is dumbing us down and driving us crazy.”

Still, I think it all depends on the complexity of the secondary task. If I’m on a long phone call, I’m going to start checking my sage reader or Bookforum for interesting articles. Most TV shows take up very little “bandwidth;” it would seem a shame not to fold clothes or clean or cook during them. Perhaps it’s time for Birdthistlian sample of views on the matter.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can [...]]]> I’m in LA for the next few days, at the Law, Economics and Neuroscience Conference: Implications for Innovation, sponsored by The Southern California Innovation Project, Theoretical Research in Neuroeconomic Decision-making (TREND) and The Center for Communication Law & Policy. As the press-release says, the idea is to bring together neuroscience researchers, economists, and ordinary law professors and see if the whole is greater than the sum of their parts.

[Gillian] Hadfield [who is organizing the conference on the law side] hopes the symposium will lead to more collaboration among scholars who may appear to have very different goals and backgrounds.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can enrich the research agenda of all these disciplines with this kind of cross pollination.”

I hope to blog the conference, or at least my parts in in, over the next few days. I’ll be commenting on Mat McCubbins’ co-authored paper, The Effect of Institutions on Behavior and Brain Activity: Insights from EEGs and Timed-Response Experiments. In the paper, on Boudreau, Coulson, and McCubbins found that identical cooperative behavior in a trust game seems to arise from distinct neurological mechanisms, depending on whether trust in others arose from incentives or penalties. After the session tomorrow I’ll post some of my comments, which intend to connect this paper to the large law review literature on trust.

Janiszewski and Uy ran a series of experiments to test this idea. The experiments used hypothetical scenarios, in which participants were required to make a variety of [...]]]> From the blog “We’re Only Human” (which I’ve just discovered, but which seems great):

University of Florida psychologists Chris Janiszewski and Dan Uy suspected that something fundamental might be going on, that some characteristic of the opening bid itself might influence the way the brain thinks about value and shapes bidding behavior. In particular, they wanted to see if the precision of the opening bid might be important to how the brain acts at an auction. Or to put it in more familiar terms: Are we really fooled when storekeepers price something at $19.95 instead of a round twenty bucks?

Janiszewski and Uy ran a series of experiments to test this idea. The experiments used hypothetical scenarios, in which participants were required to make a variety of “educated guesses.” For example, they had participants think about a scenario in which they are buying a high-definition plasma TV, and asked them to guesstimate the wholesale cost. They were told the retail price, plus the fact that the retailer had a reputation for pricing TVs competitively.

But there were three scenarios involving three retail prices: Some hypothetical buyers were given a price of $5000, while others were given the price of $4988 and still others $5012. When all the buyers were asked to estimate the wholesale price, those with the $5000 price tag in their heads guessed much lower than those contemplating the more precise retail prices. That is, they moved farther away from the mental anchor. What’s more, those who started with the round number as their mental anchor were much more likely to guess a wholesale price that was also in round numbers. The scientists ran this experiment again and again with different scenarios, and always got the same result.

Why would this happen?

Read the post to find out!

As I hope we’ve made clear, our ultimate claim is not (cf. Kerr) that “Justice Scalia was privileging a conservative white male view” of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. [...]]]> [This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

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

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

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

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

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

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

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

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

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

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

The key mechanism identified here is a substitution of movie-watching for more dangerous activities:

“Economics is about choice,” [one study author] said. “What would these people have done if they had not chosen to [...]]]> Researchers have recently “proven” that “violent films prevent violent crime by attracting would-be assailants and keeping them cloistered in darkened, alcohol-free environs.” In fact, they estimate that about 52,000 less assaults occur each year because of the showing of violent movies. It’s all part of the “Super Crunchers” trend, where economists “crunch . . . numbers to evaluate matters like cheating among sumo wrestlers or the effects of a crackdown on cocaine.” Pity that the urge for “clean identification” and headline-grabbing results produces a bizarre overconfidence about the study’s extrapolability.

The key mechanism identified here is a substitution of movie-watching for more dangerous activities:

“Economics is about choice,” [one study author] said. “What would these people have done if they had not chosen to go and see a movie? Whatever they would have done would have had a greater tendency to involve alcohol. If you can incapacitate a large group of potentially violent people, that’s a good thing.”

