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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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Three Scholars Worth Your Time: Part 4

6 Mar

Dr. Marty Seligman

Dr. Marty Seligman Dr. Marty Seligman is the founder of Positive Psychology and a Professor at the University of Pennsylvania. One afternoon, while he was weeding, his five-year-old daughter, Nikki, took the weeds and threw them in the air playfully.  He became angry and sent her away with an irritated impatience that he claims he often exhibited.  She later returned to confront him.   She told him that all her life, she had been a whiner, but that on her fifth birthday, she had decided she was going to stop whining.  And she did.  And if she could stop whining, he could stop being such a grouch.

Dr. Seligman uses that story as his positive introduction, how he describes himself as his best.  In that moment, his five-year-old daughter made him realize that he as a parent, and that psychology as a disciple, had focused on correcting weakness instead of nourishing strength.  Seligman’s most famous work had involved inducing a form of depression in dogs that he termed learned helplessness.  He moved his research from learned hopelessness to learned optimism.

In 1996, as president of the American Psychological Association, he declared the Positive Psychology Movement: psychology’s movement away from the empirical study of depression and pessimism towards the empirical study of happiness and optimism.

Seligman later created the Values In Action Character Strengths and Virtues, a list of twenty-four strengths he believed contributed to human greatness. He developed a method to assess an individual’s top strengths, what he deemed “signature strengths.”  This inventory and other positive interventions can be found on his website. Continue reading

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

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

Canons of Confabulation

19 Feb

Knowles and Ditto’s article on Preference, Principle, and Causistry – detailed elsewhere on this blog – bears a striking resemblance to Karl Llewellyn’s famous critique of the use of canons of construction in judicial opinions.  Given the title of this blog, how can we not explore such a clear intersection of the mind sciences and the law?

Karl Llewellyn

Canons of construction are interpretive tools invoked by judges to discern the meaning of statutes.  To couch this in Knowles and Ditto’s terms, the universe of canons exists as a menu of principles upon which judges can draw in seeking guidance in matters of statutory interpretation.  For example, imagine a statute that allows tenants to withhold rent upon the discovery of “rats, mice, termites, or other pests.”  The ejusdem generis (“of the same kind”) canon teaches that “other pests” refers to pests of the same kind as those listed before it; thus, a tenant could not withhold rent due to an annoying next-door neighbor who could also be described as a “pest” in the dictionary sense of the word.

This formulation seems to imply a rational, objective process of decision-making: judges confronted with an ambiguous statute resolve that ambiguity by selecting the applicable principle (i.e. canon), applying it to the statute, and, voila, a resolution emerges (ambiguity -> principle -> answer).  Llewellyn, however, like Knowles and Ditto, is not quite so optimistic about the decision-making process.  Llewellyn argues that there are two opposing canons on almost every point, and as such, the canons serve as (in the words of Knowles and Ditto) post hoc intellectual justifications of one’s initial intuitions. Choosing which canon to apply is not the objective, detached process that the above description would suggest.  Instead, judges determine the answer first, guided by their internal preferences, and then select the canon capable of justifying the conclusion they find most emotionally satisfying (ambiguity -> answer -> principle).

More analysis and implications of this theory, right after the jump.

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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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