Archive for the ‘Psychology and Behavior’ Category
Why States Should Ban Adolescent Driving (cont’d)
posted by Vivian Hamilton
My previous post argues for raising the driving age, ideally to 18. Thank you to those who commented. You raise many good points, so I continue the conversation here. (And I must especially thank Prof. Cunningham for reading my article, and for his kind words.)
Treating Teens as Presumptively Delinquent? One comment suggests that raising the driving age treats young people as “presumptive law breakers.” I resist that characterization. Raising the driving age recognizes adolescent incapacity in this context and aims to protect adolescents, and those with whom they share the roadways, from the too-often tragic consequences of that incapacity. Such policy reform is consistent with the state’s obligations to its young people. I briefly discuss those general obligations, then return to the driving context specifically.
The State’s Obligations to Adolescents, Generally. The state should safeguard both the welfare interests and autonomy interests of the young. (I elaborate on this state obligation elsewhere, drawing on the work of my colleague James Dwyer and others.) Welfare interests pertain to young people’s well-being, irrespective of any affirmative choice they make. Autonomy interests refer to their interests in making self-determining choices and having the freedom to exercise the liberties of which they are capable. Compelling evidence suggests that driving is a liberty that adolescents do not have the capacity to exercise competently. The state thus fails to guard adolescents’ welfare interests — and protect them from their deficiencies — by extending them this liberty despite their incapacity.
Policymaking affecting adolescents in general poses a major challenge for lawmakers. Young people attain different capacities at different stages in their development, and development correlates predictably (though not perfectly) with age. Identifying and extending to adolescents liberties in contexts in which they have attained competence can be a challenge. Further complicating the state’s task is that, even where adolescents may have achieved the ability to perform competently, certain real-world contexts predictably confound their capacities and impede their performance. Thus by mid-adolescence, individuals have reached adult-like information-processing and logical reasoning abilities. But the quality of their decision making suffers in situations that require adolescents to quickly assess and react to risk, to reason while highly stressed or in the heat of passion, to make decisions in unfamiliar circumstances, or to act in the presence/under the pressure of peers. The neurobiological processes that support decision making under these conditions do not fully mature until late adolescence or early adulthood.
Prof. Cunningham’s analogy to rules that allow minors to disclaim contracts is a good example of a policy choice that may be at odds with what we now know about adolescent decision-making capacity. (I discuss adolescent contractual capacity briefly in another article (at pp. 1851-57, which argues against adolescent marriage.) By mid-adolescence, individuals have the cognitive capacity to understand the rights, duties, and responsibilities of a contract, and in light of that understanding, are able to make a voluntary choice to enter it or not. Absent the same factors that would invalidate a contract entered by an adult (duress, etc.), there is a strong argument that the adolescent should be held to his or her bargain. But contract policy might also permit minors to disclaim contracts entered in the sorts of contexts likely to compromise their decision making (e.g., the typically pressured context of buying a used car?).
Back to adolescent driving:
How Serious a Public Health Threat? One commenter (SgtDad) notes that traffic fatalities have declined in recent decades, making adolescent driving an “ever smaller problem,” with policy changes in turn having an “ever smaller effect.” To what extent does adolescent driving remain a true public health problem? An estimated 48 thousand 16- to 19-year-olds will die in car crashes
February 27, 2013 at 10:10 pm
Tags: adolescent health, adolescents, cognitive development, teen drivers
Posted in: Psychology and Behavior, Uncategorized
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Why States Should Ban Adolescent Driving
posted by Vivian Hamilton
Car crashes kill more teens each year than any other cause; and of the crashes in which they are involved, teens are overwhelmingly at fault. Decades of law-reform efforts have led to mandatory seatbelt laws, an increased legal drinking age, and graduated-licensing systems. Yet traffic fatalities still account for nearly 40% of all deaths of 16- to 19-year-olds. Driving, then, is arguably the greatest public health threat facing U.S. teens. (The next three leading causes of teen death — homicides, suicides, and cancer-related illness — trail only distantly.) While existing measures have had some positive effects, they insufficiently safeguard both young drivers and the public at large from young drivers’ immaturity and inexperience. A report of a National Academies interdisciplinary workshop, for example, concluded that “the sheer magnitude of the injuries and fatalities that continue to result from teen crashes shows that current prevention efforts are inadequate.”
Most of us know that teens crash at rates far higher than those of older drivers. Fewer may be aware that the younger the teen driver, the higher the risk — by far the highest crash rates are those of 16-year-olds (250% higher than those of 18-year-olds), followed by those of 17-year-olds (50% higher than those of 18-year-olds). Driving inexperience and developmental immaturity are the primary factors that contribute to adolescent crash risk. Driving inexperience, however, is not the primary cause of the higher crash risk of younger teens. At younger ages (15 to 17), driving inexperience is secondary to developmental immaturity; not until later ages do different levels of driving experience account for more of the differences in crash rates. Thus the crash risk for 15-year-old beginners is much higher than that for 17-year-old beginners, but the crash risk for 18-year-old beginners is only slightly higher than that for 20-year-old beginners. At each month of driving experience, young drivers crash at rates higher than those of older drivers with equal driving experience.
