Archive for the ‘Psychology and Behavior’ Category
Neuroscience at Trial: Society for Neuroethics Convenes Panel of Front-Line Practitioners
posted by Amanda Pustilnik
Is psychopathy a birth defect that should exclude a convicted serial killer and rapist from the death penalty? Are the results of fMRI lie-detection tests reliable enough to be admitted in court? And if a giant brain tumor suddenly turns a law-abiding professional into a hypersexual who indiscriminately solicits females from ages 8 to 80, is he criminally responsible for his conduct? These were the questions on the table when the International Neuroethics Society convened a fascinating panel last week at the Carnegie Institution for Science last week on the uses of neuroscience evidence in criminal and civil trials.
Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:
- Steven Greenberg, whose efforts to introduce neuroscience on psychopathic disorder (psychopathy) in capital sentencing in Illinois of Brian Dugan has garnered attention from Nature to The Chicago Tribune;
- Houston Gordon (an old-school trial attorney successful enough not to need his own website, hence no hyperlink), who has made the most assertive arguments so far to admit fMRI lie-detection evidence in a civil case, United States v. Semrau, and
- Russell Swerdlow, a research and clinical professor of neurology (and three other sciences!). Swerdlow’s brilliant diagnostic work detected the tumor in the newly-hypersexual patient, whom others had dismissed as a creep and a criminal.
In three upcoming short posts, I will feature the comments of each of these panelists and present for you, dear reader, some of the thornier issues raised by their talks. These cases have been reported on in publications ranging from the Archives of Neurology to USA Today, but Concurring Opinions brings to you, direct and uncensored, the statements of the lawyers and scientists who made these cases happen … Can I say “stay tuned” on a blog?
November 20, 2011 at 12:39 pm
Tags: law & neuroscience, neuroethics
Posted in: Bioethics, Capital Punishment, Criminal Law, Evidence Law, Health Law, Psychology and Behavior, Uncategorized
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Our Fractured Age
posted by Michael Zimmer
The disconnect between what seem to the common interests and needs of most of us – now the 99% of us – and how we think about ourselves collectively has fascinated and troubled me for quite some time. Daniel T. Rodgers, Henry Charles Lea Professor of History at Princeton, has recently published a very interesting book entitled, “Age of Fracture,” that explores the intellectual basis for that disconnect. Looking at a broad set of social, economic, philosophical and political intellectual traditions, Rodgers explains how the intellectual underpinnings of our thought processes have shifted from the idea of collective identity to one of individualized freedom, but freedom from reality. Reviewing the intellectual history of the late twentieth century until now, his analysis crosses the left-right divide to show how all of these different disciplines can by synthesized because they all vector in the same direction, this idealized sense of individual freedom.
Rodgers starts by describing the political rhetoric Presidents have used in their speeches. Presidential speechwriters rely on tropes that resonate because that rhetoric helps bolster Presidential leadership: The better the rhetoric connects to the prevailing mindsets of the people, the more effective the “bully pulpit.” Presidential rhetoric has interested me ever since I read Gary Wills’ Pulitzer Prize winning book, “Lincoln at Gettysburg: The Words That Remade America.” In essence, Wills analyzed President Lincoln’s use of rhetoric to show that it both reflected but helped reify a change in the concept of the nature of our country: Our concept of American changed from, “The United States are . . .” to, “The United States is.” Rather than going back that far, Rodgers begins with the rhetoric of our Cold War era Presidents – for example, Kennedy’s “Ask not what this country can do for you; ask what you can do for this country” – calling us to gird our loins and stand united to advance our collective national interest in order to better confront the menace we faced by the menace of Communis and the Soviet Union. With the ending of the Cold War, President Reagan’s rhetoric moved away from that sense of collective identity and obligation toward an idealized, almost dream-like, sense of individual “freedom,” including freedom from the actual conditions of our lives as well as our from much sense of collective obligation. That predominant mindset allows us to escape hard choices and to assume a perfected life will be easy to achieve. It is not as if a Reagan’s rhetoric by itself caused the shift. Rather, presidential rhetoric both reflects but also amplifies the ideas that are already settling into our unexamined background mindset.
