Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:

Once a critical mass of data about a person has [...]]]> 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:

A 2008 Federal Trade Commission (FTC)-sponsored pilot study found that about 31 percent of people who reviewed their credit report found errors that they wanted to dispute. About 11 percent of people reported errors that were categorized by the FTC as “material”, i.e. errors that significantly affected credit scores…A 2011 study funded by the credit reporting industry and conducted by the Policy & Economic Research Council (PERC) was larger and more representative, finding that 19.2 percent of people who reviewed their credit reports identified information that appeared to be erroneous. 12.1 percent reported apparent errors that could have a material impact—mistakes that go beyond a misspelled name or incorrect address. (emphasis added)

Correcting such errors is a laborious and frustrating process. As one consumer lawyer has stated, “The legal responsibility of the credit reporting agencies and of the creditors is well established. . . . There is a requirement that they do meaningful research and analysis, and it is almost never done.” The bureaus also “have a two-tiered system for resolving errors — one for the rich, the well-connected, the well-known and the powerful, and the other for everyone else.” But at least they must make some response to the persons whose credit histories they maintain, and they must make these histories available to individuals.

For many entities in the fourth bureau, such elementary protections of transparency and due process are not available. One “collects account information for 63 of that industry’s largest firms — although the group’s director won’t specify which ones.” The data then appears to populate—and to help produce results from—a system that would have made the Star Chamber blush:

These dossiers go into what the industry calls a “black box” — a veil of secrecy surrounding the origins of the information, how it is analyzed and who buys it. Consumers have no voice in those decisions, even though the information concerns their lives. The data could help struggling borrowers prove they are ready for the financial mainstream. But the data can also penalize them for actions they didn’t realize were being tracked, forcing them to pay far higher interest rates or more fees.

Out of the black box comes a credit score that can be sold not only to lenders, but also colleges making tuition decisions, landlords choosing tenants or health-care providers determining financial aid. Every score out of the black box can be tailored for each of these buyers, even if it’s about the same person. “It’s kind of like buying a tailor-fitted suit,” said [one executive]. “When you build a custom model for your client, it just tends to fit better.”

A business model based on secret scoring practices takes some inspiration from FICO, an entity that has licensed scoring methods to the three major credit bureaus for years. FICO scoring is protected by trade secrecy. A large literature and FICO’s own ScoreSimulator (accessible for $19.95) can help individuals predict how various actions have affected or will affect their FICO score. FICO has also stated in Congressional testimony that it, like fourth bureau agencies, customizes scores for various clients, so it’s unclear exactly how relevant the one FICO score given to consumers via its website is to the various contexts which it might be adjusted for. But FICO has never publicly stated that it, like the fourth bureau agencies, bases its scores on secret data hidden from scored individuals. This is a dangerous precedent that the FTC must address.

There have been other secret reputation services, but they differ from the “fourth bureau” in important ways. Avvo, a lawyer rating site, did not disclose how it rated lawyers, but did at least offer rated lawyers a chance to review the record the rating was based on. Game or virtual reality sites like CyWorld will rate players’ “karma” or “friendliness” in proprietary ways, but these ratings do not affect individuals’ efforts to gain access to basic consumer products or necessities of life. The utility-specific credit reporting agency (the National Consumer Telecom and Utilities Exchange (NCTUE)) is very different, as Demos has documented:

Many utility companies base service and deposit decisions on utility-payment histories provided by the . . . NCTUE, which is essentially a utility-specific credit reporting agency operated by Equifax. Although NCTUE is basically a specialized credit reporting agency, few consumers applying for utility services are likely to even know that they have a NCTUE file that will be checked by the utility. Unlike other credit reporting agencies, NCTUE does not clearly provide individuals with a free copy of their reports upon request.

Moreover, in recent Congressional testimony, privacy expert Evan Hendricks noted that “it is not clear whether [utility companies using NCTUE reports are] providing ‘adverse action’ notices [required by the Fair Credit Reporting Act] to consumers so they’d know they were negatively affected by a NCTUE report.”

As Demos notes, “TXU Energy, the largest retail electrical provider in Texas, announced that it would charge differential rates based on customer’s credit,” until the Texas PUC intervened. So we are basically talking about a black box reputation intermediary stigmatizing certain individuals without their knowledge, and making it impossible or very expensive for them to, say, get air conditioning in a hot Texas summer. Or imagine poor, elderly people dependent on oxygen machines or other monitoring devices, suddenly charged exorbitant fees or deposits when they move residences. These are truly remarkable powers for “black box” reputational intermediaries to enjoy.

