Archive for the ‘moral psychology’ Category

The fallout from the Leo Tesky appeal continues, with journalists, legal scholars, and the Alberta Minister of Justice criticizing Judge Brad Kerby, who now faces the possibility of disciplinary action. It’s also led to a more general discussion about how judges are to be selected for the bench, and if judges have enough experience dealing with matters of criminal law.

This is happening at the same time as the matter of judicial independence is popping up in the US. For a taste of that, take a look at this take on the matter by the Harvard law and social psychology blog, the Situationist:

(If that was fun, see also their look at jury selection, and why lawyers acquiesce to clients’ misconduct.)

A study following the effect of the Supreme Court of Canada decision might find judges are now going to file decisions more promptly, or are perhaps going to decide to file fewer decisions for want of time and judicial resources.

By way of reminder, here is what Justice Charron had to say about how the law should judge a judge’s delay in giving reasons for a verdict (emphasis added):

Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the-fact justification of the verdict rather than an articulation of the reasoning that led to it.

Really? Aren’t all judges verdicts an exercise in sophisticated post hoc justification. It seems naive to think that written judgements are a logical mapping of the intersection of law and fact onto a clean slate, especially when moral decisions don’t work that way.

The science of decision-making has something to say about this. Consider, for example, an article by Chad Oldfather, who argues writing can sometimes lead to poor decisions.

What sort of decisions are vulnerable in this way? The messy ones, of course.

Primarily these will be decisions that turn largely on the assessment of complex, fact-intensive situations in which largely inarticulable, context-based judgments matter more than precision and technical analysis.

With that in mind, take a look at the Legal Theory Blog’s post on judges’ obligation to give reasons, which references research undertaken by Dave Hoffman. His blog post on the topic offers an exchange between a judge and a lawyer which feeds our intuitions about why reasons are important:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

We rightly rebel at this type of appeal to authority, and not just because it reminds us of an overwhelmed parent. In matters of public policy, reasons are key to the recruitment of agreement or the acceptance of legitimacy. Absent justification, verdicts are hollow declarations which only carry the weight of the speaker’s office.

This makes it tough on judges, who have to rule on complex issues which affect citizens’ legal rights. It is easy to understand why they sometimes find it difficult to articulate their reasons for a verdict.

In a speech to members of a conference on reasoning and decision-making, Australian jurist Michael Kirby quotes a former judge of the Supreme Court of Canada, Gérard La Forest.

Frequently enough one thinks one has the answer; but on sitting down, it will not write.

Justice Kirby, meet Judge Kerby.

Kirby J. has captured the problem in the Tesky case. Writer’s block born of indecision about a complex case – and not inexperience in matters of criminal law – was the likely the real problem that bedeviled Judge Brad Kerby during the 14 months between the hearing of evidence and the submission of his decision. No matter what you think of the majority decision of the Supreme Court, looking for the cause of the delay in the appointment of inexperienced judges misses the mark.


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While empirical philosophy is usually undertaken using thought experiments which test our intuitions, every now and then a study pops up which gos a little further to test moral actions. Here’s one that examines
The research, Governing the Subjects and Spaces of Ethical Consumption, is one of the projects undertaken by the Cultures of Consumption, and it has generated several papers. Among the results:

Ethical consumption campaigning is most effective in transforming policies and infrastructures of collective provision, rather than changing individual behaviour through the provision of information.

The authors have a new study which examines how this means that ethical consumption is more about political commitments than it is about economic decision-making. As a result,

They also found that people generally don’t lack information which would assist ethical choices. They know about sweatshops, Fair Trade coffee, and organic food. Instead, the problem is one of enabling ethical choices: people either can’t afford ethical products, or don’t have access to shops that sell such things.

Their recommendation:

If ethical consumption campaigns are to succeed they need to transform the infrastructures of every day consumption rather than focusing on changing individual consumer behaviour. (press release)

To sum this up – consumer demand for ethical products is difficult to create because people don’t want to bear the cost of ethical choices, but groups of citizens will do the right thing if political action makes it easier for people to act on their knowledge.

This type of empirical philosophy is particularly nice because it is prescriptive, insofar as it tells us what we can do to assist ethical practices. Getting to the political tipping point where it becomes possible to motivate collective action, however, is another problem entirely.

With this study in mind, pop over and read a timely post by Jon Hanson & Michael McCann that bears a great deal on this research program: “Situation” Trumps “Disposition”.

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Some people think gut feelings give us insights which guide us to good decisions.

In bioethics, this is sometimes called the ‘yuk factor‘, and it is often used to motivate attacks against biotechnology. (Has a gut feeling ever led someone to champion a scientific advance instead of decry it, or are gut feelings inherently unscientific?) That context limits the gut feeling to moral disgust, but a short piece in Slate reminds us that sometimes powerful people think it is admirable to make political decisions using gut feelings.

Why do people who make important decisions think relying on gut feelings is a virtue? A lot of evidence shows our moral intuitions can sabotage negotiations, promote racism and foster homophobia. Relying on gut feelings is for cognitive misers. How is this a good thing?

Here’s the Slate article:

It also links to the following discussion:

Further reading:

  • Midgley M. Biotechnology and Monstrosity: Why We Should Pay Attention to the ‘Yuk Factor. Hastings Center Report 2000; (30): 7-15.
  • Räikkä, J. & Rossi, K. Bioethics and the Moral Significance of ‘gut feelings’. Türkiye Klinikleri Journal of Medical Ethics, Law and History. (2004) 12, 79-82.
  • Leigh Turner. Is repugnance wise? Visceral responses to biotechnology. Nature Biotechnology. 2004 Mar;22(3):269-70.
  • Dan Jones. Moral psychology: The depths of disgust. (2007) June 14. Nature. Vol 447, p.768.