Having launched this project through the lens of presidential rhetoric, Rodgers then looks at developments across a wide swath of our intellectual life. He starts with economic theory and describes how the earlier macroeconomic Keynesian theory was supplanted – he quotes economist Robert Lucas, “The term ‘macroeconomics’ will simply disappear from use” — by microeconomic theory, the idealized world of individual rational actors motivated solely to maximize their profits. While he shows how disconnected this was from reality, Rodgers fits microeconomic theory within the broader conceptual view of the world of the individualized but unreal “freedom” reflected in President Reagan’s speeches. Rodger’s next chapter moves to politics and political theory. He traces the shift from Galbraith’s earlier view that the overwhelming economic power of megacorporations gave them extraordinary political power to the microeconomic view that disconnects economic from political power by its focus on individual economic actors focused solely on their own economic agendas. In an interesting take, Rodgers shows how political theory moved toward rational choice analysis with its exclusive focus on the “power-seeking saturated world of politics” means that the problems of our powerless subordinated groups slip “out of the categories of analysis.” In a tour de force, he then describes how the divergent views of Gramsci, Genovese, Geertz and Foucault, nevertheless when taken together, conceptualize power as dispersed extremely broadly in “spheres of culture, ideas, everyday practices [and] science.” In sum, if microeconomic theory is all about individual economic gain disconnected from politics, political gain is all about special interest “rent seeking” divorce from collective needs and power is defined so broadly that it is so diffused as to exists everywhere, Rodgers asks whether power is in fact “nothing at all.” If power is nothing at all for us, that leaves most of us collectively powerless. Read the rest of this post »
November 8, 2011 at 12:36 am
Posted in: Book Reviews, Civil Rights, Constitutional Law, Political Economy, Politics, Psychology and Behavior, Supreme Court, Uncategorized
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No More Secret Dossiers: We Need Full FTC or CFPB Investigation of “Fourth Bureau” Reputation Intermediaries
posted by Frank Pasquale
There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the “fourth bureau.” The Federal Trade Commission should conduct an immediate investigation of the “black box” practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of “secret dossiers” about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors.
Once a critical mass of data about a person has been collected for a commercial purpose, she deserves to know what the data is and who is gathering it. Once an educator, employer, landlord, banker, or insurer makes a decision based on that data, the affected individual should be able to challenge and correct it. I have made a preliminary case for such reforms in my chapter Reputation Regulation, in this book. I now think this agenda is more urgent than ever, given the creeping spread of unaccountable data mining in the internet sector to a wild west of reputational intermediaries.
From a Fair Credit Reporting Act to a Fair Reputation Reporting Act
To understand why, it’s helpful to take a step back and look at how poorly regulated even the established credit bureaus are. As Shawn Fremstad and Amy Traub have noted in the Demos report Discrediting America, ample empirical evidence has confirmed that a vast number of traditional credit bureau files are erroneous:
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July 17, 2011 at 11:16 pm
Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Privacy (Medical), Psychology and Behavior, Technology, Tort Law
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The Price of Law School Cost Transparency
posted by Dave Hoffman
Higher-education cost transparency is all the rage. In a recent article in Slate, Annie Lowery argued that:
“It is true that we have tremendous amounts of data about higher education. But it is also true that too often students end up misled, overwhelmed, or confused attempting to gauge the different options. Big, expensive purchases require smart, educated customers. That is why the government created the new fuel-efficiency labels. It is also why the new Consumer Financial Protection Bureau is rolling out simplified, standardized home-mortgage forms. It should not, after all, take a Ph.D. in statistics to get through the college application process.”
This intuition drives politicians like Sen. Boxer to attack the ABA for failing to push law schools to disclose more data, and to crowd-sourced work like Law School Transparency.
In general, I absolutely think that law schools ought to compete on the transparency of their disclosures about student job outcomes, and that the ABA’s highest and best accreditation purpose would be to audit such data for its accuracy. However, I thought I’d caution proponents of cost transparency of two specific & unanticipated costs of their proposals.
