Be sure to check out the new post at Trial Behavior on how best teaching practices can help lawyers to better persuade juries: http://www.trialbehavior.com/2016/09/13/teach-your-jurors-well/

And follow them @trialbehavior on Twitter.

The Blog is Back! (Sort of....)

After an almost two-year hiatus, this blog will be back in the coming week! Well, sort of.

As many of you know, I left teaching and academia about a year and a half ago to pursue a job that, at its best, is law and society in action. As trial consultants at Trial Behavior, we use social science to predict what arguments will be most effective for a lawyer's case, what story will best marshal those arguments, and what types of jurors will be most (and - more importantly - least) receptive to that story.

Focus groups early in litigation help to clarify what issues jurors will find important and help us point attorneys to aspects of a case that may have been overlooked, or to aspects that are getting more attention than merited by what jurors consider critical. We use mock trials to test as many aspects of lawyers' arguments as we can and to gather data about how potential jurors react to those arguments. Often, we then use that data to build a statistical model that helps attorneys harness social science and enables us pick the best jury we can for their cases.

So what of the blog? Well, here at Trial Behavior, we're going to start more regularly posting on our own blog about what our jobs entail, how we do them, and about some of our findings. For fans of the "old" LawAllOver, I hope this will be a different look into the same ideas. What differences emerge in how different people view the same case in disparate ways? And how can we use social science to discover, measure, and test those differences? For those who are more interested in the practical applications in law, we will also look at how social science can improve many different aspects of lawyering.

I hope that you will all find it interesting and engaging! I encourage you to check out our website at www.trialbehavior.com, and to follow us on Twitter @trialbehavior. I'll post links here to our new material, starting this Monday with a post on how lawyers can use best teaching practices in court.

Thanks for reading, and welcome back!

Mass Incarceration and "The Code of the Street"

By Laura Lee

Noticeably absent from Code of the Street is a sufficient discussion of how mass incarceration affects the kinds of communities that Elijah Anderson was examining.  In particular, chapters four and five are titled “The Mating Game” and “The Decent Daddy;” with regard to these subjects, the disproportionate numbers of black men who are incarcerated or have interacted with the criminal justice system is absolutely relevant to the role of black men in relationships and in families.

When Elijah Anderson analyzes the appeal of the street life, he discusses the attractiveness of the drug trade to these populations.  He notes that, although it is illegal, “it is the most lucrative and most accessible element of the underground economy” (111).  Not only is it a lucrative opportunity, but for many black men it may be their only economic opportunity.  Anderson notes that many young black men have trouble finding an above-ground job due to racial discrimination, and may fail to even begin the job search under this assumption and observation that they will be passed over regardless (111). In such circumstances, it may seem rational to engage in drug dealing; however, that does not make the activity any less illegal.  Even though Anderson claims that the deep-rooted connection between drugs and inner-city life is “largely tolerated by civic authorities and the police,” there is contradictory empirical evidence that black men in particular face steep consequences for such activity (111).  The War on Drugs exacerbated racial disparities in our prison systems to the point that two-thirds of all drug offenders in prison are people of color.

There is vast empirical evidence which clearly shows the direct effect of mass incarceration on black men; more subtly and indirectly, this trend also has an effect on black women.  The Economist published an article to this effect in 2010, looking at “how the mass incarceration of black men hurts black women.”  It noted that one in nine black men aged 20-29 is in jail or prison; for black women in this age range, the numbers were only one in 150.  Most people marry someone of the same race, but people behind bars can be assumed to be excluded from the dating pool, so these skewed numbers present a real challenge in the mating game.  As evidence of this fact, the article found that “as incarceration rates exploded between 1970 and 2007, the proportion of US-born black women aged 30-44 who were married plunged from 62% to 33%.”  Elijah Anderson’s analysis of the mating game in Code of the Street is compatible with the phenomenon described in this article.  Anderson discussed the social factors for low marriage rates, explaining how marrying for love is a privileged mind-set that “presupposes a job, the work ethic, and, perhaps most of all, a persistent sense of hope for an economic future” (178).  The lack of these positive factors is directly related to the expansion of the drug culture and the uncertainty of drug dealing as a form of income, which is far less conducive to sustaining a family compared to traditional employment.  We can see that not only is incarceration affecting marriage rates due to the physical obstacle it presents, but even the factors that could lead to future incarceration (like engaging with the drug trade) coincide with factors decreasing the likelihood of marriage.

