Category: Psychology and Behavior


The Annoying “Riiiiiight” in Faculty Workshops

Imagine law professor Felix Cohen giving a law faculty workshop of his famous 1935 paper, Transcendental Nonsense and the Functional Approach (here), addressing the topic of personal jurisdiction over corporations.  But pretend he is presenting the paper to a faculty today, in 2012, and tune your hear to the sound of the words he might utter when explaining his argument to those assembled.  If he followed the common gluey talk of fancy law professors today, it might be transcribed as follows:

The question of where a corporation is, right, when it incorporates in one state and has agents transacting corporate business in another state, right, cannot be answered by empirical observation, right. Nor is it a question that demands for its solution any analysis of political considerations or social ideals, right.

It is a question identical in metaphysical status, right, with the question scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”, right.  Now it is extremely doubtful whether the scholastics actually discussed this question, right. Yet the question has become, for us, a symbol of an age in which thought without roots in reality, right, was an object of high esteem.

Will future historians, right, deal more charitably with such legal questions as “Where is a corporation?” Nobody has ever seen a corporation, right. Some of us have seen corporate funds, corporate transactions, etc., right. But this does not justify assuming that the corporation travels about from State to State as mortal men travel, right.

Yet it is exactly in these terms of transcendental nonsense, right, that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State. “The essential thing,” said Judge Cardozo, writing for a unanimous court, right, “is that the corporation shall have come into the State.” Why this journey is essential, right, or how it is possible, we are not informed.

The opinion notes that the corporation has an office in the state, right, with eight salesmen and eleven desks, and concludes that the corporation is really “in,” right, New York State. From this inference it easily follows, right, that since a person who is in New York can be sued here, right, and since a corporation is a person, right, the Susquehanna Coal Company is subject to suit in a New York court, right.

The much-maligned “you know” would be as productive as “right” in this transcript. You rarely hear law professors insert that phrase in their speech. Too polished for that. Yet they pepper their sentences with the annoying right, usually pronounced riiiiiight, with the lilt of a rhetorical question. A lamentable institutional habit.

UPDATE IN REPLY TO THE KIND COMMENT OF EDWARD CANTU: We  had a post and conversation about So here at Co-Op, which can be viewed here.



Trusted Sources

Dan Kahan has a really useful post up on the Cultural Cognition blog on whether motivated cognition (and cultural cognition) is a cognitive bias in need of debiasing through law. Dan situates his comments in the context of science communication:

“The amount of information it is useful for any individual to accept as true is gazillions of times larger the amount she can herself establish as true by valid and reliable methods (even if she cheats and takes the Royal Society’s word for it that science’s methods for ascertaining what’s true are the only valid and reliable ones).  Scientists, like everyone else, are able to know what is known to science only by taking others’ words for it.  There’s no way around this. It is a consequence of our being individuals, each with his or her own separate brain . . . .”

The point generalizes: we are required to learn about most complex systems and events though intermediaries.  It makes sense – it is both efficient and useful – to rely on intermediaries who will see as salient those particular pieces of information that we ourselves are disposed to want to highlight. Cultural cognition describes this “biased” assimilation process, but isn’t itself an error of thought.

The problem that results is that having trusted particular sources (and consequent worldviews), we become less able to see what others’ see.  We are thus led to believe that others are biased, while we remain dispassionate observers. Can’t they see what we see?  Why are they so politicized?  As Orin Kerr snarks in one of our recent comment threads:

“When my side wins, it is a triumph of reason; when the other side wins, our reason is outnumbered by their mere exercises of power.”

(He’s made similar points before – but this comment thread had to do with the healthcare decision, and I’m trying to optimize our google search rank by mentioning the Supreme Court’s decision coming tomorrow in a post entirely about something else.)

Cultural cognition isn’t a bias, but it does create a collective action problem.  It’s the job of policymakers – and intellectuals with time on their hands – to try to work out a public solution. To be concrete, the Supreme Court, whatever it does tomorrow, could help by writing opinions that didn’t so obviously work to cater to our worst passions.


The Debiasing Effect of Legalisms

This is a nice result:

“Would you make the same decisions in a foreign language as you would in your native tongue? It may be intuitive that people would make the same choices regardless of the language they are using, or that the difficulty of using a foreign language would make decisions less systematic. We discovered, however, that the opposite is true: Using a foreign language reduces decision-making biases. Four experiments show that the framing effect disappears when choices are presented in a foreign tongue. Whereas people were risk averse for gains and risk seeking for losses when choices were presented in their native tongue, they were not influenced by this framing manipulation in a foreign language. Two additional experiments show that using a foreign language reduces loss aversion, increasing the acceptance of both hypothetical and real bets with positive expected value. We propose that these effects arise because a foreign language provides greater cognitive and emotional distance than a native tongue does.”