First, think about what cost transparency entails. To my mind, real law school cost transparency doesn’t mean that we on a clear form provide prospective students a series of blanks: ”tuition + anticipated tuition growth” plus “living costs + anticipated cost increases” minus “expected three-year scholarship”. We’d also need to disclose our predictions of the student’s chances on the summer job market – law school cost is for some students significantly defrayed by summer employment. If you look nationally, graduating law student debt has spiked in the last two years. That rise doesn’t follow largely from tuition increases, though that’s part of the story. Rather, it’s the collapse of the firm job market in 2008 -2010 that did the trick: students lost $10-$30,000 of expected income that would have offset or repaid borrowing.
The problem is that although law schools could get a handle on some of these numbers, disclosing them in a way that’s going to meet students’ ever-rising expectations isn’t exactly an easy task. Think about the average administrator in charge of this disclosure — how likely is it that they will be able to do so in a way that meets Lowery’s standard of clarity, accuracy, and replication? Even when they are excellent at their job today, this kind of data-organization and display task would demand a fundamentally new set of skills. Bringing in a new body is a fine idea, although many law schools are operating under hiring freezes to control tuition growth. Moreover, as Gordon Smith observed some years ago with reference to curricular change, legal education reformers often discount opportunity costs severely. So if law schools spend more time on figuring out the expected costs of law school education, they are going to spend less time on something else. (And, likely, less money.) What’s that to be? My guess is: library resources, clinics, and research support. Maybe that’s a worthwhile trade-off, but it strikes me that discussions of cost transparency are really just proxies for complaints about cost, period. Real law school cost will fall if and when the legal job market recovers.
May 29, 2011 at 4:30 pm
Posted in: Law School, Psychology and Behavior
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UCLA Law Review Vol. 58, Issue 3 (February 2011)
posted by UCLA Law Review
Volume 58, Issue 3 (February 2011)
Articles
| Good Faith and Law Evasion | Samuel W. Buell | 611 |
| Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 | Katherine Florey | 667 |
| The Need for a Research Culture in the Forensic Sciences | Jennifer L. Mnookin et al. | 725 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Joseph P. Bono | 781 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Judge Nancy Gertner | 789 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Pierre Margot | 795 |
Comments
| What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation | Samuel M. Kidder | 803 |
| Defendant Class Actions and Patent Infringement Litigation | Matthew K. K. Sumida | 843 |
February 25, 2011 at 1:19 pm
Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court
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Cognitive Illiberalism and the Speech-Conduct Distinction
posted by Dave Hoffman
The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game. Indeed, almost every decision you read about these days comes accompanied by a reference to the political party of the appointing President – as if you needed the help! As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”
For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern. We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities. Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski. The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings. (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)
February 7, 2011 at 6:00 pm
Posted in: Articles and Books, Behavioral Law and Economics, Civil Procedure, Civil Rights, Law and Psychology, Law School (Scholarship), Psychology and Behavior, Sociology of Law
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The Representation Debate Continues
posted by Dave Hoffman
Jim Greiner and Cassandra Wolos Pattanayak have emailed me a reply to the Harvard Legal Aid Bureau’s comment on What Difference Representation. Since the topic has been the subject of several posts here, as well as some off-line communication from interested readers, I figured that I owed Greiner/Pattanayak a public space for reply. It consists of a bit of introductory text, and a longer (9-page) paper.
“We recently became aware that HLAB President Rachel Lauter and HLAB Faculty Director David Grossman had written an email to the clinical listserve addressing our paper “What Difference Representation?”. The email has been posted to various locations in the blogosphere. Because the email expresses criticisms of the paper that we also have received from one or two other sources, we thought we would take the opportunity the email presented to clarify certain issues. For example, President Lautner and Professor Grossman echo reactions we have received from another legal aid provider when they say that our study produced “only limited information,” and that more (and more useful) information would be available if we would just analyze the data properly. We explain here that the analysis the email (and one or two other legal services providers) have advocated is statistically invalid, and that in any event the data required for it do not presently exist and cannot at this time be ethically collected. As ought to be clear by now, we have the greatest respect for the students of HLAB, including President Lautner, and HLAB’s clinical faculty, including Professor Grossman. We are using President Lautner and Professor Grossman’s email as a convenient foil representative of a few other comments we have received.