A Model Response from the New York Attorney General

In the years when the Bush administration’s finance regulators were “out to lunch” (or playing with chainsaws), NY AG Eliot Spitzer filled some of the vast vacuum they left behind. After Spitzer was toppled by scandal, Andrew Cuomo spearheaded many valuable initiatives. One of these responded to insurance companies that had created “black box” evaluation, ranking, and rating systems for doctors. His office launched an investigation of insurers’ physician rating which culminated in settlement agreements in 2007.

Cuomo claimed that the evaluation programs were confusing and unfair to both physicians and consumers. After negotiating with his office, insurance companies eventually agreed to follow the ranking guidelines in a national model (in cooperation and consultation with the American Medical Association and other provider trade organizations). The model agreements require “insurers to fully disclose to consumers and physicians all aspects of their ranking system.” Cuomo has advocated the codification of the model based on his written agreements with insurance companies. A Patient Charter for Physician Performance Measurement has also emerged as a project of the Consumer-Purchaser Disclosure Project (“CPDP”). The specific terms of the charter call for evaluations that are “meaningful to consumers” and bar decontextualized ratings based solely on cost.

Professor Kristin Madison has expertly surveyed and analyzed a range of physician quality measures, and describes the New York settlements in this way:

The agreements emphasize the importance of transparency, stressing that the methodology and data used must be fully disclosed . . . . The settlements embrace a model code for “physician performance measurement, reporting and tiering programs” based on the “core principles” of “accuracy and transparency of information, oversight of the process, and fairness in comparison of physicians.” The accuracy and transparency provisions include numerous requirements with respect to the nature of performance measurement. For example, the agreements require that measures of cost-efficiency be calculated and disclosed separately from measures of quality.

While they may in addition be combined to create a single ranking, the weight attributed to each portion must be disclosed. In short, parties to the agreements will no longer be able to designate a “high performance” tier that mixes quality and cost considerations, leaving consumers to wonder about what exactly “high performance” might mean. The agreements further specify that insurers “shall not conduct rankings based solely on cost-efficiency, but shall consider quality dimensions.” . . . [T]he agreements [also] require insurers to contract with a monitoring entity known as a “Ratings Examiner,” [whose] . . . task is to review the insurer’s rating programs with respect to all settlement agreement provisions.

Though Madison worried that the initial complaints against physician quality measurements undervalued insurers’ efforts, she reports that a broad range of stakeholders contributed to the final NY settlement.

Applying Principles of Transparency, Accuracy, and Relevance

Are there lessons here for the “fourth bureau?” I believe that the principles of the New York settlement should be broadly applied to all commercial reputational intermediaries. Open your data, open your methodology, and give your investigatees due process. Nearly everyone’s digital persona is sliced, diced, and redefined on the basis of Internet data and clandestine sorting systems, and we have little sense of how marketers, law enforcement officials, or other decision makers are using the data endlessly gathered and repackaged online. We need to know, now.

Unfortunately, when we try to protect our privacy and reputation by claiming some right to understand how online profiles are created and shared, we will likely find corporations countering that their own privacy protections—the propertized confidences of trade secrecy—should prevent public scrutiny of the algorithms they use to generate online reputations. But there are ways to neutralize the trade secret shield. Cases involving traditional credit scoring have already allowed extensive discovery of methods. A dedicated government agency could also do independent analysis in a confidential way, as I describe in Part IV of this article, “Beyond Innovation and Competition,” which examined search engines and carriers.

In “Beyond Innovation and Competition,” I was very careful to emphasize the social importance of respecting legitimate needs for preserving the confidentiality of innovators’ trade secret protected algorithms. In the case of reputation intermediaries, I am much less concerned. When a business model impinges so directly on the privacy of individuals, its pursuer does not deserve the privacy it is doing so much to disrupt in the lives of others. If “fourth bureau” entities want to make our lives an open book (or, more accurately, paint pictures of us that they claim are accurate predictors of our intent and character), they must be open as well. As David Brin argued in The Transparent Society, there is no other way to preserve freedom and democracy in an era of declining personal privacy. The watchers must be watched.

Few individuals realize just how long the struggle to rein in unaccountable reputational intermediaries has been. Consider this, just one of many incidents related at a 1970s Senatorial hearing:

Last year an Oklahoma man went into the Tulsa office of Retail Credit Co. to find out why he had been denied insurance. He brought with him Paul Polin, a management consultant who has been leading the fight for regulation of credit bureaus since 1960. They found 12 errors in the report, as well as obsolete information that the law requires to be deleted. Next day the manager of the branch office phoned the complainant at home and told him: “If you stop associating with Paul Polin, we’ll make sure you have an A-1 report.”

