Saturday, September 12, 2015

When is a cognitive heuristic actually right?

We now know quite a lot about seeming deficiencies in human reasoning – departures from pure rationality that appear to be regular features of how we think. If these are regular but erroneous features of our thinking, why do we have them? The basic answer, as I understand it, is that they are generally serviceable, and enable us to handle the bulk of what we must address each day quickly and reasonably well. The fact that they are misleading in circumstances where we actually need to think carefully is a cost that’s worth bearing for the gains these thinking patterns give us most of the time.

But this is a bit of an odd explanation. If a particular tool of thinking is in fact mistaken, how can it be helpful most of the time? This defense seems a bit like the explanation of the merchant who is selling each item at a loss – that “we’ll make it up in volume.” No, we won’t; we’ll just (back in the field of cognition) be regularly wrong.

So what is it about the heuristics that makes them usually helpful?

That’s a big question, and I certainly don’t have a general answer – and I’m far from an expert on human cognition. There may be an extensive literature on this very question, which I’m overlooking. But anyway here’s something I’ve thought about this question, and about one cognitive trait in particular: the tendency people have to treat a risk of loss as more significant than a potential of gain. Tomer Broude and Shai Moses of Hebrew University in a recent paper describe an implication of “Prospect Theory” in these terms: people “will often invest more in the prevention of loss than in the generation of gains of the same amount.” (Broude & Moses, at 5.) So, it seems, people will spend more on public health if they are told “Failure to spend X will result in 25 % more illness than there would otherwise be” – a loss – than if they are told “Spending X will enable 25 % more people to avoid illness” – a gain. (Broude & Moses, at 10, cite a study to this effect, though the phrasing of the “loss” and “gain” that I’ve offered here is mine.)

In this imagined choice, the two options are in fact the same, though they are being described differently, and it is irrational not to see them as the same. Any decision made without grasping that the two options are the same will be a flawed one because the decisionmaker doesn’t understand the situation. So it’s clear that the tendency to care more about avoiding losses than about achieving gains can be the source of erroneous decisionmaking.

Then why is this tendency something that’s part of our cognitive make-up? Actually, it’s probably not part of everybody’s cognitive make-up; those who care more about avoiding losses than about making gains are, more or less by definition, risk-averse, and not everyone is that risk-averse. There may well be opportunities available for those who are not risk-averse, but why are the rest of us (certainly including me) inclined the other way? How can this tendency serve us well, most of the time?

It seems to me that most of the time it is likely to be accurate that risking a loss of X will do us more harm than seeking a gain of X will bring us benefit. Why would the risk of losing $25 matter more than a putatively equal chance of gaining $25? For at least two reasons.

First, if the stakes really are $25 each way, then we need to assess how much we need our last $25 versus how much good it would do us to gain $25 more. Obviously the answer will vary depending on our life circumstances. As a general matter people who are able to do so probably measure their spending in light of their current income and wealth. That means that losing $25 may immediately impair the balance in our life, since we’ve planned our spending in light of having that money. But we probably haven’t  planned our spending in light of getting an extra $25, since after all we don’t know that we’ll get the extra money. That means the benefits of that gain are naturally more nebulous, and certainly not essential to maintaining the basic balance we’ve achieved. People with an appetite for risk may weigh these costs and benefits differently, and I’m not saying that being risk-averse is the only reasonable approach. But it is one reasonable approach, and apparently the more common one – and it’s hard, I think, to say that it is “irrational.”  

            There’s a second reason, however, that may be even more important. That is that the future is actually not very predictable. When we are told that we might gain $25, we must know that whoever is telling us this could be wrong. Unless we are experts on the steps to be taken to achieve that gain, we inevitably face the possibility that problems will surface that we never thought of. (If something sounds too good to be true, as the saying goes, it probably is.) Now of course it is possible that the chance of losing $25 has been overestimated – but then it’s also conceivable that the risks, either the amount we might lose or the likelihood of our losing it, have been underestimated instead! Since in real life we generally don’t know what the exact probabilities of either gain or loss are, if we’re initially inclined to care more about potential losses these uncertainties give us additional reason to follow this inclination.

