Archive for the ‘Psychology and Behavior’ Category

Professional Responsibility Meets Facebook, Another Oops the Bar

posted by Danielle Citron

Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers.  “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit.  Went to a nice 2hr sushi lunch today at Sushi Zen.  Nice place.  Spent the rest of the day typing e-mails and bullshitting with people.”  The summer associate signed  off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.”  The summer associate meant to send the email to his friend.  Oops.

For a moment, let’s put aside the stark difference between the world (and law firm environment) facing the summer associates of 2003 and the one facing the summers of 2009 and turn to Sunday’s New York Times story “A Legal Battle: Online Attitude Vs. Rules of Bar.”  The Times talked about recent cases where lawyers do violence to their careers through their online activities.  Lawyers blog about judges:  one wrote that he thought a named judge was an “Evil, Unfair, Witch” and questioned the judge’s competence.  Another lawyer friended a judge on Facebook and later posted about his/her drinking and motorbiking.  The problem: the lawyer asked the judge to delay a trial because of a death in the family in the same week that the lawyer shared the drinking tales with his/her social network.  The lawyers in those cases have suffered serious consequences (the first is facing a reprimand from the bar, the second faced the wrath of his/her firm–the judge told the lawyer’s bosses what happened).

Now, the 2003 summer associate made a big mistake, but perhaps not on the same order as the lawyers covered in yesterday’s Times.  The summer associate had a slip of the finger perhaps, a hasty moment that changed the way those in his firm saw him.  But the lawyers arguably dove into the pool of their fate head first: one might say that they knowingly risked their careers and should suffer the consequences (to the extent the Bar desires and the First Amendment permits).  Social scientists like Alessandro Acquisti and danah boyd and legal scholars like James Grimmelmann offer an explanation for why people are so foolish online.  People write carelessly not because they have “a reduced sense of privacy” but because they felt anonymous.  As danah boyd explains, social network participants “live by ‘security through obscurity’ where they assume that as long as no one cares about them, no one will come knocking.”  They operate under the norm that people with no social connection to them “could look at your profile, but shouldn’t.”  They assume that only close friends are paying attention to their online activities.  All of this is to say that perhaps President Obama shouldn’t just talk to young people about the perils of oversharing online.  Maybe lawyers need the lesson too.

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  September 14, 2009 at 3:58 pm   Posted in: Cyberlaw, Law Practice, Privacy, Psychology and Behavior, Uncategorized   Print This Post   3 Comments

Bernie Madoff and the Unfortunate Consequences of Celebrity Bias

posted by Danielle Citron

Celebrity is intoxicating.  We have long been willing to play the fool to the rich and powerful, even if that means turning a blind eye to signs of trickery.  In the late 1980s, a 37-year-old con artist convinced Duke University administrators and students that he hailed from the wealthy Rothschild family of France despite the fact that he spoke no French, drove a run-down car, and offered clipped out magazine articles to show his family’s homes. During a two-year charade, the imposter borrowed (stole) thousands of dollars from Duke and joined a fraternity. (I was an Duke undergraduate at the time, but alas did not know him).  More recently, Christopher Chichester tricked many into believing that he was a Rockefeller despite his gauche manners and outrageous claims (e.g, that he owned “the key to Rockefeller Center”).  As Clark Rockefeller, he gained admission to exclusive clubs and married a partner at McKinsey Consulting.  Only after Mr. Chichester kidnapped his daughter from his ex-wife did the police discover his true identity and connection to unsolved murders.

Perhaps such celebrity bias had some role in the SEC’s bungling of the Bernie Madoff fiasco.  On Thursday, the S.E.C.’s Inspector General’s Report explored why the agency missed so many “red flags” about Madoff since 1992.  The report discussed missed leads, bureaucratic snafus, and investigators’ inexperience.  Investigators were far too believing because they were simply awed by him.  One investigator described Madoff as “a wonderful storyteller” and a “captivating speaker.”  As with the faux Rockefeller and Rothschild incidents, Madoff’s ruse worked for so long despite the clues of foul play perhaps because investigators and investors could not shake their sense of Madoff as a rich, powerful, and trusted financial guru.  Madoff’s celebrity reputation anchored their thinking, permitting Madoff to get away with his scheme for far longer than it should have.  As Madoff’s victims’ stories attest, celebrity bias had profoundly destructive consequences.

