Archive | February, 2011

He Who Smelt It Dealt It and other signs of early onset Dispositionism in the criminal justice system.

26 Feb

Be careful, he's judging you.

A recent, somewhat lighthearted article by Dahlia Lithwick in Slate explored the concept of ‘kid justice’. Lithwick, in proposing the compilation of a First Restatement of Kid Law, explored several instances in which children display an ability to formulate legal doctrines and standards that mimic adult formulations dealing with similar situations. For instance, “Kid Torts: He left his Transformer on the counter and it fell on my leg and now I can’t walk! Can I have his Transformer!?”. All veterans of the playground courtrooms of elementary school should be able to locate a vein of truth in Lithwick’s proposal. More seriously, Yale psychologist Paul Bloom has conducted a series of studies that demonstrate that a ‘moral sensibility’ begins at a remarkably young age. The experiments demonstrate that babies as young as nine months display a marked preference for characters who display helpfulness to others, and disfavor towards unhelpful characters. A further discussion of Bloom’s study, as well as some of it’s possible implications for criminal law, especially our normative justifications of punishment, follows below. Continue reading


Fractal Conflict Spirals & the Abortion Debate

25 Feb

The epitome of a conflict spiral?

Since the 2010 election, there have been a variety of bills proposed by Republicans, at both state & federal levels, that may result in restrictions on a woman’s right to an abortion. This post is not designed to evaluate the merits of these proposals, but rather how the response to these proposals, particularly a recent bill proposed in South Dakota that would classify actions taken in defense of a fetus as justifiable homicide, represent the conflict spirals discussed in the article ‘Bias Perception and the Spiral of Conflict’ by Kathleen Kennedy and Emily Pronin. A brief analysis of the tone and nature of the debate over this bill shows the eagerness with which sinister motives were attributed to the opposing sides in this debate. Also worthy of note was the role of the media, which emphasized negative interpretations and furthered controversy, perhaps because it was the best narrative. Continue reading

Jiujitsu Behavioral Economics: Incentivizing the Holy Grail of Efficient Breach through Liquidated Damages

24 Feb

Dear legal doctrine, Please untie me! Best, efficient breach.

It is undoubtedly a familiar scene from many 1L Contracts classrooms. The Professor introduces the concept of efficient breach; specifically the notion that contracts should be engineered, through the amount of damages awarded, to incentivize breach in the name of efficiency. The proposal provokes gasps of indignation from the class, who protest that breaking a contract ‘just feels wrong’. Ah, the professor will say, you must think we’re in a morality classroom, but we’re actually in law school. Through a variety of models, based on rational actors, the professor will demonstrate that damages which encourage efficient breach, generally expectation damages, will produce overall gains in societal wealth by encouraging contracting partners to breach their contracts when it will maximize overall wealth. (The larger question of whether wealth is a value worth pursuing through legal engineering will be carefully delineated as a separate question.) The professor may support his case with a quotation from the Restatement of Contracts, which empahsizes that breaking a contract is a morally neutral event. The professor may contrast expectation damages against the problematic concept of liquidated damages. Liquidated damages specify, in advance, the amount that a contracting partner must pay if they breach a contract. Liquidated damages clauses, especially those that seem punitive, are often not enforced by courts. A professor may demonstrate that liquidated damages clauses might deter efficient breach and therefore are economically unjustified. The students, standing in awe before the sacred models, are generally cowed into silence. They’ve learned an important lesson about attempting to apply their moral intuitions to economic analysis of legal doctrines. But is the professor actually right? Continue reading

The Influence of Schools on A Child

23 Feb

In a 2009 issue of Scientific American Mind, there is an interview of Judith Rich Harris, the author of The Nurture Assumption: Why Children Turn Out the Way They Do and No Two Alike. In the interview, Harris emphasizes the importance of teachers in shaping a child’s development and the influence of peers on a child. Parents are not as powerful of an influence as many of us think. In Harris’ own words:

One of my purposes in writing the book was to reassure parents. I wanted them to know that parenting didn’t have to be such a difficult, anxiety-producing job…

According to Harris, when at home, children learn from parents how to behave at home. But once they are outside home, they learn rules about how to behave outside home . Therefore, a school-based intervention is the way to improve a child’s behavior in a classroom, be it making them more diligent or less disruptive. A child’s peers could have significantly more influence on her as she grows older and start spending more time outside of home. In an earlier paper, Harris described the harsh peer group sanctions given to a 11-year-old girl when she violated the group taboo by voluntarily sitting next to a boy. This pressure to conform to the expected behavior of a group, however, by adolescence years, becomes less of a push to conform than a desire to “participate in experiences that are seen as relevant, or potentially relevant, to group identity.” At home, on the other hand, most parents probably would not find their adolescents to desire doing what they say.

This is why teachers have such big powers over a child’s development. A good teacher can influence a whole classroom of kids and push them in the right direction. A talented teach is also careful to not let the class split into two factions, the prolearning and the antilearning. Because when that happens, the difference between the two will quickly widen.

I think Harris provides very insightful ideas which are potentially very useful in crime prevention. Most students in underserved communities do not lack parents who care about their child’s future, even though their parents might be too busy trying to making ends meet to spend enough time with their child. But what these children lack is a nurturing environment when they are in school. When the teacher emphasizes the importance of education and instills good values in a child from an early age, it makes a huge difference in the child’s life and more than makes up for the lack of support from home. The KIPP program is a very good example.

Continue reading

Was Alexander Hamilton President?

