Category: Law and Psychology

Ten Smiles Per Hour: Tax on the Dour?

happyface.jpgTaking a break from weighty topics like world hunger, Peter Singer reflects on an Australian City’s decision to encourage cheer among residents:

[T]he city of Port Phillip . . . has been using volunteers to find out how often people smile at those who pass them in the street. It then put up signs that look like speed limits, but tell pedestrians that they are in, for example, a “10 Smiles Per Hour Zone.” . . . . Mayor Janet Bolitho says that [smiling] . . . . encourages people to feel more connected with each other and safer, so it reduces fear of crime – an important element in the quality of life of many neighborhoods.

Singer backs the effort, based on some “happiness research” mentioned in my last post: “promoting friendship is often easy, cheap, and can have big payoffs in making people happier. So why shouldn’t that be a focus of public policy?”

I was reminded of Quentin Crisp’s classic comparison of England and America: the former combines a generous welfare state with icy social mores, while the latter has sunny individuals and comparatively stingy social provision. But we shouldn’t discount the role of happy cultures in creating happy people; as Barbara Ehrenreich has noted, perhaps the rise in rates of depression “can be connected with the decline in opportunities for pleasure, such as carnival and other traditional festivities.”

Some theorists of discrimination might argue that government intervention to change a sticky norm of unfriendliness amounts to a tax on the dour. Why are they being forced to affect sentiments they don’t authentically feel? But I think the problem has less to do with “faking it” than with the systematic substitution of, say, well-founded dread with carefree bonhomie. Consider U.S. teens’ expectations of future earning power:

American teens believe … that when they get older they will be earning an average annual salary of $145,500. Interestingly, boys expect to earn an average $173,000 a year and girls $114,200 … The fact is, only about 14 percent of U.S. households have incomes between $100,000 and $200,000, reports the U.S. Census Bureau. The median household income in the United States is actually $46,326.

Perhaps the boys’ keen understanding of current fiscal policy has led them to anticipate a hyperinflation.

Admittedly, the optimal level of cheer (or optimism) in a society is impossible to assess in the abstract. But I think Port Philip’s strategy may ultimately backfire. It threatens to set in motion a Gresham’s law of public gladness, whereby bad smiles drive out (or at least devalue) the good. Perhaps a certain seigniorage of cheer will increase gross happiness in the short run. But in the end, it may well set us on the road to a situation like that described in Vaclav Havel’s essay on the grocer in Power of the Powerless. Grinning done as public duty may be indistinguishable from a grimace.

Photo Credit: Flickr/TobyLeah.

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The Death of Fact-finding and the Birth of Truth

magnififying.jpgToday’s Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott’s car, Scott spun Harris’ car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott’s qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the “first step is . . . to determine the relevant facts.” Normally, of course, courts take the non-moving party’s version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape “quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate (“We are happy to allow the videotape to speak for itself.” Slip Op. at 5), the Court proceeded to reject the nonmoving party’s version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be “genuine”: the Respondent’s version of the facts is “so utterly discredited by the record that no reasonable jury could have believed him.” (Slip Op. at 8).

Let’s get a bias out of the way. At the Court’s suggestion, I watched the video. I lean toward Justice Stevens’ view: “This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.'” Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees “headlights of vehicles zooming by in the opposite lane.” (Dissent at 2, n.1 – and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a “verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.” (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

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Self-Handicapping and Managers’ Duty of Care

I have recently posted my symposium essay Self-Handicapping and Managers’ Duty of Care on SSRN and Selected Works. You can read the abstract when you click through, so to convince you to download the essay, I’ll give you a taste of the introduction:

Authors commonly introduce their works in symposium issues with a few disclaiming words. They identify their scholarship as a “symposium essay,” not an “Article”; a “sketch” of an answer, not a fully-fleshed out argument. Casual readers might conclude that law professors are unusually humble and resist trumpeting the novelty and sophistication of their scholarship.