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  September 5, 2009 at 3:39 am   Posted in: Behavioral Law and Economics, Corporate Law, Culture, Current Events, Psychology and Behavior, Securities Regulation, Uncategorized   Print This Post   No Comments

Football and Judicial Politics

posted by Michael Kang

My colleague Joanna Shepherd and I are working on a project analyzing judicial voting on election law cases in state court. Although there is a sophisticated literature about judicial politics and political influences on judges, there actually is little quantitative work looking at political influences on judges in explicitly political cases, such as election contests, redistricting, and ballot access questions. Thinking generally about judicial politics for this project gives me a different perspective on the state court review of the NFL suspensions of two players from the Minnesota Vikings.

Last September, the NFL suspended Kevin Williams and Pat Williams of the Minnesota Vikings for four games each after they failed drug tests. The two star defensive tackles, who together comprise Minnesota’s “Williams Wall,” tested positive for bumetanide, a prescription diuretic banned under the NFL collective bargaining agreement as a masking agent for steroids. After exhausting the appeals process with the NFL, the two Williams’ and the NFL Players Association challenged the suspensions in Minnesota state court.

Here’s the judicial politics angle: The Minnesota district court that heard the Williams’ claims issued a temporary restraining order last December immediately after the Williams’ final internal appeals with the NFL were rejected. The TRO postponed any suspension until the end of the 2008 season, which kept both Williams’ on the field and helped ensure Minnesota a playoff spot last year. The NFL removed the case to federal court, which then dismissed all but two state law claims and remanded those two claims back to state court. This summer, on remand, the Minnesota district court issued another TRO, blocking the NFL from enforcing its suspensions of the Williams’ until after the upcoming 2009 season. I don’t know enough about Minnesota labor law, the NFL collective bargaining agreement, or the relevant preemption issues to assess the state court TROs that helped both Williams’ postpone their suspensions for almost two full seasons, but one commentator who considered these issues noted that even the issuing judge expressed doubts about the likelihood that the Williams’ claims would prevail on the merits, and at least one Vikings blogger suspected a home-court advantage for the Williams’ on their legal claims.

Of course, I have no real idea whether the Minnesota judge in this case was consciously or subconsciously affected by the possible political consequences of denying the TROs. I have little reason to doubt the integrity of this judge in particular, who I assume has nothing but the best intentions. But it might be reasonable to wonder whether a state judge in his position, who must run for re-election to keep his job, could be influenced by the prospect of hometown football fans unhappy that a judge has effectively sidelined their star players for a quarter of a season. My colleague Joanna Shepherd concludes from her research that state judges are routinely re-elected unless they risk doing something controversial and attract negative publicity. Whether or not this particular judge was consciously affected by the possibility, there’s no doubt that denying the latest TRO and putting Kevin and Pat Williams on the sideline for the beginning of the season, right after the Vikings stirred up fan excitement by signing Brett Favre as their new quarterback, would’ve attracted lots of negative attention. If nothing else, this case offers fed courts professors a very salient example for discussing the risk of a home-court advantage in state court and a foreign defendant’s interest in removal to federal court.

Thinking along the same lines, Gregg Easterbrook, an astute NFL commentator (and brother of Frank), suggested that former NFL wide receiver Plaxico Burress might have fared better in his recent gun possession case, if he had rallied local football support to his side by re-signing with the New York Giants immediately before trial. As Easterbrook put it, “Had Burress remained a Giant, he would have had the most popular organization between Washington and Boston in his corner, and it’s simply human nature that prosecutors and judges might have looked sympathetically upon his case.” Instead, Burress received two years in prison for violating New York’s gun permit law. Football matters intensely to many people, which surely has political consequences. One study finds that public universities with Division I-A football programs receive about six percent more in state appropriations than public universities without football programs, and for those football universities, a victory over an in-state rival is correlated with an additional increase in appropriations the following year. Maybe football shouldn’t matter so much to courts and legislatures, but it seems that sometimes it really does.

