Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that [...]]]> By unanimous reader demand – all one out of one readers voting, as of last week – this post will explore the small topic of the biological basis of “irrationality,” and its implications for law.  Specifically, Ben Daniels of Collective Conscious asked the fascinating question: “What neuro-mechanisms enforce irrational behavior in a rational animal?”

Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that greater rationality might be possible – but might not confer greater benefits.  I call this the “anti-Vulcan hypothesis”:  While our affective capacities might suppress some of our computational power, they are precisely what make us both less than perfectly rational and gloriously human – Captain Kirk, rather than Mr. Spock.  A second, related perspective offered by the field of cultural cognition suggests that developmentally-acquired, neurally-ingrained cultural schemas cause people to evaluate new information not abstractly on its merits but in ways that conform to the norms of their social group.  In what I call the “sheep hypothesis,” cultural cognition theory suggests that our rational faculties often serve merely to rationalize facts in ways that fit our group-typical biases.  Yet, whether we are Kirk or Flossie, the implication for law may be the same:  Understanding how affect and rationality interact can allow legal decision-makers to modify legal institutions to favor the relevant ability, modify legal regimes to account for predictable limitations on rationality, and communicate in ways that privilege social affiliations and affective cues as much as factual information.

First, a slight cavil with the question:  The question suggests that people are “rational animal[s]” but that certain neurological mechanisms suppress rationality – as if our powerful rational engines were somehow constrained by neural cruise-control.  Latent in that question are a factual assumption about how the brain works (more on that later) and a normative inclination to see irrationality as a problem to which rationality is the solution.  Yet, much recent work on the central role of affect in decision-making suggests that, often, the converse may be true.  (Among many others, see Jonathan Haidt and Josh Greene; these links will open PDF articles in a new window.)  Rationality divorced from affect arguably may not even be possible for humans, much less desirable.  Indeed, the whole idea of “pure reason” as either a fact or a goal is taking a beating at the hands of researchers in behavioral economics, cognitive neuroscience, and experimental philosophy – and perhaps other fields as well.

Also, since “rational” can mean a lot of things, I’m going to define it as the ability to calculate which behavior under particular circumstances will yield the greatest short-term utility to the actor.  By this measure, people do irrational things all the time: we discount the future unduly, preferring a dollar today to ten dollars next month; we comically misjudge risk, shying away from the safest form of transportation (flying) in favor of the most dangerous (driving); we punish excessively; and the list goes on.

Despite these persistent and universal defects in rationality, experimental data indicates that our brains have the capacity to be more rational than our behaviors would suggest.  Apparently, certain strong affective responses interfere with activity in particular regions of the prefrontal cortex (pfc); these areas of the pfc are associated with rationality tasks like sequencing, comparing, and computing.  Experiments in which researchers use powerful magnets to temporarily “knock out” activity in limbic (affective) brain regions, the otherwise typical subjects displayed savant-like abilities in spatial, visual, and computational skills.  This experimental result mimics what anecdotally has been reported in people who display savant abilities following brain injury or disease, and in people with autism spectrum disorders, who may have severe social and affective impairments yet also be savants.

So: Some evidence suggests the human brain may have massively more computing power than we can to put to use because of general (and sometimes acute) affective interference.  It may be that social and emotional processing suck up all the bandwidth; or, prosocial faculties may suppress activity in computational regions.  Further, the rational cognition we can access can be totally swamped out by sudden and strong affect.  With a nod to Martha Nussbaum, we might call this the “fragility of rationality.”

This fragility may be more boon than bane:  Rationality may be fragile because, in many situations, leading with affect might confer a survival advantage.  Simple heuristics and “gut” feelings, which are “fast and cheap,” let us respond quickly to complex and potentially dangerous situations.  Another evolutionary argument is that all-important social relationships can be disrupted by rational utility-maximizing behaviors – whether you call them free-riders or defectors.  To prevent humans from mucking up the enormous survival-enhancing benefits of community, selection would favor prosocial neuroendocrine mechanisms that suppress or an individual’s desire to maximize short-term utility.  What’s appealing about this argument is that – if true – it means that that which enables us to be human is precisely that which makes us not purely rational.  This “anti-Vulcan” hypothesis is very much the thrust of the work by Antonio Damasio (and here), Dan Ariely, and Paul Zak, among many other notable scholars.

An arguably darker view of the relationship between prosociality and rationality comes from cultural cognition theory.  While evolutionary psychology and behavioral economics suggest that people have cognitive quirks as to certain kinds of mental tasks, cultural cognition suggests that people’s major beliefs about the state of the world – the issues that self-governance and democracy depend upon – are largely impervious to rationality.  In place of rationality, people quite unconsciously “conform their beliefs about disputed matters of fact … to values that define their cultural identities.”

On this view, people aren’t just bad at understanding risk and temporal discounting, among other things, because our prosocial adaptations suppress it.  Rather, from global warming to gun control, people unconsciously align their assessments of issues to conform to the beliefs and values of their social group.  Rationality operates, if at all, post hoc:  It allows people to construct rationalizations for relatively fact-independent but socially conforming conclusions.  (Note that different cultural groups assign different values to rational forms of thought and inquiry.  In a group that highly prizes those activities, pursuing rationally-informed questioning might itself be culturally conforming.  Children of academics and knowledge-workers: I’m looking at you.)

This reflexive conformity is not a deliberate choice; it’s quite automatic, feels wholly natural, and is resilient against narrowly rational challenges based in facts and data.  And that this cognitive mode inheres in us makes a certain kind of sense:  Most people face far greater immediate danger from defying their social group than from global warming or gun control policy.  The person who strongly or regularly conflicts with their group becomes a sort of socially stateless person, the exiled persona non grata.

To descend from Olympus to the village:  What could this mean for law?  Whether we take the heuristics and biases approach emerging from behavioral economics and evolutionary psychology or the cultural cognition approach emerging from that field, the social and emotional nature of situated cognition cannot be ignored.  I’ll briefly highlight two strategies for “rationalizing” aspects of the legal system to account for our affectively-influenced rationality – one addressing the design of legal institutions and the other addressing how legal and political decisions are communicated to the public.

Oliver Goodenough suggests that research on rational-affective mutual interference should inform how legal institutions are  designed.  Legal institutions may be anywhere on a continuum from physical to metaphorical, from court buildings to court systems, to the structure and concept of the jury, to professional norms and conventions.  The structures of legal institutions influence how people within them engage in decision-making; certain institutional features may prompt people bring to bear their more emotive (empathic), social-cognitive (“sheep”), or purely rational (“Vulcan”) capacities.

Goodenough does not claim that more rationality is always better; in some legal contexts, we might collectively value affect – empathy, mercy.  In another, we might value cultural cognition – as when, for example, a jury in a criminal case must determine whether a defendant’s response to alleged provocation falls within the norms of the community.  And in still other contexts, we might value narrow rationality above all.  Understanding the triggers for our various cognitive modes could help address long-standing legal dilemmas.  Jon Hanson’s work on the highly situated and situational nature of decision-making suggests that the physical and social contexts in which deliberation takes place may be crucial to the answers at which we arrive.

Cultural cognition may offer strategies for communicating with the public about important issues.  The core insight of cultural cognition is that people react to new information not primarily by assessing it in the abstract, on its merits, but by intuiting their community’s likely reaction and conforming to it.  If the primary question a person asks herself is, “What would my community think of this thing?” instead of “What is this thing?”, then very different communication strategies follow:  Facts and information about the thing itself only become meaningful when embedded in information about the thing’s relevance to peoples’ communities.  The cultural cognition project has developed specific recommendations for communication around lawmaking involving gun rights, the death penalty, climate change, and other ostensibly fact-bound but intensely polarizing topics.

To wrap this up by going back to the question: Ben, short of putting every person into a TMS machine that makes us faux-savants by knocking out affective and social functions, we are not going to unleash our latent (narrowly) rational powers.  But it’s worth recalling that the historical, and now unpalatable term, for natural savants used to be “idiot-savant”: This phrase itself suggests that, without robust affective and social intelligence – which may make us “irrational” – we’re not very smart at all.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I [...]]]> Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

That sounds really abstract, so let me illustrate the idea with a historical example: eighteenth century British welfare.  The population was extremely immobile.  Poor people often were born, lived, and died in a single county.  The local charities that dispensed welfare knew who was a genuine hard-luck case and who was a lout.  They could give aid to the former while refusing the latter.  Then, in the nineteenth century, rapid urbanization occurred.  Poor people suddenly became mobile, and every local dispenser of charity began encountering scores of people he had never seen before.  He could no longer separate out the deserving and the undeserving poor easily.  So dispensers of public charity in England switched to a “workhouse” model.  You were only eligible for government welfare if you live in a workhouse.  Life in the workhouses was crummy.  They were bleak.  They were crowded.  There was no booze allowed. And they put people to work if they wished to be fed.  Unable to sort effectively among different kinds of welfare-recipients, the British develop a test that the “deserving poor” were much more likely to pass.  Instead of excluding the louts from welfare, they forced the louts to exclude themselves.

Today, we’re increasingly coming to resemble eighteenth century Britain, not nineteenth century Britain.  Look at what India is doing with biometrics and databases right now.  They are using modern technologies to “turn back the clock” to the sorts of relationships between the state and the citizen that we saw in eighteenth century Britain.  And they’re correctly invoking notions of meritocracy, fairness, and efficiency to do it.