It made me wonder whether the law’s anachronistic use of latin helps lawyers, laypeople and judges by debiasing them. If so, I’d find the result especially ironic as I generally ask students to avoid latin on exams.  I’ve always explained that the law’s latin phrases obscure thought and are often wrongly employed.  Arguendo is a particular target of my irritation.  But if it turns out that forcing people to read latin in a jury instruction – scienter, or guardian ad litem – makes them better decisionmakers, it would imply that I’m actually removing an important tool in students’ exam-taking box!  The result would also be cool for various other reasons, including as a way to think about the project of judicial debiasing.

This is testable – I’m thinking I just found another summer project.  As a pretest, you could help by telling me if reading Opinio Juris makes you feel highly rational.


Santorum: Please Don’t Google

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.


Cyberbullying and the Cheese-Eating Surrender Monkeys

(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)


New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read More


LTAAA Symposium: Response to Surden on Artificial Agents’ Cognitive Capacities

I want to thank Harry Surden for his rich, technically-informed response  to A Legal Theory for Autonomous Artificial Agents, and importantly, for seizing on an important distinction we make early in the book when we say:

There are two views of the goals of artificial intelligence. From an engineering perspective, as Marvin Minsky noted, it is the “science of making machines do things that would require intelligence if done by men” (Minsky 1969, v). From a cognitive science perspective, it is to design and build systems that work the way the human mind does (Shanahan 1997, xix). In the former perspective, artificial intelligence is deemed successful along a performative dimension; in the latter, along a theoretical one. The latter embodies Giambattista Vico’s perspective of verum et factum convertuntur, “the true and the made are…convertible” (Vico 2000); in such a view, artificial intelligence would be reckoned the laboratory that validates our best science of the human mind. This perspective sometimes shades into the claim artificial intelligence’s success lies in the replication of human capacities such as emotions, the sensations of taste and self-consciousness. Here, artificial intelligence is conceived of as building artificial persons, not just designing systems that are “intelligent.”

The latter conception of AI as being committed to building ‘artificial persons’ is what, it is pretty clear, causes much of the angst that LTAAA’s claims seem to occasion. And even though I have sought to separate the notion of ‘person’ from ‘legal persons’ it seems that some conflation has continued to occur in our discussions thus far.

I’ve personally never understood why artificial intelligence was taken to be, or ever took itself to be, dedicated to the task of replicating human capacities, faithfully attempting to build “artificial persons” or “artificial humans”. This always seemed such like a boring, pointlessly limited task. Sure, the pursuit of cognitive science is entirely justified; the greater the understanding we have of our own minds, the better we will be able to understand our place in nature. But as for replicating and mimicking them faithfully: Why bother with the ersatz when we have the real? We already have a perfectly good way to make humans or persons and it is way more fun than doing mechanical engineering or writing code. The real action, it seems to me, lay in the business of seeing how we could replicate our so-called intellectual capacities without particular regard for the method of implementation; if the best method of implementation happened to be one that mapped on well to what seemed like the human mind’s way of doing it, then that would be an added bonus. The multiple-realizability of our supposedly unique cognitive abilities would do wonders to displace our sense of uniqueness, acknowledge the possibility of other modes of existence, and re-invoke the sense of wonder about the elaborate tales we tell ourselves about our intentionality, consciousness, autonomy or freedom of will.

Having said this, I can now turn to responding to Harry’s excellent post.
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Neuroscience at Trial: Society for Neuroethics Convenes Panel of Front-Line Practitioners

Is psychopathy a birth defect that should exclude a convicted serial killer and rapist from the death penalty?  Are the results of fMRI lie-detection tests reliable enough to be admitted in court? And if a giant brain tumor suddenly turns a law-abiding professional into a hypersexual who indiscriminately solicits females from ages 8 to 80, is he criminally responsible for his conduct?  These were the questions on the table when the International Neuroethics Society convened a fascinating panel last week at the Carnegie Institution for Science last week on the uses of neuroscience evidence in criminal and civil trials.

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

  • Steven Greenberg, whose efforts to introduce neuroscience on psychopathic disorder (psychopathy) in capital sentencing in Illinois of Brian Dugan has garnered attention from Nature to The Chicago Tribune;
  • Houston Gordon (an old-school trial attorney successful enough not to need his own website, hence no hyperlink), who has made the most assertive arguments so far to admit fMRI lie-detection evidence in a civil case, United States v. Semrau, and
  • Russell Swerdlow, a research and clinical professor of neurology (and three other sciences!).  Swerdlow’s brilliant diagnostic work detected the tumor in the newly-hypersexual patient, whom others had dismissed as a creep and a criminal.


In three upcoming short posts, I will feature the comments of each of these panelists and present for you, dear reader, some of the thornier issues raised by their talks.  These cases have been reported on in publications ranging from the Archives of Neurology to USA Today, but Concurring Opinions brings to you, direct and uncensored, the statements of the lawyers and scientists who made these cases happen … Can I say “stay tuned” on a blog?