The substance of our response can be captured in the answers to two questions.
1. Why study the effect of offers of HLAB representation? All agree that the effect of actual use of representation is interesting, although as we will explain, perhaps less so than one might think at first. But why study the effect of HLAB offers?
2. Why not compare those who got offers from any source, not just HLAB, to those who did not get any such offers?} This is what President Lauter, Professor Grossman, and a few others have suggested. Why not make this comparison?
We also answer one final question:
3. So how can we find out about the effect of offers from other service providers?”
To read the full response, click here.
January 31, 2011 at 6:20 am
Posted in: Behavioral Law and Economics, Empirical Analysis of Law, Law School, Psychology and Behavior
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Root Root Root for the Home Team.
posted by Dave Hoffman
Fangraphs has a figure that (for those who care about sabermetrics) tells quite a tale. As the picture to the right, and associated analyses, makes clear, fans of a team generally project that the individual players will perform better than they actually do. Overall, the community of fans was “in the middle of the pack compared to other projection systems,” and so the result isn’t simply a function of noise or foolishness. This finding is a nice observational data correlate of a very old & famous social psychology experiment – They Saw a Game: A Case Study, by Hastorf and Cantril. In that experiment, observers’ experience of the refereeing of a game was biased by their fandom — we see fouls when the other team commits them.
It would be interesting to see if baseball professionals – scouts, GMS, etc. – exhibit the same effect. That kind of motivated reasoning isn’t exactly the premise of Moneyball – which argued that teams were blinded by tools, not self-serving bias. But it provides an alternative explanation for why teams overpay to retain their own players — they believe they will do better than the market does. This analysis, of course, can be extended to firms at large. Though many analyses of executive compensation focus on managerial capture, there’s another story: the owners and directors of the firm are fans, and consequently mispredict its future.
Of course, none of this analysis at all explains why the Washington Nationals overpaid for Jayson Werth. Or why Cliff Lee rejected two higher offers to live in Center City Philadelphia. Some results are just magical.
January 14, 2011 at 11:38 am
Posted in: Psychology and Behavior
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Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship
posted by Danielle Citron
Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them. Consider the anonymous and pseudonymous nature of online discourse. Intermediaries permit individuals to create online identities unconnected to their legal identities. Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities. Yet the sense of anonymity breeds destructive behavior as well. Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught. Destructive online behavior spills offline, working a fundamental impairment of citizenship.
For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war. Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.” More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.
Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse. For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl. They revealed Ms. Jouhari’s home address and her child’s picture. The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.” Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose. Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.
Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement. Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause. Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read the rest of this post »
November 27, 2010 at 3:49 pm
Posted in: Anonymity, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Law and Inequality, Legal Ethics, Legal Theory, Politics, Psychology and Behavior, Race, Social Network Websites, Technology, Web 2.0
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Greetings from Panera’s Free Community Café
posted by Miriam Cherry
Thanks to everyone here at Concurring Opinions for hosting me as a guest blogger this October. I’m writing this blog post on my laptop at the Café, here in downtown Clayton, Missouri, a suburb of St. Louis. You may have heard about the rather unusual business model of this Café; it runs on a type of “honor system” where it is left up to the customer to decide what to pay (the menu lists suggested amounts). You decide, however, how much to put into the donation box or tell the cashier how much to put on your credit card.
I paid the (suggested) amount for my lunch, and everything was exactly the same as it would at any other Panera chain, so in my mind, it’s an identical experience. But what are other customers doing? According to a recent story in the St. Louis Post Dispatch, 65% of customers leave the retail price, 10 to 15 percent leave more, and the remaining 10 to 20% leave less. The same story reports that the store is breaking even, with the company’s hope that start making a modest amount of money soon.
According to another news story, some people love the café, leaving a little extra to bring themselves “good karma,” and there are needy people who have made this a regular stop, bringing in money when they can afford it or volunteering an hour or two to help out at the café. But others are skeptical. Some don’t want to put in more money than the suggested amount because there is no means testing and it’s unclear where the money is going. The proprietor of a local (cheap) diner is complaining that with the charitable mission of the restaurant, it’s cutting into her segment of the market. Some people have expressed puzzlement that the café would be located in a well-off business district, instead of a place where there might be more need for free food.
