Failinger on a Restorative Approach to Legal Decision-Making by Teen Mothers

Professor Marie A. Failinger of Hamline University School of Law has published Ophelia with Child: A Restorative Approach to Legal Decision-Making by Teen Mothers, 28 Law and Inequality 255-290 (2010) (Issue No. 2). Here is the abstract:

The modern welfare state has not successfully come to grips with the phenomenon of minor parenting. While federal statutes have placed strong pressure on teenage mothers to stay at home in their extended households, many welfare programs treat the teenage mother as a fully mature, autonomous decision-maker for important decisions affecting the minor and her own child, as well as the household in which she lives. This paradigm does not account for contemporary research on adolescent development or family dynamics in extended family situations, and the need for a realistic approach to helping teen mothers mature into their role. I argue that restorative justice principles can create an architecture of responsibility that is more reflective of reality and more successful for all parties involved.

Evensen et al. on Developing an Assessment of First-Year Law Students’ Critical Case Reading and Reasoning Ability

Professor Dorothy H. Evensen of the Penn State University College of Education, and colleagues, have published Developing an Assessment of First-Year Law Students’ Critical Case Reading and Reasoning Ability: Phase 2 (2009). The report’s key finding is that “students’ case reading and reasoning skills do not improve as a result of law school instruction.”

Here are excerpts from the executive summary:

The research team in this project developed a prototype, multiple-choice test to assess case reading and reasoning among law students at two points during the first year. The project was motivated by the importance of cases in legal education, a paucity of empirical evidence concerning law students’ reading abilities, and a need for measurements that could be used to study pedagogical interventions and students’ skill development. A primary goal of the research project was to test the theoretical argument that law students have difficulty dealing with what are called the indeterminacies, or discourse-specific ambiguities and vagueness of cases.

Phase 1 of this study employed a cross-sectional, matched-subjects design that produced results indicating that among the 161 first-year law students who took the prototype test version (TV1) in either the fall or spring semesters, the overall combined mean was 7.91; the most common score was 9/14 (64%) correct, and the scores ranged from 14/14 (100%) to 3/14 (21%). Individual test items showed a wide range of difficulty, with a good balance between easy, difficult, and moderately difficult items. No significant difference in test performance was detected between semesters.

Reading materials for both of these multiple-choice tests consisted of three cases related to an appellate argument. The 14 questions—resulting from multiple, iterative reviews among legal experts—reflected two comprehension difficulty categories (individual cases versus cross-case questions) and two semantic difficulty categories (determinate-meaning versus indeterminate-meaning questions). All test items contained five possible answer choices, and justifications were written for each possible answer.

Statistical analyses produced results similar to the findings from Phase 1. No significant differences between first- and third-year scores were detected. The total mean scores for each test version were 8.3 for TV1 and 7.25 for TV2. Mean scores for students between semesters (two and three) or between years (first and third) were not significantly different, indicating that students’ case reading and reasoning skills do not improve as a result of law school instruction. Also, consistent with Phase 1 findings, the test showed a positive but low correlation with LSAT scores and law school grade point averages. [...]

Think-aloud data were qualitatively analyzed to identify constructs, skills, and subskills believed to undergird case reading and reasoning. By comparing think-aloud findings with written item justifications, test writers were able to essentially “test their hypotheses” about case reading. These data also allowed us to revise the test on empirical, grounded bases and made manifest the students’ errors. [...]

HT ABA Journal.

Originalism 2.0 Conference at Penn Law

[NOTE: Videos of several of the panels are now available.]

Originalism 2.0: The 2010 National Student Symposium of the Federalist Society, was held 26-27 February 2010 at the University of Pennsylvania School of Law, in Philadelphia, Pennsylvania, USA.

Click here for the conference program.

Click here for the list of speakers.

Click here for an archive of Twitter tweets from the first, fourth, & fifth of the conference panels. The Twitter hashtag for the conference was #orig20.

If the conference video is Webcast at some future time, a link will be added here.

[NOTE: Last updated 17 March 2010.]

Benforado on Frames of Injustice: The Bias We Overlook

Professor Adam Benforado of the Drexel University School of Law has published Frames of Injustice: The Bias We Overlook, forthcoming in Indiana Law Journal. Here is the abstract:

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the situationist approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, the Article engages the case of Scott v. Harris, 127 S. Ct. 1769 (2007), the subject of a recent CCP study.

