Archive for the ‘Law and Psychology’ Category

Over-Parenting

posted by Gaia Bernstein

Benches in playground are deserted these days. Instead, parents are swinging their children while chanting the ABC. Raising my small children, I have observed that parenting has changed dramatically since I was a child – today’s parents are much more involved in their children’s lives than ever before.  In our paper titled: “Over-Parenting,” my co-author Zvi Triger and I describe this new trend of parenting, which we call “Intensive Parenting.” We show that the law already enforces Intensive Praneting and argue that despite  the advantages of Intensive Parenting, its norms should not be hastily incorporated into the law.

The intensive parent is on a constant quest to obtain updated knowledge of best child rearing practices and use this information actively to cultivate her child and monitor all aspects of the child’s life.  Intensive parenting begins as the pregnant mother accesses an ever increasing amount of information instructing her on how to achieve an optimal pregnancy and does not end when the child enters college. Colleges and more recently even law schools have adjusted to accommodate a new generation of parents who insist on being in direct contact with administrators and professors in order to continue to monitor their children’s life.

But, Intensive Parenting is not just about social norms. We show that it is actually a socio-technological trend. Parents use new information technologies to enhance their ability to monitor and be informed. For example, parents use the cellular phone to stay in constant touch with their children. Commentators observing Intensive parents using the cell phone to communicate with college aged children about the smallest anecdotes of life, have called it ”the world’s longest umbilical cord.”

And what does the law have to do with it? We find that the law is already enforcing Intensive Parenting norms, and is particularly powerful in molding parental rearing norms during custody disputes. For example, courts determining custody allocations consider as a factor the parents’ pre-divorce care taking roles and division of labor. The parent who was more involved in the child’s life before divorce has an advantage in custody resolutions. In practice, attorneys are advising their clients on the eve of divorce to engage in Intensive Parenting. The time period before custody determinations becomes a race for involvement, particularly for the parent who was not originally the primary caretaker. Unfortunately, parents eager to gain custody and operating in a world governed by Intensive Parenting norms often become overly dominating in their interaction with children. For instance, by taking over sport practices leaving their child with no independent outlet or by overwhelming their child with constant messages and phone calls.

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  April 13, 2010 at 3:34 pm  Tags: children, Family Law, parenting  Posted in: Family Law, Law and Psychology, Technology   Print This Post   7 Comments

Milgram on T.V.

posted by Dave Hoffman

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

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

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

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

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

Maybe we need an IRB for reality show producers.

  March 17, 2010 at 7:07 am   Posted in: Behavioral Law and Economics, Bioethics, Current Events, Empirical Analysis of Law, Law and Psychology   Print This Post   One Comment

Contracting (or Arbitrating) Out of Medical Malpractice Liability

posted by Dave Hoffman

Jennifer Arlen came to Temple on Monday to workshop her paper, Contracting Over Malpractice Liability, forthcoming in the Penn Law Review.  I was her commentator.  Prof. Arlen uses fairly traditional economic analysis, assuming that patients are rational, to argue that it not welfare maximizing to permit patients to contract out of the background medical malpractice regime.

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

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

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

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

  February 24, 2010 at 12:10 pm   Posted in: Articles and Books, Behavioral Law and Economics, Consumer Protection Law, Contract Law & Beyond, Economic Analysis of Law, Law and Psychology, Tort Law   Print This Post   4 Comments

Book Review: Divergent Opinions: Why Community Matters — A Review of Sunstein’s Going to Extremes

posted by Marc Roark

Going to Extremes: How Like Minds Unite and Divide, by Cass Sunstein. Oxford University Press: New York 2009. Pp. 171. $21.95

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

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

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

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

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  February 4, 2010 at 12:09 am   Posted in: Articles and Books, Behavioral Law and Economics, Book Reviews, Law and Humanities, Law and Psychology, Philosophy of Social Science, Politics, Sociology of Law   Print This Post   2 Comments

On Brains and Football

posted by Dave Hoffman

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

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

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

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  December 21, 2009 at 12:48 pm   Posted in: Behavioral Law and Economics, Civil Rights, Economic Analysis of Law, Empirical Analysis of Law, Law and Psychology, Race   Print This Post   8 Comments

PhD/JDs: Fads or Future?

posted by Dave Hoffman

My post on the value of having a PhD in the academic hiring market of 2015 has gotten a surprising amount of attention. I thought I’d respond to some of that feedback here.