To be sure, the fourth bureau entities mentioned in Mui’s article are too savvy to make such blunt threats. But their black box methods can be even more devastating. Consider this incident:

Arkansas resident Catherine Taylor didn’t learn about the fourth bureau until she was denied a job at her local Red Cross several years ago. Her rejection letter came with a copy of her file at a firm called ChoicePoint that detailed criminal charges for the intent to sell and manufacture methamphetamines. The information was incorrect — she says the charges were for another woman with the same name and birth date — but it has haunted her ever since. Taylor said she has identified at least 10 companies selling reports with the inaccurate personal and financial information, wrecking her credit history so badly that she says she cannot qualify to purchase a dishwasher at Lowe’s. Taylor must apply for loans under her husband’s name and has retained an attorney to force the firms to correct the record. She has settled one case, and a trial in another is expected next week.

Catherine Taylor said the errors in her files have persisted despite several attempts to correct them. . . . It took Taylor four years to find a job after she was rejected from the Red Cross. Taylor said she has been turned down for an apartment and now lives in a house purchased through her sister. The stress of dealing with the consequences has exacerbated her diabetes and heart problems, she said.

As Elizabeth De. De Armond has written, “the power of mismatched information . . . to disrupt or even paralyze the lives of individuals has grown dramatically.” This is a system that coldly and foreseeably trashes individual reputations and then counts the occasional lawsuit as a “cost of doing business.” Furthermore, consider what might happen to Ms. Taylor after all this is resolved. What if there are stigmatizing variables in the “black box” scoring process for “litigiousness”? She may well be stigmatized merely for trying to stop her stigmatization.

Lest this seem like paranoid speculation, consider the fate of a homeowner who demanded to know who owned the stream of payments due from his mortgage. One would think that a sensible credit scoring system would reward those who taken the trouble to demand this information about their mortgage. Unfortunately, precisely the opposite occurred in at least one case. One homeowner who followed all the instructions on the “Where’s the Note” website (detailing his rights under RESPA) experienced a “40 point hit” on a credit score. In the Heisenberg-meets-Kafka world of credit scoring, merely trying to figure out possible effects on one’s score can reduce it. FICO has at least acquiesced to regulation from the Federal Reserve and FTC. Who’s to tell what the clandestine “fourth bureau” agencies will do to those who question them?

Beyond the Paper Tiger

According to Mui, “rules that took effect this year” may help solve the problem by “requiring lenders to explain to consumers why they are denied credit or didn’t receive the best interest rate.” But if these explanations are anything like the “reason codes” used in the context of FICO scores and credit reporting, they will not be helpful. The FCRA currently requires up to four key factors adversely affecting a consumer’s credit score to be disclosed in the scoring report. Phrases like “type of bank accounts” and “type of credit references” are etiolated symbols, more suited for machine-to-machine interaction than personal explanation. Factors such as “too many revolving accounts” and “late payment” are a commonplace even for those with high credit scores. The law does not require credit scorers to tell individuals how much any given factor mattered to a particular score. The industry remains highly opaque, with scored individuals unable to determine the exact consequences of their decisions.

Recent FTC action against unaccountable reputation intermediaries in the pharmacy records field is also not encouraging. Health, life, and long-term care insurers have long used pharmacy data gathered by companies MedPoint and IntelliScript in order to deny coverage to individuals with certain medical histories, or to jack up rates. (Mental health issues have been a particular red flag.) As Chad Terhune reported, a 2007 FTC investigation “found that the two companies supplying these pharmacy profiles violated federal law for years by keeping the system hidden from consumers.” In a settlement resulting from that case, the FTC found the following:

The medical profile generated by MedPoint is a consumer report as that term is defined in Section 603(d) of the Fair Credit Reporting Act, 15 U.S.C. § 1681a(d), because it bears on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing a consumer’s eligibility for credit or insurance.

But the agencies’ settlements did little more than require a disclosure if prescription information had motivated a denial of coverage or some other adverse action, and recognition from settling entities that the FCRA applied to them. No substantial penalties were imposed.

It is well beyond time for the FTC, or the new CFPB, to fully investigate the fourth bureau agencies. Good first steps would include a) cataloging them all, and, for a sample of them, b) finding out how many of their reports are erroneous, and c) assessing how responsive they are to investigatee complaints.