Our Fractured Age

The disconnect between what seem to the common interests and needs of most of us – now the 99% of us – and how we think about ourselves collectively has fascinated and troubled me for quite some time. Daniel T. Rodgers, Henry Charles Lea Professor of History at Princeton, has recently published a very interesting book entitled, “Age of Fracture,” that explores the intellectual basis for that disconnect. Looking at a broad set of social, economic, philosophical and political intellectual traditions, Rodgers explains how the intellectual underpinnings of our thought processes have shifted from the idea of collective identity to one of individualized freedom, but freedom from reality.  Reviewing the intellectual history of the late twentieth century until now, his analysis crosses the left-right divide to show how all of these different disciplines can by synthesized because they all vector in the same direction, this idealized sense of individual freedom.

Rodgers starts by describing the political rhetoric Presidents have used in their speeches. Presidential speechwriters rely on tropes that resonate because that rhetoric helps bolster Presidential leadership: The better the rhetoric connects to the prevailing mindsets of the people, the more effective the “bully pulpit.” Presidential rhetoric has interested me ever since I read Gary Wills’ Pulitzer Prize winning book, “Lincoln at Gettysburg: The Words That Remade America.” In essence, Wills analyzed President Lincoln’s use of rhetoric to show that it both reflected but helped reify a change in the concept of the nature of our country: Our  concept of American changed from, “The United States are . . .” to, “The United States is.” Rather than going back that far, Rodgers begins with the rhetoric of our Cold War era Presidents – for example, Kennedy’s “Ask not what this country can do for you; ask what you can do for this country” – calling us to gird our loins and stand united to advance our collective national interest in order to better confront the menace we faced by the menace of Communis and the Soviet Union. With the ending of the Cold War, President Reagan’s rhetoric moved away from that sense of collective identity and obligation toward an idealized, almost dream-like, sense of individual “freedom,” including freedom from the actual conditions of our lives as well as our from much sense of collective obligation. That predominant mindset allows us to escape hard choices and to assume a perfected life will be easy to achieve. It is not as if a Reagan’s rhetoric by itself caused the shift. Rather, presidential rhetoric both reflects but also amplifies the ideas that are already settling into our unexamined background mindset.

Having launched this project through the lens of presidential rhetoric, Rodgers then looks at developments across a wide swath of our intellectual life. He starts with economic theory and describes how the earlier macroeconomic Keynesian theory was supplanted – he quotes economist Robert Lucas, “The term ‘macroeconomics’ will simply disappear from use” — by microeconomic theory, the idealized world of individual rational actors motivated solely to maximize their profits. While he shows how disconnected this was from reality, Rodgers fits microeconomic theory within the broader conceptual view of the world of the individualized but unreal “freedom” reflected in President Reagan’s speeches. Rodger’s next chapter moves to politics and political theory. He traces the shift from Galbraith’s earlier view that the overwhelming  economic power of megacorporations gave them extraordinary political power to the microeconomic view that disconnects economic from political power by its focus on individual economic actors focused solely on their own economic agendas. In an interesting take, Rodgers shows how political theory moved toward rational choice analysis with its exclusive focus on the “power-seeking saturated world of politics” means that the problems of our powerless subordinated groups slip “out of the categories of analysis.” In a tour de force, he then describes how the divergent views of Gramsci, Genovese, Geertz and Foucault, nevertheless when taken together, conceptualize power as dispersed extremely broadly in “spheres of culture, ideas, everyday practices [and] science.” In sum, if microeconomic theory is all about individual economic gain disconnected from politics, political gain is all about special interest “rent seeking” divorce from collective needs and power is defined so broadly that it is so diffused as to exists everywhere, Rodgers asks whether power is in fact “nothing at all.” If power is nothing at all for us, that leaves most of us collectively powerless. Read More

No More Secret Dossiers: We Need Full FTC or CFPB Investigation of “Fourth Bureau” Reputation Intermediaries

There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the “fourth bureau.” The Federal Trade Commission should conduct an immediate investigation of the “black box” practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of “secret dossiers” about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors.

Once a critical mass of data about a person has been collected for a commercial purpose, she deserves to know what the data is and who is gathering it. Once an educator, employer, landlord, banker, or insurer makes a decision based on that data, the affected individual should be able to challenge and correct it. I have made a preliminary case for such reforms in my chapter Reputation Regulation, in this book. I now think this agenda is more urgent than ever, given the creeping spread of unaccountable data mining in the internet sector to a wild west of reputational intermediaries.

From a Fair Credit Reporting Act to a Fair Reputation Reporting Act

To understand why, it’s helpful to take a step back and look at how poorly regulated even the established credit bureaus are. As Shawn Fremstad and Amy Traub have noted in the Demos report Discrediting America, ample empirical evidence has confirmed that a vast number of traditional credit bureau files are erroneous:
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The Price of Law School Cost Transparency

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.

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