My guess is that in order to sustain itself, the Café needs to replicate the experience at other Paneras as closely as possible; it doesn’t want to change the “feel” of the restaurant. As former CEO Ron Shaich said, “it’s a fascinating psychological question . . . There’s no pressure on anyone to leave anything. But if no one left anything, we wouldn’t be open long.” I guess the question is whether they need to make a profit in order to stay open – as a new friend commented to me the other day, the café is generating a lot of goodwill for Panera.
I’m curious to see how the business model fares and I’ll definitely return to the café. I’ve had many thoughts about corporate social responsibility (CSR) in business recently, due to a paper I’ve been working on, and you’ll see several other posts from me on this theme.
October 16, 2010 at 6:58 pm
Posted in: Corporate Law, Psychology and Behavior
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Money Matters in Ongoing Marriage Law
posted by Alicia Kelly
Married life is characterized by a sharing norm. As I described in an earlier post, spouses commit to and in fact engage deeply in sharing behavior, including a shared family economy. Overwhelmingly, spouses pool economic resources, including labor, and decide together how to allocate them to benefit the family as a whole.
In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage. It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just one spouse can also be understood (by both partners) to be appropriate and deserved—a recognition of the individual within a sharing framework. Conversely, it is also possible that spouses’ monetary dealings can undermine individual autonomy and the relationship as well. For example, one person might exercise authority over money in a way that disregards the other. Accordingly, power to influence financial resource allocation within the family is important for individual spouses and for togetherness.
It becomes a special concern then, that sharing patterns in marriage are gendered. As highlighted in my previous post, role specialization remains a part of modern intimate partner relations. Particularly true for married couples, men continue to perform more as breadwinners, and women more as caregivers. As a result, women tend to have reduced earning power in the market. How does this market asymmetry translate into economic power at home? Happily, in a significant departure from the past, a majority of couples report that they share financial decisionmaking power roughly equally. Indeed, most married couples today endorse gender equality as an important value in their relationship. However, in a significant minority of marriages, spouses agree that husbands have more economic power. For some couples then, a husband’s breadwinning role and/or perhaps his gender, confers authority in contentious money matters.
How should law governing an ongoing marriage respond to these sharing dynamics? Consider this hypothetical fact situation. A husband has a stock account from which he plans to make a gift to his sister who he feels really needs the money. The husband suspects that his wife would not approve of the gift. Even though the wife too loves the sister, she believes the sister is irresponsible with money. Let’s assume that the money in that stock account was acquired while the parties were married, and that it came from the market wages of one or both of the spouses earned during marriage. It was a product of the couple’s shared life. Does contemporary law allow the husband to give his sister the gift without her consent? Without even telling her? How should legal power over the money be allocated?
October 1, 2010 at 1:04 pm
Posted in: Family Law, Feminism and Gender, Law and Inequality, Law and Psychology, Legal Theory, Property Law, Psychology and Behavior, Uncategorized
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Tear-Jerker in Case of Lottery-Winning Octogenarian Sisters
posted by Lawrence Cunningham
Widely reported as a feud over a half-million dollar winning lottery ticket between two octogenarian sisters, close friends their first 70 years, it turns out to have been a fight over a $250 debt. In 1995, Terry Sokaitis and Rose Bakaysa, each now close to 90 years old, signed a written agreement saying they were partners in a longstanding and fun gambling program, winnings to be split equally. In 2005, a lottery ticket Rose bought with their brother won $500,000. Terry wanted her share but Rose refused. Rose said they rescinded the 1995 deal during a heated 2004 telephone argument.
Within weeks, Terry sued Rose for breach of contract. In court, Rose also argued that any deal they had was unenforceable because it amounted to an illegal bargain under state anti-gambling statutes. As I reported, the Connecticut Supreme Court resolved that narrow issue against Rose, showing how the ancient statute was functionally superseded by a host of legalized state gambling that put contracts to split lottery ticket winnings outside its scope. Back in the trial court, five years after Terry sued, Rose asserted the rescission defense and after a trial in the spring, a judge found that rescission valid.