Why You Should Care

Mike Konczal recently noted that “the FTC has given a thumbs up to the Social Intelligence Corp. archiving seven years worth of people’s Facebook posts, posts that can then be used as part of their background checking service for job applicants.” He then reflected on the larger set of inequalities generated by an out-of-control private surveillance apparatus:

Credit reporting scores play a huge role in society but they have huge oversight gaps and major, systemic errors that bias against consumers. . . . [A Walzerian concept of] justice calls for multiple spheres of [influence] to keep each other in check[, and for no one sphere to overly influence another]. . . [N]obody should be precluded a social good y because on their lack of possession of an unrelated good x. That the sloppiness of credit scores, the protection of bankruptcy against bad debts, the brute luck of bad health, etc. could all preclude someone from obtaining basic utilities and access to productive labor – that inequality in net worth, health and other spheres preclude access to the sphere of labor regardless of one’s abilities – is something to be fought tooth-and-nail.

[Moreover,] [h]ard and soft forms of behavioral surveillance technology are maturing into things legible and deployable for employers and recruiters at exactly the moment when employees have little-to-no aggregate bargaining power. The unemployed . . . have to be willing to jump through a lot of hoops to secure work, and right now opening up the most revealing parts of their private lives are on the table for what is relevant for an employer to see.

[Finally,] as Jack Balkin warns, private firms can often be used to end-run constitutional protections against state searches and this is all part of a larger issue that goes beyond the War on Terror. These problems, of who has access to your information and what they are allowed to do with it, are only going to get bigger as algorithms and technology becomes more sophisticated.

True on all counts. In The Politics of Recognition, Charles Taylor explored the claims of individuals who felt that they were treated unfairly—or, worse, degraded and subordinated—on account of their ethnic identity. Taylor advanced discussion of multiculturalism by articulating the harm of misrecognition—of being understood by others in an untrue or insultingly unflattering light. For example, women are routinely treated unfairly (and even brutally) solely on the basis of their gender. Those dogged by digital scarlet letters may find whole new modes of discrimination blocking their professional or personal advance. Danielle Citron’s work has compellingly chronicled the problems caused by these “digital scarlet letters,” and the lack of “technological due process” for those caught in the maw of modern data mining’s harrows.

Of course, employers, colleges, and banks have a right to reject or approve applications as they see fit. But while it is one thing to be judged about a fault one knows about, it is a different experience altogether to have no idea what the basis of a negative judgment is. The credit bureaus and their partner-in-scoring, FICO, are already too lightly regulated. If fourth bureau agencies are given a “get out of oversight free” card by sluggish consumer protection bureaus, we can expect more private surveillance to shift to them. Data gatherers will become even more aggressive. No one who cares about privacy, transparency, or equality should welcome that future.

Image Credit: Still from film adaptation of Kafka’s The Trial.

“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 [...]]]> 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.

Second, I’ve wondered if transparency might might mean something more like “relative position” to most students.  After all, it’s not particularly useful to know your expected costs — you probably also want to know how your bottom-line number compares to other students, so you can get a handle on how hard you can bargain.  (This kind of transparency is what enables you to bicker with car dealerships after seeing comparison sales on the internet.)  The problem is, of course, that every law student pays a different price for their seat: law schools are like airlines, right down the tenured workforces.  So you might think that law schools ought to be forced to disclose where a student’s scholarship package – and consequent cost structure – ranks against other students.  But that would create some pretty awful unintended consequences.  Status competition between those at the top of the class and those at the bottom would make everyone unhappy. As Bob Frank has argued, such competition leaves both high- and low-status people in uncomfortable binds, and may result in the most subsidized percentile implicitly paying those in the least subsidized percentile by forgoing a portion of their potential gains.

Most significantly, comparative transparency would reduce law schools’ ability to cross-subsidize tuition, and would further entrench wealth effects in higher education.  Think about it — what kind of people are likely to be armed by knowledge about relative rank?  I think: well-connected, aggressive, sophisticated consumers.  I therefore suppose: relatively richer, male, upper-middle-class students.  Those students will fight to be on the right side of every bell curve – as they are entitled to!  But as a result, law schools will have less money to distribute to more passive, less sophisticated, students.

This isn’t a screed in favor of obscuring law school cost, let alone law school job outcomes.  It just points out that mandating certain kind of disclosures without paying attention to the consequences of disclosure, or localized practices, potentially creates problems that transparency’s proponents ignore.  As James Scott observed in Seeing Like a State, ordered disclosure of particularly formatted data can be a kind of social control, and rarely works as well as we’d want it to.

Volume 58, Issue 3 (February 2011)

Articles

Comments

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers [...]]]> 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.)