Social psychologists might instead believe that symposium authors seek to avoid reputational sanctions for publicizing arguments they have not fully dressed. Scholars try to signal an excuse for underdeveloped pieces: “I haven’t worked as hard on this paper as I would have if it were a ‘real’ article.” The goal of this excuse-making is simple: disappointed readers will attribute blame away from the author’s perceived acuity and professional reputation.

This is a symposium essay about the psychology of creating such pre-excuses for failure. Rather than focus on academics, I will examine the failings of overconfident corporate managers . . .

The piece grew out of a post I wrote here over a year ago, and will appear in the Wake Forest Law Review’s Business Law Symposium Issue.

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The Athenian Model

redrope.gifThe USA Today reports that shirking jury duty is an worsening problem. In response, local registrars are becoming punitive:

Tulare jury candidates who fail to show are warned that they could be found in contempt of court. If they do not respond, a second letter is sent, warning that a warrant will be issued for their arrest . . .

In Danville, Ill., a 19-year-old woman was found in contempt of court and sentenced to 14 days in jail for failing to appear for jury duty.

In Topeka, no-shows have been fined up to $100 a day.

In Grand Rapids, Mich., warrants were issued recently for the arrests of 56 people who failed to go to court and explain why they couldn’t serve.

It’s a trend. A foolish one. Why are folks always reaching for sticks, when there are carrots near to hand?

Seriously, jailing citizens for failing to be civic minded is, I think, a bad way of encouraging compliance. Why not try shaming, as the Athenians did with their famous red rope?

But, backwards.

Jurors ought to be given a public reward that will encourage norms of civic engagement. Like, say, a bumper sticker (“I love my state so I served on a jury.”), a t-shirt (“I’m not too sexy for jury service”), a newspaper advertisement (“Pennsylvania salutes its jurors . . . “), or a red ribbon. Such small rewards will have the incidental positive effect of making people happier with the experience itself. Jail time, by contrast, will only reduce civic support for the jury system, and will be unlikely to be enforced at levels sufficient to really deter shirking. And, tangible rewards are better than the empty rhetoric that currently marks the legal system’s approach to the reward-punishment problem:

“Conscientious service brings its own reward in the personal satisfaction that an important task has been well done. The effectiveness of our system of justice is measured by the integrity and dedication of the jurors who serve in our courts.”

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Xoxohth 1.1: The Past and Present

[This is Part I, Section 1, of the project I announced here. The goal of today's installment is to set out the history of the XO board, and briefly describe its present statistics.]

goldencalf.jpgHugs and Kisses, Hope this Helps

The genesis of XO was less gripping, bloody, tortured, significant and miraculous than the Exodus, a tale which it otherwise resembles in important respects.

The community started as a group of posters at the Princeton Review Discussion Board [PR]. Some individuals began at PR in 1997-1998, as they were applying to college, and continued posting in that forum after matriculation. The reason that people spent time – sometimes 20 hours a week or more – at PR will become familiar:

Before I started law school, I posted on the former incarnation of xoxo (which was then run by the Princeton Review) because it was a wide-open and mostly unmanaged discussion. In one sitting I could have the most sober and serious conversations as well as the most silly and immature b******* sessions, all with the same group of people. The other, more “mature” boards were by comparison intellectual wastelands, partly because they were so “sober” and “mature.” All the really smart people shunned those boring boards in favor of pr (now xoxo).

But not all individuals were looking for information: some were actually, weirdly, (slumming) older alumni.

The standard foundation story holds that in March, 2004, PR switched to a new software format that users found irritating because it (1) enabled IP tracking; (2) discouraged use of multiple aliases; (3) discouraged abusive language through moderation and banning; and (4) eliminated the “‘tree’ format and switching to a vBulletin-type format that was heavily despised by most users.” See here and here and here for some posts from the period. One emailer explains:

The only moderators were Jeff Adams, a Princeton Review employee, and TPR Droid, who was a long-time poster that Jeff hired to moderate the board when he wasn’t around. Anger at TPR Droid’s moderation style was one of the main reasons for the initial rift — while Jeff was even-handed with deletions and bannings, many people felt Droid had an agenda since he would ban people for criticizing his favored posters, or delete racist threads directed at Jews and Christians while refusing to delete equally hateful threads about Muslims.

