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Category: Law and Psychology

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Book Review: Richards’s Fundamentalism in American Religion and Law

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.” Read More

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What are we missing when we think about case processing in litigation and mediation?

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).

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Rationalizing Law

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.

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Over-Parenting

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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Milgram on T.V.

At least Milgram Wasn't Doing It For Profit

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

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

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

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

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

Maybe we need an IRB for reality show producers.

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Contracting (or Arbitrating) Out of Medical Malpractice Liability

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.

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

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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On Brains and Football

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:


olineman

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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PhD/JDs: Fads or Future?

Llewellyn Knew All About Lamposts

Llewellyn Knew All About Lamposts

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

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.