As you’ve written, there are “digital dossiers” on all of us, which are made increasingly available at very low costs.  Facial recognition software, combined with massive public and private photo databases are eroding privacy in public spaces.  DNA databases are growing.  Behavioral profiling and data mining are exploding.  Location-tracking through GPS-enabled smartphones is becoming commonplace.  So the dynamics of exclusion are shifting once again. . . away from strategies that bundle access to collective resources with disamenities that are unpalatable to members of the group targeted for exclusion.  The government and the private sector have lots of information about individuals once again, so they can sort people themselves rather than trying to induce people to self-assess and self-sort.  My book explores what’s at stake with this shift from one form of exclusion to another.  You can achieve homogeneity with either strategy, but the different strategies produce very different sets of costs and benefits for the people being excluded, the people being included, and the people doing the excluding.

DJS: What do you consider to be the most surprising or controversial implication of your theories in the book?

The most controversial idea is that the government ought to use information policy to affect private actors’ choices about whether to exclude and how to exclude.  It’s uncontroversial that the government can ban private discrimination by employers or landlords.  But we have to realize that the government can affect the incidence of discrimination through more creative tools as well.  Where the government sees employers engaged in statistical discrimination, it can supplement traditional law enforcement tools with “searchlight strategies” to publicize previously private information.  To take a salient example, we know that employers seeking to hire entry-level blue collar workers discriminate against African American males in part because they overestimate the propensity of African American males to have criminal records.  Because of this overestimation, publishing complete information about criminal histories for everyone would likely reduce the incidence of statistical discrimination, increasing the employment prospects of African American males as a group.

I extend this searchlight approach to develop a bunch of proposals for how the state can use information policy to further antidiscrimination interests.  For example, the book proposes promoting the use of Electronic Medical Records as a strategy for reducing physicians’ tendency to prescribe narcotics in a racially discriminatory way, and subsidizing Yelp and Angie’s List to make people less reliant on ethnic preferences in selecting contractors.  These strategies can supplement orthodox tools of antidiscrimination law like public enforcement and private causes of action.

Of course, this approach to combating discrimination raises all kinds of thorny questions: Should the government suppress information when doing so might reduce undesirable forms of statistical discrimination?  Once information is released, can it be revoked if its disclosure surpisingly backfires?  What should be done to weed out false information or customer feedback that are themselves influenced by racial animus?  I talk about the answers to these important questions in the book.

The book also considers whether racism prompts people to move to residential communities built around mandatory membership golf communities.  That’s another controversial hypothesis, and its part of a discussion of how real estate developers are really selecting populations of residents when they decide which amenities should be bundled into a new community. Yet those decisions about bundling go virtually unregulated by fair housing laws.

DJS: You have very nuanced views about privacy, but my sense is that you see a small role for privacy in a well-functioning society — not a large one.  Is that correct?  And you argue that we need to distinguish between instances where privacy is desirable and areas where it is counterproductive.  How are we to make these determinations?  Do you have a set of guiding factors or considerations?

I believe that privacy is an intermediate good.  It can be a means toward important ends, but is never an end unto itself.  Privacy can be undesirable when it results in racial discrimination, or cyber-bullying, or fraud, or sexual harassment in public spaces.  Privacy is worth fighting for when it facilitates human intimacy, or when it nurtures representative democracy, or when it prompts people to seek out medical attention, or when it fosters experimentation that leads to self-discovery.  A satisfying answer to the question, “What’s the benefit of more privacy?” has to be something beyond “more privacy.”  Advocates and scholars sometimes fail to appreciate this essential aspect of information privacy.

To take an example that’s particularly near and dear to my scholarly agenda, can you imagine what life would be like on our urban and suburban roadways if cars didn’t have license plates?  There’d be more “privacy.”  There’d also be a gigantic increase in unlawful, aggressive, and antisocial driving.  We’d have many more roadway accidents and fatalities.  Privacy advocates have helped kill off red-light cameras, automated ticketing for speeding based on EZ Pass or toll booth data, and other traffic safety innovations.  What important interests are being served by privacy in this context?  In the context of red-light cameras with proper data minimization controls, I don’t see any legitimate interest that privacy is serving, but I see a lot of blood on the pavement if privacy interests kill off the technology’s use. There is also the boy crying wolf problem.  Every time privacy is invoked to defend trivial interests, it weakens the force of privacy arguments in contexts where privacy protections do enormous good.

Thanks, Lior, for answering my questions.  Lior’s book is Information and Exclusion (Yale University Press 2011).  This is definitely a book for the must-read list.

Kirsch and his colleagues used the Freedom of Information Act to obtain FDA reviews of all placebo-controlled clinical trials, whether positive or negative, submitted for the initial approval of the six most widely used antidepressant drugs approved between 1987 and 1999—Prozac, Paxil, Zoloft, Celexa, Serzone, and Effexor. . . .Altogether, there were forty-two trials of the six drugs. Most of them were negative. Overall, placebos were 82 percent as effective as the drugs, as measured by the Hamilton Depression Scale (HAM-D), a widely used [...]]]> Marcia Angell has kicked off another set of controversies for the pharmaceutical sector in two recent review essays in the New York Review of Books. She favorably reviews meta-research that calls into question the effectiveness of many antidepressant drugs:

Kirsch and his colleagues used the Freedom of Information Act to obtain FDA reviews of all placebo-controlled clinical trials, whether positive or negative, submitted for the initial approval of the six most widely used antidepressant drugs approved between 1987 and 1999—Prozac, Paxil, Zoloft, Celexa, Serzone, and Effexor. . . .Altogether, there were forty-two trials of the six drugs. Most of them were negative. Overall, placebos were 82 percent as effective as the drugs, as measured by the Hamilton Depression Scale (HAM-D), a widely used score of symptoms of depression. The average difference between drug and placebo was only 1.8 points on the HAM-D, a difference that, while statistically significant, was clinically meaningless. The results were much the same for all six drugs: they were all equally unimpressive. Yet because the positive studies were extensively publicized, while the negative ones were hidden, the public and the medical profession came to believe that these drugs were highly effective antidepressants.

Angell discusses other research that indicates that placebos can often be nearly as effective as drugs for conditions like depression. Psychiatrist Peter Kramer, a long-time advocate of anti-depressant therapy, responded to her last Sunday. He admits that “placebo responses . . . have been steadily on the rise” in FDA data; “in some studies, 40 percent of subjects not receiving medication get better.” But he believes that is only because the studies focus on the mildly depressed:

The problem is so big that entrepreneurs have founded businesses promising to identify genuinely ill research subjects. The companies use video links to screen patients at central locations where (contrary to the practice at centers where trials are run) reviewers have no incentives for enrolling subjects. In early comparisons, off-site raters rejected about 40 percent of subjects who had been accepted locally — on the ground that those subjects did not have severe enough symptoms to qualify for treatment. If this result is typical, many subjects labeled mildly depressed in the F.D.A. data don’t have depression and might well respond to placebos as readily as to antidepressants.

Yves Smith finds Kramer’s response unconvincing:

The research is clear: the efficacy of antidepressants is (contrary to what [Kramer's] article suggests) lower than most drugs (70% is a typical efficacy rate; for antidepressants, it’s about 50%. The placebo rate is 20% to 30% for antidepressants). And since most antidepressants produce side effects, patients in trials can often guess successfully as to whether they are getting real drugs. If a placebo is chosen that produces a symptom, say dry mouth, the efficacy of antidepressants v. placebos is almost indistinguishable. The argument made in [Kramer's] article to try to deal with this inconvenient fact, that many of the people chosen for clinical trials really weren’t depressed (thus contending that the placebo effect was simply bad sampling) is utter[ly wrong]. You’d see the mildly/short-term depressed people getting both placebos and real drugs. You would therefore expect to see the efficacy rate of both the placebo and the real drug boosted by the inclusion of people who just happened to get better anyhow.

Felix Salmon also challenges Kramer’s logic:

[Kramer's view is that] lots of people were diagnosed with depression and put onto a trial of antidepressant drugs, even when they were perfectly healthy. Which sounds very much like the kind of thing that Angell is complaining about: the way in which, for instance, the number of children so disabled by mental disorders that they qualify for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) was 35 times higher in 2007 than it was in 1987. And it’s getting worse: the editors of DSM-V, to be published in 2013, have written that “in primary care settings, approximately 30 percent to 50 percent of patients have prominent mental health symptoms or identifiable mental disorders, which have significant adverse consequences if left untreated.”

Those who would defend psychopharmacology, then, seem to want to have their cake and eat it: on the one hand it seems that serious mental health disorders have reached pandemic proportions, but on the other hand we’re told that a lot of people diagnosed with those disorders never really had them in the first place.

That is a very challenging point for the industry to consider as it responds to concerns like Angell’s. The diagnosis of mental illness will always have ineradicably economic dimensions and politically contestable aims. But doctors and researchers should insulate professional expertise and the interpretation of maladies as much as possible from inappropriate pressures.

How can they maintain that kind of independent clinical judgment? I think one key is to assure that data from all trials is open to all researchers. Consider, for instance, these findings from a NEJM study on “selective publication:”

We obtained reviews from the Food and Drug Administration (FDA) for studies of 12 antidepressant agents involving 12,564 patients. . . . Among 74 FDA-registered studies, 31%, accounting for 3449 study participants, were not published. Whether and how the studies were published were associated with the study outcome. A total of 37 studies viewed by the FDA as having positive results were published; 1 study viewed as positive was not published. Studies viewed by the FDA as having negative or questionable results were, with 3 exceptions, either not published (22 studies) or published in a way that, in our opinion, conveyed a positive outcome (11 studies). According to the published literature, it appeared that 94% of the trials conducted were positive. By contrast, the FDA analysis showed that 51% were positive. Separate meta-analyses of the FDA and journal data sets showed that the increase in effect size ranged from 11 to 69% for individual drugs and was 32% overall. (emphasis added).