            The rich literature about cognitive heuristics suggests that human reasoning is much more fallible than we might like to think. But if other heuristics also have sound bases in experience, as I’ve tried to show that the “over”-valuing of risks does, then maybe we are not as fallible as we have been coming to believe. Perhaps we need to understand, instead, why particular traits of human reasoning actually often work out well in the world, however flawed they may be in laboratory study. Of course, even if this is so, we’ll still know that we are capable of a lot of irrationality!


Saturday, September 5, 2015

Are good scholars more likely to be good teachers?

What should we make of a recent study, The Teaching/Research Trade-Off in Law: Data From the Right Tail (January 2015), that finds that, at the University of Chicago Law School, faculty members' teaching evaluations rise in correlation with how much they publish (69)?

The study's authors, Tom Ginsburg and Thomas J. Miles, both members of the Chicago law faculty, are open-minded and careful in their reading of their data, and readily acknowledge that the University of Chicago might be atypical. (78) They report that many studies of the impact of scholarship on teaching in academia have concluded that these two have little or no relationship to each other. (52) Meanwhile, Chicago's faculty members are so productive as scholars that the entire environment at Chicago may be unique. The average number of publications per year for each faculty member is 4.63; the median is 3 (56-57) -- and that's a lot of publishing. Perhaps Chicago's students are so accustomed to having ardent scholars as teachers, and so convinced themselves of the value of scholarship, that they are a specially welcoming audience for this group of professors -- a possibility the authors note. (72) Perhaps Chicago's scholars are unusually good teachers as well, another possibility the authors allude to (but don't assert is correct). (57-58)

But suppose what is true at Chicago is true more generally. What would that tell us?

First, it would be clear that being a productive scholar does not prevent someone from being a strong teacher as well. We don't know if this is in fact generally the case, but if it is, that's important. 

Second, it would remain likely, nonetheless, that time matters. The Chicago faculty in this survey don't seem to teach very much; on average, the study looked at the work of each professor over about 5 years, and during that time "[t]he average professor taught an average of 10 courses and the median professor taught 9." (53) That appears to mean that the typical Chicago professor teaches two courses a year, a number that I think faculty at many other schools would envy. (The authors note that "[a]ll of the regressions in [one aspect of their study] suggest that teaching multiple courses in a single term may reduce the quality of teaching." (74)) Moreover, Chicago faculty in general have limited administrative responsibilities. (56) They have a lot of time to perfect their scholarship and their teaching. Less time, one suspects, leads to less perfection -- though it seems from the data that Chicago's faculty/administrators sacrifice scholarly productivity (63) but not teaching quality (73). 

Third, it would remain quite unclear whether scholarship promotes teaching. I find the idea that writing about issues promotes understanding and that this understanding promotes exposition in class intuitively appealing. But it may not be correct and of course the correlations the study authors have found do not directly prove causation.

Perhaps there is some other factor which makes people both productive scholars and effective teachers. Once this idea is stated, it strikes me as having intuitive appeal too. Maybe Chicago's faculty have a combination of intelligence, demonstrativeness (to catch students' and readers' interest) and focused energy. Traits like these would make these people good at a range of occupations; two of them would be teaching and scholarship, but that might not be because teaching and scholarship actually build on each other, or (more to the point) build on each other in some specially powerful way.

Fourth, the study does not tell us anything about the relationship between scholarship and clinical teaching. The Chicago clinicians weren't included in the study at all; the authors explain that this is because clinical "courses differ from traditional academic teaching, and clinical faculty often do not publish scholarly articles." (78 n.1) I'm not familiar with Chicago's clinical faculty rules, but it may be that clinicians there are not expected to be scholars as well as teachers and case supervisors. 