In Scott, the Supreme Court relied on a videotape of a high-speed police chase to conclude that an officer did not commit a Fourth Amendment violation when he purposefully caused the suspect’s car to crash by ramming the vehicle’s back bumper. Challenging the Court’s conclusion that “no reasonable juror” could see the motorist’s evasion of the police as anything but extremely dangerous, CCP Professors Dan M. Kahan, David A. Hoffman, and Donald Braman showed the video to 1,350 people and discovered clear rifts in perception based on ideological, cultural, and other lines.

Despite the valuable contribution of their research in uncovering the influence of identity-defining characteristics and commitments on perceptions, Kahan, Hoffman, and Braman failed to engage what may well be a more critical dynamic shaping the cognitions of their subjects and the members of the Supreme Court in Scott: the role of situational frames in guiding attributions of causation, responsibility, and blame. As social psychologists have documented—and as PLMS scholars have emphasized—while identities, experiences, and values matter, their operation and impact is not stable across cognitive tasks, but rather is contingent on the way in which information is presented and the broader context in which it is processed.

In large part, the Scott video is treated—both by the Supreme Court and by Kahan, Hoffman, and Braman—as if it presents a neutral, unfiltered account of events. This is incorrect. Studies of viewpoint bias suggest that the fact that the video offers the visual and oral perspective of a police officer participating in the chase—rather than that of the suspect or a neutral third party—likely had a significant effect on both the experimental population and members of the Court.

Had the Supreme Court watched a different video of the exact same events taken from inside the suspect’s car, this case may never have been taken away from the jury. Any discussion of judicial “legitimacy”—in both the descriptive and normative sense—must start here. The real danger for our justice system may not ultimately be the “visible fiction” of a suspect’s version of events, as Justice Scalia would have it, or cognitive illiberalism as Kahan, Hoffman, and Braman would, but the invisible influence of situational frames systematically prejudicing those who come before our courts.

HT The Situationist.

Stark & Choplin on A Cognitive and Social Psychological Analysis of Disclosure Laws and Call for Mortgage Counseling to Prevent Predatory Lending

Professor Debra Pogrund Stark of John Marshall Law School & Professor Jessica M. Choplin of the DePaul University Department of Psychology have published A Cognitive and Social Psychological Analysis of Disclosure Laws and Call for Mortgage Counseling to Prevent Predatory Lending, 16 Psychology, Public Policy, and Law 85 (2010) (Issue no. 1). Here is the abstract:

The federal government’s primary method of protecting consumers from “predatory lending” has been to enact disclosure laws that were supposed to enable consumers to make informed decisions. This article contends that notwithstanding these disclosure laws, unscrupulous mortgage brokers and lenders have been able to take advantage of certain described cognitive and social psychological phenomena to induce borrowers to enter into predatory loans, and argues that disclosures alone—even the recently revised disclosure forms—are inadequate. To better empower consumers to make informed decisions on their home loans, this article proposes and details a mortgage counseling intervention that contains both “in-person” and interactive computer counseling as a necessary supplement to disclosure laws. Designed properly, such an intervention would more effectively address the cognitive and social psychological barriers to rational decision making than disclosure alone. The article also examines the likely costs and benefits of the proposed mortgage counseling intervention in light of Illinois experience with mortgage counseling and urges policymakers to consider not only the costs of implementing mortgage counseling but also the costs of not providing for this counseling.

Sauer et al. on The Effect of Retention Interval on the Confidence–Accuracy Relationship for Eyewitness Identification

Dr. James Sauer of the University of Portsmouth Department of Psychology, and colleagues at the Flinders University School of Psychology, have published The Effect of Retention Interval on the Confidence–Accuracy Relationship for Eyewitness Identification, forthcoming in Law and Human Behavior. Here is the abstract:

“Recent research using a calibration approach indicates that eyewitness confidence assessments obtained immediately after a positive identification decision provide a useful guide as to the likely accuracy of the identification. This study extended research on the boundary conditions of the confidence–accuracy (CA) relationship by varying the retention interval between encoding and identification test. Participants (N = 1,063) viewed one of five different targets in a community setting and attempted an identification from an 8-person target-present or -absent lineup either immediately or several weeks later. Compared to the immediate condition, the delay condition produced greater overconfidence and lower diagnosticity. However, for choosers at both retention intervals there was a meaningful CA relationship and diagnosticity was much stronger at high than low confidence levels.”

