In the wake of the recent financial crisis, I’ve been pondering the role of courts in the formation and execution of corporate financial law and policy. My focus quickly shifts to a predicate question: How do courts currently handle controversies relating to complex corporate financial arrangements? And what can we learn from judicial action and inaction in this realm?
My Article, Confronting the Certainty Imperative in Corporate Finance Jurisprudence (forthcoming in the Utah Law Review), explores the (seemingly nonexistent) role of the judiciary in shaping corporate financial law. Analyzing finance and lending jurisprudence, including cases in the related areas of consumer finance and public finance, I discover a judicial narrative of restraint, deference and abstention.
In particular, the dominant judicial decision-making paradigm in lending and finance asserts that stable financial markets require an environment of “legal certainty,” which is achieved when courts exercise considerable restraint. In disputes that stem from private financial agreements, courts show restraint by narrowly tailoring opinions to strict construction and passive enforcement of underlying contracts, and by declining to extend common law doctrines.
I call this paradigm the “Certainty Imperative.” I trace the Imperative to decisions rendered in the wake of the economic instability of the late 1970s and early 1980s, and I find that the paradigm continues to dominate finance and lending jurisprudence to this day. In fact, it has been bolstered by state and federal statutes that further constrain judicial decision-making in the corporate financing realm.
Ostensibly a creature of neoclassical economic theory, the Imperative infuses the specific goal of stability in financial markets into the broader and more deeply entrenched normative theme of legal certainty. The Imperative is rooted in the belief that financial markets are vital to the national interest, and that judges ought to decide cases in this realm in a manner that advances broad economic efficiency goals. What is more, the Imperative reflects the neoclassical conviction that markets are inherently stable in the absence of governmental intervention (including via judicial decision).
Imperative-abiding courts invoke forceful language, expressing fear that a decision might “throw credit markets into confusion and destabilize this area of law,” Smith v. Anderson, 801 F.2d 661, 665 (4th Cir. 1986), or “disrupt orderly credit markets.” Algemene Bank Nederland v. Hallwood Indus., 133 B.R. 176, 180-81 (W.D. Pa. 1991). The Fourth Circuit went so far as to suggest a slippery slope, whereby a ruling adverse to the expectations of lenders might send tremors through the industry, causing “untold and unknown consequences that cannot now be fully foreseen,” “undefinable instability” and even “widespread confusion.” Cetto v. LaSalle Bank Nat’l Ass’n, 518 F.3d 263, 277 (4th Cir. 2008). Other times, courts express this Imperative in vague terms, as if to imply some universal understanding that markets are profoundly sensitive to judicial decisions that modify existing law. For instance, courts have referred to undefined “ripple effects,” Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 189 (1994), and the simply-stated policy concern: “credit markets may be affected.” In re Fracasso, 210 B.R. 221, 228 (Bankr. D. Mass. 1997).
Generally focused on the needs of financial institutions rather than borrowers, the Imperative promotes bright-line rules that provide “all prospective lenders the certainty that is so important to the effective operation of markets,” In re Bulson, 327 B.R. 830, 845 (Bankr. W.D. Mich. 2005), or that deliver “guiding principle[s] for those whose daily activities must be limited and instructed” by laws governing commercial transactions. Dirks v. S.E.C., 463 U.S. 646, 664 (1983). The theme is often invoked as a rationale for maintaining the legal status quo, as courts lament a seemingly inequitable outcome under current law, but decline to engage in legal reform out of concern that any deviation from the expectations of lenders might disrupt financial markets.
When we consider this judicial narrative in its historical context, the Imperative seems not to be a reasoned legal philosophy, but rather a consequence of a shaken economy and a loose synthesis of emerging academic theories that seemed to offer new direction for maintaining financial market stability.
In my opinion, if courts are to assume a meaningful role in financial law reform, the Imperative must be confronted and overcome. The dominant paradigm heavily privileges the legal status quo, and its methodological constraints are a paralyzing force on the judiciary. The Article provides an in-depth critique of the Imperative’s strict interpretive norms, and suggests several possibilities for expanding the scope of judicial inquiries in the corporate financing realm.
I welcome your comments, questions and reactions!
Alas, this is the last post of my guest blogging stint here at the Glom. Thanks again for an informative and transformative 2-week set of experiences and memories.
I second Erik's post about law schools fostering humility. Eric poses these 2 fundamental questions:
1. Can one be both ambitious and humble?
2. Can law schools both inspire to dream large dreams -- personal and social -- while still warning about our own fallibility and the limitations of law?
I believe and hope that the answer to both of Eric's questions is yes.
1) Ambition is a great motivator for action, but unless ambition is accompanied with humility ambition often leads to arrogance, conceit, and hubris. A consequence of ambition often is great power and as is often quoted, "with great power comes great responsibility."
2) Not only law schools, but also such other professional schools as those for business, medicine, and public policy can and should "both inspire to dream large dreams -- personal and social -- while still warning about our own fallibility and the limitations of" the profession for which they are preparing their students to enter.