Setup:

Protest’s experimental strategy was simple.  We first collected information about the cultural worldviews of a nationally representative sample of subjects, organized through Polimetrix.  We then described for these subjects the background of a lawsuit by political protestors against individual police officers and the police department.  We showed the subjects a video that we described as the major piece of evidence in the case, and which both parties advanced in support of their point of view.  In one condition of the experiment, the protestors in the video were described  as “members of a group that opposes permitting doctors and nurses to perform abortions at the request of pregnant women” [the abortion condition]; in another, as “members of a group that opposes the ban on allowing openly gay and lesbian citizens to join the military” [the recruitment condition].  The protestors’ complaint, the vignette stated, alleged that the police had “violated their rights by ordering them to end their protest at” either “an abortion clinic” or “a college campus recruitment center the day the Army was scheduled to interview students who were considering enlisting.”  Subjects were told that the defendants claimed halting the protest was justified by a law entitled the “Freedom to Exercise Reproductive Rights Law,” in the abortion condition, or the “Freedom to Serve with Honor Law,” in recruitment condition. That law made it illegal for  “any person to intentionally (1) interfere with, (2) obstruct, (3) intimidate, or (4) threaten any person who is seeking to enter, exit, or remain lawfully on premises of” either “any hospital or medical clinic that is licensed to perform abortions” or “any facility in which the U.S. military is engaged in recruitment activity.” We told the subjects (acting as jurors) that they were to decide a series of factual queries about this standard, and then tell us whether they thought the police were liable.  [If you like, check out the abortion and recruitment videos.  You will observe, if you are a HLS graduate, some familiar sites.  But come back!]

We had several hypotheses, which essentially predicted that subjects’ worldviews would be various threatened and affirmed by the underlying activity (recruitment, abortion) and behavior antagonistic to it.  As per usual with our work, we employed scales that characterized the worldviews along two dimensions. The first, Hierarchy-Egalitarianism, measures the subjects’ orientations toward social orderings that either feature or eschew stratified roles and forms of authority. The second, Individualism-Communitarianism, measures their orientations toward orderings that emphasize individual autonomy and self-sufficiency, on the one hand, and those that emphasize collective responsibilities and prerogatives, on the other. Combining the two scales generates four sets of worldviews—“hierarchy individualism,” “hierarchy communitarianism,” “egalitarian individualism” and “egalitarian communitarianism,” to which individuals’ affinities can be measured with continuous worldview scores.  Two major hypotheses were that (1) egalitarian individualist subjects would form anti-demonstrator fact perceptions in the abortion condition but pro-demonstrator perceptions in the recruitment center condition; and (2) hierarchical and communitarian subjects, by contrast, would form pro-demonstrator fact perceptions in the abortion condition but anti-demonstrator perceptions in the recruitment center condition.

Results:

Main Effects

Subjects were closely divided in both conditions.  Considered apart from the experimental manipulation, moreover, cultural worldviews likewise appear to have no meaningful effect on reactions to the video.  There was no evidence, then, that being inclined either toward hierarchy or egalitarianism, toward individualism or communitarianism, or toward any combination of the two disposes individuals toward pro- or anti-demonstrator reactions irrespective of what subjects believed about the political cause of the demonstrators.

For purposes of these estimates, the values for the cultural worldview predictors were both set one standard deviation from their means in the directions necessary to form the specified worldview combinations.

However, when we control for condition, we find dramatic differences.  In the abortion-clinic condition, 70% of the Hierarchical Communitarians found that the police had violated the demonstrators’ rights. Yet in the recruitment-center condition, only 16% did. Matters were the other way around for Egalitarian Individualists: 76% of them concluded that the police had violated the rights of the protestors in the military-recruitment condition, yet only 28% of them took that position in the abortion-clinic condition.  We can generalize to create scales reflecting our subjects’ responses to multiple fact and outcome items into a single “pro demonstrator” or “pro police” orientation.  The figure to the left plots the relationship between cultural orientations and judgments.

As you can see (perhaps more clearly if you click on the figure), the estimated scores for Egalitarian Individualists and for Hierarchical Communitarians scales flip.It is also evident from the estimates that Egalitarian Communitarians became significantly more pro-demonstrator,and  Hierarchical Individualists significantly more anti-demonstrator, in the recruitment-center condition as opposed to the abortion-center condition. Whereas the difference between Egalitarian Individualists and Hierarchical Communitarians is significant in both conditions, the difference between Egalitarian Communitarians and Hierarchical Individualists is significant only in the recruitment center condition.