Suppose it turns out that Chicago's clinicians are also very effective teachers, but that their effectiveness doesn't correlate at all with scholarship. That might offer more reason to believe that the true reason for faculty members' teaching effectiveness is, as I suggested earlier, that they have a special combination of intelligence, demonstrativeness and focused energy. The clinicians may build their teaching effectiveness through their simultaneous engagement in the cases their students are handling under the clinicians' supervision; that practice engagement may have the same synergistic impact on teaching as scholarship may for their classroom colleagues.

Fifth, we would not know whether the courses the Chicago faculty in the study are teaching are the best ones for the students to be taking. So, as the authors also acknowledge (48), what the study tells us is that Chicago's non-experiential courses are well taught by its scholarly faculty, not that "law schools are teaching the right things that students need to practice." We wouldn't know, in particular, that the balance of doctrinal and experiential, skills-focused courses is what it should be.

In short, we would -- and do -- have a lot still to learn.

Saturday, August 29, 2015

When plagiarism isn't plagiarism -- answer: in much of the work of lawyers

According to a recent study (as summarized by Adam Liptak in the New York Times), in Supreme Court majority opinions over almost 70 years (1946-2014) “the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent.”

It’s a little difficult to know what this means. Liptak says that “[t]he study and related findings … looked for passages of at least six words with an overlap of at least 80 percent.” So if a Justice wrote a six-word clause, of which 5 words were the same as those in a party’s brief, the study would have counted it as an instance of nearly identical language. Since many Supreme Court opinions quote at some length from statutes or precedents, it seems possible that quite a lot of the reported overlap consists simply of use of governing legal language, as Liptak notes.

Liptak reports that Justice Thomas’s use of nearly identical language is “unusually high” (11.3 percent), but while Justice Thomas apparently writes this way more than the others on the Court, the differences do not seem vast: Justice Sotomayor is at 11 percent, Justice Ginsburg at 10.5, and the Court’s average was 9.6 percent. So it’s hard to tell whether the data really shed any substantial light on Justice Thomas’s overall work as a Justice.

But what’s noteworthy is that judges’ use of others’ language seems to be generally (though not universally) accepted as perfectly appropriate. Similarly, lawyers regularly use published form documents as the basis for those they have their clients sign, and I think that it is also commonplace for lawyers to borrow arguments wholesale from either published sources or colleagues’ past matters – and in both forms of writing I believe the borrowing lawyers do not footnote to their sources. There may be some outer limits on such practices, but it seems fair to say that a significant amount of what lawyers and judges do with words would be plagiarism if it was done in the pages of a scholarly journal, or a newspaper. (Of course lawyers sometimes use words not as advocates or judges but as scholars or journalists, and in those contexts the rules of plagiarism apply to lawyers exactly as they do to others.)

Why don’t the rules of plagiarism apply to the work of lawyers and judges as they do to the work of scholars and journalists? Presumably because what we want from lawyers and judges is results. When a lawyer drafts a document, much of what he or she is doing is employing tools – legal terms – to accomplish an objective. It would make no more sense to bar the lawyer from using language someone else had developed than it would to prevent a carpenter from using the correct tool. (At least provided, in each case, that the original developer had made his or her tool available, or put it in the public domain.) Similarly, when a judge deploys borrowed language to lay out the foundation for a conclusion, he or she may rightly be seen as simply using the tools at hand.

We do, certainly, want more from lawyers and judges than mere use of tools. Creativity, judgment and wisdom are also part of the law. But our collective practice seems to reflect that we think we can still look for creativity, judgment and wisdom even while recognizing that a substantial amount of the work to be done is the employment of tools, and that as a result we should regulate the ethics of using words in law practice quite differently than we would in domains where the plagiarism rules hold full force.

Sunday, August 23, 2015

What if the constitution truly contradicted itself?

Suppose that the U.S. constitution didn't simply "contemplate" the death penalty, but included a sentence declaring, without qualification or limitation, "The death penalty is constitutional." But let’s assume that the same constitution equally explicitly, and equally without qualification, forbids arbitrary and inconsistent punishment. (Whether our constitution does so can be disputed: Justice Scalia would maintain that it is no mark of “cruel” punishment that one person receives the penalty he or she deserves, while another for inexplicable reasons gets off more lightly. Glossip, Scalia, J., concurring at 4.) Suppose also that Justice Breyer's argument in Glossip is right: the death penalty is arbitrary and inconsistent punishment.