  September 4, 2009 at 8:13 am   Posted in: Culture, Current Events, Politics, Psychology and Behavior   Print This Post   One Comment

Health Care Reform, Public Opinion, and Personal Experience as Information

posted by Michael Kang

James Surowiecki describes an interesting recent shift in public opinion about the health care system in the United States. Last year, polling found that only 29 percent of Americans rated the health care system as “good” or “excellent,” but when asked the same question today, the percentage of the public giving the same answer now has jumped up to 48 percent. Why the sudden increase given that, as Surowiecki notes, “[t]he American health-care system didn’t suddenly improve over the past eleven months”? Surowiecki attributes the rapid increase to the endowment effect. Now that health care reform is actively under consideration, people are focused on “what we might lose rather than on what we might get.” When people encounter uncertainty about trading what they already have for something else, psychologists have shown that people tend to overvalue what they already have and gravitate toward a natural instinct to keep things as they are.

The endowment effect is a plausible explanation for the suddenness of the shift in public opinion, but I have a different intuition than Surowiecki. Although I have not studied public opinion these days with respect to the current debate on health care reform, I have done empirical research about public opinion during the health care reform debates of the early 1990s that could be relevant. Political scientists find generally that people do not normally infer about national conditions directly from their own personal situations. For instance, people who are struggling financially do not assume that their personal situation indicates that the national economy is doing poorly overall as a more general matter. Just so, during the late 1980s and early 1990s, people who had undergone unpleasant experiences with their personal health care did not necessarily assume that the health care system was in bad shape. Their evaluations of the health care system as a whole did not vary from everyone else’s nearly as much as you might expect. However, when Democrats began championing health care reform during the early 1990s and arguing that there was an unaddressed crisis in American health care, people who had undergone negative experiences in their personal health care suddenly began to credit those negative experiences as a source of information for evaluating the system overall. Accordingly, compared to their fellow citizens, their overall views of the system changed very abruptly in a negative direction once political leaders substantiated the perceived reasonableness of that inference.

Although I cannot say definitively, it’s worth considering whether the abrupt shift in public opinion today that Surowiecki identifies is actually a mirror image of what happened during the early 1990s. Remember that, as I mentioned in an earlier post, the American public by and large report positive feelings about their personal health care today. Surowiecki, in fact, observes in the article that a clear majority of the public reports satisfaction with their insurance coverage, and public satisfaction with health care costs in particular has increased from the early 1990s into this decade. A year ago, Democratic supporters of reform probably had the edge in leading public perceptions about the system as a whole in a negative direction. But now with Republican opponents of health care reform touting the virtues of the American health care system, people who are happy with their health care situation now may be crediting their personal situation as a source of information about the system overall in a positive direction. The abrupt shift in public opinion may be less about the endowment effect than a portion of the public suddenly drawing stronger connections between their good personal experiences with health care and their sociotropic evaluations of the system as a whole. Such inferences from personal experience could explain not only the direction of the shift in public opinion about the health care system, but also the speed with which it occurred.

  August 27, 2009 at 6:17 am   Posted in: Current Events, Politics, Psychology and Behavior   Print This Post   2 Comments

More Moneyball

posted by Michael Kang

In my previous post, I argued that Michael Lewis’s influential bestseller Moneyball, widely cited in academia, ultimately relies too much on hyperbole to make its claims about the superiority of Billy Beane’s statistical methods in managing the Oakland Athletics baseball team. In this post, I assess the value of those Moneyball methods by examining the results of Oakland’s 2002 draft, a central event glamorized in the book as a showcase of Beane’s “scientific selection of amateur baseball players.”

This is a long, baseball-heavy post, so let me cut to the chase at the outset. Oakland’s Moneyball draft of 2002 was not the smash success that Lewis’s book forecasted. The seven years since the draft bear that out. Beane had seven first-round picks that year but drafted none of the eleven all-stars signed from the 2002 draft, despite exercising almost twenty percent of all first-round choices in the draft. In fact, only half the players on Beane’s wish list of the top twenty players in the draft ended up playing even a game in the major leagues. To tell a compelling story of Beane’s superiority, Lewis overstates what Cass Sunstein and Richard Thaler call the “blunders and the confusions of those who run baseball teams.” It turns out that other teams do a pretty good job of identifying talent too. In the 2002 draft, Oakland did not draft the best players available, while other teams using traditional methods did equally well or better.