As one would expect, these differences in case-disposition judgments are mirrored in the subjects’ responses to the fact-perception items. Whereas only 39% of the Hierarchical Communitarians perceived that the protestors were blocking the pedestrians in the abortion-clinic condition, for example, 74% of them saw blocking in the recruitment-center condition. Only 45% of Egalitarian Individualists, in contrast, saw blocking in the recruitment-center condition, whereas in the recruitment-center condition 76% of them did. Fully 83% of Hierarchical Individualists saw blocking in the military recruitment-center condition, up from 62% in the abortion-clinic condition; a 56% majority of Egalitarian Communitarians saw blocking in that condition, yet only 35% saw such conduct in the recruitment-center condition. Responses on other items—such as whether the protestors “screamed in the face” of pedestrians and whether the protestors intended only to persuade or instead to threaten—displayed similar patterns.

In summary, motivated cognition not only polarized individuals of diverse cultural outlooks but also generated contradictions in what subjects of a shared orientation reported seeing. Relatively hierarchical and communitarian subjects rejected the proposition, credited by relatively egalitarian and individualistic ones, that demonstrators were blocking access to a facility represented to be an abortion clinic; yet when hierarchical communitarians understood the demonstrators to be objecting to the exclusion of openly gay and lesbian citizens from the military, they agreed the protestors were blocking access to the same building—a claim that egalitarian individualists now overwhelmingly dismissed. Subjects subscribing to a hierarchical individualistic outlook as well as those adhering to an egalitarian communitarian one exhibited similar shifts in perception.

If you want to know how we think these experimental findings influence constitutional fact-finding, and judicial rhetoric, you’ll have to either read the paper, read Kahan on Balkinization, or come back for more here later in the week.

“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 [...]]]> 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.

It [...]]]> 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.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago [...]]]> 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.

Jeremy Waldron contends that cyber hate produces a “permanent disfigurement” of group members.  Online hate mars our social environment by visibly and publicly conveying the message that a “group in the community is not worthy of equal citizenship.”  It denigrates group members’ basic standing in society and deprives them of their “civic dignity.”  Search engines ensure that cyber hate endures, instantly accessible far into the future.

Another distinct feature of the Internet is that it can facilitate “echo chambers” of extreme views.  As Cass Sunstein explored in Republic.com 2.0, people may tailor their online news, only seeking out those who reinforce their views and filtering out contrary information.  This leads to the hardening of positions into more extreme ones.  Sunstein explained that hate groups on the internet are so extreme because they often expose themselves to only to online groups with similar views and link exclusively to hateful content.

Intermediaries should recognize these particular challenges that cyber hate in networked spaces poses to individuals’ capability to participate meaningfully offline and online.  In our upcoming article Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I invoke a concept of digital citizenship to ensure that intermediaries acknowledge and address these challenges.   In so doing, we do not mean to suggest that individuals are somehow citizens of a virtual space that is unconnected from our territorial polity.  Quite the contrary, we speak of digital citizenship as it relates to individuals rooted firmly in our territorial polity.  Digital citizenship acknowledges that our networked environment can be a blow to territorial polity in ways that intermediaries need to recognize and redress.

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 [...]]]> 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.

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 [...]]]> 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?

A surprise perhaps, the law in most states is that the husband can give away the stocks without the consent or even knowledge of the wife, and she will very likely have no recourse, even if they divorce. This is so because perversely, spousal economic relations law in the forty-one “separate property states” simply ignores the marriage altogether. Ownership is based on formal title, with a default rule of individual acquisition. (Ironically, the title determines ownership rule has been partially abandoned in divorce law, and to a lesser extent in inheritance law, but still dominates intact marriage law.) As it stands now, the titled spouse is unilaterally empowered to dispose of an asset that should be considered co-owned with the other. 

As I have developed in an article (and am continuing to explore in other projects), my view is that this approach is backward and should be replaced with an actualized joint property regime for marital wealth. Basically I argue for an intensified and expanded community property law approach (that for some transactions functions more like a tenancy by the entireties), grounded on an explicitly theorized foundation. I recommend that marriage should be conceptualized in law as a distinctive partnership of equals for a shared life that includes mutual economic and non-economic contributions as well as joint life-planning and resource-allocation decisions. This sharing framework reflects and facilitates communal goals and behaviors chosen in married life. But it also draws attention to the vulnerability interdependence recurrently produces, offering protection for both individual and joint interests. Key for working against gender hierarchy, the equality standard helps level the economic playing field as couples negotiate resource allocation within the family.