Melander, et al. also worried (in 2003) that, since “The degree of multiple publication, selective publication, and selective reporting differed between products,” “any attempt to recommend a specific selective serotonin reuptake inhibitor from the publicly available data only is likely to be based on biased evidence.” Without clearer “best practices” for data publication, clinical judgment may be impaired.

Full disclosure of study funding should also be mandatory and conspicuous, wherever results are published. Ernest R. House has reported that, “In a study of 370 ‘randomized’ drug trials, studies recommended the experimental drug as the ‘treatment of choice’ in 51% of trials sponsored by for-profit organizations compared to 16% sponsored by nonprofits.” The commodification of research has made it too easy to manipulate results, as Bartlett & Steele have argued:

One big factor in the shift of clinical trials to foreign countries is a loophole in F.D.A. regulations: if studies in the United States suggest that a drug has no benefit, trials from abroad can often be used in their stead to secure F.D.A. approval. There’s even a term for countries that have shown themselves to be especially amenable when drug companies need positive data fast: they’re called “rescue countries.” Rescue countries came to the aid of Ketek, the first of a new generation of widely heralded antibiotics to treat respiratory-tract infections. Ketek was developed in the 1990s by Aventis Pharmaceuticals, now Sanofi-Aventis. In 2004 . . . the F.D.A. certified Ketek as safe and effective. The F.D.A.’s decision was based heavily on the results of studies in Hungary, Morocco, Tunisia, and Turkey.

The approval came less than one month after a researcher in the United States was sentenced to 57 months in prison for falsifying her own Ketek data. . . . As the months ticked by, and the number of people taking the drug climbed steadily, the F.D.A. began to get reports of adverse reactions, including serious liver damage that sometimes led to death. . . . [C]ritics were especially concerned about an ongoing trial in which 4,000 infants and children, some as young as six months, were recruited in more than a dozen countries for an experiment to assess Ketek’s effectiveness in treating ear infections and tonsillitis. The trial had been sanctioned over the objections of the F.D.A.’s own reviewers. . . . In 2006, after inquiries from Congress, the F.D.A. asked Sanofi-Aventis to halt the trial. Less than a year later, one day before the start of a congressional hearing on the F.D.A.’s approval of the drug, the agency suddenly slapped a so-called black-box warning on the label of Ketek, restricting its use. (A black-box warning is the most serious step the F.D.A. can take short of removing a drug from the market.) By then the F.D.A. had received 93 reports of severe adverse reactions to Ketek, resulting in 12 deaths.

The great anti-depressant debate is part of a much larger “re-think” of the validity of data. Medical claims can spread virally without much evidence. According to a notable meta-researcher, “much of what medical researchers conclude in their studies is misleading, exaggerated, or flat-out wrong.” The “decline effect” dogs science generally. Statisticians are also debunking ballyhooed efforts to target cancer treatments.

Max Weber once said that “radical doubt is the father of knowledge.” Perhaps DSM-VI will include a diagnosis for such debilitating skepticism. But I think there’s much to be learned from an insistence that true science is open, inspectable, and replicable. Harvard’s program on “Digital Scholarship” and the Yale Roundtable on Data and Code Sharing* have taken up this cause, as has the work of Victoria Stodden.

We often hear that the academic sector has to become more “corporate” if it is to survive and thrive. At least when it comes to health data, the reverse is true: corporations must become much more open about the sources and limits of the studies they conduct. We can’t resolve the “great anti-depressant debate,” or prevent future questioning of pharma’s bona fides, without such commitments.

*In the spirit of full disclosure: I did participate in this roundtable.

X-Posted: Health Law Profs Blog.

But there’s another aspect of this fight that is, I think, worth some extended comment.  As Sarah has pointed on this blog, anti- and pro- circumcision advocates generally fight about circumcision’s health effects, and resist attacking (or defending) it as a cultural practice. To me, this looks quite like [...]]]> There’s a flurry of coverage about proposed anti-circumcision initiatives in California.  (Sullivan, Volokh.)  The posts I’ve been reading – and, granted, I’ve not read the field – have taken this issue oddly seriously.  After all, these are merely (actual or proposed) ballot initiatives that haven’t been approved by the voters. If they were approved, their constitutionality won’t (contra Volokh) be determined by existing precedent.  In my view, this is a slam dunk example of an overdetermined constitutional issue.

But there’s another aspect of this fight that is, I think, worth some extended comment.  As Sarah has pointed on this blog, anti- and pro- circumcision advocates generally fight about circumcision’s health effects, and resist attacking (or defending) it as a cultural practice. To me, this looks quite like other contests in our society in which nominally empirical debates predominate — the fight over the HPV vaccine, gay and lesbian parenting, nanotechnology, global warming, etc. The Cultural Cognition project illustrates that these fights very often appear to be about facts, but that expressed conclusions of the “facts” and “risks” involved follow our less-conscious values.  Moreover, though we can perceive this tendency in others, we deny it in ourselves.  This is the phenomenon of naive realism.  What results?  We come to believe that people who we disagree with about these value-laden fights (i.e., people who deny the health benefits of circumcision) are arguing in bad faith.  They think the same of us.  Winning, in the world of policy, becomes an exercise of defeating not just our opponent’s values, but denying that their values are even at play. I am pretty sure that if we tested this hypothesis in the circumcision debate, we’d see a very strong  set of cultural priors influencing how partisans interpret and process the medical-risk-facts about circumcision, whether the American Academy of Pediatrics is vouching for those facts or not.

This leads to a concrete piece of advice for Andrew Sullivan and other hot-tempered advocates on either side of this fight. Cool it.  Stop inciting fights with question-begging terms like “male genital mutilation.”  Instead, affirm the values of those you disagree with by making clear that this isn’t – at root – a debate that be resolved with reference to empirical facts.  It’s (as Sarah has insightfully pointed out) a discussion about cultural practices, and the degree to which the greater society has the right to change them.

For what it’s worth, my view is that the government has about as much of a moral right to prohibit circumcision as it does to tell me that I must eat broccoli.

Volume 58, Issue 3 (February 2011)

Articles

Comments

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers [...]]]> The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game.  Indeed, almost every decision you read about these days comes accompanied by a reference  to the political party of the appointing President – as if you needed the help!  As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern.  We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities.  Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski.  The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings.  (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)

Setup:

Protest’s experimental strategy was simple.  We first collected information about the cultural worldviews of a nationally representative sample of subjects, organized through Polimetrix.  We then described for these subjects the background of a lawsuit by political protestors against individual police officers and the police department.  We showed the subjects a video that we described as the major piece of evidence in the case, and which both parties advanced in support of their point of view.  In one condition of the experiment, the protestors in the video were described  as “members of a group that opposes permitting doctors and nurses to perform abortions at the request of pregnant women” [the abortion condition]; in another, as “members of a group that opposes the ban on allowing openly gay and lesbian citizens to join the military” [the recruitment condition].  The protestors’ complaint, the vignette stated, alleged that the police had “violated their rights by ordering them to end their protest at” either “an abortion clinic” or “a college campus recruitment center the day the Army was scheduled to interview students who were considering enlisting.”  Subjects were told that the defendants claimed halting the protest was justified by a law entitled the “Freedom to Exercise Reproductive Rights Law,” in the abortion condition, or the “Freedom to Serve with Honor Law,” in recruitment condition. That law made it illegal for  “any person to intentionally (1) interfere with, (2) obstruct, (3) intimidate, or (4) threaten any person who is seeking to enter, exit, or remain lawfully on premises of” either “any hospital or medical clinic that is licensed to perform abortions” or “any facility in which the U.S. military is engaged in recruitment activity.” We told the subjects (acting as jurors) that they were to decide a series of factual queries about this standard, and then tell us whether they thought the police were liable.  [If you like, check out the abortion and recruitment videos.  You will observe, if you are a HLS graduate, some familiar sites.  But come back!]

We had several hypotheses, which essentially predicted that subjects’ worldviews would be various threatened and affirmed by the underlying activity (recruitment, abortion) and behavior antagonistic to it.  As per usual with our work, we employed scales that characterized the worldviews along two dimensions. The first, Hierarchy-Egalitarianism, measures the subjects’ orientations toward social orderings that either feature or eschew stratified roles and forms of authority. The second, Individualism-Communitarianism, measures their orientations toward orderings that emphasize individual autonomy and self-sufficiency, on the one hand, and those that emphasize collective responsibilities and prerogatives, on the other. Combining the two scales generates four sets of worldviews—“hierarchy individualism,” “hierarchy communitarianism,” “egalitarian individualism” and “egalitarian communitarianism,” to which individuals’ affinities can be measured with continuous worldview scores.  Two major hypotheses were that (1) egalitarian individualist subjects would form anti-demonstrator fact perceptions in the abortion condition but pro-demonstrator perceptions in the recruitment center condition; and (2) hierarchical and communitarian subjects, by contrast, would form pro-demonstrator fact perceptions in the abortion condition but anti-demonstrator perceptions in the recruitment center condition.

Results:

Main Effects

Subjects were closely divided in both conditions.  Considered apart from the experimental manipulation, moreover, cultural worldviews likewise appear to have no meaningful effect on reactions to the video.  There was no evidence, then, that being inclined either toward hierarchy or egalitarianism, toward individualism or communitarianism, or toward any combination of the two disposes individuals toward pro- or anti-demonstrator reactions irrespective of what subjects believed about the political cause of the demonstrators.

For purposes of these estimates, the values for the cultural worldview predictors were both set one standard deviation from their means in the directions necessary to form the specified worldview combinations.