By email and by blog, I’ve gotten pushback from those who continue to contest that we’re in an empirical “bubble.”  I take that to mean a fad – a passing interest –rather than an empirical claim that we are valuing work or candidates at more than their intrinsic worth. (How could we get any handle on either side of that equation!) My point about the economics of supply-side data is that it’s a trend that is only going to get stronger in the future. Larry Ribstein certainly is correct to observe that this creates a “looking-under-the-lampost” problem. But of course, legal academics have been in a century-long crouch under a lamppost of their very own. As Llewellyn said:

“I am a prey, as is every may who tries to work with law, to the apperceptive mass . . . [T]he appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in libraries. The convenient source of information lures.” (Bramble Bush)

Looking at newly cheap data about legal institutions encourages people to run fast regressions without thinking. But reading opinions, which are free, has encouraged thousands of legal articles about a dataset which is biased & shaped by selection. (Irrational behavior in response to a “radical price“? Nah.)  Truly sophisticated empirical work doesn’t discount the role of opinions in shaping legal norms, but it does conclude that opinions are skewed and rhetorically hot versions of what judges do, and thus unrepresentative of how practically-grounded lawyers make judgments about how to litigate their cases. Making that insight concrete is but one of the many projects undertaken by the New Legal Realists. Others – law and psychology, law and criminology, cultural cognition, etc. – together convince me that the future of the empirical revolution is pretty bright. And having a PhD/JD is an increasingly important entry credential in the field.

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  December 9, 2009 at 9:32 am   Posted in: Economic Analysis of Law, Law and Psychology, Law School (Hiring & Laterals), Law School (Scholarship), Law School (Teaching), Legal Theory, Philosophy of Social Science   Print This Post   4 Comments

Reforming the Non-Medical IRB: A Shift from Preventing Harm to Doing Good

posted by Adam Benforado

As some of you know (grandma), my area is law and mind sciences. To date, most of my scholarship has involved applying existing insights from social psychology, social cognition, and other fields to legal topics. However, over the last few months, I’ve been working on designing a set of experiments with a cognitive psychologist and, as a result, I have had a chance to engage the institutional review board process for the first time.

I must say that while the people running the IRBs at Drexel and Penn seem well-intentioned and nice enough, the process is utterly befuddling to me. As has been noted on this blog previously, more legal academics are doing work that is potentially covered by IRBs than ever before and it is worth pausing to think about whether radical changes to the existing approach are not appropriate.

(I certainly do not purport to be the first person to advocate reform in this area or to have thought about it as much as others; my hope is that this post will provoke some readers to consider their experiences and whether they feel like the current IRB process is worth its costs.)

I’d like to focus on the non-medical IRB (covering social and behavioral research, ethnography studies, etc.) and I’d like to propose eliminating review completely in this area. No more paper work, no more calls, no more meetings. Instead, we will simply rely on professional norms to channel behavior and existing legal mechanisms to deter the most harmful conduct. (I will leave to the side, in this post, the sticky issue of university liability.)

Now, this doesn’t mean that everyone is off the hook. All of the money and energy that universities currently expend on the IRB process will simply be redirected. The idea is to use resources to directly improve people’s lives, rather than to try to avoid harms that may or may not arise. All of the time previously spent on filling out paperwork, on the phone asking and answering questions, taking human subjects tests, and filing updates, among other things, would now be spent actively participating in socially-beneficial endeavors.

As a licensed attorney, what if I used every hour I would expend on IRB compliance volunteering at a legal aid clinic instead? Or what if I used that time to help high school students in north Philadelphia work on their college essays or removing trash from the Schuylkill River? What if all of the staff at the Office of Research Compliance spent their days finding and coordinating opportunities for professors to volunteer in the community? I would argue that the social good likely to result would considerably outweigh the potential costs of not subjecting non-medical experiments to formal review.

The truth is that the new regime would not be perfect—people would occasionally be harmed—but the magnitude of this threat might be less than imagined. When a person goes to design a psychology experiment there are many factors that act as constraints on the design: Do my colleagues approve of my proposal? Will members of my field look favorably on this experiment? Will resulting harms negatively impact my tenure review (remember that Stanley Milgram was denied tenure at Harvard)? Does this align with my sense of morality? Will my friends/parents/wife/children think less of me if someone is hurt on my watch? How does this experiment compare to other experiments that were conducted in the past and how did people react to those projects?

The IRB process is not the primary reason why the vast majority of non-medical experiments today do not pose major risks to human subjects. It would seem to me that while the process prevents some harms, it does not prevent enough to justify its existence and thinking of alternative uses of the resources currently dedicated to IRBs has the potential to leave us all better off.

  December 8, 2009 at 7:02 am   Posted in: Behavioral Law and Economics, Law and Psychology, Psychology and Behavior   Print This Post   10 Comments

Boastful Contract Lawsuit Is Dismissed

posted by Dave Hoffman

I’ve  posted on a lawsuit out of Texas, in which a law student plaintiff sued a lawyer defendant for failing to live up to a “promise” to pay $1,000,000 to any television viewer who could prove him wrong about his theory of a case.  I opined the case was a classic example of puffery, unlikely to reach the merits on that ground.   I challenged readers to prove me wrong.

