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DanielKenkelFirstPaper 3 - 02 Jul 2012 - Main.DanielKenkel
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< | Emotions in the Courtroom | >
> | Emotional Justice | | | -- By DanielKenkel - 16 Feb 2012 | |
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> | An increasing number of experiments in the fields of social psychology and economics are giving us greater and greater insight into how the human mind understands and implements the idea of fairness. Given the crucial (although perhaps ineffable) relationship between fairness and justice, it is natural that these experiments lead one to insights into the nature of justice in the legal system, and raise questions as to whether the legal system actually serves the goal of justice it set out to. | | | | |
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< | Fairness is Irrational
A study from 2008, discussed on NPR, shows that a desire for fairness is not limited to humans. | >
> | The Experiments
“The Private Rejection of Unfair Offers and Emotional Commitment” | | | | |
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< | You consider it
sufficient not to consult the study itself, but to rely on a radio
news report? That's research? | >
> | At the center of this experiment is a simple economic game. One participant (the proposer) is given X hypothetical dollars and is required to offer a split of this money with the second participant (the responder). If the second participant accepts the split, the deal is done; if the split is rejected, neither participant gets any money. The two never meet and they each only participate in the game once. This experiment is further complicated by using runs of the game wherein the proposer never learns of whether the offer was rejected or not.
Under a traditional rational economics model, the responder should accept any offer of money, no matter how small, and, knowing this, the proposer should offer the smallest quantum of money they can. Despite this, in this and similar experiments, responders often reject “unfair” offers; this has previously been explained as the responder trying to “punish” the proposer for offering an unfair proposal. However, because in this experiment the proposer never learns whether the offer was rejected or not, this explanation does not hold. The experimenters propose a new theory (with support from various other experiments in social psychology and neurobiology); that the response is an emotional one. That is, that people reject the offers because the offer makes them angry and disgusted and that expressing this emotion is worth more to them than the money offered. | | | | |
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< | Monkeys and even dogs will become frustrated and act out when they feel they have been treated unfairly In the experiments, the animals were given rewards for performing a task; if another got a better reward for the same task, the 'cheated' animal would refuse to perform the task any more, and some would even get agitated and violent.
What is most interesting is that this sense of fairness is entirely irrational, in that it does not conform with mainstream economic thought. | >
> | “The Absence of Reward Induces Inequity Aversion in Dogs” | | | | |
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< | Excuse me? "Mainstream
economic thought" is the exclusive test for rationality? Since when?
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> | In this experiment, dogs were trained to perform a trick (giving the experimenter their paw) in exchange for a treat. The dogs would still perform the trick a number of times without a reward. However, when a second dog was introduced, the dog’s behavior would change noticeably; if the other dog received a treat for performing the trick, the dog would be much more hesitant to perform the trick and would stop performing much more quickly if they did not also get a treat. | | | | |
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< | If the animal was willing to work for a given pay before, what makes it suddenly unfair that they are not getting paid more? | >
> | Again, these results conflict with traditional economic models. If the dogs were acting strictly rationally, the reward being given to another dog should have no impact on their decision to perform or not. When taken with the above experiment, it seems that social mammals have a sense of fairness quite distinct from the ideas of efficiency. | | | | |
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< | How do you figure the animal knew it was in an employment relationship? Did its agent read it the contract, or what? Seriously, what are you talking about? | >
> | Fairness Efficiency and the Law
In some sense, these findings should come as no surprise. Many law students in Contracts or Property courses have a difficult time agreeing with certain courts that the most efficient outcome is the fairest (assuming that the judge actual arrives at the most efficient outcome). They have the same emotional reaction the responder has in the private rejection experiments. The obvious “solution” to this “problem” is to reject the relevance of these emotions, and essentially reduce justice to a synonym for efficient. This ignores the fundamental nature of these emotional responses (even dogs appear to manifest these emotions); people will still feel these emotions whether or not they considered relevant. | | | | |
<
< | Neither supply nor demand for the task has changed, yet they feel the price should.