A group of users decided to leave PR as a group. However,

The law boarders didn’t know about the existence of xoxohth. [A user with the handle Rowan] organized an AIM chat and people were brainstorming ideas of how to re-create the board. I think rk even drafted a letter looking for corporate sponsorship . . . In the very beginning, the law and college boards were one. During those heady first days, all personal wars were called off – Edgar Martinez, Julia, RWA, LawyerBird got along – but soon order was restored and things returned to normal.

Obviously, the domain name had been purchased before problems on the PR board became exigent. According to a WHOIS search, the purchase of the xoxohth domain occurred on January 29, 2004. The buyer was Jarret Cohen, now in business in Pennsylvania. As you can see from this screenshot of the early board, it was intended to be a replacement for the PR community. Contrary to Eugene’s speculations, xoxohth is not a dungeons and dragons reference. It seems to stand for xoxo (hugs and kisses) plus hth (hope this helps).

It is also worth noting that there was an early worry that the former PR community would split into a college (XO) faction and a law faction, located at the JD2B board. A source comments:

[W]hen Marshall [Camp, JD2B's owner] found out the xo board existed, he not only deleted the JD2B message board, but prominently linked to the board on his site and actively sent traffic our way; basically we were treated as JD2B’s unofficial messageboard.

That site probably accounted for 50-75% of our referring URL traffic in the early days

Organizational Control

Cohen’s – alias Rachmiel – and another user known as Boondocks (from the comics strip?) coded the initial software for the board, which (of course) was unmoderated. Boondocks, I am given to understand, is an African-American man who, though one of XO’s founders, forewent an administrative role after the first two months of the board’s existence.

Instead, in about May, 2004, Anthony Ciolli, a Penn Law student, became partners with Cohen. My sense is that Ciolli – alias “Great Teacher Onizuka” (manga comic reference?) – and Cohen split the board’s revenues 50/50, and share operational control over the permissions on the site.

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Rock, Paper, Scissors ADR

rockpaper.jpg

Via Howard B., I came across this judicial order requiring parties to a lawsuit to engage in a game of “Rock, Paper, Scissors” to settle a discovery dispute. Perhaps the lawyers ought to buy the strategy guide before playing?

Of course, this isn’t the only time in recent years that real-world decisions have been turned over to the RPS strategy. Remember the multi-million dollar auction game? But you’ve got to think that there are better ways to resolve discovery problems. Like, say, jousting.

UPDATE: I should surf more. Volokh and Prawfs are already on this. You might wonder why judges don’t issue entertaining orders like this more often – they get lots of attention, resulting in increased fame and possibly better clerk candidates.

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Update on Plea Bargains and Prediction Markets

In Let Markets Help Criminal Defendants, I wrote that “If I were running a public defender service, I’d consider setting up an online prediction market for the conviction of my clients.” I still think this is a good idea, but someone suggested a serious problem that would have to be remedied for the scheme to be possible.

Right now, prediction markets bets on judicial events, like the conviction of Lewis Libby (whose graph is to the right), pay off at 100 for conviction, and 0 for any other ending of this set of charges, including a plea. This creates noise which renders them useless for criminal defendants looking to see if they ought to plea. That is, as I didn’t fully appreciate before, traders must be estimating the probability of conviction, tempered by the likelihood of a plea – prices are lower than the actual market estimate of a guilty verdict independent of a plea. That is, if the current price of Libby’s “stock” is .40, that means that incarceration is not 40% likely. It means that traders think it is 60% likely that Libby will win at trial, receive a mistrial, obtain a dismissal, be granted a pardon, or plea. I imagine that the likelihood of a plea accounts for a large percentage of this figure.

If traders thought that conviction prices affected defendant behavior, then presumably they’d seek to put in sell orders at prices above those where rational defendants would plea. This would put downward pressure on price and make the entire system useless from defense counsel’s perspective.