Related to this debate on the lack of eligible black men for marriage is the public discourse regarding absent black fathers.  President Obama spoke about this subject on the 2008 campaign trail, arguing that “Too many fathers are M.I.A.  Too many fathers are AWOL.  They have abandoned their responsibilities, acting like boys instead of men. And the foundations of our families are weaker because of it.  We know this is true everywhere, but nowhere is this more true than in the African American community.”  Elijah Anderson similarly enforced this stereotype of the missing black father in the context of his discussion on “decent daddies.”  He noted that if young men feel they are unable to “make the woman love him without his resorting to abuse” they may drop out of this game of playing house; they shirk responsibility and are, “at best, part-time fathers and partners” (186).  His case studies of two decent daddies present them as exceptions to the rule.  Contrary evidence is offered by Michelle Alexander, author of the New Jim Crow.  She notes in her book that all the people who proliferate the stereotype of the missing black father fail to offer where we will likely find them – in prison.  One million of the ‘missing’ black men in our society can be found in jails or prisons, but the public acknowledgement of this fact is too rare.  She offered research showing that, contrary to this stereotype of the absent black father, “black fathers not living at home are more likely to keep in contact with their children than fathers of any other ethnic or racial group” (179).

Mass incarceration is a problem that intersects many issues of inner-city life that Anderson examined, such as involvement with the drug trade, racial prejudice, and street vs decent families.  Directly, it is a problem affecting black men, but the indirect effects are felt by their partners and children.  By understanding the scope of mass incarceration’s interference with the black community, we can gain a more complete understanding of the problems described by Anderson in Code of the Street. 

Honor, Dignity, and Deterrence in the Sopranos

By Lauren Diamond

In analyzing the convergence of an “honor-based” society and a “dignity-based” society in the film Unforgiven, Orit Kamir determines that these two social orders are “two, fundamental, antithetical bases of unique value systems,” (Kamir, 195).  He defines an “honor culture” as a society which uses “shame as a fundamental criterion to determine worthiness and social rank” (197). Thus putative masculinity, pride, and assertiveness are highly valued. Consequently, honor is a “structure of social power,” in that members of such societies often combat humiliation and earn their honor with displays of violence and power, creating a hierarchical social structure in which aggression and dominance may lead to higher status. Paradoxically, Kamir argues that a dignity-based society values intrinsic virtue within all of mankind, which “implies ‘live and let live,’” (203). In Unforgiven, Kamir conceives of honor and dignity as conflicting value systems. Yet in The Sopranos — particularly in episode three of season one — Tony Soprano is involved in a social system in which deterrence, dignity, and honor exist in the same complex network. 

Like Kamir’s interpretation of Little Bill in Unforgiven, Soprano believes that “in his own mind he is law and justice, a living fusion of manhood, honor, justice, and the law.” (222)  He decides when he applies codes of honor and when he respects human dignity. In the beginning of the episode, hotel owner Shlomo Teittleman offers to give Soprano 25% of his hotel if Soprano forces his son-in-law to agree to a divorce without compensation. Soprano has already established a reputation and claimed honor to his name. Yet verbal intimidation fails to convince the son-in-law to comply because the he lives by a dignity-based code. The son-in-law feels that he has put immeasurable time, effort, and money into his marriage and the hotel, and that it is his fundamental right as a human being to be compensated for the costs of his marriage. But by abiding by the honor-based code, the son-in-law is the means to a profitable end for Soprano, and he overlooks this idea of dignity and human right. To him, a business deal is a business deal. 