The unreported opinion adds details to this sad tale, sisters tight for 70 years, through marriage, illness, and all, turning bitter when they couldn’t agree on whether Rose had loaned Terry $250 or $100, and over whether Terry had any money to repay her. During the heated talk that resulted, Terry yelled that she didn’t want to be Rose’s gambling partner anymore and Rose said okay. The sisters haven’t spoken since. That Rose won the half million with their brother a year later seems to have sealed the bitterness. In her opinion after trial, Connecticut Judge Cynthia Sweinton reprints a letter Terry wrote Rose as their legal battle intensified. It’s a tear-jerker, be warned, but it follows. (I have corrected some spelling and grammar mistakes.)
Judge Sweinton, before concluding her opinion, wrote resonantly: “There is something in this tragedy that touches most people. While the court may be able to resolve the legal dispute, it is powerless to repair the discord and strife that now overshadows the once harmonious sisterly relationship.”
August 16, 2010 at 4:22 pm
Posted in: Contract Law & Beyond, Law Talk, Psychology and Behavior, Weird
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UCLA Law Review Vol. 57, Issue 5 (June 2010)
posted by UCLA Law Review
Volume 57, Issue 5 (June 2010)
Articles
| Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes | Nan D. Hunter | 1129 |
| Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality | Kathryn Abrams | 1135 |
| The Sex Discount | Kim Shayo Buchanan | 1149 |
| What Feminists Have to Lose in Same-Sex Marriage Litigation | Mary Ann Case | 1199 |
| Lawyering for Marriage Equality | Scott L. Cummings Douglas NeJaime | 1235 |
| Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive | William N. Eskridge, Jr. | 1333 |
| Sticky Intuitions and the Future of Sexual Orientation Discrimination | Suzanne B. Goldberg | 1375 |
| The Dissident Citizen | Sonia K. Katyal | 1415 |
| Raping Like a State | Teemu Ruskola | 1477 |
| The Gay Tipping Point | Kenji Yoshino | 1537 |
July 5, 2010 at 7:12 pm
Posted in: Articles and Books, Constitutional Law, Current Events, Feminism and Gender, History of Law, Immigration, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Law School, Legal Theory, Politics, Psychology and Behavior, Supreme Court
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Bright Ideas: Cahn & Carbone, Red Families v. Blue Families
posted by Daniel Solove
My colleague, Professor Naomi Cahn (GW Law School) and Professor June Carbone (U. Missouri at Kansas City) have recently published a very provocative and interesting new book, Red Familes v. Blue Families: Legal Polarization and the Creation of Culture (Oxford University Press,2010). Their book examines the fact that “red” states, despite more restrictive family law, have higher teen pregnancy rates and higher divorce rates than “blue” states.
SOLOVE: What inspired you to write the book?
CARBONE & CAHN: We saw the commentary on the 2004 election about moral values and when we saw the statistics on higher divorce rates in the red states, we reacted, “But we know why that happens, red families marry at younger ages and age is a risk factor for divorce.” When we inquired further, we found the differences were much greater than that and worth much more exploration.
SOLOVE: What are the most central ideas of the book are?
CARBONE & CAHN: There really are two family systems , and one is in crisis while the other is doing reasonably well. The “blue” one invests in women as well as men, delays family formation until after young adults reach emotional maturity and financial independence, and views sexuality as a private matter. The “red” system is a traditional one that continues to preach abstinence, early marriage, and more traditional gender roles. The blue system arose in response to the needs of the post-industrial economy while the religious backlash against the new values has locked red families into a war against modernity.
The two systems map onto increasingly ideological divisions in American politics, and make family a point of intense contestation.
The conflict between the two systems produces counterproductive results, such as abstinence education that has the most disproportionate consequences for poor women.
The solution is to reforge values at the state and local level while keeping the pathways (e.g., access to contraception) open through national efforts.
SOLOVE: What was your most surprising finding?