Crocker & Kovera on The Effects of Rehabilitative Voir Dire on Juror Bias and Decision Making

Caroline B. Crocker and Professor Margaret Bull Kovera, both of the John Jay College of Criminal Justice Department of Psychology, have published The Effects of Rehabilitative Voir Dire on Juror Bias and Decision Making, forthcoming in Law and Human Behavior. Here is the abstract:

“During voir dire, judges frequently attempt to ‘rehabilitate’ venirepersons who express an inability to be impartial. Venirepersons who agree to ignore their biases and base their verdict on the evidence and the law are eligible for jury service. In Experiment 1, biased and unbiased mock jurors participated in either a standard or rehabilitative voir dire conducted by a judge and watched a trial video. Rehabilitation influenced insanity defense attitudes and perceptions of the defendant’s mental state, and decreased scaled guilt judgments compared to standard questioning. Although rehabilitation is intended to correct for partiality among biased jurors, rehabilitation similarly influenced biased and unbiased jurors. Experiment 2 found that watching rehabilitation did not influence jurors’ perceptions of the judge’s personal beliefs about the case.”

Wylie & Brank on Assuming Elder Care Responsibility: Am I a Caregiver?

Lindsey E. Wylie, and Professor Eve M. Brank, both of the University of Nebraska-Lincoln Department of Psychology, have published Assuming Elder Care Responsibility: Am I a Caregiver?, 6 Journal of Empirical Legal Studies 899 (2009). Here is the abstract:

“Caregivers of the elderly face conflicting legal demands; they must make certain the elder’s needs are being met while not forcing undesired care on an adult capable of informed decisions. This dichotomy may be a reason a large number of reported elder abuse derives from unintentional neglect on behalf of informal familial caregivers. The current research examines this possibility with exploratory interviews and an experiment. The interviews between elders and their family (30 dyads) revealed that many did not intend for the living arrangements to become permanent and the nonelders were largely unprepared for the magnitude of changes and responsibilities that would result. The elders often expressed a sense of loss for their former life and feeling supernumerary in the family. In the experiment, we examined whether a person recognizes when a care-giving relationship exists and the factors that contribute to notions of being a caregiver. Results suggest that potential caregivers (124 community members) focus on the relationship with the elder more than the elder’s physical and financial needs, and generally have stronger feelings of moral responsibility rather than legal responsibility to provide care.”

Hagedoorn & Hesen on Contractual Complexity and the Cognitive Load of R&D Alliance Contracts

Professor John Hagedoorn of the Maastricht University Faculty of Economics & Business Administration, Department of Organization & Strategy, and Geerte Hesen of the Maastricht University Faculty of Law, have published Contractual Complexity and the Cognitive Load of R&D Alliance Contracts, 6 Journal of Empirical Legal Studies 818 (2009). Here is the abstract:

“We offer a new perspective on measuring the complexity of interfirm contracts. We define complex contracts as those contracts that contain many elements (clauses) with a relatively large number of interdependencies that also impose a significant cognitive load on contract parties. Previous studies on contractual complexity employ objective measures such as the number of pages, the number of kilobytes, or the number of provisions to measure this complexity. Following some suggestions in the literature, we argue that the degree to which a contract imposes a cognitive load on contract parties should be taken as another important dimension of contractual complexity. We develop a conceptual model of the complexity of contracts using a multidimensional perspective where both objective and subjective dimensions are taken into account. Our empirical analysis combines a sample of nearly 400 R&D alliance contracts in the biopharmaceutical industry with a measurement of the cognitive load of these contracts. Our findings show that quantitative, objective measures of complexity, such as length, and objective as well as subjective elements of the cognitive load of contracts, that is, the information-processing effort that contractual parties have to make, do indeed measure different aspects of contractual complexity.”

Call for Posters: Memory and Motivation: A Reappraisal of the Recovered/False Memory Debate

A call for posters, with submission deadline of 10 February 2010, has been issued for Memory and Motivation: A Reappraisal of the Recovered/False Memory Debate, The 58th Annual Nebraska Symposium on Motivation to be held 22-23 April 2010, at the University of Nebraska-Lincoln Department of Psychology, in Lincoln, Nebraska, USA.

Posters are invited on any aspect of the recovered/false memory debate, including:

• Cognitive psychological perspectives;
• Clinical psychological perspectives;
• Cognitive neuroscience perspectives;
• Interactions among motivation, emotion, and memory.

For more information, please see the call for posters.