By ages 15 or 16, adolescents indeed have the cognitive ability required to learn traffic rules and basic driving skills. But the self-regulatory capacities and psychosocial maturity essential to competent and safe driving remain immature in adolescence (the developmental stage between childhood and adulthood, generally spanning ages 12 to 17), as observed in research of adolescent behavior generally and driving behavior specifically, and supported by research of the adolescent brain. When decision-making contexts involve stressors that require the exercise of psychosocial maturity/regulatory competence — requiring, for example, that a decision be made in an unfamiliar situation (such as the new perceptual situations involved in driving); under time pressure (such as the nearly-instantaneous reactions often required when reacting to driving hazards); in in the presence/under the influence of peers (including the direct or perceived influence of peer passengers); or in an emotionally-charged situation — adolescent decision making suffers. These characteristics all confound the execution of whatever nascent driving competence adolescents do possess.
February 24, 2013 at 9:59 am
Tags: adolescent health, adolescents, cognitive development, teen drivers
Posted in: Psychology and Behavior, Uncategorized
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The Annoying “Riiiiiight” in Faculty Workshops
posted by Lawrence Cunningham
Imagine law professor Felix Cohen giving a law faculty workshop of his famous 1935 paper, Transcendental Nonsense and the Functional Approach (here), addressing the topic of personal jurisdiction over corporations. But pretend he is presenting the paper to a faculty today, in 2012, and tune your hear to the sound of the words he might utter when explaining his argument to those assembled. If he followed the common gluey talk of fancy law professors today, it might be transcribed as follows:
The question of where a corporation is, right, when it incorporates in one state and has agents transacting corporate business in another state, right, cannot be answered by empirical observation, right. Nor is it a question that demands for its solution any analysis of political considerations or social ideals, right.
It is a question identical in metaphysical status, right, with the question scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”, right. Now it is extremely doubtful whether the scholastics actually discussed this question, right. Yet the question has become, for us, a symbol of an age in which thought without roots in reality, right, was an object of high esteem.
Will future historians, right, deal more charitably with such legal questions as “Where is a corporation?” Nobody has ever seen a corporation, right. Some of us have seen corporate funds, corporate transactions, etc., right. But this does not justify assuming that the corporation travels about from State to State as mortal men travel, right.
Yet it is exactly in these terms of transcendental nonsense, right, that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State. “The essential thing,” said Judge Cardozo, writing for a unanimous court, right, “is that the corporation shall have come into the State.” Why this journey is essential, right, or how it is possible, we are not informed.
The opinion notes that the corporation has an office in the state, right, with eight salesmen and eleven desks, and concludes that the corporation is really “in,” right, New York State. From this inference it easily follows, right, that since a person who is in New York can be sued here, right, and since a corporation is a person, right, the Susquehanna Coal Company is subject to suit in a New York court, right.
The much-maligned “you know” would be as productive as “right” in this transcript. You rarely hear law professors insert that phrase in their speech. Too polished for that. Yet they pepper their sentences with the annoying right, usually pronounced riiiiiight, with the lilt of a rhetorical question. A lamentable institutional habit.
UPDATE IN REPLY TO THE KIND COMMENT OF EDWARD CANTU: We had a post and conversation about So here at Co-Op, which can be viewed here.
November 22, 2012 at 7:00 am
Posted in: Culture, Law Talk, Psychology and Behavior
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Trusted Sources
posted by Dave Hoffman
Dan Kahan has a really useful post up on the Cultural Cognition blog on whether motivated cognition (and cultural cognition) is a cognitive bias in need of debiasing through law. Dan situates his comments in the context of science communication:
“The amount of information it is useful for any individual to accept as true is gazillions of times larger the amount she can herself establish as true by valid and reliable methods (even if she cheats and takes the Royal Society’s word for it that science’s methods for ascertaining what’s true are the only valid and reliable ones). Scientists, like everyone else, are able to know what is known to science only by taking others’ words for it. There’s no way around this. It is a consequence of our being individuals, each with his or her own separate brain . . . .”
The point generalizes: we are required to learn about most complex systems and events though intermediaries. It makes sense – it is both efficient and useful – to rely on intermediaries who will see as salient those particular pieces of information that we ourselves are disposed to want to highlight. Cultural cognition describes this “biased” assimilation process, but isn’t itself an error of thought.
The problem that results is that having trusted particular sources (and consequent worldviews), we become less able to see what others’ see. We are thus led to believe that others are biased, while we remain dispassionate observers. Can’t they see what we see? Why are they so politicized? As Orin Kerr snarks in one of our recent comment threads:
“When my side wins, it is a triumph of reason; when the other side wins, our reason is outnumbered by their mere exercises of power.”
(He’s made similar points before – but this comment thread had to do with the healthcare decision, and I’m trying to optimize our google search rank by mentioning the Supreme Court’s decision coming tomorrow in a post entirely about something else.)