I’ll be the first to agree that the study helps demonstrate that, say, those with a propensity for violence are less likely to go out and be violent after watching such a film. But what about the next night, or the night after that? These aggregative, atomized studies do nothing to explore the long-term psychological impact of viewing violence. As Craig A. Anderson, director of the Center for the Study of Violence at Iowa State University, notes,

There are hundreds of studies done by numerous research groups around the world that show that media violence exposure increases aggressive behavior. People learn from every experience in life, and that learning occurs at a very basic level of brain function.

I’d trust individualized psychological research far more than I would follow brute aggregation here. Admittedly, I’m no expert, and I can envision a plausible theory whereby viewing violence substitutes for, rather than encourages, doing violence (though I would guess the “spillover” effect of viewing is far stronger than the “compensation” effect, to use Jon Elster’s terms). I can only congratulate the recent study authors on the limited finding that people are less likely to brutalize others on the very night they watch violent films–not on giving us much insight at all on the overall cultural impact of violent films.

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

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

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

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

First, the Village Voice has a long story on some possibly inappropriate steroid/HGH use in the NYPD. I say “possibly” for two reasons: 1) the slippery “therapy/enhancement” distinction here and 2) the threat posed by bulked up criminals. The Voice reports that “the Brooklyn District Attorney’s Office knows of 29 cops and at least 10 NYPD civilian employees—all well under the age [...]]]> There has been some excellent blawgospheric comment on the Mitchell Report, a Black Sox scandal for our age (see, e.g., Jeff Lipshaw, Howard Wasserman, Michael Dimino and Alfred Yen). My question is: what will be the cultural impact? I think two recent stories on performance enhancement in other fields provide some clues, and suggest the wisdom of the PCBE’s worries.

First, the Village Voice has a long story on some possibly inappropriate steroid/HGH use in the NYPD. I say “possibly” for two reasons: 1) the slippery “therapy/enhancement” distinction here and 2) the threat posed by bulked up criminals. The Voice reports that “the Brooklyn District Attorney’s Office knows of 29 cops and at least 10 NYPD civilian employees—all well under the age of 60—who have received prescriptions for [steroids for] hypogonadism.” Doctors quoted in the story find it implausible that so many officers would have this disorder–but there are probably other physicians who have a much broader concept of disease. And if suspects are bulking up on illegal substances, who can blame the cops for trying to catch up?

The other story is on concentration-enhancing drugs increasingly used not only by students (an old problem), but now by professors. Andrew Sullivan asks, “So if a prof wants to do a little Provigil, it’s no worry for me. Why should it be a worry for anyone but the prof himself?” I think there are several reasons, not least the potential for medicalized competition to invade spheres of life we now deem constitutive of our identity. But for now let me just focus on how the police and profs examples intersect.

Think about the balance of scholarship produced in a regime where some labor under the supercharging influence of Provigil, and others forbear. The former will presumably generate more work than the latter. That may be fine in relatively technical fields (who wants to slow down the sequencing of a genome?). But in areas where ideology matters, the potential power of the pill-poppers can be a problem. We need to ask: what are the reasons people are not taking the drugs? A (wise) risk-aversion? A fear of disadvantaging others who can’t afford them? A religious concern about “playing God”? And finally, are the people who have all these concerns really the ones we want to be drowned out by super-stimulated, super-productive others?

My basic point here is that Sullivan (and many other libertarians) make an erroneous presumption that the decision to use the drug is wholly distinct from whatever ideology a particular person has. To them, the technology is neutral in itself, and can be freely used (or not used) by anyone. In fact, the drugs fit in very well with certain ideologies and not at all with others. This is an old theme in the philosophy of technology, but is hard to encapsulate in a soundbite (itself a technology far more amenable to some ideologies than others).

At risk of stretching an analogy to the breaking point, I think professors and police face a similarly competitive landscape. The former battle for “mind share,” the latter for order. The more we understand the true lesson of Darwin/Dawkins–the pervasiveness of competitive struggle in daily life–the better we can see the need for “arms control agreements” regarding enhancement technologies. (Hopefully they will be more effective than the failed policies of the past.) The question is whether we will permit ourselves to direct evolution or to be the mere products of blind technological forces. Those opting for the latter route make Benjamin’s words on the “angel of history” all too prophetic:

This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress.

–Walter Benjamin, “On the Concept of History”, cited here.

Photo Credit: Cyborg Flower, jumpinroo.

UPDATE: Bridget Crawford has more insights here. If you’re interested in the law, tech, and theory angle, here’s a blog/symposium that Gaia Bernstein, Jim Chen, and I put together.