Under my model, both husband and wife are equal co-owners of the stock account. The joint and equal property ownership rule recognizes the sharing process in marriage and equally values whatever kind of contributions spouses make, including both market work and unpaid caregiving work. Additionally, the spouses must collaborate and consent regarding a major transaction like the gift to the sister. (Third party actors, primarily financial institutions, would serve as key enforcers of the mutual consent requirement, by requiring, for instance, two signatures for certain withdrawals, mitigating the opportunity to monopolize joint wealth). This is needed to provide a safety net against the risks sharing inevitably brings. At the same time, operating in the background of spousal negotiations, the rule evenly distributes legal power over the resource.  A transfer like the gift potentially affects each spouse individually, as the transfer would concretely diminish wealth to which each partner has a claim. Also crucial, the consent requirement would give each spouse a voice in the decision over what to do with jointly owned property. In addition, allocation of financial decisionmaking power could affect the spouses as a couple and the family unit more broadly. Not surprisingly, having to reach agreement is a more demanding process than unilateral decision making, and may well trigger or reveal conflict. Yet research suggests that sharing control over money is good for marriage. A large-scale study found that “when couples do take the time to share control over money management, they seem to have happier, calmer relationships.” A recurrent collaborative decision-making process marks and augments the communal experience.

Many thanks to Concurring Opinions for hosting me and for the opportunity to dialogue his past month.

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 [...]]]> 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.”

Rose,

I hope you get this letter because I have plenty to say. The most important thing is I am so sick over what is happening with you and I going to court. None of this would have happened if you were not so greedy . . . All I know is we should both be ashamed of ourselves. We are sisters. Going to court is not right. All I know is I am entitled to my share of the money and you know it.

I remember when I was pregnant. We went to Raphel’s and you bought me my dress. It was navy blue and it had pink flowers on it. You and I used to go to the casino all the time and to Old Saybrook and look at all the houses and get hot dogs out there at the restaurants.

Well Ro Ro, I don’t know what is going to happen. I want you to know I will always love you. But if you wanted to hurt me you did. . . . My kids are so good to me and they do send me any money I need. They can’t do enough for me so I guess I am rich with a lot of love and that is something you can’t buy.

I hope you feel good and have good health. I have sugar and I have a disease that is incurable. It is called neuropathy. I can’t walk at all. It is really painful. But Ma always said other people have worse problems so I just ask God to let me be able to handle it all.

Take care of yourself. Mom would be sick over all of this. It would never happen if you at least shared some of the money with me. Do you think I would have done that to you? Never . . .

See you in court.

Terry

My own hope from the sidelines is for a healing, and I’m quite sure, as I wrote in my previous post, that five years of litigation didn’t help that hope.

Volume 57, Issue 5 (June 2010)

Articles

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.” [...]]]> 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.

SOLOVE: From the findings in your book, it seems that law as well as moral beliefs don’t actually lead to behavior that would be consistent with the values behind the law or the moral beliefs. One hypothesis is that law and moral pronouncements are a response to a perceived problem, so that the problems are driving the creation of the law and the strong articulations of morality. Another hypothesis is that people are hypocritical, such that those who proclaim values the loudest are likely to be the ones violating those values. Yet another hypothesis is that the passage of law and articulation of morality in these areas results in more rebellious behavior. Or there may be another factor at play. What do you think explains for the findings in your book?

CARBONE & CAHN:  We agree with the first point, viz., that those who in fact experience more family problems place more emphasis on public affirmation of values.

Rather than hypocrisy, we see the differences in terms of culture. “Red” culture — the Bible Belt, the working poor, etc. — place more emphasis on public affirmation of fixed values. In private, they believe in sin, redemption, and forgiveness. But “sin” and “forgiveness” uphold what are perceived to be fixed, eternal values. The blue world believes in internalized values, autonomy and public tolerance. It sees values as contextual and private. It’s okay for you to be abstinent, but not okay to impose it on me, and certainly not ok for you to preach abstinence for me, while you are running around with a mistress. In the red world, the hypocrisy is understandable, because the values are fixed and the “sin” is wrong. In the blue world, values are chosen, and the hypocrisy comes from insisting on values to impose on others that you are not yourself following. In the red world, acknowledging that individuals can choose their own values is deeply threatening because it means the values are not fixed. So the two groups talk past each other.

As far as the law goes, we see this as part of long term struggle between two groups of elites — the more technocratic, modernist and egalitarian left v. the more religious, traditionalist, and authority-oriented right. Each group wants its perspective to dominate legal decision-making, at least at the symbolic level. We see the biggest risk for the courts is that confidence in the rule of law can be undermined by the same kind of partisan and ideological gridlock that has hamstrung Congress. As far as the law affecting behavior, though, the larger issue is not the articulation of norms as much as the pathways of transformation — reducing the teen birth rate through greater access to contraception has more of an impact on the next generation than marriage promotion programs or bans on same-sex marriage.