However, when we control for condition, we find dramatic differences.  In the abortion-clinic condition, 70% of the Hierarchical Communitarians found that the police had violated the demonstrators’ rights. Yet in the recruitment-center condition, only 16% did. Matters were the other way around for Egalitarian Individualists: 76% of them concluded that the police had violated the rights of the protestors in the military-recruitment condition, yet only 28% of them took that position in the abortion-clinic condition.  We can generalize to create scales reflecting our subjects’ responses to multiple fact and outcome items into a single “pro demonstrator” or “pro police” orientation.  The figure to the left plots the relationship between cultural orientations and judgments.

As you can see (perhaps more clearly if you click on the figure), the estimated scores for Egalitarian Individualists and for Hierarchical Communitarians scales flip.It is also evident from the estimates that Egalitarian Communitarians became significantly more pro-demonstrator,and  Hierarchical Individualists significantly more anti-demonstrator, in the recruitment-center condition as opposed to the abortion-center condition. Whereas the difference between Egalitarian Individualists and Hierarchical Communitarians is significant in both conditions, the difference between Egalitarian Communitarians and Hierarchical Individualists is significant only in the recruitment center condition.

As one would expect, these differences in case-disposition judgments are mirrored in the subjects’ responses to the fact-perception items. Whereas only 39% of the Hierarchical Communitarians perceived that the protestors were blocking the pedestrians in the abortion-clinic condition, for example, 74% of them saw blocking in the recruitment-center condition. Only 45% of Egalitarian Individualists, in contrast, saw blocking in the recruitment-center condition, whereas in the recruitment-center condition 76% of them did. Fully 83% of Hierarchical Individualists saw blocking in the military recruitment-center condition, up from 62% in the abortion-clinic condition; a 56% majority of Egalitarian Communitarians saw blocking in that condition, yet only 35% saw such conduct in the recruitment-center condition. Responses on other items—such as whether the protestors “screamed in the face” of pedestrians and whether the protestors intended only to persuade or instead to threaten—displayed similar patterns.

In summary, motivated cognition not only polarized individuals of diverse cultural outlooks but also generated contradictions in what subjects of a shared orientation reported seeing. Relatively hierarchical and communitarian subjects rejected the proposition, credited by relatively egalitarian and individualistic ones, that demonstrators were blocking access to a facility represented to be an abortion clinic; yet when hierarchical communitarians understood the demonstrators to be objecting to the exclusion of openly gay and lesbian citizens from the military, they agreed the protestors were blocking access to the same building—a claim that egalitarian individualists now overwhelmingly dismissed. Subjects subscribing to a hierarchical individualistic outlook as well as those adhering to an egalitarian communitarian one exhibited similar shifts in perception.

If you want to know how we think these experimental findings influence constitutional fact-finding, and judicial rhetoric, you’ll have to either read the paper, read Kahan on Balkinization, or come back for more here later in the week.

People with serious mental illness, more than most other patients, struggle with health system fragmentation. As the Institute of Medicine described it,

Mental and substance-use (M/SU) problems and illnesses seldom occur in isolation. They frequently accompany each other, as well as a substantial number of general medical illnesses such as heart disease, cancers, diabetes, and neurological illnesses. *** Improving the quality of M/SU health care—and general health [...]]]> Thanks to Frank for inviting me to review Barak Richman, Daniel Grossman, and Frank Sloan’s chapter,  Fragmentation in Mental Health Benefits and Services, in Our Fragmented Health Care System: Causes and Solutions (Einer Elhauge, ed. 2010).  The book is important and provocative.  The chapter on the fragmentation of mental health care couldn’t address a more timely issue.

People with serious mental illness, more than most other patients, struggle with health system fragmentation. As the Institute of Medicine described it,

Mental and substance-use (M/SU) problems and illnesses seldom occur in isolation. They frequently accompany each other, as well as a substantial number of general medical illnesses such as heart disease, cancers, diabetes, and neurological illnesses. *** Improving the quality of M/SU health care—and general health care—depends upon the effective collaboration of all mental, substance-use, general health care, and other human service providers in coordinating the care of their patients. *** However, these diverse providers often fail to detect and treat (or refer to other providers to treat) these co-occurring problems and also fail to collaborate in the care of these multiple health conditions—placing their patients’ health and recovery in jeopardy.

By some estimates, formerly institutionalized people with serious mental illness experience about 25 fewer years of life, mostly due to the effects of treatable physical illnesses such as cardiovascular, pulmonary and infectious diseases.  The effects of this health system fragmentation are experienced notwithstanding parity legislation, and they are felt also by people in the community with less serious mental illness, often because their primary care providers can’t find mental health providers to whom they can refer.

In Fragmentation in Mental Health Benefits and Services, the authors approach mental health system fragmentation by telling a story of the relationship between health insurance structure and income redistribution. The authors address the interrelationship between insurance “carve-outs” for mental health care and the growth of mental health parity laws. They assert that the carve out of behavioral health coverage from medical insurance provokes states to pass mental health parity laws. According to the authors, these parity laws fail to help their “intended” beneficiaries, and instead serve to redistribute resources away from low income and non-White employees.

To make their case, they mine a database of claims data for privately insured North Carolina patients. These claims data allow them to track employees’ (and, presumably, their dependents’) use of mental health services. Along the way, they raise several important issues. For example, they suggest that care provided by mental health providers may not be particularly efficacious. (299) Few would disagree that in most areas of health care – including mental health care – comparative effectiveness research is essential.   In addition, they suggest that access to and benefit from covered services varies by income and race. (298-99) It is undoubtedly true that there are class-based and race-based disparities in access to health care; this is so much discussed, in fact, that it somewhat puzzling that the authors would characterize as a “regularly overlooked question” the fact that “equal insurance and access does not translate into equitable consumption.” (279)

On some points, the authors seem to go a bit beyond their data. First, the authors assert (without citation) that mental health parity is “often” pursued “to benefit low-income and traditionally vulnerable populations.” (284) Many advocates (myself included) have argued for parity as a civil rights matter: as people with physical illness have access to insurance coverage, so should people with mental illness.  Certainly, insurance coverage is most valuable for those without the means to pay for care out of pocket, but that is as true for cardiac care as for mental health care. From this perspective, parity legislation seems no more a redistributive move than any other form of health insurance.

Second, and to distinguish parity legislation from other forms of insurance, the authors establish that the people of color and low-income insureds are less likely than others to take advantage of access to mental health practitioners. (298) Other researchers have pointed out the difficulty vulnerable populations have had gaining access to covered mental health outpatient care, even when their physicians attempt a referral, so this finding is uncontroversial. Does it follow from a finding that low-income people and people of color experience unequal use of and benefit from a covered service, that the coverage is illegitimate and should be curtailed? The logic of this assertion would call into question the continued coverage of cardiac services.  It might, rather, be wise to address the observed shortcomings in access to outpatient services for non-White and low-income patients and to seek the elimination of disparities here as elsewhere in the health finance and delivery system.

Third, the authors examine whether outpatient mental health treatment (as opposed to mental health treatment by primary physicians) is associated with a reduction in the rate of hospitalization for mental health services. They conclude that care from outpatient mental health providers does not reduce the rate of hospitalization for mental health care. (294) The authors here seem to argue that it would be unwise to “fix” the observed inequalities in access for the disadvantaged group, as the lack of association between outpatient mental health care and reduced hospitalization is weak. The authors, however, candidly acknowledge the limitations on using claims data to draw clinical conclusions, noting “unobservable heterogeneity of underlying health status” (294) and the possible “problem of unobserved severity.” (297) That being the case, it might be that the race and income disparities observed in access to outpatient mental health providers has carried though to other aspects of the mental health care system. For example, vulnerable low-income patients and patients of color might be unengaged in care, and therefore suffering with untreated mental health symptoms. Some employees or their dependents might be treated by the parallel public mental health system. It may be, in other words, that low-income people and people of color are poorly served by the mental health care system for reasons that have little to do with the efficacy of outpatient mental health care, notwithstanding their location in a university town.

The fragmentation of care for people with mental illness is an enormous public health and health finance problem. Much research needs to be done to approach the problem from all angles. The authors have done substantial work with an interesting set of claims data, and have creatively drawn links between patterns of usage and mental health outcomes.  As can be said of many forms of mental health treatment, their analysis fails to address the core issues.  But in such a difficult area of research, any advances are welcome.

In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage.  It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just [...]]]> Married life is characterized by a sharing norm. As I described in an earlier post, spouses commit to and in fact engage deeply in sharing behavior, including a shared family economy. Overwhelmingly, spouses pool economic resources, including labor, and decide together how to allocate them to benefit the family as a whole.

In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage.  It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just one spouse can also be understood (by both partners) to be appropriate and deserved—a recognition of the individual within a sharing framework. Conversely, it is also possible that spouses’ monetary dealings can undermine individual autonomy and the relationship as well. For example, one person might exercise authority over money in a way that disregards the other. Accordingly, power to influence financial resource allocation within the family is important for individual spouses and for togetherness.

It becomes a special concern then, that sharing patterns in marriage are gendered.  As highlighted in my previous post, role specialization remains a part of modern intimate partner relations. Particularly true for married couples, men continue to perform more as breadwinners, and women more as caregivers. As a result, women tend to have reduced earning power in the market. How does this market asymmetry translate into economic power at home? Happily, in a significant departure from the past, a majority of couples report that they share financial decisionmaking power roughly equally. Indeed, most married couples today endorse gender equality as an important value in their relationship. However, in a significant minority of marriages, spouses agree that husbands have more economic power. For some couples then, a husband’s breadwinning role and/or perhaps his gender, confers authority in contentious money matters.

How should law governing an ongoing marriage respond to these sharing dynamics? Consider this hypothetical fact situation. A husband has a stock account from which he plans to make a gift to his sister who he feels really needs the money. The husband suspects that his wife would not approve of the gift. Even though the wife too loves the sister, she believes the sister is irresponsible with money. Let’s assume that the money in that stock account was acquired while the parties were married, and that it came from the market wages of one or both of the spouses earned during marriage. It was a product of the couple’s shared life. Does contemporary law allow the husband to give his sister the gift without her consent? Without even telling her? How should legal power over the money be allocated?