Woolhandler and Himmelstein observe that the past twenty years of failed state-based health care reform (and mandates) do not bode well for the plans now being discussed among presidential candidates:

In 1971, President Nixon sought to forestall single-payer national health insurance by proposing an alternative. He wanted to combine a mandate, which would require that employers cover their workers, with a Medicaid-like [...]]]> Two of the most perceptive health policy analysts, Drs. Steffie Woolhandler and David U. Himmelstein, provide a good “reality check” for those who think a Massachusetts-style health plan can fully handle the problem of the uninsured. (Though it took me a long time to figure out their title, “I am not a Health Reform,” was a play on Nixon’s “I am not a Crook.”)

Woolhandler and Himmelstein observe that the past twenty years of failed state-based health care reform (and mandates) do not bode well for the plans now being discussed among presidential candidates:

In 1971, President Nixon sought to forestall single-payer national health insurance by proposing an alternative. He wanted to combine a mandate, which would require that employers cover their workers, with a Medicaid-like program for poor families, which all Americans would be able to join by paying sliding-scale premiums based on their income.

Nixon’s plan, though never passed, refuses to stay dead. Now Hillary Clinton, John Edwards and Barack Obama all propose Nixon-like reforms. Their plans resemble measures that were passed and then failed in several states over the past two decades.

W&H are particularly disappointed by the recent Massachusetts plan; “even under threat of fines, only 7 percent of the 244,000 uninsured people in the state who are required to buy unsubsidized coverage had signed up by Dec. 1. Few can afford the sky-high premiums.” W&H should also acknowledge that in some cases the uninsured themselves are responsible; according to one recent study, “twenty-five percent are eligible for public coverage.”

W&H suggest that mandates will not work, but do not have the space to fully explore why. I think they are right to emphasize lack of affordability in plans, but a recent book suggests some deeper issues. Charles Karelis’s The Persistence of Poverty: Why the Economics of the Well-Off Can’t Help the Poor argues that we cannot expect impoverished individuals to react to economic incentives the same way that middle- and upper-class people do.

Karelis asks a provocative question: “what if the choices that truly benefit typical human beings when they’re poor are working little and not saving?” He asks us to consider the following scenarios:

In the first, a poor worker with no car or bus fare must walk six miles to work. And let’s say this long walk results in six blisters, and six unwashed dishes in the sink at home, and workplace mistakes that bring six reprimands from the boss. Suppose too that getting a bus ride for part of the way would reduce the worker’s troubles proportionately, so that each mile she didn’t have to walk would mean one fewer blister, unwashed dish, and reprimand. What will the poor worker give up to get a one-mile ride, given that she still has five miles to walk? Probably not much. After all, the sixth blister, unwashed dish, and reprimand tends to be drowned out, like a shout in a riot, by the other five anyway.

But now imagine she has just been given a five-mile bus ride, free. She has only one mile left to walk. What will she give up to get a one-mile ride now? Probably much more than in the first scenario because the difference between the discomfort of one blister, unwashed dish, and reprimand and the discomfort of none is far greater than the difference in discomfort between six and five. If the effect of getting a one-mile bus ride in the first scenario is like that of quieting a shout in a riot, in this scenario the effect of the one-mile bus ride is like that of quieting a shout in an otherwise quiet street.

Karelis offers a number of other examples in a phenomenology of the poor that challenges conventional economic wisdom. If we think of health insurance payments as a form of (probabilistic) saving, we can better understand how many of the uninsured rationally choose to persist in vulnerability. Life is already pretty bad presently; why deny certain small pleasures (or necessities) now to improve an uncertain future?

Of course, we all grow up with Horatio Alger tales, and there are many inspiring microlending success stories out there. But capitalism’s chutes and ladders have a dark side, too. Perhaps it’s time policymakers stopped trying to scare the poor into certain patterns of behavior–fill out this form, pay this deductible, etc., or you don’t get health insurance!–and instead take this particular “blister” of insecurity off the table.

Karelis is a philosopher, and though some may challenge his introspective methods, I can say that coming from a family that often had little money, they often made a lot of sense to me. The more policymakers can meld the insights of a Karelis with empirical works like Sudhir Venkatesh’s Off the Books: The Underground Economy of the Poor, the better a chance we have at addressing the persistent disadvantages and insecurity generated by the great risk shift. Here are some closing thoughts from Karelis:

[W]e should reopen the welfare debate that preoccupied liberal and conservative poverty reformers during the 90s. Having agreed that giving poor people resources undermines their motivation for self-help, the liberal and conservative camps fell to wrangling over whether generosity or maintaining incentives ought to be the top priority. (The liberals lost.) But the choice between generosity and maintaining incentives is a false one if generosity actually enhances the motivation for work and investment — by increasing the relief that poor people stand to get from the next dollar. It’s time to take another look at no-strings welfare for the truly poor. . . .