According to Kamir’s theory, refusing cooperate could be interpreted as an act to humiliate or shame Soprano. In response, he escalates the situation from an honor perspective by physically harming and threatening to kill the son-in-law to “avenge the offense” (203). Yet the son-in-law still refuses to cooperate, insisting that he would rather die than lose his dignity in accepting a fruitless divorce. Again shaming Soprano’s honor in his refusal, Soprano then threatens to castrate the son-in-law as a more effective method of retaliation, and the son-in-law finally accepts the proposal. He decides that he living without “the most cherished attribute of manhood and masculinity,” would be a worse fate than death (217). To him, the cost of living without the humiliation and shame, and thus the loss of honor that accompanies castration exceeds the cost of losing his life. 

When Soprano goes to collect his share from Teittleman, he tells Soprano that he and the son-in-law have worked out a deal and thus refuses to pay Soprano for his services. From a deterrence perspective, which is not concerned with settling the score but rather sending a message, he brutally beats Teittleman to as “a message of deterrence” (223). In this case, he intends to warn others of the consequences of breaking a promise made to the Mafia. Yet in confluence with the honor code, he also brutalizes Teittleman to essentially settle the score, and punish him for refusing Soprano the money he feels he is owed and threatening his honor and reputation. At this point Teittleman calls Soprano “Frankenstein,” implying that he is inhuman and thus without basic human dignity and compassion for others. 

Yet Soprano often does live by certain codes of dignity in situations involving his loved ones and those he respects. For instance, throughout the episode Soprano struggles with his decision to burn down his best friends Artie Bucco’s restaurant when he is informed that another member of the Mafia plans to murders someone there. He believes that it if someone is murdered in Bucco’s restaurant, he will have to bear the shame of losing all of his customers. However, if the restaurant is burned down, Bucco can collect insurance money and rebuild. Though unconventional, the arson was conducted in an act of “empathy, solidarity, and humanistic obligation” to his companion (203).  He sees his coworker ignoring Bucco’s dignity and treating him as merely a means to their end, a pawn in their grander plan. Thus Soprano burns down Bucco’s restaurant to preserve Bucco’s dignity. 

In another instance, when two of Soprano’s underlings steal from a truck company that is already paying protection money to Soprano’s uncle, Soprano demands that the two boys pay restitution. This is consistent with values in the honor-code, as he demands that to maintain his uncle’s honor the boys must pay for damage they have caused. From a deterrence perspective however, it can additionally be argued that in forcing the boys to pay a huge sum as retribution for their indiscretion, Soprano also means to use them to deter others from making a similar kind of blunder in the future. 

Ultimately, Tony Soprano is immersed in a system in which deterrence, honor-codes, and dignity are all applied in many of the same situations. In the world of the Sopranos, the three value systems can be seen as inseparable, and Tony Soprano uses all three social codes in his leadership tactics.  

Regulators are People Too

By Carson Smith

Regulations aren’t black and white. There’s a gray area where individual identity and organizational culture influence implementation. Like the law, regulation is endogenous—it comes from within. Ultimately, organizations interpret laws to serve their own needs (Edelman, “Law at Work,” p. 337). Individuals’ interpretations vary, however. Prior experience, race, and gender can be significant indicators of an individual’s willingness to accept symbolic compliance (Fuller, et al., “Legal Readings,” p. 206). After the financial collapse of 2008, a confidential report from the Federal Reserve Bank of New York revealed a culture that was too risk averse. The Fed went on a hiring spree to create an outspoken New Guard of bank examiners (Bernstein). Like any cultural shift, this caused a lot of friction. Was the New Guard’s confrontational style damaging the Fed’s credibility? Was the Old Guard stuck in the pocket of big banks? These are easy questions to ask, but they don’t get to the truth of the matter. It’s not likely either side was acting dubiously for any sinister reason. Instead, this friction was a result of experienced individuals confronting a generalist system of regulation that often accepted internal logic and symbolic compliance in order to avoid personal and organizational risk.