Cultural cognition isn’t a bias, but it does create a collective action problem. It’s the job of policymakers – and intellectuals with time on their hands – to try to work out a public solution. To be concrete, the Supreme Court, whatever it does tomorrow, could help by writing opinions that didn’t so obviously work to cater to our worst passions.
June 27, 2012 at 5:25 pm
Posted in: Psychology and Behavior
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The Debiasing Effect of Legalisms
posted by Dave Hoffman
This is a nice result:
“Would you make the same decisions in a foreign language as you would in your native tongue? It may be intuitive that people would make the same choices regardless of the language they are using, or that the difficulty of using a foreign language would make decisions less systematic. We discovered, however, that the opposite is true: Using a foreign language reduces decision-making biases. Four experiments show that the framing effect disappears when choices are presented in a foreign tongue. Whereas people were risk averse for gains and risk seeking for losses when choices were presented in their native tongue, they were not influenced by this framing manipulation in a foreign language. Two additional experiments show that using a foreign language reduces loss aversion, increasing the acceptance of both hypothetical and real bets with positive expected value. We propose that these effects arise because a foreign language provides greater cognitive and emotional distance than a native tongue does.”
It made me wonder whether the law’s anachronistic use of latin helps lawyers, laypeople and judges by debiasing them. If so, I’d find the result especially ironic as I generally ask students to avoid latin on exams. I’ve always explained that the law’s latin phrases obscure thought and are often wrongly employed. Arguendo is a particular target of my irritation. But if it turns out that forcing people to read latin in a jury instruction – scienter, or guardian ad litem – makes them better decisionmakers, it would imply that I’m actually removing an important tool in students’ exam-taking box! The result would also be cool for various other reasons, including as a way to think about the project of judicial debiasing.
This is testable – I’m thinking I just found another summer project. As a pretest, you could help by telling me if reading Opinio Juris makes you feel highly rational.
April 23, 2012 at 4:04 pm
Posted in: Psychology and Behavior
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Santorum: Please Don’t Google
posted by Derek Bambauer
If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)
This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.
Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!
Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!
Cross-posted at Info/Law.
February 29, 2012 at 5:54 pm
Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0
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Cyberbullying and the Cheese-Eating Surrender Monkeys
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
Introduction
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm
Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0
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LTAAA Symposium: Response to Surden on Artificial Agents’ Cognitive Capacities
posted by Samir Chopra
I want to thank Harry Surden for his rich, technically-informed response to A Legal Theory for Autonomous Artificial Agents, and importantly, for seizing on an important distinction we make early in the book when we say:
There are two views of the goals of artificial intelligence. From an engineering perspective, as Marvin Minsky noted, it is the “science of making machines do things that would require intelligence if done by men” (Minsky 1969, v). From a cognitive science perspective, it is to design and build systems that work the way the human mind does (Shanahan 1997, xix). In the former perspective, artificial intelligence is deemed successful along a performative dimension; in the latter, along a theoretical one. The latter embodies Giambattista Vico’s perspective of verum et factum convertuntur, “the true and the made are…convertible” (Vico 2000); in such a view, artificial intelligence would be reckoned the laboratory that validates our best science of the human mind. This perspective sometimes shades into the claim artificial intelligence’s success lies in the replication of human capacities such as emotions, the sensations of taste and self-consciousness. Here, artificial intelligence is conceived of as building artificial persons, not just designing systems that are “intelligent.”
The latter conception of AI as being committed to building ‘artificial persons’ is what, it is pretty clear, causes much of the angst that LTAAA’s claims seem to occasion. And even though I have sought to separate the notion of ‘person’ from ‘legal persons’ it seems that some conflation has continued to occur in our discussions thus far.
I’ve personally never understood why artificial intelligence was taken to be, or ever took itself to be, dedicated to the task of replicating human capacities, faithfully attempting to build “artificial persons” or “artificial humans”. This always seemed such like a boring, pointlessly limited task. Sure, the pursuit of cognitive science is entirely justified; the greater the understanding we have of our own minds, the better we will be able to understand our place in nature. But as for replicating and mimicking them faithfully: Why bother with the ersatz when we have the real? We already have a perfectly good way to make humans or persons and it is way more fun than doing mechanical engineering or writing code. The real action, it seems to me, lay in the business of seeing how we could replicate our so-called intellectual capacities without particular regard for the method of implementation; if the best method of implementation happened to be one that mapped on well to what seemed like the human mind’s way of doing it, then that would be an added bonus. The multiple-realizability of our supposedly unique cognitive abilities would do wonders to displace our sense of uniqueness, acknowledge the possibility of other modes of existence, and re-invoke the sense of wonder about the elaborate tales we tell ourselves about our intentionality, consciousness, autonomy or freedom of will.
Having said this, I can now turn to responding to Harry’s excellent post.
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February 19, 2012 at 3:26 pm
Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents
Posted in: Articles and Books, Cyberlaw, Legal Theory, Psychology and Behavior, Symposium (Autonomous Artificial Agents), Technology
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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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