But do lawyers become depressed, or do people with a biochemical predisposition to depression become lawyers?

[Cross-posted at Legal Profession Blog]

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

Well after the game, I wondered about the interaction between sports victories and legal decision making. I know there are studies out there that correlate a home-team’s victory with a limited bump in local discretionary [...]]]> I had the tremendous pleasure of attending yesterday’s 6-1 Phillies victory over the Nationals. In the ninth, the crowd learned of the Mets’ loss (and consequent, miraculous, Phillies clinching of the National League East pennant) about five minutes before the scoreboard posted that result, demonstrating the quick response time of social networks. I screamed my head off, and as a result will be hoarse for class tonight. Ironically, I’m teaching acceptance by silence.

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

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

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

The first possible negative effect relates to basic interpersonal skills and social networking. As some educators (the author included) are doubtless aware, students have a tendency to resort to [...]]]> The Web has often and, I think, justifiably been touted as a democratizing and empowering communications medium. But as with any communications phenomenon of this magnitude, there are bound to be some negative effects. I am not talking here about the threats to children or the ubiquity of online pornography. In more basic social and expressive terms, the manner in which people associate and communicate “online” may be producing certain deleterious effects with regard to such activities “offline.” Although there are likely others, I want to discuss two such potential negative effects.

The first possible negative effect relates to basic interpersonal skills and social networking. As some educators (the author included) are doubtless aware, students have a tendency to resort to email rather than make appointments for face-to-face meetings with instructors. Disembodied or “virtual” communication can of course be quite beneficial in terms of things like convenience and efficiency. But for students, emailing, texting, and participating in social networking sites like MySpace and Facebook are not primarily related to convenience and efficiency; they are now the principal means of connecting to and communicating with others. What effect are these modes of online communication having on real space encounters and interactions? Consider a recent orientation seminar offered at New York University, entitled “Facebook in the Flesh.” As reported in the September 17 edition of The New Yorker, the seminar was apparently designed to teach students how to socialize and build social networks in person — social processes that a seminar brochure recognized could be very “intimidating” to students. At one point, participants were paired off and given instructions on how to do such elementary things as ask questions and discover commonalities and connections. Thus, one possible negative effect from online modes of expression is the difficulty, and in some cases even inability, to effectively interact with others located in the same physical space. This negative effect may have serious social and economic, as well as expressive, ramifications. (According to a recent survey, time spent at work has not decreased despite the availability of mobile technologies.)

Another possible negative effect relates specifically to the manner in which audiences interact with speakers – public officials, commencement speakers, celebrities, comics, etc. – in public and quasi-public settings. The pratice of heckling appears to be ascendant. A documentary entitled “Heckler” was shown at this year’s Tribeca Film Festival. As reported in the New York Times:

The film . . . argues that hecklers have grown not only more conspicuous in recent years, but more scathing, as more people feel emboldened to partake in public criticism, perhaps in part because the culture of blogs and online user reviews has created a climate where everyone is a critic — and a harsh one. It’s not enough to give performers a simple thumbs down. They must be personally lambasted, humiliated, even virtually willed out of existence.

Heckling, an expressive form that challenges and generally irritates the speaker, may be giving way to the “takedown” — an expressive form that seeks not only to silence and discredit the speaker but in many cases to assert the primacy of the heckler’s own message (a version of the “heckler’s veto”). Psychologists refer to the disabling of personal filters (manners) as the “disinhibition effect.” Online disinhibition has been facilitated to a large extent by Web anonymity. But disinhibition is present in many non-anonymous online encounters as well. As the Times article notes, today’s heckler, whether online or offline, often wants credit for the takedown. Although some psychologists have suggested a connection between online expressive behaviors and offline disinhibition, one cannot of course establish a direct causal relationship. Nevertheless, there is at least a plausible argument that behaviors like the disinhibited online takedown are seeping into our offline expressive culture. Is this necessarily a negative effect? After all, heckling is a longstanding and even in some sense venerable First Amendment tradition. In today’s often minutely stage-managed public domain, some interruption and disruption may be a salutary thing. But there are important differences between heckling a speaker and taking her down. Takedowns undermine basic First Amendment values like tolerance for diverse viewpoints and respect for a speaker’s ability to deliver her message. In an offline expressive culture in which there may be no “audience” of listeners but only a subjectively entitled, increasingly narcissistic, and vociferous group of speakers, such basic First Amendment values will be difficult to preserve.

