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Trampling People While Whistling Rights: Normative Visions, Judicial Realities in Times of Terror

18 Apr

Everybody's Got to Do Their Part

Marbury v. Madison, Miranda, and Brown v. Board of Education are hallmarks of a judicial canon that preaches a heroic vision of Constitutional Law arbitrated in our highest tribunal. These cases tell a story of the judicial process that reflects a flattering normative vision of the American government. These are the cases that may be most likely to be emphasized when a middle or high school student is first introduced to judicial review. Running concurrently alongside this set of cases is an antinomian canon, constituted of cases such as Dred Scott, Plessy v. Ferguson, and Bush v. Gore, that tells a story of the court as a political institution, embedded in the culture of its time. A particularly notable subset of these decisions occur during wartime. In cases such as Korematsu, the Supreme Court upholds dramatic, discriminatory suspensions of civil liberties that are justified on the basis of necessity, created by a perceived existential threat. Then, inevitably, the existential threat disappears, the threat that the case generated begins to seem overblown and ridiculous, the decision is dismissed as an unfortunate mistake, there’s a general sense that we’ll ‘do better next time’, and then next time comes, and the whole cycle inevitably repeats itself.  Particularly notable, in cases such as Korematsu, is our general view of WWII – a heroic time for the ‘Greatest Generation’, and our relative shame about the Korematsu decision. This bifurcation is a more complicated stance than the universal scorn that we now hold for slavery, and a representative decision of that stance, such as Dred Scott. But is there more to these judicial opinions than mere hypocricy? Continue reading

You Think You’re So Smart…

30 Mar

“It is one of the essential features of such incompetence that the person so afflicted is incapable of knowing that he is incompetent. To have such knowledge would already be to remedy a good portion of the offense.”

~ W. I. Miller (quoted in Kruger & Dunning)

Most people believe that they are above average. Now, I’d be the first to tell you that I’m terrible at math, but even I can see something’s wrong here.

Lake Wobegon, where all the children are above average. (It's actually Lake Monowai in New Zealand, but never mind.)

This phenomenon — known by a variety of names, including the “above-average effect”, “superiority bias”, “illusory superiority”, and, my personal favorite, the “Lake Wobegon effect” — is manifested in a variety of areas, including bias, popularity, and driving ability. In short, whatever we’re talking about, odds are we think we’re better than most people at it.

One interesting variation on this theme is the Downing effect: according to a series of studies done by C. L. Downing, people with a below-average IQ tend to overestimate their IQ,  while people with an above-average IQ tend to underestimate their IQ. In a similar vein, studies by British psychologist Adrian Furnham suggest that, on average, men are more likely to overestimate their intelligence, while women are more likely to underestimate their IQ. Coincidence? I think not.

More on our inability to tell how smart we are after the jump.

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Three Scholars Worth Your Time: Part 5

7 Mar

1. Sonja Lyubomirsky is a psychology professor at UC Riverside and the author of a fantastic book called The How of Happiness.  Ms. Lyubomirsky is a researcher in the burgeoning field of positive psychology, and although positive psychology has been derided by many people as a bunch of unkosher baloney, I found her book to be thoughtful, accessible, and not-baloney. She details and synthesizes the research done on happiness to date (the book came out in 2008), and uses this work to suggest, quite simply, how we can be happier. Recognizing that not everyone enjoys the same things, she offers a plethora of different methods people can try to increase their level of happiness, as well as some tips on how to figure out which ones will work for you. For instance, some people might find that meditation enhances their happiness, where others would prefer writing down three things they’re grateful for each week. Her writing style is lucid and straightforward, and the content itself is intriguing and practical without being unbearably cheesy.

I think the importance of positive psychology for the legal profession cannot be overstated. More and more research is showing that lawyers are alarmingly likely to suffer from acute depression and have other severe mental health issues, such as addiction.

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Hormones, Ethnocentrism, and Casuistry

18 Feb

Oxytocin is a neurotransmitter that has been linked in a variety of studies to various activities such as fostering trust in relationships, social bonding, sexual pleasure, increased emotional comprehension, and mother-infant bonding.  Its effects in these areas are fairly well-recognized; perform a Google search for “oxytocin” and immediately below the obligatory Wikipedia page you’ll find it described as the “hormone of love”, along with advertisements touting the various sprays and homeopathic remedies that promise to improve your relationships (read: sex lives).  All of this attention, however, brings to mind a question: how much emphasis should we place on the role that hormones play in our decision-making processes?

Of primary discussion in this post will be a new study described by the New York Times linking exposure to oxytocin and increased intergroup bias.  The study was authored by Carsten DeDrew, a psychologist at the University of Amsterdam, who was intrigued by the literature linking oxytocin to increased cooperation.  He posited that evolutionary pressures would require that some sort of limit be placed on this relationship-building behavior, because unbounded trust would not increase chances of survival.

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