Though humans are (in theory) capable of controlling their emotions and thinking about matters rationally, this emotional response exists in us. People will still feel an outcome is unfair, even if it is exactly what they expected, what they agreed to, and what they logically feel should have happened. | >
> | A more desirable solution would be to place a value on the emotions, and use these values in the calculus for determining the efficiency of the case’s outcome. This is similar to the view proposed by Frank Michelman in "Property, Utility and Fairness", (80 Harv. L. Rev. 1165 (1967)). In brief, that paper discusses the effeciency and fairness of decisions in cases dealing with just compensation in takings. In relevant point, the paper brings up the idea that the party's and sympathizer's dissatisfaction ("demoralization costs") need to be considered; only when they are lower than the "effeciency gains" to society as a result of the case or the settlement costs should a court choose to find against that party. | | | | |
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< | Courts of Fairness
This study dovetails nicely with the legal thinking of Holmes and Cohen. As under their view, a judge is making an emotional judgment, with no real logic or rationality behind it.
No. Neither of them said that, or thinks it. Why do you assume that all judicial intellectual activity is "emotional," without "logic" or "rationality"?
Parties come into court not because they see that some rule was broken, but because they feel wronged, just as the "bad man" avoids court not because breaking the rules is evil, but to escape punishment. Both the parties and the judge wrap up their emotions in transcendental nonsense to rationalize and legitimize it. As we have read, this has the consequence of rendering an objectively fair and just trial (ostensibly the goal of the law) impossible.
I don't think that's what we read.
However, does this in any way change the value of the law to society? I posit (admittedly drawing on thinkers before me to form an unoriginal idea) that it may have a different value than it claims to, but nevertheless has value.
Emotional Safety Valve
It is a fairly uncontested idea that talking about your negative feelings with someone makes you feel better. The legal system may be, in essence, this concept writ large. Simply having a chance to be heard may alleviate some of the feelings of unfairness. Likewise, the fact that every step of the process of litigation is immensely time consuming allows for passions to cool. That it is all so expensive further encourages the forgiveness of minor slights. The roadblocks thrown up by the opposing counsel will similarly drive up the psychic cost of litigation, further incentivizing forgiveness.
Consider, for example, the AUSA from "Robinson's Metamorphosis". When he first saw Robinson's client about to break into his apartment, the AUSA reacted with violence. Were it not for the possible future harm to his career and social standing, Robinson believes the AUSA would have killed the boy. Clearly, the AUSA felt wronged, and took the boy to court (by proxy) to satisfy this feeling; at the time, he apparently thought he would only be satisfied with getting the boy for every crime he could. Nevertheless, once Robinson made the process difficult, the AUSA (by proxy) relented, satisfied with time served.
A Lightning Rod
It does, however, seem rather absurd to suggest that going through the process of litigation reduces a persons frustration. Having to spend all that time and money and being placed under that amount of stress is unlikely to make you feel better overall. And if the outcome is not what you desire, it seems unlikely that the feelings of unfairness would be too greatly reduced. But, the negative feelings are likely to be redirected. The court is now the source of the unfairness. Due to the courts greater power (both in terms of physical force and perceived legitimacy), a party is less likely to act violently to satisfy their sense of fairness. That is, it takes a great number of perceived offenses before someone is willing to take on the government itself. Like a lightning rod, the court draws frustration to itself, because it can take it.
Rationalization
However, with enough people against it, any government will fall. Thus, for a court to survive, it must satisfy the feelings of fairness of a great many people. Perhaps this is where the transcendental nonsense of the law come into play. Because the law is thought to lead to objective justice, the outcome of a case will be perceived of as fair, as long as the populace is given no reason to question the objectivity of the law. The legal nonsense that the decision is couched in add to the feeling of objectivity and legitimacy. So, many people will give up on their feelings of unfairness, merely on the court's say-so.