I will be teaching Legal Ethics and Professionalism for the first time next semester and have decided after detailed consideration of the many books and supplements from Aspen, Foundation, and Lexis to adopt these 3 books:
a) Nancy Levit and Douglas O. Linder, The Happy Lawyer: Making A Good Life in the Law (2010), ISBN: 978-0195392326. This book is just a wonderful source for law students and lawyers about recent scholarship about happiness and how to balance professional work and personal life. More generally, the book helps readers think about and find meaning in their quest for a satisfying career in the law.
b) Scott L. Rogers, Mindfulness for Law Students: Using the Power of Mindfulness to Achieve Balance and Success in Law School (2009), ISBN: 978-0977345519. This little paperback is another great resource for law students to help them integrate mindfulness into their busy and stressful lives.
Leonard Riskin, the Chesterfield Smith Professor of Law at the University of Florida, who currently is visiting at Northwestern law school, has been a long-time pioneer in championing the benefits of practicing mindfulness to law and mediation:
3) Michael C. Ross, Ethics and Integrity in Law and Business: Avoiding "Club Fed" (2011), ISBN: 978-1422479704. This paperback textbook succeeds at being a delightfully engaging, fresh, funny, and practical take on the professional responsibility course, which is often required in law school. This book contains many relevant quotes from authors, economists, humorists, judges, philosophers, and scientists. It also has wonderfully on point cartoons and comics from the Wall Street Journal and P. C. Vey, among others.
This book imparts much pragmatic wisdom about how to choose ethical behavior during tough economic times.
Not surprisingly to readers of Glom who have read my posts about business movies, I also plan to show film and television show clips in class to provoke discussion about violations of ethical rules and what sort of lawyers and values are possible and which of those possibilities are likely to lead to personal happiness and professional satisfaction. For example, three recent television programs that raise issues related to professional ethics and personal values are these:
I close this post and my guest blogging by providing the opening two paragraphs from a just completed manuscript, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Parenting and Legal Education. This working paper is related to many of the issues and themes I've raised in the 10 posts during this 2-week guest blogging opportunity. And yes, the first paragraph may seem to be immodest and ironic after discussing the importance of humility. The reason to include that paragraph in this post is that everything in that paragraph is true and verifiably so. Also, this post advocates true humility and not false humility. It would be an exercise in false humility to hide or deprecate my own past for the mere sake of appearing humble.
I believe that Amy Chua, tiger mom and Yale law professor, would see my life as exemplifying successful tiger parenting. I am an American born Chinese, who at age 14 enrolled as a freshman at Princeton University and 3 years later at age 17 after being a University Scholar there graduated Phi Beta Kappa earning an A.B. in mathematics. I also earned a Ph.D. in applied mathematics from Harvard University and a J.D. from Stanford University (after having been a 1L at the University of Chicago). My Ph.D. thesis advisor was 1972 economics Nobel Laureate and mathematical economic theorist, Kenneth Joseph Arrow. After serving as an economist in the Division of Consumer Protection in the Bureau of Economics of the Federal Trade Commission, I taught in economics departments from coast to coast, including at Stanford University, the University of California Berkeley, and the University of California Los Angeles; in the finance department of the A.B. Freeman business school at Tulane University; and in law schools at Yale University, University of Chicago, University of Pennsylvania, University of Virginia, University of Minnesota, and University of Southern California. I co-authored a law school course book about law and popular culture, while a member of the Institute for Advanced Study School of Social Science, during its psychology and economics thematic focus academic year. I am currently a professor and the inaugural DeMuth Chair at the University of Colorado School of Law after having been a professor and the inaugural Kohn Chair at Temple University law school.
This Essay reflects upon the desirability, efficacy, and motivational consequences of having a tiger mom such as Professor Chua or my own immigrant mother, who is a New York University medical school biochemistry professor. This Essay also points out many similarities between mainstream modern American legal education and tiger parenting, including their common hierarchical, top-down learning environments that entail authority, compliance, extrinsic incentives, fear, memorization, obedience, paternalism, precedent, and respect for one’s elders. The educational methodologies and philosophies of tiger parenting and the prevailing orthodoxy of United States legal instruction, especially the substantive content of the standard first year law school curriculum, explicitly and implicitly privilege a type of information processing known as system two over a type of information processing known as system one. System two reasoning is analytical, cognitive, conscious, controlled, deliberative, effortful, logical, rule-based, and slow; while system one is affective, associative, automatic, fast, habitual, heuristic-based, holistic, intuitive, and unconscious. Ironically, the Socratic method of legal instruction often places a premium on answering a professor’s questions aggressively, quickly, or superficially instead of deeply, mindfully, or thoughtfully.
I highlight some additional benefits to lawyers from paying attention to and learning more about emotions by recommending these five items to read.