For my system to work, you’d have to exclude the possibility of a plea (i.e., nullify all bets if there is a plea). Of course, this still would create some dynamic tension, as bettors presumably would become eager to invest time and trade only as pleas become less likely – near trial, or in jurisdictions, like Philadelphia, where the District Attorney has a no-plea policy. But the resulting prices would be more informative than those offered by the current system.

But Certainly Everyone Has $200 to Donate?

Michelle Cottle has a delicious critique of the NYT Thursday Styles Section, aptly titled The Gray Lady Wears Prada. Cottle juxtaposes the “high-minded liberal sensibility” that the Times’s bobo readers aspire to cultivate with the breathless high-end consumerism of Thursday Styles’ Hermès scarves and Jimmy Choo mules. The most revealing quote comes from Times editor Bertram “Trip” Field III, who insists that “we’re [not] trying to serve only those readers who can afford a $10,000 watch.” When Cottle examines the egalitarian timepieces Trip’s claimed to have covered, it turns out the cheapest one is an $890 Prada.

I’m not going to tsk-tsk consumerism here—been there, done that. But I do think Cottle’s insightful piece discloses another aspect of elite journalism—a class bias so pervasive that it’s not even noticed. I think such biases also work their way into scholarship. For example, the bien-pensant consensus on campaign finance reform has long held that we want races funded by a large number of “small donors”—presumably those who donate less than $500. But really, with median family income around $65,000 and average household savings near zero, how many of these small donations are going to come from those at the bottom half of the income scale?

Thankfully, Bruce Ackerman and Ian Ayres’s “Patriot Dollars” proposal addresses this issue by proposing donation vouchers of equal size for all voters. But I’m wondering where else implicit class biases inform a scholarly consensus…any ideas?

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Simmons-Gladwell Chat

Bill Simmons (aka, “The Sports Guy”) recently posted an email exchange he had with Malcolm Gladwell, the author of “Blink.” (Part I; Part II). Not surprisingly, it is packed full of funny, great moments. Two in particular stand out. First, Gladwell writes:

Why don’t people work hard when it’s in their best interest to do so? Why does Eddy Curry come to camp every year overweight? The (short) answer is that it’s really risky to work hard, because then if you fail you can no longer say that you failed because you didn’t work hard. It’s a form of self-protection . . . To me, this is what Peyton Manning’s problem is. He has the work habits and dedication and obsessiveness of Jordan and Tiger Woods. But he can’t deal with the accompanying preparation anxiety. The Manning face is the look of someone who has just faced up to a sobering fact: I am in complete control of this offense. I prepare for games like no other quarterback in the NFL. I am in the best shape of my life. I have done everything I can to succeed — and I’m losing. Ohmigod. I’m not that good. (Under the same circumstances, Ben Roethlisberger is thinking: maybe next time I stop after five beers).

This is an interesting idea, with potential application to agency theory that I haven’t seen laid out in the literature. But, the best moment in the chat comes in Part II, where Gladwell astutely observes:

It is possible, as “Moneyball” reminds us, to win with less by being smarter. But the point is not that if you have more money than someone else you automatically win more games. The point is that if you have more money that someone else you’re playing a different game than they are. Wal-mart is not competing against mom-and-pop corner stores. They’re in a different business. And it isn’t fun, at the end of the day, to watch a mom-and-pop compete against Wal-mart. It’s painful and pointless . . . Contests where one player has significantly more resources than another are not sports. They are marketplaces. To root for the Yankees or the Red Sox is the functional equivalent of rooting for Microsoft or General Electric. No thanks.

Exactly right! But here’s where I run into a problem. I love the Philadelphia Phillies, and like to think of them as an underdog, gutsy team, sort of like the last non-chain bookstore in town. But last year, the Phillies’ payroll was $95 million, 5th in the league. This year, it will be around $94 million. And they still can’t make the playoffs (this year, their new GM has basically admitted they have no chance.)

Which means that I’ve somehow convinced myself to be an insane fan of baseball’s equivalent of General Motors.