A surprise perhaps, the law in most states is that the husband can give away the stocks without the consent or even knowledge of the wife, and she will very likely have no recourse, even if they divorce. This is so because perversely, spousal economic relations law in the forty-one “separate property states” simply ignores the marriage altogether. Ownership is based on formal title, with a default rule of individual acquisition. (Ironically, the title determines ownership rule has been partially abandoned in divorce law, and to a lesser extent in inheritance law, but still dominates intact marriage law.) As it stands now, the titled spouse is unilaterally empowered to dispose of an asset that should be considered co-owned with the other. 

As I have developed in an article (and am continuing to explore in other projects), my view is that this approach is backward and should be replaced with an actualized joint property regime for marital wealth. Basically I argue for an intensified and expanded community property law approach (that for some transactions functions more like a tenancy by the entireties), grounded on an explicitly theorized foundation. I recommend that marriage should be conceptualized in law as a distinctive partnership of equals for a shared life that includes mutual economic and non-economic contributions as well as joint life-planning and resource-allocation decisions. This sharing framework reflects and facilitates communal goals and behaviors chosen in married life. But it also draws attention to the vulnerability interdependence recurrently produces, offering protection for both individual and joint interests. Key for working against gender hierarchy, the equality standard helps level the economic playing field as couples negotiate resource allocation within the family.

Under my model, both husband and wife are equal co-owners of the stock account. The joint and equal property ownership rule recognizes the sharing process in marriage and equally values whatever kind of contributions spouses make, including both market work and unpaid caregiving work. Additionally, the spouses must collaborate and consent regarding a major transaction like the gift to the sister. (Third party actors, primarily financial institutions, would serve as key enforcers of the mutual consent requirement, by requiring, for instance, two signatures for certain withdrawals, mitigating the opportunity to monopolize joint wealth). This is needed to provide a safety net against the risks sharing inevitably brings. At the same time, operating in the background of spousal negotiations, the rule evenly distributes legal power over the resource.  A transfer like the gift potentially affects each spouse individually, as the transfer would concretely diminish wealth to which each partner has a claim. Also crucial, the consent requirement would give each spouse a voice in the decision over what to do with jointly owned property. In addition, allocation of financial decisionmaking power could affect the spouses as a couple and the family unit more broadly. Not surprisingly, having to reach agreement is a more demanding process than unilateral decision making, and may well trigger or reveal conflict. Yet research suggests that sharing control over money is good for marriage. A large-scale study found that “when couples do take the time to share control over money management, they seem to have happier, calmer relationships.” A recurrent collaborative decision-making process marks and augments the communal experience.

Many thanks to Concurring Opinions for hosting me and for the opportunity to dialogue his past month.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some [...]]]> Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

It seems to me that there are two main ways I use hypotheticals in class (in fact there are many subtler distinctions in ways, so this is admittedly crude but hopefully sufficient for present purposes). The first is of a realist or at least Hart-Kelsen/Core-Penumbra approach: I begin with what seems like a clear and defensible rule.  I then present easy cases on both sides. I then vary the facts a little at a time to produce a hard case, and the student learns how even seemingly clear and easy to apply rules breakdown in hard cases.

A second usage, though, is more coherentist. I start by asking students for a rule in one case that they are fairly sure of. I then examine whether the principle behind the rule is really one they want to defend by applying it in several new cases and testing it against their intuitions about how those cases should come out. These intuitions put pressure on their original rule, causing them to want to state it more precisely, add caveats, or perhaps chuck it altogether.

The experiment Josh discusses is perfectly consistent with the realist/hard case approach, indeed Jerome Frank would have loved it and easily assimilated it into what the judge had for breakfast.  What, however, should it mean for the more coherentist hypothetical usage?  There, the approach seems to tell student that if they reason about enough cases and compare their initial intuitions against many hypothetical cases, they will come close to what they think the “right” answer is, or at least rule out “wrong” answers.  Do results of this kind of experiment threaten that usage?  I am very curious what others think…

For those unfamiliar, Mechanical Turk allows you to farm out a variety of small tasks (label this image, enter date of this .pdf to a spreadsheet, take a photo of yourself with the sign “will turk for food,” etc) at a price per unit you set. Millions of anonymous users can then do the task for you and collect the bounty, a form of microwork.

As Jonathan detailed, this raises a host [...]]]> A recent faculty workshop by my witty and brilliant colleague Jonathan Zittrain on “ubiquitous human computing,” (this youtube video captures in a different form what he was talking about ), prompted me to thinking about some ways in which platforms like Amazon’s Mechanical Turk, interface with university research and research ethics in interesting ways.

For those unfamiliar, Mechanical Turk allows you to farm out a variety of small tasks (label this image, enter date of this .pdf to a spreadsheet, take a photo of yourself with the sign “will turk for food,” etc) at a price per unit you set. Millions of anonymous users can then do the task for you and collect the bounty, a form of microwork.

As Jonathan detailed, this raises a host of fascinating issues, but I want to focus on two that are closer to bioethics.

First, I have begun to see some legal academics recruiting populations for experimental work using Mechanical Turk, and there is an emerging literature on the pros and cons of subject recruitment from these populations. Are Mechanical Turkers “research subjects” within the legal (primarily the Common Rule if one receives federal funding) or broader ethical sense of the term? Should they be? Take as a tangible example the implicit bias research of the kind Mahzarin R. Banarji has made famous, and imagine it was done over something like Mechanical Turk. How (if at all) should the anonymity of the subject, the lack of subject-experimenter relationship of any sort, the piecemeal nature of the task, etc, change the way an institutional review board reviews the research? It is a mantra in the research ethics community that informed consent is supposed to be a “process” not a document, but how can that process take place in this anonymous static cyberspace environment?

Second, consider research assistance.

I often have my R.A.’s read over papers before I send them out to hunt for typos (alongside more substantive tasks I give them). Imagine that tomorrow I decided (imagine a shrinking research budget due to times of fiscal austerity) to farm the typo-hunt off to Mechanical Turk because I could get results faster and at one tenth the price, since there were individuals in destitute circumstances willing to do it at a rate far below that I pay my (wonderful, in case they are reading) R.A.’s. Even if the accuracy of the Turkers was individually less good, it seems plausible that having four of them pour over each page might be better and still cheaper than using R.A.’s to do it. Lest you think this only an interesting hypothetical, consider Samasource, whose mission statement suggests it “enables marginalized people, from refugees in Kenya to women in rural Pakistan, to receive life-changing work opportunities via the Internet” in just this way.

Would I have violated any rules at your university? Have I done something wrong? Perhaps I have deprived Harvard students of the opportunity to work closely with a faculty member (although on typo hunting?) Am I problematically circumventing Harvard’s minimum wage for R.A. work? Am I exploiting these Kenyan refugees or rural Pakistani women or instead giving them “life-changing work opportunities via the Internet?”

I’d be curious to hear the thoughts of any readers, as well as any reports on whether your institution has a policy on this subject.

Volume 57, Issue 5 (June 2010)

Articles

“Fundamentalist religious doctrines and autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy.”

Mr. Richards takes the epigraph (in full, above) to his volume from a late essay by John Rawls, “The Idea of Public Reason Revisited,”  in which fundamentalist doctrines—whose comprehensive vision of the truth conflicts with the principles of deliberative democracy—are presented as a threat to a reasonable and just society.  Rawls was content to state his case, as the epigraph shows, in a measured tone.  One finds less restraint and greater risk in Richards, whose spirited challenge to religious and legal fundamentalism is noisy, passionate, and deeply personal. As [...]]]> David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010.

“Fundamentalist religious doctrines and autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy.”

Mr. Richards takes the epigraph (in full, above) to his volume from a late essay by John Rawls, “The Idea of Public Reason Revisited,”  in which fundamentalist doctrines—whose comprehensive vision of the truth conflicts with the principles of deliberative democracy—are presented as a threat to a reasonable and just society.  Rawls was content to state his case, as the epigraph shows, in a measured tone.  One finds less restraint and greater risk in Richards, whose spirited challenge to religious and legal fundamentalism is noisy, passionate, and deeply personal.
As the courts have led the United States closer to civility, permitting women and gay men to participate in democracy as free and equal citizens, the reactionary forces of fundamentalism have struggled to keep the newly liberated in a state of “moral slavery” (e.g., 31) where women are considered weak-willed and best kept for child-rearing, and homosexuality a vice.  “Moral slavery” is the status quo ante bellum, a return to the hierarchical order that governed before the culture wars, before the civil rights movement and the progressive recognition of the right to intimate life.  Each fundamentalism is a project of restoration: originalism that reads the Constitution as though over Madison’s shoulder; New Natural law that draws moral principles from the vanguard of the 13th century; Protestant fundamentalism that insists on demonizing homosexuality based on a literal reading of scripture; the theology of Joseph Smith that promotes the sexual order of the (original) patriarchs.  These Edenic visions of a world that once was ordered as fundamentalists would have it ordered—these rejections of Rawls’ principle of public reason—are what Richards finds so dangerous, and against which he writes so movingly.