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

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

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

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

But here’s what was actually said:

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

NBC Transcript, p. 3

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

  November 9, 2009 at 9:58 am   Posted in: Contract Law & Beyond, Current Events, Law and Psychology, Law Practice   Print This Post   One Comment

A Breach Born Every Minute

posted by Dave Hoffman

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

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

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  August 15, 2009 at 9:41 am   Posted in: Behavioral Law and Economics, Contract Law & Beyond, Law and Psychology   Print This Post   7 Comments

The Law Gives Up on Beatty Chadwick

posted by Dave Hoffman

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

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

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

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

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

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

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

  July 27, 2009 at 7:36 pm   Posted in: Behavioral Law and Economics, Criminal Law, Family Law, Law and Psychology, Weird   Print This Post   4 Comments

It Wasn’t Me

posted by David Gray

Thanks so much to Dan, Danielle, and the Concurring Opinions crew for this invitation. This is all pretty new to me, but I am looking forward to a fun and interesting month.

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

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

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  January 5, 2009 at 9:20 pm   Posted in: Law and Psychology   Print This Post   7 Comments

The Frame’s The Thing: Rioting or Celebration?

posted by Dave Hoffman

After the Phillies won last night, I went out to Broad Street with tens of thousands of my fellow Philadelphians to celebrate. I felt happy, but in a vaguely distanced way, stunned as I was by the unexpected reality of a major sports team championship in Philly. Because Philadelphia is such a small place (in some ways) I saw three students on the street in fairly quick order. Good times.

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

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

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

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

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

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

(Image Source: Chris Bowers)

  October 30, 2008 at 2:02 pm   Posted in: Behavioral Law and Economics, Civil Rights, Current Events, Law and Psychology, Politics   Print This Post   3 Comments

The Truth about Multitasking

posted by Frank Pasquale

I’ve been of two minds about multitasking for some time. But growing evidence is suggesting that the very concept is a myth:

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

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

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

  June 24, 2008 at 10:37 pm   Posted in: Blogging, Law and Psychology, Law School (Teaching)   Print This Post   7 Comments

Neuroeconomics and Innovation

posted by Dave Hoffman

I’m in LA for the next few days, at the Law, Economics and Neuroscience Conference: Implications for Innovation, sponsored by The Southern California Innovation Project, Theoretical Research in Neuroeconomic Decision-making (TREND) and The Center for Communication Law & Policy. As the press-release says, the idea is to bring together neuroscience researchers, economists, and ordinary law professors and see if the whole is greater than the sum of their parts.

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

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

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

  May 13, 2008 at 8:15 pm   Posted in: Behavioral Law and Economics, Contract Law & Beyond, Corporate Law, Current Events, Law and Psychology, Law Rev (S Cal), Law School (Scholarship), Legal Theory, Securities   Print This Post   No Comments

Why Aren’t Prices Rounded Off?

posted by Dave Hoffman

From the blog “We’re Only Human” (which I’ve just discovered, but which seems great):

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

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

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

Why would this happen?

Read the post to find out!

  February 4, 2008 at 1:18 am   Posted in: Law and Psychology   Print This Post   3 Comments

The Future of Sensory Jurisprudence

posted by Dave Hoffman

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

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

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

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

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

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

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  January 16, 2008 at 1:00 pm   Posted in: Articles and Books, Behavioral Law and Economics, Criminal Law, Current Events, Law and Psychology, Law School (Scholarship), Legal Theory, Media Law, Politics, Sociology of Law, Supreme Court   Print This Post   2 Comments

Violent Movies and Clueless Consequentialism

posted by Frank Pasquale

Researchers have recently “proven” that “violent films prevent violent crime by attracting would-be assailants and keeping them cloistered in darkened, alcohol-free environs.” In fact, they estimate that about 52,000 less assaults occur each year because of the showing of violent movies. It’s all part of the “Super Crunchers” trend, where economists “crunch . . . numbers to evaluate matters like cheating among sumo wrestlers or the effects of a crackdown on cocaine.” Pity that the urge for “clean identification” and headline-grabbing results produces a bizarre overconfidence about the study’s extrapolability.

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

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

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

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

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

  January 7, 2008 at 10:01 am   Posted in: Economic Analysis of Law, Law and Psychology   Print This Post   10 Comments

Too Much Happiness?

posted by Jeremy Blumenthal

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

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

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

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

  December 28, 2007 at 2:13 pm   Posted in: Articles and Books, Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Law and Psychology, Law Practice, Law School (Scholarship)   Print This Post   2 Comments

Police on Steroids, Profs on Ritalin

posted by Frank Pasquale

There has been some excellent blawgospheric comment on the Mitchell Report, a Black Sox scandal for our age (see, e.g., Jeff Lipshaw, Howard Wasserman, Michael Dimino and Alfred Yen). My question is: what will be the cultural impact? I think two recent stories on performance enhancement in other fields provide some clues, and suggest the wisdom of the PCBE’s worries.

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

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

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  December 21, 2007 at 8:05 pm   Posted in: Bioethics, Culture, Current Events, Law and Inequality, Law and Psychology   Print This Post   One Comment

This is Your Brain on … the New York Times

posted by Jeremy Blumenthal

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

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

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

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

  December 19, 2007 at 10:57 am   Posted in: Articles and Books, Behavioral Law and Economics, Blogging, Empirical Analysis of Law, Law and Psychology, Philosophy of Social Science   Print This Post   2 Comments

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