At this point the death penalty both is and isn't unconstitutional, depending on which provision of the constitution we look to. So which provision should we look to? This is a difficult question, to say the least.  U.S. courts do not consider themselves in the business of declaring parts of our constitution unconstitutional, but the issue I've imagined seems to force courts to consider doing exactly that.

If either provision contained additional language, of the sort often seen in statutes, saying that this provision was to apply "notwithstanding anything to the contrary in any other provision," we would have a clear textual answer. But then there wouldn't really be a contradiction between the two provisions, since one would take precedence over the other.

Absent such textual directives, we could look to principles of textual interpretation to resolve the contradiction we face. If one provision was adopted later than the other, an interpretive canon favoring the last-adopted provision (as presumably reflecting the adopters' most recent thinking) could be applied, but this won't help us if all the provisions were adopted at the same time.

Another such guideline is that the more specifically applicable provision should be applied rather than a more generally phrased one. The idea here is that broad principles can have many meanings, and that what the adopters said on the specific matter at hand tells us what they intended the reach of their broad principles to be. So, here, the constitution's adopters could be taken to have meant that the prohibition of arbitrary and inconsistent punishment could have many meanings and could be applied in many contexts, but that the death penalty was not to be held to be arbitrary and inconsistent.

But if the death penalty really is arbitrary and inconsistent, then why should it be exempt from constitutional scrutiny directed at that reality? One response to this critique, to be sure, is to reinterpret what we mean by "arbitrary and inconsistent"; if those words have a narrower meaning than we thought, then the death penalty could be upheld on the ground that it actually is not arbitrary and inconsistent, according to the meaning that those words should be understood to have. But I want to assume that we are satisfied that our interpretation of "arbitrary and inconsistent" - the interpretation that would strike down the death penalty - is the correct one.

(Let me rephrase that claim, to acknowledge that calling one interpretation rather than another "correct" may be a form of hubris. So let me assume simply that we are satisfied that our interpretation of this prohibition is the one that makes the best sense to us in light of all the factors that affect our interpretations. I have to acknowledge that even this assumption is quite a strong one; a court not so sure that its preferred mode of interpreting the constitution is so compelling would have correspondingly less justification for using its interpretive approach to override clear language pointing the other way.)

All that said, there is also another problem with the "specific controls the general" approach. This is that this interpretive guideline exists in a sea of interpretive principles, many of them pushing in opposite directions, a point vividly stated (and perhaps somewhat overstated) by Karl Llewellyn years ago. Exactly what weight is to be given to any given interpretive principle is always, in the end, a contextual question.

But isn't it clear that whatever else the adopters meant, they certainly meant to affirm the death penalty's constitutionality? This argument would not only resolve our interpretive confusion but give us a principled argument for accepting the death penalty: that doing so honors the democratic choice of the constitution's adopters. But the adopters also meant to bar arbitrary and inconsistent punishments. They may have thought they could do both - but we have concluded that we can only do one or the other. (That could be because we are misunderstanding the prohibition of arbitrary and inconsistent penalties - but, again, I'm assuming that our interpretation of that prohibitions meaning is correct, or at least so cogent that we are confident of its appropriateness.)

If we can only obey one constitutional command, which should it be? The price of obeying the clause safeguarding the death penalty is that we can only do so by disregarding the penalty’s arbitrariness and inconsistency. That seems to me to be too high a price to pay. The death penalty is just one penalty; the principle of avoiding arbitrariness and inconsistency is a broad principle that in one way or another today pervades our law. To decide in favor of the application of the rule against arbitrariness and inconsistency is to rest decision on this principle; to rule in favor of the provision protecting the death penalty is to say that this same principle has its limits, limits that have no logical basis except the sheer fact that the constitution declares them – and the problem with that logical basis, as we’ve already seen, is that the constitution as we’re reading it declares these limits but also undeclares them: it is self-contradictory.