So, what is the lesson for Moneyball? Lewis describes how Beane imported quantitative methods from the academic and financial worlds to identify assets, in this case baseball players, undervalued by the market. The modest notion that statistical methods can be invaluable in the search for these undervalued assets, particularly in an industry so obsessively numbers-oriented as baseball, is unassailable. But Lewis’s claims that Moneyball demonstrates the outright superiority of Beane’s quantitative methods in identifying the best talent are much more difficult to sustain, and Moneyball does not convincingly establish the backwardness of other teams, which had already begun erasing whatever advantages Oakland possessed by the time of Moneyball’s publication.

Instead, Moneyball demonstrates a slightly but importantly different lesson about Oakland’s successes during the early 2000s.

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  August 21, 2009 at 5:41 am   Posted in: Current Events, Psychology and Behavior   Print This Post   7 Comments

Moneyball Revisited

posted by Michael Kang

Michael Lewis’s bestselling book Moneyball occupies a unique convergence of academic, sports, and popular fascination. Moneyball profiles Billy Beane and his management of the Oakland Athletics baseball team, with particular attention to Beane’s use of cutting-edge quantitative analysis in an industry portrayed as bound by tradition and decisionmaking by anecdote. Moneyball garnered recent attention again after the movie version of Moneyball, starring Brad Pitt, suddenly halted production just five days before shooting was to begin in July. The event, or nonevent, brought forth several commentaries on Moneyball’s legacy, six years after its publication. Today’s post begins to explain my ambivalence about Moneyball’s place in the academic imagination; my next post continues by arguing that, perhaps to the surprise of its academic enthusiasts, Moneyball actually gets a good chunk of its baseball wrong and in the end, may tell a slightly different story than usually thought.

Baseball fans from outside academia would be shocked how influential and popular the book Moneyball has been within academic circles. Cass Sunstein and Richard Thaler wrote a book review of Moneyball for the Michigan Law Review, and  professors have cited Moneyball as inspiration for new approaches to everything from faculty hiring to election administration to health care reform. There’s even a Moneyball-inspired blawg called Moneylaw.  The great contribution of Moneyball was to puncture a certain overconfidence in untested conventional wisdom based on unsystematic anecdotal information. Moneyball offered a colorful example from baseball, now widely cited in academia, of how inefficiencies in markets can be exploited by canny operators who identify objective metrics of value underappreciated by traditional practices. As Sunstein and Thaler note, “If Lewis is right about the blunders and the confusions of those who run baseball teams, then his tale has a lot to tell us about blunders and confusions in many other domains.”

The problem with Moneyball is the hyperbole deployed to construct Lewis’s lesson of absolute quantitative triumph. A key element of Moneyball’s influence is the vividness and persuasiveness of Lewis’s account of the Oakland Athletics’ success, but it is so vivid and persuasive at least in part because it exaggerates the brilliance of Billy Beane and his quantitative approach to baseball.

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  August 18, 2009 at 1:00 pm   Posted in: Current Events, Psychology and Behavior   Print This Post   7 Comments

Nudging the exam takers

posted by Kaimipono D. Wenger

I’ve recently been reading Dan Ariely’s book, Predictably Irrational. One fascinating chapter is about the psychology of dishonesty. The experimenters gave two versions of a test – one graded by proctors, the other entirely self-graded, with a small monetary reward (10 cents per correct answer). They found an incidence of cheating in the self-graded answers, no surprise there.

The experimenters gave the same tests to another group of students, but first made those students do a task designed to make them think about morality and honesty. One group of students had to write out as many of the Ten Commandments as they could remember. Another group was asked them to simply sign the statement, “I understand that this study falls under the MIT honor system.”

These moral reminders had the effect of eliminating all (!) of the statistically significant cheating — with either one of those moral reminders in place, the students in the self-graded group had results that were statistically indistinguishable from the proctor-graded group.
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  June 24, 2009 at 9:58 pm  Tags: behavioral, cheating, exams, psychology, Teaching  Posted in: Law School (Teaching), Psychology and Behavior   Print This Post   3 Comments