SOLOVE: Thanks very much for the interview.  The book is Red Families v. Blue Families, published by Oxford University Press in 2010.

Readers interested in Cahn and Carbone’s ideas should check out their recent post at Huffington Post.

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 [...]]]> 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.”

Eventually, most of this early reporting of widespread violence and lawlessness was discredited.  The New Orleans Time Picayune and other leading newspapers eventually concluded that most of the worst reported violence never occurred.  Most sociologists likewise believe that reports of violence were grossly overstated and that reports of looting were also overblown and failed to distinguish between “prosocial looting” – survivors scavenging needed food, water, and other critical supplies – and “antisocial looting” – survivors engaged in opportunistic crime.

Early, inflated reports of violence and looting often reflect a mythology about human behavior in the aftermath of disasters.  Most of us believe that humans faced with disaster devolve into their worst selves.   However, available sociological evidence suggests that antisocial behavior in the aftermath of disasters is the exception, rather than the rule.  What implications might this have for the current crisis unfolding in Haiti?

It is clear that the disaster myth of antisocial behavior contributed to inflated reporting of looting and violence in New Orleans, and that the inaccurate reporting distorted response priorities and delayed humanitarian relief from reaching Katrina’s survivors.  Mayor Ray Nagin, for instance, diverted what remained of the New Orleans police force from search-and-rescue to looting patrol, potentially costing more lives.  Delivery of food, water, and sanitary supplies to survivors who took refuge in the Superdome was similarly delayed while military escorts were assembled, based on fears that the food convoy would be met with gunfire (which never materialized).

The lessons of Katrina suggest that officials should be cautious about overemphasizing security at the expense of humanitarian relief.  The central insight of the disaster sociological research is that average citizens do not turn to opportunistic criminal behavior in the aftermath of most disasters, and that most looting that does occur is driven by desperation (and perhaps, eventually, anger in the face of perceived or real abandonment).   Moreover, looting is not necessarily a harbinger of more serious crime:  even in St. Croix after Hurricane Hugo where widespread looting occurred, that looting was not accompanied by extensive violence.

Yet, as with the Katrina response, some reporting already suggests that fear of looting, violence, and riots is limiting the speed and adequacy of humanitarian response in Haiti.  For example, U.S. Secretary of Defense Robert Gates said that emergency air drops of food and water were not employed because an “air drop is simply going to lead to riots as people go after that stuff.”  A Belgian medical team apparently evacuated one hospital, overflowing with injured earthquake survivors, based on security concerns.

Of course, the sociological evidence isn’t perfect, and most of it comes from smaller disasters in developed countries.  The existing body of sociological evidence is focused on the developed world, and does not speak clearly to a country in which 80% of people already lived in desperate poverty.  Widespread looting in developing countries has sometimes been observed.  Indeed, Haiti today obviously differs from post-Katrina New Orleans in several salient ways.  First, although Katrina wreaked horrific damage on the Gulf Coast, the damage only directly affected a small proportion of the U.S. in terms of both population and geographic scope.  In Haiti, estimates are that the earthquake has devastated at least one-third of the population (some three million people), left tens of thousands dead, and completely destroyed or heavily damaged the vast majority of the country’s infrastructure.  Second, while New Orleans had high levels of crime and street violence prior to Katrina, law and order has had a much more tenuous grasp on Haiti in recent decades.  Civil unrest is common and gangs run rampant on Haiti’s streets, frequently terrorizing citizens.   Third, reports suggest that thousands of prisoners incarcerated in Port-au-Prince’s main prison have escaped in the earthquake’s aftermath, which obviously substantially increases the risk of crime on Haiti’s streets.

Even in Katrina, more looting likely occurred than sociologists would have predicted.  Some sociologists have suggested that Katrina should be viewed as a catastrophe, rather than “merely” a disaster, and that in certain unique circumstances – total devastation of infrastructure, survivors’ lack of knowledge about when help will arrive, and preexisting class and racial tensions – looting may be more widespread.  One prior example was the widespread looting that engulfed St. Croix in Hurricane Hugo’s wake.  Haiti, of course, may eventually fit this mold.

While international responders should certainly be cognizant of security concerns, those concerns should not be allowed to cripple humanitarian response, particularly since past experience suggests that security concerns are often overblown and that delays in aid are likely both to deepen the desperation that may set the stage for looting and – more importantly – to deepen a humanitarian crisis of epic proportions.

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]> 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.

For a moment, let’s put aside the stark difference between the [...]]]> 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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