Category: Law and Psychology

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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.

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Boastful Contract Lawsuit Is Dismissed

Joke_AlertI’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!

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A Breach Born Every Minute

An Advertisement for the Greatest show on Earth"

An Advertisement for the Greatest show on Earth"

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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The Law Gives Up on Beatty Chadwick

Beatty Chadwick, Post Release

Beatty Chadwick, Post Release

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

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

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

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

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

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

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

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It Wasn’t Me

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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The Frame’s The Thing: Rioting or Celebration?

10292001fan13.jpgAfter 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)

The Truth about Multitasking

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.

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Neuroeconomics and Innovation

web-version.jpgI’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.

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Why Aren’t Prices Rounded Off?

120px-Gas_prices,_July_2006,_San_Francisco,_California_01.jpgFrom 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!