Even a sympathetic reader will have quibbles.  When, for instance, Richards writes in his critique of the unreasonableness of originalism that “[n]o approach to constitutional interpretation may be regarded as reasonable if its leading advocates never pursue its requirements consistently” (54), one wonders what he means by “leading advocates,” “never pursue,” “requirements,” and “consistently.”  So much has been written about originalism that one is inclined to believe it exists, but Richards’ slippery language does little to raise the phantom, and does far less to dispel it.  The same may be said for fundamentalism and for patriarchy, neither of which are well defined.  The word “originalism” is, in the volume under consideration, a circumlocution meant to call forth Scalia and Thomas, Bork and Berger without naming them individually.   Too much is made of the ideologues whose personalities are, after all, public projections of greater intellectual consistency than is to be found in the projectors, and too little is made of fundamentalism as a public event.  One may speak about John Finnis and Billy Sunday, but having done so what has been said?  Have the prejudices of the average fundamentalist, whoever or whatever that is, come into clearer focus?  Are the names of “leading advocates” the only clarity to be had?

Between the ideologue and the public, between the overdetermined and the vague, Richards finds his way forward by the light of psychology: “How is it possible that in an advanced, well-educated nation like the United States, in which there is such a deep consensus about the enduring values of our democratic constitutionalism, fundamentalism should flourish in both religion and law?” (5).  Passing over the uncertain phrases “deep consensus” and “enduring values,” one faces an absurd, patronizing, and perfectly legitimate question: Why do fundamentalists believe the things they believe?  Of course each fundamentalist has an answer, and the answers are as numerous as the adherents.  Some are born into their beliefs, some born again into them.  The cocktail party answer—unfit for mixed company, to say nothing of scholarly publication—is that fundamentalists are damaged, heirs to and fathers of a neurosis.  Or, in Richards’ language: Fundamentalists are sufferers of a “traumatic [break] in personal relationships that [leads] to an identification with patriarchal voice and a resulting dissociation that not only cannot connect with reasonable dissenting voices but also seeks to repress them” (260).

Richards, who conducts here his own status quo ante bellum, claims the war of fundamentalists against reason—the racism, sexism, homophobia—began in earnest with the celibacy of Augustine, the most baleful “traumatic break.”  When Augustine renounced sexual love for his office he learned to “kill all sympathy and its expression [. . .] thereby forging the enemies and scapegoats patriarchy requires and visiting on them illimitable atrocity” (35).  A quote from, of all people, Heinrich Himmler follows and for a discernible reason: The scapegoats Augustine drove into the wilderness are the Jewish people, “carnal Israel,” for whom sexual health is a virtue.  Richards hangs much of his argument on the phrase “carnal Israel,” and it deserves attention.  At least twice “Israel secundum carnem” appears in Augustine’s writing, most importantly in Tractatus Adversus Iudaeos and in De Civitate Dei contra Paganos.  The phrase is taken from the first epistle to the Corinthians where Paul writes of “Israel kata sarka,” that is, Israel that follows after, or acts with deference to, the body.  Neither Paul nor Augustine appears to make an accusation of sexual incontinence.  Rather they accuse the Jewish people of fundamentalism, of stubborn adherence to the body of the law—the letter that kills—and rejection of the law’s animating spirit, Jesus.  For Richards however “carnal Israel” marks a sexual abjectification of the Jewish people that precedes persecution and as a consequence he fails to take the phrase for what it is: the banal anxiety of the orthodox.  Had Augustine never lived would historians need to invent him to explain the Holocaust?  It is unlikely.  Even if one grants Richards the existence of a patriarchal tradition in the West, Augustine is at best the chief of the early bureaucrats, and is antecedent (however directly) to the fundamentalists in contemporary America.

The cultural logic of patriarchy, whether the child of Augustine or of Origen, persists, and does so by the strength of inheritance and by a rite of passage, the “traumatic break” common to each fundamentalist.  That is, Richards puts on the couch not only a tradition but each inheritor of the tradition.  To demonstrate his claim Richards searches the lives of those with whom he disagrees for evidence of trauma and the development of “classically patriarchal” (220) psychology.  In the biography of Justice Thomas he finds an unknown father, an estranged mother, a demanding grandfather, and racism at Yale Law School.  For these reasons and others Richards concludes that Thomas is wounded, angry, lacking “ethical intelligence” (221) and “moral feeling”: the “tangled psychology of a humiliated manhood” (223).  He is not a man but an epitome, the silent face of patriarchy.  What, a reader may ask, about Thomas’ marriage to a white woman?  Is this an instance of his ability to overcome the restrictive laws into which he was born?  Or is Thomas imposing domestic authority over a white woman as revenge for racism?  It is impossible by Richards’ method to say, for Richards has no method here.  He merely tailors the evidence to suit the proof.  Justice Scalia’s childhood was stable, yet had it not been stable one is certain the evidence would be adduced.

The anti-patriarchal man, the glittering President Obama, and his challenge to patriarchy is the ostensible subject of Richards’ book.  The President is featured in the subtitle, he appears on the cover sharing a look of mutual admiration with Justice Sonia Sotomayor (a vision straight from the nightmares of Glenn Beck), but is discussed by Richards only briefly at the start of the book and for ten pages near the end.  Obama’s biography is mined and various facts from his youth and early adulthood are offered to convince the reader that “Obama is conspicuously not a patriarchal man” (238), but the effort falls flat.  After 230 pages of often virulent argument against fundamentalism, the arrival of President Obama in these pages seems too much like the messiah descending on a cloud, come to make an optimistic end of a long and dreadful period.  The President is the repository of Richards’ electoral hopes, and the most promising figure of a generation, but he is the anti-patriarchal man no more than Justice Thomas is his antithesis.  It is curious that Presidents Reagan, Bush I, and Bush II are mentioned frequently by Richards but never Carter or Clinton who, one imagines, have proven a disappointment to anybody waiting for the destruction of fundamentalism.  The presidency nowadays is no place for revolutionary figures.

Ultimately President Obama is irrelevant to the book for the subject is not him, but the author.  Richards himself is the anti-patriarchal man.  He is the one who has struggled for the cause of reason; it is he who is celebrated by the work, and justly.  Fundamentalism in American Religion and Law is not only a scholarly work but an intellectual autobiography.  Where it is unreasonable and infuriating, there Richards is unreasonable and infuriating.  Where it is learned, passionate, and moving, so also is the man.

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Eric Zumbach holds graduate degrees in literature and theology and will be attending the University of Virginia Law School.  He lives in Cambridge, Massachusetts.

CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:

Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and [...]]]> I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.

CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:

Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.

PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY

Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.

The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’

‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months

‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months

‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years

PLAINTIFF LAWYERS’ VIEWS ON PLAINTIFFS’ LITIGATION AIMS

The bulk of plaintiffs’ lawyers viewed monetary recompense as their clients’ primary aim. Yet, they were more aware of extra-legal litigation objectives as compared with defense lawyers. Nonetheless, claimants’ monetary aims were prominent in most plaintiff lawyers’ parlance. In fact, a significant minority of both specialist and generalist plaintiff lawyers viewed financial compensation as their clients’ only aim. Yet, in comparison to most defense lawyers, they generally explained this on a less legal, more ‘human’ level. Of course, plaintiffs’ lawyers would generally be most likely to acknowledge other motives, as plaintiffs express their emotions directly to their legal counsel.

PLAINTIFFS: ‘IT’S NOT ABOUT THE MONEY! IT’S ABOUT PRINCIPLES’

Of all respondents, plaintiffs’ views are arguably the most important in answering the question of what motivated them to sue and what precisely they wanted. Interestingly, plaintiffs’ articulations of their litigation objectives rarely correlated with legal actors’ perceptions. In fact, a regular and conspicuous occurrence was the failure to mention financial compensation as an objective at all unless probed (occurring in 65% of interviews). Instead, what plaintiffs recurrently repeatedly was a lexicon of non-fiscal, extra-legal objectives for litigation. The issue of ‘principle’ was prominent for plaintiffs as revealed in the various objectives they passionately spoke about. ‘It’s not about the money’ was a recurrent theme throughout. Many of the comments concerned dignity and respect after the injury, inability to be heard, refusal to listen, dismissal and victim blaming. Moreover, plaintiffs’ extra-legal objectives did not appear to be affected by the passage of time, as there were no marked disparities in the way plaintiffs spoke of why they sued and what they wanted from the civil justice system as between plaintiffs who had commenced litigation three to four months earlier (interviewed subsequent to court-mandatory mediations) and claimants who had been litigating for several years (interviewed after voluntary mediations of cases already on trial lists).

Claimants’ Descriptions Of Their Litigation Aims

Plaintiffs’ articulated litigation aims were thickly composed of extra-legal objectives of principle, with 41% not mentioning monetary compensation at all, 35% viewing it of secondary importance, 18% describing money as their primary objective in suing, and only one person (6%) saying it was money alone.

CHAPTER 5 EXCERPTS ON LAWYERS VERSUS PARTIES AIMS FOR CASE RESOLUTION AT MEDIATIONS

Plaintiffs’ mediation objectives were quite consonant throughout the claimant group. Plaintiffs agreed that financial settlement was one aim. However, they regularly stressed that they wanted numerous things from mediation apart from settlement Most wanted defendants to admit fault or accept responsibility (94%), aimed to hear defendants’ perspectives (65%) and sought answers or explanations of what had occurred (71%). All plaintiffs stressed the need to be seen, heard, and understood by the defense in terms of what they had been through and their present situations. This included obtaining acknowledgements of their suffering. Such objectives contributed to plaintiffs’ pervasive desires for catharsis and closure. These findings are consonant with chapter 4 data highlighting plaintiffs’ perceptions of mediation as a place for information, human communication and psychologically ‘feeling better’. Consequently, most plaintiffs also wanted defendants in mediation to show they cared (53%) and to assure them the events would not recur (59%). Importantly, plaintiffs’ articulated extra-legal mediation objectives for closure, catharsis, wanting to be heard, wanting answers, apologies, admissions of fault and defendants to show they cared were the same or similar regardless of whether mediations were mandatory (occurring within months of the commencement of legal suits) or voluntary (often years later). This suggested that plaintiffs’ extralegal needs did not change over time. Moreover, when comparing claimants’ discourse on their litigation aims with their mediation objectives, the findings here reinforce those in chapter two on what plaintiffs said they sought from the justice system through litigation.