For a more reliable sort of ‘gastronomical knowledge’ may I suggest The Tassajara Bread Book?

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It is a fact of human nature that we tend to focus on conflict. Journalists and writers know this is their stock in trade, because without conflict there is no story, and nowhere is this more apparent than in discussions of right and wrong. Morality is the conflict-generator, and our sense of injustice is more than willing to weigh in on the legal implications following from these conflicts.

But what, exactly, is our sense of justice, and how is it to be explained?

According to Jonathan Haidt and Jesse Graham, our moral intuitions arise from the interplay between 5 core psychological responses. One of these relates to justice. Unfortunately, it is not quite clear what Haidt and Graham mean by justice, except that they associate it with fairness and rights.

Contrast this with a pair of papers by Paul Robinson, Robert Kurzban, and Owen Jones, who have a narrow examination of justice that pertains to punishment. They argue we have shared intuitions about the justice of punishment, and these arise from evolutionary biology.

It seems to me that these authors are talking about two very different conceptions of justice. Intuitions regarding justice-about-punishment are not the same as the intuitions regarding justice-about-rights.

Unfortunately, it is difficult to reconcile these views, because it isn’t clear where intuitions about punishment (criminal or otherwise) should fit in Haidt and Graham’s schema. This is a strange problem – all the more so because intuitive demands for punishment are studied in Haidt’s early examinations of moral disgust – and it means we are left to wonder whether intuitions about punishment and moral responsibility belong in one of the existing 5 categories or in a supplementary 6th category.

For further reading:


Today BoingBoing points us to a post at The Mouse Trap which references Carlsmith et al. (noted above) and a post at Do You Mind.

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Here’s an article, just uploaded to SSRN, that I can’t resist promoting because it’s about moral intuitions and the law.

From the introduction:

In this research, we use traditional psychological methodologies to ask when laypeople consider breach to be immoral , which moral principles and moral heuristics they employ to make that judgment, and to what extent their moral reasoning (be it rational or faulty) affects their legal and financial decision-making.

Why should we read it? From the conclusion:

Empirical results like those we have presented here have bearing on practical legal matters, including bargaining during contract drafting as well as negotiations over the breach of a contract. These results may also bear on moral theories of breach of contract, as we identify some discontinuities and tensions between intuition and reason.

Great stuff.

  • Wilkinson-Ryan, Tess and Baron, Jonathan, “Moral Judgment and Moral Heuristics in Breach of Contract” (2006). Available at SSRN: http://ssrn.com/abstract=930144

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One of the benefits of having an interdisciplinary education is that I sometimes see odd connections between research programs taking place in faculties that, for the most part, are unaware of one another.

Take, for example, the trends towards evidence-based meta-analyses in philosophy and legal studies. Both of these analyze normative decision making, and exhibit interdisciplinary flirtations with social psychology, cognitive neuroscience and behavioural economics. So far, though, they haven’t so much as glanced at one other across a crowded faculty lounge, although their friends neuroethics and neurolaw seem to be cozying up to one another at the policy table.

Some enterprising researcher should play cupid, because their’s is a natural fit. Both commonly navigate complex questions of ethics, evidence and causation, and involve balancing the competing tensions argued by nuanced opposing views.

My suggestion is that empirically-minded philosophers should make use of the sources of data presently being mined by legal scholars. It’s all there in the recorded thoughts of judges whose decision-making over the course of centuries covers an astonishing range of important philosophical topics.

One example of how the law can tell philosophers something about normative decision-making can be found in the growing body of research that shows judges’ decisions are influenced by their own gender and that of the counsel before them.

In an interesting pair of statistical analyses, researchers looked at the American and Canadian Supreme Courts, and find <ahem> that old men really don’t care for women’s arguments. I’d say ‘Astonishing!’, but don’t know if I can marshal the requisite sarcasm – my naïveté knows no bounds, which is one reason why I find this research to be so important.

Unfortunately, only one of the papers is available at this time. Take a look, as my paraphrasing was a tad inflammatory.

From the abstract of the SCOTUS paper:

We find that [US] Supreme Court justices are less likely to support litigants represented by women. Our findings suggest that litigation teams that have a higher proportion of female attorneys are less likely to win before the Court. In addition, this bias appears to be highly conditional on judicial ideology. Conservative jurists are more likely than liberal jurists to vote against litigation teams with a higher proportion of women.

Whether or not this is implicit association in action, it’s the sort of thing that can lead to an uncomfortable question for firms expecting a case to go all the way to the top court: when counsel’s gender can harm a client’s case, do you toss ethics to the side and assign it to men instead of women? Asking that is almost as offensive as suggesting the study is evidence for a harm done to the law by women appearing before the court.

That’s a question that won’t be asked in Canada, where 4 of the 9 Supreme Court judges are women. Here, parties are more likely to win when they are represented by women.

Hat tips to the Empirical Legal Studies and Feminist Law Profs blogs. Other investigations related to this topic can be found here:

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Hiding up at the top left of the blog are a set of tabs. I’ve edited them now to include some extras.

One will take you to a set of links which now includes several old friends. Among other things, a crusty Townie Bastard has posts on creationist museums and hollow earthers; Expatriate Games assays The Feminist Mistake and Korean husbands (no connection); while Dups’ photoblog chronicles his adventures around the world.

The other provides a long but incomplete bibliography covering literature related to moral psychology, neuroethics, neurolaw and experimental philosophy. It needs better organization as well as more content (feel free to add a reference). Both projects are underway, but I wanted to make it available for those who might find it useful at this time, because those topics now seems to be gaining attention.


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