I don't understand this essay, and I don't think I'm alone. The way forward is to put the central idea, whatever it is, clearly enough that you can test it. You need to look again at the reading on which you seem to depend, because I don't think you've taken the ideas away very clearly from Holmes and Cohen, at the very least. | | | \ No newline at end of file | |
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> | Another “solution” is not so much a resolution of the issue as another way of perceiving it. Every case that comes to trial is different from the game used by the experimenters in “The Private Rejection of Unfair Offers and Emotional Commitment” because of a court case has a third party arbitrator. So, when one party sees the outcome as unfair, their anger and disgust are directed not only at the other party, but also at the judge and indirectly the whole of the legal system. At first, this may seem less than ideal, as the legal system is ultimately only given strength by society’s collective endorsement. However, one individual’s resentment is not likely to have any effect on the power of the law. Furthermore, this may serve a beneficial purpose to society, by directing the angered party’s resentment away from the other party (who is flesh and blood and can be hurt through vigilante actions) towards the court itself (which has metal detectors and armed guards). Ideally, parties arrive at a fair outcome through out-of-court settlement; but when this fails, it may be for the best that the court is the one blamed for the unfair outcome. | | | \ No newline at end of file |
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DanielKenkelFirstPaper 2 - 22 Apr 2012 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Emotions in the Courtroom | | |
Fairness is Irrational | |
<
< | A study from 2008, discussed on NPR, shows that a desire for fairness is not limited to humans. Monkeys and even dogs will become frustrated and act out when they feel they have been treated unfairly In the experiments, the animals were given rewards for performing a task; if another got a better reward for the same task, the 'cheated' animal would refuse to perform the task any more, and some would even get agitated and violent.
What is most interesting is that this sense of fairness is entirely irrational, in that it does not conform with mainstream economic thought. If the animal was willing to work for a given pay before, what makes it suddenly unfair that they are not getting paid more? Neither supply nor demand for the task has changed, yet they feel the price should. | >
> | A study from 2008, discussed on NPR, shows that a desire for fairness is not limited to humans.
You consider it
sufficient not to consult the study itself, but to rely on a radio
news report? That's research?
Monkeys and even dogs will become frustrated and act out when they feel they have been treated unfairly In the experiments, the animals were given rewards for performing a task; if another got a better reward for the same task, the 'cheated' animal would refuse to perform the task any more, and some would even get agitated and violent.
What is most interesting is that this sense of fairness is entirely irrational, in that it does not conform with mainstream economic thought.
Excuse me? "Mainstream
economic thought" is the exclusive test for rationality? Since when?
If the animal was willing to work for a given pay before, what makes it suddenly unfair that they are not getting paid more?
How do you figure the animal knew it was in an employment relationship? Did its agent read it the contract, or what? Seriously, what are you talking about?
Neither supply nor demand for the task has changed, yet they feel the price should. | | | Though humans are (in theory) capable of controlling their emotions and thinking about matters rationally, this emotional response exists in us. People will still feel an outcome is unfair, even if it is exactly what they expected, what they agreed to, and what they logically feel should have happened.
Courts of Fairness | |
<
< | This study dovetails nicely with the legal thinking of Holmes and Cohen. As under their view, a judge is making an emotional judgment, with no real logic or rationality behind it. Parties come into court not because they see that some rule was broken, but because they feel wronged, just as the "bad man" avoids court not because breaking the rules is evil, but to escape punishment. Both the parties and the judge wrap up their emotions in transcendental nonsense to rationalize and legitimize it. As we have read, this has the consequence of rendering an objectively fair and just trial (ostensibly the goal of the law) impossible. | >
> | This study dovetails nicely with the legal thinking of Holmes and Cohen. As under their view, a judge is making an emotional judgment, with no real logic or rationality behind it.
No. Neither of them said that, or thinks it. Why do you assume that all judicial intellectual activity is "emotional," without "logic" or "rationality"?
Parties come into court not because they see that some rule was broken, but because they feel wronged, just as the "bad man" avoids court not because breaking the rules is evil, but to escape punishment. Both the parties and the judge wrap up their emotions in transcendental nonsense to rationalize and legitimize it. As we have read, this has the consequence of rendering an objectively fair and just trial (ostensibly the goal of the law) impossible.
I don't think that's what we read. | | | However, does this in any way change the value of the law to society? I posit (admittedly drawing on thinkers before me to form an unoriginal idea) that it may have a different value than it claims to, but nevertheless has value.