CARBONE & CAHN: We were surprised to find that the relationship between age and divorce is new. While teen marriages have always been risky, those who married at 22 in 1980 had about the same levels of divorce as those who married at 28; today, every increase in age reduces the incidence of divorce. This is surprising to us because it suggests that what is going on is not biological, that is, that the improved stability of later marriage is probably a function of better assortative mating (i.e., the successful marry later and marry similarly successful mates) rather than greater maturity at later ages. It also suggests that what’s wrong with marriage in the early twenties is the absence of the right societal support rather than anything about the immaturity per se of those in their early twenties.
March 1, 2010 at 6:55 pm
Posted in: Articles and Books, Book Reviews, Bright Ideas, Culture, Family Law, Feminism and Gender, Politics, Psychology and Behavior
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Sun on Katrina’s Lessons for Haiti
posted by Nate Oman
This is a guest post from Professor Lisa Sun at BYU Law School. She is the author, along with Daniel Farber, Jim Chen, and Robert Verchick, of Disaster Law and Policy, from Wolters Kluwer. Lisa writes:
News reports emerging from the devastation of the 7.0 earthquake that struck Haiti last Tuesday suggest that street violence is growing and that local and international officials fear widespread looting, rioting, and the breakdown of civil order. For example, the U.K. Telegraph reported on Saturday that “[a]s anger and fears of violence grew amid desperate shortages of food, water, and medical supplies, bands of machete-wielding earthquake survivor [stet] yesterday roamed through the ruins of Port-au-Prince.” The paper likewise reported incidents of violence against rescuers.
These media reports evoke similar reporting about New Orleans in the aftermath of Hurricane Katrina in fall 2005. Feverish reports of widespread looting and violence painted a picture of a city sinking, not only into the sea, but also into the depths of anarchy. The New Orleans Police Chief told Oprah Winfrey that “little babies [were] getting raped” in the Superdome. Numerous media outlets reported that Katrina survivors were firing on their would-be rescuers. Widespread looting was reported with headlines such as “The looters, They’re Like Cockroaches.” Read the rest of this post »
January 20, 2010 at 7:42 am
Posted in: Current Events, Law and Inequality, Psychology and Behavior
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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
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In Support of Activist Officiating
posted by Adam Benforado
Dave’s post earlier today on referees and judging (linking to a fascinating discussion of “whistleblower” bad-boy Tim Donaghy’s new book, Blowing the Whistle) has got me thinking.
While on a certain level, I’m outraged at the thought that refs do not follow the rules of the game with objectivity and dispassion, I’m not sure that I want officials to just call “balls” and “strikes.”
The reason that I never bought into the Chief Justice’s analogy of judging to umpiring is that sports, for me, are not just about fairness and a level playing field. They’re about fun and entertainment. I want to watch a good game and I don’t care if there is a little “tweak” here or there to ensure an enjoyable match for the spectators.
Although it is dangerous to admit in my new home of Philadelphia, I am a party to an abusive lifelong relationship with the Washington Redskins and Wizards (née Bullets). Hoping to break the cycle of repeated psychological mistreatment, a number of years back I started also following English Premier League soccer (I’m a Liverpool supporter, although I tend to watch whatever pops up on Fox Soccer Channel).
In EPL and other European soccer matches, one of the things that always irks me is when a ref sends off a player on the weaker team in the opening minutes. It really doesn’t matter to me that the official was following the letter of the law in giving the red card. When I sit down, my goal is 90 minutes of pleasure. Dismissing a key player in the fourth minute spoils the proceedings. (Of course, I’m advocating “tweaking” here – I’m not asking a ref to turn a blind eye to a deliberate two-footed, studs-up challenge aimed at an opponent’s head).
Yes, I might feel differently if I was a gambling man or if the Redskins returned to their glory days, but maybe not. I’ll always choose an exciting overtime game to a blow out, even if I’m on the right side of the rout.