Is there a connection between these two negative effects? Possible personal networking difficulties and behaviors like the takedown suggest a culture that may ultimately be less socially adept, at least in the traditional sense. As or more importantly, we may be witnessing the gradual decline of critical aspects of our offline expressive culture — the ability to connect with others in real time and space and to listen respectfully, in silence, to what others have to say.

The likely howls of protest from the [...]]]> A little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John’s) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can’t technically be charged with crimes – though abandoning your young and endangering youth sure do come close to real definable crimes – there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa’s article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn’t so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke’s African-American studies department has removed the page from its server. Fortunately, this blog post pdf’d the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad – the statement by the professors themselves – seems to me to consist of a set of vague generalities that verge on truisms, and aren’t objectionable:

“Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday.”

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

What changed? When I took a poetry course from Helen Vendler, she once said: “If you don’t like a poem now, wait for 10 years, and re-read it.” That may sound a bit smug on the computer screen, but I think you’d have been as impressed [...]]]> As a recent victim of Sudden iPod Death Syndrome, I’ve returned to my antiquated Dell MP3 player. It’s a bit of a throwback to the four years or so when I bought it. . . . and I’m tired of most of the pop songs on it. But one album I never liked at the time strikes me as fantastic now–Radiohead’s Hail to the Thief. I found it pretty much unlistenable when I bought it.

What changed? When I took a poetry course from Helen Vendler, she once said: “If you don’t like a poem now, wait for 10 years, and re-read it.” That may sound a bit smug on the computer screen, but I think you’d have been as impressed as I was if you were there. She tended to declaim like the Iris Murdoch of Judi Dench’s Iris–always from a minimalist lectern surrounded by hundreds of square feet of empty polished parquet floor.

In any event, I’d love to hear about any book or music it took you years to like. I think the experience is a nice phenomenological confirmation of the problem of affective forecasting.

From the abstract of the article by Jeremy Blumenthal:

I review here the empirical data demonstrating that individuals predict emotions inaccurately, and spin out the implications of this research for a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience.

And a final note on Radiohead. . . if you find Hail to the Thief too harsh, try Optimistic….a nice piece of minimalist social criticism along the lines of “the big fish eat the little ones.”

A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage [...]]]>

A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today’s Journal, John McKinnon has a interesting article about Sara Taylor’s decision to leave her job as the White House’s political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was “honed” by political operations to “more effectively zero in on voters’ emotion triggers,” and uncover groups of voters that are susceptible to future efforts. Taylor sees a “big future” for taking such political lessons back to the corporate world by “helping corporations focus on potential customers’ . . . feelings about buying a product or service.”

There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are “more constrained in the claims they can make” than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating “social networks around products and brands . . .” In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.

Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)

What’s wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn’t savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn’t it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.

But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven’t fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others’ (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.

Instead, the real loss of privacy in modern society is the “public sphere.” He argues that Americans increasingly do not differentiate between public matters and private ones, that there are few places where “codes of dress and behavior are routinely enforced, personal disclosures are penalized, and formality is still the rule.” Elsewhere, private life is “brutally invading” public spaces, through the media, cellphones, public conversations about private matters, and, in short, a “pajama-party world.”

Franzen contrasts this world with a “genuine public space,” a place where “every citizen is welcome to be present and where the purely private is excluded or restricted.” He suggests, interestingly, that legal spaces are among our few remaining public places: courtrooms and jury pools, along with art museums and some workplaces, are the rare place where discussions about personal matters are generally missing. (Incidentally, one of unforeseen losses in my move from law practice to the academy is that this public-sphere workplace model is less present. There are compensations for this loss, to be sure, but it is felt.)

There is a connection between total persuasion and the loss of public space. This connection is deeper than the mere fact that public places are being renamed in service of persuasion. I’m not the first to note that the problem with persuasion’s ubiquity is that it makes us unable to walk in public without feeling like a targeted consumer. To the extent that our fellow citizens are harnessed to this persuasive effort, this lack of noncommercial space will be all the more keenly felt.

Is the right to be un-persuaded, to develop preferences that are all yours, one that the law recognizes? Not currently, although the movement to get advertising out of school suggests that there is a something to this. Stay tuned.

(Art Credit: Kenney Mencher, Austen’s Persuasion, 2005)