In “Law at Work: The Endogenous Construction of Civil Rights,” Lauren Edelman outlines how the law is “generated within the realm it seeks to regulate” (p. 337). There are two main sets of compliance professionals: lawyers and management consultants. Lawyers provide the first reading of new rules—examining any potential threats and providing insight to academic journals, other lawyers, or management consultants. Management consultants are responsible for diffusing the legal information throughout the organization. Since they work within the organization, their interpretation of the law is more likely to represent the views of the business. Edelman also observed how these compliance professionals mythologized and exaggerated claims against companies. They’d tell stories about ridiculous settlements for consumers and employees for organizations that did not meet standards (p. 342). A lack of any mythologizing and the separation between lawyers and management consultants were the central problems of the Federal Reserve. Bank examiners work in the banks they’re regulating as management consultants. Most examiners have introductory knowledge of a variety of regulations. They’d have to call Fed HQ to get any specialized information from lawyers. In practice, however, it was easier to question the people in the bank about complex transactions first. This essentially gave banks incredible influence in regulating themselves (Bernstein). Furthermore, the management consultants lacked any real way to mythologize their positions. Given the nature of financial regulation, improper implementation may come at a large cost overall but, at the same time, a small cost to individual consumers. Although it’s important for the banks to have some say in realistic implementation, this should not get in the way of the regulation’s real purpose. Separation of information and thought between these two entities—lawyers and management consultants—combined with a lack of story-telling helped organizations gain stronger sway over how the law was diffused in the industry.

What happens when individuals enter this workplace with a lawyer’s mindset? Sally Fuller, Lauren Edelman, and Sharon Matasik explain how individuals within organizations interpret and mobilize law differently due to personal history and existing legal structures. They explain how people with more experience in a certain area of law are less likely to accept symbolic messages and more likely to judge a policy based on how it is actually implemented (“Legal Readings,” p. 206). When the Fed started its hiring spree, they were looking for experienced employees for this exact reason. The New Guard of bank examiners were not generalists. Some of them had worked directly with banks in the past on complying with complex rules. Their entire job depended on their ability to understand how laws should actually work (Bernstein). By replacing management consultants with lawyers as bank examiners, the Fed was demonstrating a cultural shift to begin properly regulating the banks.

Carmen Segarra had worked with CitiBank for ten years, helping them comply with a variety of rules and regulations. She was hired as a bank examiner for the Federal Reserve Bank of New York and went after Goldman Sachs for not meeting standards on their conflict of interest policy. She spent seven months building her case, but when she was about to publish her findings, she ran against the Old Guard. Her supervisors were confused as to why this was an issue at all. Goldman Sachs’ Code of Conduct included something that at least looked like a policy. Wasn’t that good enough? Segarra knew it wasn’t, and other Fed lawyers have confirmed this. In the end, she’s forced to act like Goldman had a policy before publishing her findings (Bernstein). The policy in Goldman’s Code of Conduct was a symbol—something put there to give an illusion of following higher standards. Segarra had spent years helping banks make policies like these and knew that how strongly the reality differed from the symbol. Since the other management consultants lacked Segarra’s lawyerly experience, they were more sensitive to the bank’s views. Furthermore, they lacked the urgency in story-telling that would normally characterize legal threat minimization. They worried more about credibility than reality. The mere presence of a symbol remained important to them, whether or not it worked. 

The reason any of this became public was because Carmen Segarra was fired from her job and sued the Fed for wrongful termination. Right now, she’s appealing the case. In response to questions about her termination the Fed said it was based “entirely on performance grounds, not because she raised concerns as a member of an examination team about any institution” (Bernstein). This is believable to some Fed employees who thought Segarra had “sharper elbows”. For Segarra, however, the symbol has strayed from reality. 

______________________________________________________

Bernstein, Jake. ""The Secret Recordings of Carmen Segarra"" This American Life. 

Edelman, Lauren, "The Law at Work"

Fuller, et al, "Legal Readings"