December 3, 2009 at 4:34 pm
Posted in: Psychology and Behavior, Supreme Court
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Asteroidgate: The Rocket, Not the Asteroid, Packs the Punch
posted by Dave Hoffman
Eric Posner muses about Asteroidgate:
Suppose that astronomers around the world alerted us that a large asteroid is headed in our direction, and might collide with the earth in the year 2012. The astronomers cannot give us a precise probability of collision because of many imponderables . . . To build a defense system—say, rockets that would intercept the asteroid and knock it off course—would cost hundreds of billions of dollars . . . As is always the case, there are a few dissenters . . . A scandal erupts when emails at the West Anglia Space Research Unit are released, and shows that some scientists tried to arrange a boycott of a journal that published a few articles of the skeptics. At the same time, thousands of astronomers not connected with the West Anglia Unit continue to insist that the risk of a collision is very high . . . A few questions. In this scenario, would there emerge an industry of non-credentialed “astronomy skeptics” in the press and public comparable to the current batch of “climate skeptics”? My instinct is that the world would quickly get to work building the rocket system, and disregard the views of the skeptics. Is this right or wrong? If it is right, is there some reason to think that climate science and astronomy are different, justifying the skepticism about climate science that does not (yet) exist about astronomy?
This is a clever scenario, and its gives me a launching pad to talk about why climate-change skeptics and believers have reacted so differently to the same set of information: namely the stolen East-Anglia emails.
The Cultural Cognition Project has a perspective on this problem which may be helpful. Dan Kahan, Don Braman, Paul Slovic, John Gastil, and Geoffrey Cohen wrote a paper called The Second National Risk and Culture Study: Making Sense of – and Making Progress In – The American Culture War of Fact. Using a large random and nationally representative study sample, the paper confirms that Americans are deeply divided over basic questions about the climate, such as “how much risk does global warming pose for people in our society?” Those divisions track the cultural identities that the project has often explored — and which relate back to pioneering work by anthropologist Mary Douglas. That is, group-grid theory.
Of particular interest, Kahan et al. tested the hypothesis that individuals’ perceptions about the same set of facts about the severity of the problem turned on what policy solutions were recommended to deal with it. When the policy solution was nuclear power, hierarchical and individualist Americans were far less likely to discredit global warming facts than when the solution was an expanded set of anti-pollution measures. Such individuals find expanded anti-pollution policy threatening to their identities: it suggests restriction of market activities (upsetting to individualists) and it implicitly challenges the legitimacy of the ruling order (upsetting to hierarchs). Confronted with such a threat, individuals are less likely to credit information about increased risks of warming. Conversely, egalitarians and communitarians were more likely to see global warming as a severe threat when the solution was anti-pollution control.
What does such research teach us? Well, for one, it makes reactions to “climate-gate” easier to understand. We know that people are looking at the benefit/risk calculus in highly polarized ways. The East Anglia emails, which go to the weight of the evidence about warming, is yet more fodder in that filtered debate. This polarization is (notably) neither partisan nor conscious.
More importantly, the research suggest a very concrete strategy for those who worry about climate change and who want to see their position persuade unbelievers: you should be more attentive to finding politically congenial solutions, and spend less energy trying to use data to convince those you disagree with. Thus, former VP Gore’s approach, which focused on staking out a data-driven position on the scope of the problem, has at best produced a fragile coalition in support of change, which will be undermined quickly when individuals are presented with alternative data, information about imperfect scientists, or threatening policy solutions.
Rounding back to Eric’s post, the reason that asteroidgate seems like a clear example where an organized opposition would not emerge is that neither the underlying disaster nor the policy solution poses a threat to the identities of large and discrete groups of Americans. Expensive rockets simply aren’t the bogeymen that private-property-destroying pollution controls are. The case would be different if the solution to our asteroid problem were to unequally burden a minority group. In that scenario, egalitarians and communitarians would be much less likely to credit the risks of a massive asteroid than would hiearchs and egalitarians.
December 3, 2009 at 3:55 pm
Posted in: Behavioral Law and Economics, Current Events, Environmental Law, Psychology and Behavior
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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
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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.
StockXchange Image; Wikimedia Commons Image
September 5, 2009 at 3:39 am
Posted in: Behavioral Law and Economics, Corporate Law, Culture, Current Events, Psychology and Behavior, Securities Regulation, Uncategorized
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