Plaintiffs’ Versus Plaintiff Lawyers’ Case Resolution / Mediation Aims – The disparity in mediation aims of plaintiffs and plaintiff lawyers revealed important differences in what each planned for mediation in terms of how to resolve the same case.  Other than wanting settlement, the mediation objectives of plaintiffs and plaintiffs’ lawyers were diverse in all categories. For instance, though some plaintiff lawyers noted their clients wanted defendants to admit fault (37%), regardless of feasibility not a single one sought this at mediation. In comparison, virtually all plaintiffs (94%) sought fault admissions at mediation. Similarly, plaintiff lawyers never mentioned wanting to hear defendants’ explanations of the disputed incidents. Again this was something that most plaintiffs desired (71%). Finally, as compared with the bulk of claimants (88%) who sought apologies at mediation, only a minority (32%) of plaintiff lawyers did (though almost half remarked that apologies were important for their clients).

Defendants’ Versus Defense Lawyers’ Mediation Aims

Gross disparities in mediation aims were found when comparing the discourse of defendant physicians with defense lawyers, particularly in the areas of apology, explaining their perspectives, listening to plaintiffs’ viewpoints and showing care. Moreover, physician lawyers’ discourse of tactical mediation objectives contained little of what plaintiffs said they sought at mediation. For instance, only one physician lawyer (10%) intended to show plaintiffs ‘the defendant cared’ about what happened. This was in sharp contrast to defendant physicians’ aims, where most (83%) aimed to show care. Moreover, regardless of their case assessments, no physician lawyer intended to admit any fault or to provide explanations or answers to plaintiffs about defendant physicians’ perspectives on what occurred. This was despite virtually all physician lawyers’ questionnaire responses indicating that underlying issues were more important for their physician clients than financial compensation. Yet, none discussed relaying this information as a mediation objective.

The disparities in mediation aims between legal actors and disputants were particularly clear in the following case.

LOSS OF SIGHT CASE – VOLUNTARY MEDIATION – The plaintiff explained that she had asked her optometrist of 16 years to do a glaucoma test because her father had been inflicted with the disease, and she felt film on her eye. She said, ‘He told me he’d already done the test and I was negative . . . I then went to another clinic and tested positive for glaucoma and was told that the right eye was at an advanced stage and could not be repaired—and that it should have been detected many years ago.’

MALE PLAINTIFF -50′s ‘…I wish he or his lawyer would express some remorse…an apology…their acceptance of guilt. We received absolutely nothing like that…Dr…wasn’t there…He could express remorse some way….It was like “I’m here to write a check”…It’s much more than dollars…It’s my wife’s eyes…’

MALE PHYSICIAN LAWYER-50′s-‘WHAT WERE YOUR MEDIATION OBJECTIVES Only to get the case settled.’

MALE SPECIALIST PLAINTIFF LAWYER-40′s ‘APART FROM SETTLEMENT, DID YOU HAVE ANY OTHER MEDIATION OBJECTIVES No…If there had been no mediation and just a bilateral settlement between the lawyers, I don’t know if the clients would have felt any loss in doing it that way…I’m not sure…because I really haven’t asked them about that.’

I will speak in my next post on my current scholarship, on the very different topic of international human rights laws and norms relating to formal courts versus informal/quasi-legal processing of violence against women cases throughout India.

When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment.  On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic.  On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.

With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative [...]]]> David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010, $90.00.

When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment.  On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic.  On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.

With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative book.

Its ungainly title gives a fair indication of its thesis, but Richards’ book is not so easily reducible.  This is not your average jeremiad.  Richards is not content simply to condemn an approach to both religion and constitutional interpretation that he finds dangerous.  Instead, he wants to diagnose it: to put it on the psychologist’s couch and toy with its innards.  Richards offers a vision of constitutional and religious critique as DSM-IV.

Fundamentalism, both in religion and in American constitutional law and particularly originalism, are “rooted in a patriarchal psychology,” Richards writes.  By patriarchy, he means “a hierarchy – a rule of priests,” in which “only the father has authority in religion, politics, or law.”  Its roots are both historical and personal.  It represents a tradition stretching back to ancient Rome, and taking in most especially the life and influence of St. Augustine, in which patriarchy “arises [from] traumatic breaks in personal relationships (including of sons from mothers).”  This leads to a fundamentally repressive approach to both law and religion.  Its opposite is “democracy, in which authority accords everyone a free and equal voice, a voice that both breaks out of the gender binary and contests hierarchy.”  More in anger than in sorrow, Richards argues that religious and constitutional patriarchs are, not to put too fine a point on it, sick, while those who favor “democracy” are healthy, integrated individuals.  His primary positive example is Barack Obama, who “has seen more deeply into and resisted originalism than any other American politician,” and whose “moral voice” has elicited a profound “resonance in the American people.”

Richards is bewildered by the popularity of fundamentalism in American religion and law.  He writes: “That such views should have gotten so far in American politics shows something troubling about American culture and psychology.”  And he executes the standard mental-ward maneuver for dealing with some delusional fool who insists that he is not insane: “That so many Americans cannot even see the problem defines, I believe, the problem.”

Just stating Richards’s thesis should be enough to demonstrate why the book is controversial.  That doesn’t do the book full justice, though.  Although the whole book employs his diagnostic frame, it makes many valuable contributions to the discussion along the way.  Nothing in his vision of American constitutionalism is especially new: it is a standard, 1970s-vintage picture of the expansion of human rights following the revolutionary developments of the 1960s, highly inflected by Rawlsian views on public reason under which “laws in the United States cannot rest solely on sectarian religious faith not reasonably shared in the society at large.”  We have seen this from Richards before, and he will make or lose no new converts here.

But Richards has some perspicuous criticisms of constitutional originalism.  And his section on what he calls the “substantive unreasonableness” of the “New Natural Law,” exemplified in the legal field by the work of Robert George, is the high point of the book, and should be read even by those who disagree with him vehemently.  He is also to be congratulated for critiquing religious fundamentalism from within a religious perspective and offering alternative readings of religious tradition, rather than simply dissecting it from the outside.  Finally, although much of the book seems to suggest a drastic approach to law and religion – after all, if rule by priests is the problem, it seems obvious that getting rid of the priests is the solution – he ultimately steps back from the brink, arguing for the importance of “guaranteeing the basic rights of the First Amendment to all religions, including fundamentalist ones.”

So there is much to admire and chew over in this book.  But there is something deeply sad about it as well.  The last three decades or so have seen ever more sympathetic and thoughtful attempts to engage with both religious fundamentalism and constitutional originalism.  In the first area, blunt invocations of “public reason” have become rarer, as we have come to appreciate the difficulty of separating public reason from religious and other priors.  In the second, originalism itself has evolved, and so have the responses to it.  In some cases, liberals have framed more thoughtful critiques of originalism, and in others they have absorbed some of its precepts into their own way of thinking.

To all of this, Richards responds mostly with incredulity and accusations of false consciousness.  In a recent review of a life of another writer of jeremiads, Christopher Lasch, Alan Wolfe writes that “Lasch loved to attack, but he always seemed surprised that the objects of his attack fought back.  In his own mind, he was the courageous teller of truths that no one wanted to hear; and so his critics must have been engaged in a prolonged attempt at denial.”  Perhaps this reaction is fundamental to the jeremiad form, because it describes Richards’s book equally well.  If his critics resist his conclusions, well, that proves he is right.  If they quarrel with his conclusion that they are just suffering from Mommy problems, their very denial only confirms his diagnosis.

This psychological approach even distorts his picture of his own hero, Barack Obama, whose “remarkable manhood” is “not internally divided by the gender binaries of more patriarchal men.”  If Obama represents something new in American law and politics, it is precisely because Obama rejects many of the right/wrong and right/left divisions that Richards clings to so tightly.  Mostly, though, Obama really just functions as a mirror here, reflecting back what Richards wants to see.  Richards writes: “There is reason to worry that even so democratic a man as Obama may for a mixture of prudential reasons and residual patriarchal anxieties not always lead in the ways his conscience may and should require (e.g., on gay marriage).”  Well, perhaps.  But maybe Obama actually holds different beliefs on gay marriage, and would reject any description of those beliefs as being a product of “residual patriarchal anxieties.”  Or maybe, in keeping with a whole generation of post-Warren Court constitutional thought, Obama thinks liberalism would be better served by focusing on democratic politics, and little things like health care, than by spending his limited resources on courts and human rights.  Not every change we can believe in has to be constitutional change, and it does Obama little justice to describe this view as stemming either from mere political pragmatism or residual psychological damage.

I find myself doubting that Richards’s psychological approach is either useful or offered in good faith.  His most pertinent criticisms of religious and constitutional fundamentalism – and he has many – don’t really require him to put his subjects on the couch.  So what does he gain by doing so?  He certainly doesn’t increase the chances of a healthy dialogue; telling someone that he’s crazy is unlikely to win him over.  He says that he wants people, “including persons of fundamentalist faith,” to “come into reasonable dialogue with others.”  Aside from the loaded implications of that word “reasonable,” which suggests that the “dialogue” can proceed only once the fundamentalists concede their own unreason, I doubt the conversation will be enhanced by treating fundamentalism as a psychological disorder.