Emotional Safety Valve | | | Rationalization
However, with enough people against it, any government will fall. Thus, for a court to survive, it must satisfy the feelings of fairness of a great many people. Perhaps this is where the transcendental nonsense of the law come into play. Because the law is thought to lead to objective justice, the outcome of a case will be perceived of as fair, as long as the populace is given no reason to question the objectivity of the law. The legal nonsense that the decision is couched in add to the feeling of objectivity and legitimacy. So, many people will give up on their feelings of unfairness, merely on the court's say-so. | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. | >
> | I don't understand this essay, and I don't think I'm alone. The way forward is to put the central idea, whatever it is, clearly enough that you can test it. You need to look again at the reading on which you seem to depend, because I don't think you've taken the ideas away very clearly from Holmes and Cohen, at the very least. | | | \ No newline at end of file |
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DanielKenkelFirstPaper 1 - 16 Feb 2012 - Main.DanielKenkel
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| META TOPICPARENT | name="FirstPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Emotions in the Courtroom
-- By DanielKenkel - 16 Feb 2012
Fairness is Irrational
A study from 2008, discussed on NPR, shows that a desire for fairness is not limited to humans. Monkeys and even dogs will become frustrated and act out when they feel they have been treated unfairly In the experiments, the animals were given rewards for performing a task; if another got a better reward for the same task, the 'cheated' animal would refuse to perform the task any more, and some would even get agitated and violent.
What is most interesting is that this sense of fairness is entirely irrational, in that it does not conform with mainstream economic thought. If the animal was willing to work for a given pay before, what makes it suddenly unfair that they are not getting paid more? Neither supply nor demand for the task has changed, yet they feel the price should.
Though humans are (in theory) capable of controlling their emotions and thinking about matters rationally, this emotional response exists in us. People will still feel an outcome is unfair, even if it is exactly what they expected, what they agreed to, and what they logically feel should have happened.
Courts of Fairness
This study dovetails nicely with the legal thinking of Holmes and Cohen. As under their view, a judge is making an emotional judgment, with no real logic or rationality behind it. Parties come into court not because they see that some rule was broken, but because they feel wronged, just as the "bad man" avoids court not because breaking the rules is evil, but to escape punishment. Both the parties and the judge wrap up their emotions in transcendental nonsense to rationalize and legitimize it. As we have read, this has the consequence of rendering an objectively fair and just trial (ostensibly the goal of the law) impossible.
However, does this in any way change the value of the law to society? I posit (admittedly drawing on thinkers before me to form an unoriginal idea) that it may have a different value than it claims to, but nevertheless has value.
Emotional Safety Valve
It is a fairly uncontested idea that talking about your negative feelings with someone makes you feel better. The legal system may be, in essence, this concept writ large. Simply having a chance to be heard may alleviate some of the feelings of unfairness. Likewise, the fact that every step of the process of litigation is immensely time consuming allows for passions to cool. That it is all so expensive further encourages the forgiveness of minor slights. The roadblocks thrown up by the opposing counsel will similarly drive up the psychic cost of litigation, further incentivizing forgiveness.
Consider, for example, the AUSA from "Robinson's Metamorphosis". When he first saw Robinson's client about to break into his apartment, the AUSA reacted with violence. Were it not for the possible future harm to his career and social standing, Robinson believes the AUSA would have killed the boy. Clearly, the AUSA felt wronged, and took the boy to court (by proxy) to satisfy this feeling; at the time, he apparently thought he would only be satisfied with getting the boy for every crime he could. Nevertheless, once Robinson made the process difficult, the AUSA (by proxy) relented, satisfied with time served.
A Lightning Rod
It does, however, seem rather absurd to suggest that going through the process of litigation reduces a persons frustration. Having to spend all that time and money and being placed under that amount of stress is unlikely to make you feel better overall. And if the outcome is not what you desire, it seems unlikely that the feelings of unfairness would be too greatly reduced. But, the negative feelings are likely to be redirected. The court is now the source of the unfairness. Due to the courts greater power (both in terms of physical force and perceived legitimacy), a party is less likely to act violently to satisfy their sense of fairness. That is, it takes a great number of perceived offenses before someone is willing to take on the government itself. Like a lightning rod, the court draws frustration to itself, because it can take it.
Rationalization
However, with enough people against it, any government will fall. Thus, for a court to survive, it must satisfy the feelings of fairness of a great many people. Perhaps this is where the transcendental nonsense of the law come into play. Because the law is thought to lead to objective justice, the outcome of a case will be perceived of as fair, as long as the populace is given no reason to question the objectivity of the law. The legal nonsense that the decision is couched in add to the feeling of objectivity and legitimacy. So, many people will give up on their feelings of unfairness, merely on the court's say-so.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
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