Courts, as Justice Scalia has said, want to shape the body of our laws to make as much sense as possible. The desire for a jurisprudence and a nation always acting based on principle is also a major theme of post-apartheid South African law, famously articulated by the anti-apartheid scholar Etienne Mureinik in his article A Bridge to Where? Introducing the Interim Bill of Rights, 10 South African Journal on Human Rights 31 (1994). I am not confident that we can apply our principles relentlessly and universally; I suspect, with Hamlet, that there are “more things in heaven and earth” than are encapsulated in any set of principles we might affirm.  But if a choice must be made, which is what the situation I've posited demands, then I believe the right decision is the choice of principle and logic rather than unreasoned exception - or in other words to hold the death penalty unconstitutional because of its arbitrariness and inconsistency.

Wednesday, August 12, 2015

The normality of a "self-contradictory" constitution

Is the idea of a self-contradictory constitution - that is, a constitution which under one provision permits some state of affairs, but under another prohibits it - odd at all? The answer is, actually, no. Consider these examples:

Congress imposes a tax on the purchase of television ad time, but only for political ads. That's presumably perfectly okay under the tax power, but certainly a breach of free speech under the First Amendment.

A local police officer stops a black motorist who makes a turn without using her turn signal. The stop has an objectively valid basis and so under current interpretation would not violate the Fourth Amendment, which regulates "seizures," including stops. But if the reason for the stop was actually a deliberate program of racial profiling, it would be unconstitutional race discrimination under the Fourteenth Amendment's Equal Protection clause.

What about a state statute that provided for the death penalty for homicides, if they are committed by African-Americans? Clearly, even if the Constitution affirmatively declared that the death penalty is not unconstitutional under the due process clause (which permits the deprivation of life "with due process of law"), this statute would be unconstitutional under the Equal Protection clause. And that's true even though the Due Process and Equal Protection clauses are both in the same Amendment, the Fourteenth. (The Fourteenth Amendment's due process clause applies to the states; the Fifth Amendment'a due process clause applies to the federal government.)

But, one might say, even though the Constitution contains multiple provisions and those provisions naturally can have differing consequences for the constitutionality of particular government actions, at least those provisions' intersection must be determined in light of their original meaning. A provision can't somehow expand in meaning to swallow some situation it formerly didn't apply to.

This contention is of course just an instance of the general idea that the constitution's meaning was fixed at the time of its adoption. That's not my view, as I've made clear elsewhere, but I want to offer one more example of our law taking a different approach.

This is Bolling v. Sharpe, the case that held school segregation in the District of Columbia unconstitutional. Why didn't Brown v. Board of Education, issued the same day, decide this? Because Brown was a decision under the Fourteenth Amendment's Equal Protection clause, which applies only to states. There is no textual Equal Protection clause applying to the federal government. So how does Brown's command come to apply to the schools in D.C., which are not governed by the Fourteenth Amendment because the District of Columbia is not a state? The answer is: through the equal protection component of the Fifth Amendment's due process clause. 

But how do we know that that implicit equal protection component applies to school segregation? After all, the Fifth Amendment – which itself has never been amended -- was adopted at a time when the Constitution explicitly, if euphemistically, “contemplated” (to use Scalia's language) slavery. The Thirteenth Amendment made slavery unconstitutional, so we can say that the Fifth Amendment no longer contemplates that, but what about school segregation? The Fourteenth Amendment – which the Brown Court interpreted as banning school segregation (though that may well not have been what the Fourteenth Amendment’s adopters thought it meant) – doesn’t apply to the federal government. What the unchanged language of the Fifth Amendment should be understood to “contemplate” now is the result of the Supreme Court's interpretation of the Fourteenth Amendment and the Court's conviction that “[i]n view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” In short, the Fifth Amendment’s meaning grew over time to outlaw school segregation.

Justice Scalia's opinion in Glossip v. Gross takes for granted that because the constitution explicitly contemplates the existence of capital punishment, that penalty could not legitimately be held unconstitutional. But it turns out that’s simply not so.