Maybe Richards thinks that psychology is a more sensitive way to understand his adversaries.  But, as any warring couple in a marriage therapist’s office could tell you, psychology can also be a weapon.  (“Maybe your neurotic fear of commitment is what makes you such a lousy husband.”)  That’s the role psychology plays in this book.  This is not psychology as an opening move in a productive conversation; if it were, Richards would put himself on the couch too, and as something more than just an example of a healthy personality.  He wants to use psychology to understand fundamentalists, but only in the way that an FBI profiler wants to use psychology to understand a serial killer.  I find his diagnosis of fundamentalism compelling at times, wrongheaded at others; I don’t find it productive.

It is apparent that even his more supportive readers realize this as well.  He writes in the introduction that his former co-author Carol Gilligan, noting the tone of “moral indignation” that suffuses the book, “pressed [him] better to understand both the content and tone of [his] argument.”  It would seem this cautiously offered advice only convinced him his tone was justified.  He writes: “This book is itself an act of resistance – hence the tone of moral outrage, the impassioned voice, the contempt for those who perpetuate injustice and prejudice.”  He contrasts his own admirable “righteous fury” with the fundamentalists’ deluded “patriarchal rage.”  From where I sit, both of them lead to the same failure of dialogue, to the same unproductive results.

In the end, I must ask that standard editor’s question: Who is this book’s audience? Richards calls Fundamentalism in American Religion and Law a “call to resistance.”  But a book written in so dense and academic (if eloquent) a style is unlikely to rally the masses.  Nor, despite his valuable criticisms, is he likely to sway his adversaries; attributing their views to psychological hangovers puts paid to that possibility.  Obama himself doesn’t really fit within Richards’s own worldview, despite his attempts to paint him that way.  And Richards’s academic supporters, of course, already agree with him – although they may be pleased to learn that you don’t need to be crazy to oppose fundamentalism, but you must be crazy to support it.

In the end, then, this book is not a call to resistance at all.  It’s a cri de coeur: an argument that everything disagreeable that has occurred since roughly Watergate could be cured with a good fifty-minute hour on the couch.  I’m not convinced.  Richards makes many valuable points about both religious and constitutional fundamentalism in this rich book.  Ultimately, however, Fundamentalism in Religion and Law is more an act of self-justification than an effort to understand the other, let alone to engage with him.

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Paul Horwitz is a professor of law at the University of Alabama School of Law.

The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework [...]]]> Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.

The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.

Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).

The book is based on data deriving from 131 interviews, questionnaires, and hearing observations encompassing 64 litigated and mediated fatality and medical injury cases (mandatory and voluntary, pre-and intra-litigation) in Toronto. Although the research utilizes one particular dispute-type for methodological consistency, the matters explored relate to generic issues inherent in the legal processing of cases. Thus, the findings are arguably pertinent to the bulk of human-oriented litigated and mediated cases. This is supported by similar findings relating to different case-types (e.g. divorce, commercial, consumer, small claims, etc.), which I discuss throughout the book. In fact, I have found analogous trends in my current book-in-progress based on 4 years of empirical research on human rights violations case processing in India, which I look forward to discussing in a later post.

By juxtaposing all sides’ views on the micro-elements of case processing, I challenge the underlying rational economic assumptions of civil justice, i.e. that people solely or predominantly seek discrete monetary objectives from court processes. I demonstrate instead that, in fact, both plaintiffs and defendants additionally pursue various noneconomic goals. Thus, I argue that the formal and informal/quasi-legal justice systems are not being utilized to their maximum potential and are not serving many of disputants’ intrinsic, often overriding extralegal needs that are inextricable from their legal needs. Linked to this, I further challenge the premise that litigants and their lawyers understand and want similar things in case processing. Indeed, the data provide disconcerting evidence relating to the surprising degree to which understandings and perceptions of the function of legal case processing and the justice system generally as well as particular needs and aims for case resolution are not only diverse between lawyers and parties, but frequently contradictory—including between attorneys and their own clients. Thus, throughout the chapters the findings indicate repeatedly that notwithstanding the benefits that legal representation can offer, utilizing attorneys to assist disputants in resolving their cases is laden with difficulties as epistemologically each actor group essentially occupies different, though parallel worlds. The data additionally show that litigants throughout are dominated by lawyers, dependant on attorneys’ expertise and paternalistic constructions of what is best. However, this is seen throughout the book to frequently be incongruous with litigants’ own understandings, needs and goals.

I conceptualize this phenomenon as a discontinuity of understandings, interests, language and agenda of legal versus extralegal actors in the justice system. Each new conceptual group—lawyers on all sides versus parties on all sides—ascribes similar meanings to cases and their resolution, wants similar things, and wants communication. But each do not want the same things, nor do they speak the same language. Instead, actors involved in case processing create competing meanings. Nevertheless, the findings ultimately show that lawyers’ values and interests are primarily served within the system, with lawyers exercising hegemonic elements of control during case processing. I consequently offer a new theory, arguing for the reinvention of identities to reflect this reality and as basis for meaningful reform.

The research informs a number of debates in various literatures. The informalism versus formal justice critiques of Fiss, Abel and Auerbach, although delivered from different ideological standpoints, amount to an endorsement of superior court adjudication (Abel:1982; Fiss:1964; Auerbach:1983). My findings show these critiques are fully justified. However, they add a rider to the critiques—particularly to Fiss’ work, i.e. ‘We must not let the critiques of informalism end in glorification of formal justice as that too is shown to be just as defective’. The research also informs the literature on what plaintiffs want (Merry S., and S. Silbey, 1984, 151-58, 160, 171,176), and the dispute transformation debates that encompass divorce, injury, poverty law, consumer, commercial, and small claims cases. Additionally, the findings speak to the lawyering theory literature, which asks ‘How do attorneys understand what a client’s problem is? What facts escape them (Sherwin, 1992)? Does the justice system undervalue the human element? Do lawyers’ and clients’ goals diverge? Do lawyers intensify or moderate legal conflict (Abel, R. 1995, 6)? What are litigants’ hidden agendas for litigation (Conley J. and O’Barr 1988,182-84, 196-97)? In addition, feminist legal theory makes the claim that there are gender relations that always affect the way law works. Yet there is limited empirical knowledge on how the different genders practice law. This research provides some such data and also informs the values and limits of the feminist critiques of informal justice for the disempowered, including women, which has generally been more concerned with broader structural features (Grillo, 1991). I also draw on the procedural justice literature, including Tom Tyler’s work, who notes that what parties want from the justice system reflects a psychological paradigm, which is different from the legal decision-making paradigm that lawyers are socialized into in law schools and which dictates discussions in the legal field (Tyler, T. 1997, 872-84).

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in [...]]]> For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty.  They are based upon mistaken assumptions about human behavior.  They are often flat out wrong.  And yet they persist.

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).

As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should.  And this is more than a mere normative critique.  The rules just fail because people don’t act or think the way the law thinks they ought to.  In fact, what we’re learning about the way people act and think is often counterintuitive.  It is hard to grasp and hard to deal with.

This research should be undermining many legal rules at their very foundations.  Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.

In many domains, when something is proven flat wrong, it is confronted and dealt with.  If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it.  But in law, if the evidence shows that a rule doesn’t work, what’s the response?  Often, it is to just accept the evidence with a grin and continue on.  If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.

I think that it is time to hold the law up to the light of contemporary understanding and bring it into the 21st century.  Many legal rules are based on crusty assumptions made back in the 19th century, such as the M’Naghten rule for insanity(1843).  Hardly any experts would contend that the  M’Naghten rule (inability to distinguish right from wrong) is consistent with contemporary understandings in psychology.  The law of evidence is replete with faulty psychological assumptions.  So many areas of law don’t stand up to modern understandings of science, statistics, psychology, or empirical studies.

The example I want to focus on primarily is eyewitness testimony.  Countless studies have shown that eyewitness testimony is very unreliable, yet the law routinely permits convictions based solely upon eyewitness testimony.  I dug out my copy of Wrightsman’s Psychology and the Legal System (my edition is older than the one I’m linking to).  Here are some interesting facts:

As many as 80% of the eyewitnesses in some studies choose someone, even when none of the lineup members is the true criminal. (p. 148)

Buckhout (1975) staged a simulated crime on a television news broadcast and asked members of the viewing audience to phone in their choise of suspects shown shortly after the crime.  Out of 2145 viewer-witnesses who called in, only 14.7% were correct, an accuracy rate that was no different from the one achieved by simply guessing. (p. 148)

Also, victims of crime are less reliable in identifying the perpetrators than bystanders (p. 149).  Compounding the problem:

Jurors put too much emphasis on witnesses’ statements about the confidence of their identifications.  In fact, Cutler, Penrod, and Stuve (1988) found that, for laypersons, the witness’s level of confidence was the most important criterion for judging the witness’s truthfulness. . . . [But] an eyewitness’s confidence is not a strong indication of accuracy. (pp. 149-50)

This is a big problem, yet the law doesn’t deal with it.  Instead, the law does just the opposite — it prevents defense attorneys from introducing evidence of all these studies that undercut the accuracy of eyewitness testimony, thus preventing jurors from being properly educated.

Perhaps the law could adopt one of the following rules:

1. Eyewitness testimony could be completely barred as more prejudicial than probative.

2. Eyewitness testimony could be allowed only if corroborated.

3. Eyewitness testimony could be allowed, but defendants would be permitted to school the jury about the studies showing its unreliability.

Moving down this path would be difficult.  Imagine the case with the parent who witnesses the murder of her child right before her eyes.  She is the lone witness and says she’s absolutely certain it was the defendant.  Should her testimony be not allowed?  To bar the parent from testifying about what she saw would be incredibly difficult to do — it seems almost inhumane.

But that’s what the studies are showing us.    Reforming the law so that it reflects contemporary understandings of psychology and human behavior is a difficult and daunting task.  But the law needs to be modernized.  It should be rationalized.