23 Feb

In honor of President’s Day, AOL’s Holidash put together an “investigative” piece to answer the important question: Was Alexander Hamilton ever the President?  The piece is quite funny and also highlights Kennedy and Pronin’s concept of “Bias Perception“.

Note the narrator’s facetious accusation of bias against the “academic community.”   As the narrator sought to further his own (counterfactual) agenda by confirming that Hamilton was President, he discounted other accounts by implying that they were in some manner biased: “Isolated academics…had one opinion of how to interpret history.  But what do real Americans without an agenda think?”

Synthesizing and Implementing Research

22 Feb

In a recent Wall Street Journal article, guest columnist Jonah Lehrer–author of How We Decide (2009)–describes the “benefits of not paying attention.”

Jonah Lehrer describes our decision making processes in his new book, How We Decide

His general point is that “not focusing” can lead to some benefits–mostly for “creativity” (a term that, as it happens, has at least three finite meaning within psychology). When describing these findings, Lehrer focuses on one particular study where researchers exposed people to varying amounts of stimuli while they completed tasks. The key finding, as Lehrer describes it, centers on individuals’ ability to “filter out” information:

Here’s where the data get interesting: Those undergrads who had a tougher time ignoring unrelated stuff were also seven times more likely to be rated as “eminent creative achievers” based on their previous accomplishments. (The association was particularly strong among distractible students with high IQs.)

These findings are part of huge body of psychology/creativity research. To put them in perspective, we have to know a (very small) bit more about prior creativity research. From 1950-70, psychologists concentrated on personality traits of creative individuals. In other words, they sought to explain creativity in terms of individual traits. By the 1970s and ’80s, though, creativity research had shifted. It became process-oriented. This approach was called “cognitive psychology.” It posited that creativity occurred in “stages”–almost linearly. While the “stages” theory is not dead, many psychologists have abandoned the notion of linearity in creative thought. Continue reading

Bias Perception and the Spiral of Conflict

21 Feb

Emily Pronin

In their chapter, Bias Perception and the Spiral of Conflict, Kathleen Kennedy and Emily Pronin examine what they see as a major cause of breakdowns in negotiation, both small- and large-scale: a tendency of each side to view the other side’s position as biased and preference-driven (rather than based on objective facts).  Kennedy and Pronin explain that we tend to see signs of bias all around us – some even posit that United States Supreme Court justices fall short of impartiality in their decisions.  The only place, it seems, where the tendency to detect bias is weak is in ourselves: people have a tendency to perceive others as susceptible to the influence of biases while at the same time viewing themselves as relatively unaffected by those biases.  That asymmetry has been referred to as a bias blind spot.  One example of this bias blind spot with particular relevance to those of us in law school is the widespread disagreement over the validity of high-stakes standardized tests, such as the LSAT.  High performers are inclined to resent the “obvious bias” of poor performers who claim that the test is invalid and should not be used; poor performers, by contrast, are inclined to resent the “obvious bias” of high performers who champion the tests’ use.

Kathleen Kennedy

The first component of Kennedy and Pronin’s bias-perception conflict spiral is that disagreement leads to an even stronger perception that the other side is biased.   That is, when people disagree, they view those with whom they disagree as biased or, more specifically, as unable or unwilling to view things as they are in “objective reality.”  The reason is clear: “people generally have complete faith in the veridicality of their perceptions, and thus are suspicious of those who fail to share their perceptions.”   Kennedy and Pronin offer support for this component with a review of several experimental and real-world cases of the tendency to perceive bias in action, including an experiment conducted among partisans involved in the struggle between Unionists and Nationalists in Northern Ireland, in the wake of the “Good Friday Agreement” that established the conditions for peace in that region.  Consistent with their hypothesis, partisans in the conflict tended to feel that those who led the opposing side were more prone to these biases than were those who led their own side.

Read about the second component and some applications of the model after the jump.

Continue reading

Experience: Poverty

20 Feb

How long can you last?

“14 million Americans are unemployed.  Now imagine you’re one of them.”  These words greet users who accept the challenge and “play” Spent, an interactive month-in-the-life as an unemployed parent with mounting bills and dwindling savings.  Launched by the Urban Ministries of Durham, a non-profit organization providing care for Durham’s homeless and indigent population, Spent aims to illuminate the difficulties of poverty by exposing users to the unforeseen difficulties that ensnare even hard-working, well-meaning Americans.  (And, of course, to seek donations).

I started the month with $1,000 and took a job as a waiter.  Unfortunately, rent is pretty expensive near the restaurant, so I had to pick an apartment about 40 miles away, increasing my commute and gas bills.  As I proceeded through the month, I had to deal with local hoodlums, car troubles, student loan repayments, medical bills, and more.

Decisions, decisions

My bank account continued to decrease, to the point where I tragically had to refuse to my son’s request for ice cream. Despite cutting back, I ran out of money 19 days into the month, even though I had already decided to forego hot water.  As I made each difficult decision, pop-up messages offered statistics about the people who make these same difficult decisions every day – with much more at stake.

The game offers a view of poverty that is decidedly situationist – even users who “work hard” by finding employment and doing additional work for neighbors still run into the myriad difficulties created by the situation of poverty.  Hard work, it turns out, is not always enough to overcome rising costs of health care, gas, food, electricity, and child care.

Take the challenge and see if you can make it through the month!  And if you do, don’t celebrate yet – there’s another month ahead, surely with even more bills to pay.

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