First, the weekly faculty colloquium here yesterday was an intriguing talk by University of Wyoming College of Law Professor Michael R. Smith, who presented his work-in-progress titled, The Sociological and Cognitive Dimensions of Policy-Based Persuasion. Here is his summary of it:
Arguments based on public policy are critical to legal advocates, especially when they are arguing to a court on an issue of first impression. Interestingly, however, very little serious literature has been produced about the nature of policy arguments and how legal advocates can use them to best effect. This presentation, based on a work-in-progress, will explore the nature of policy-based persuasion in terms of sociology theory and cognitive psychology theory. Based on principles borrowed from these disciplines, the presentation will identify different types of policy arguments and will explore strategies for maximizing the persuasive impact of policy arguments in legal advocacy.
One of his main points was the difference between emotional narratives versus emotional policy arguments. For more related work, see his thoughtful book Advanced Legal Writing: Theories and Strategies in Persuasive Writing:
Second, see this article by Jules Lobel and George Loewenstein titled, Emote Control: The Substitution of Symbol for Substance in Foreign Policy and International Law. As they describe their article in this abstract:
Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific 'dual process' perspective that distinguishes between deliberative and emote control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence of emotions not only on the general public, but on politicians and judicial decision makers, leads to a substitution of symbol for substance that can be seen at two different levels: (1) in the types of situations and stimuli that drive people to action (namely vivid symbols rather than rational arguments), and (2) in the types of actions that people take - specifically symbolic actions that are superficially satisfying as opposed to more substantive actions that are less immediately satisfying but actually more likely to produce desired long-term results.
Third, see this article by Deborah A. Small and Jennifer Lerner titled, Emotional Policy: Personal Sadness and Anger Shape Judgments about a Welfare Case. Here is their abstract of their article:
When making decisions about a welfare case, it is reasonable for one’s thoughts and feelings about the potential welfare recipient to influence the decision. It is less reasonable for one’s “incidental” feelings (e.g., sadness or anger arising from an event in one’s personal life) to influence such decisions. In two studies, however, data reveal that incidental anger and sadness do in fact carry over, shaping welfare policy preferences. Study 1 found that incidental anger decreased the amount of welfare assistance participants recommended providing relative to neutral emotion, whereas sadness increased the amount recommended. Study 2 replicated the results and found that limiting participants’ cognitive resources eliminated the difference between sadness and anger, thus implying that differences in depth-of-thought drove the effects. In sum, the results reveal ways in which: (a) personal emotions carry over to shape preferences for public policies, (b) emotions of the same valence have opposing effects, and (c) differential depth-of-cognitive-processing contributes to such effects.
Fourth, check out an article by Todd D. Peterson and Elizabeth Waters Peterson titled Stemming the Tide of Law Student Depression: What Law Schools Need to Learn from the Science of Positive Psychology explains how to effectively inoculate law students from learned depression by helping them utilize their signature character strengths.
Fifth, there is no better definitive single book about why happiness matters to law students, lawyers, and law firms than one by Nancy Levit and Douglas O. Linder titled The Happy Lawyer: Making a Good Life in the Law.
I am grateful for Usha’s latest post about her ambivalence to law and emotions scholarship because it provides an opportunity to engage in extended public discussion about what are some of the legal payoffs to (business) law professors of learning and teaching about emotions in general and happiness in particular.
I concur with Usha that it’s a busy time of the academic year as the semester is coming to a close and many of us will soon be traveling for the holidays (and some of us have traveled to participate in conferences). Of course, most of us feel that we are if not always, then at least constantly busy. In their article titled Idleness Aversion and the Need for Justifiable Busyness, Christopher K. Hsee, Adelle X. Yang, and Liangyan Wang present experimental evdience that busier people self-report being happier. The following is a video short about how the days are long, but the years are short.
I am quite sympathetic to Usha’s opinion that while happiness research is “all fascinating and it shapes my daily choices and reaffirms (or causes me to question) my life choices. Happiness research goes to the core of myself as a person. Still I wonder: what does this have to do with law?” This is partly because her view is one that many people including myself from a couple of years ago share. As Usha pointed out, I’ve already written a number of law review articles and some peer-referred articles about law and emotions including but not limited to happiness. Rather than repeating any of those article’s themes (those interested can find all of them available here), I’ll share five concrete responses to the specific challenge that Usha issued about what are the legal implications of and payoff to emotions and happiness research.
First, much of law concerns and is about human behavior: how to discourage anti-social human behavior and encourage pro-social human behavior. In attempting to change human behavior, law is and must be predicated upon a theory of human behavior. The theory can be Oliver Wendell Holmes’ bad man or neoclassical economics’ much caricatured rational actor. Whatever that underlying theory of human behavior is that law is based upon, that theory must address human JDM (Judgment and Decision Making) because in order for the law to change human behavior the law must change the judgments and/or decisions that humans make. It just so happens there has been a recent flood of research about how emotions in general and happiness in particular influence human JDM. This research is diverse and scattered across many disciplines, including anthropology, economics, finance, neuroscience, marketing, philosophy, political science, psychology, and sociology. Of course, this plethora of non-legal interest and research does not have to mean there are legal implications of new understandings about how emotions and happiness shape human JDM. But at least some law professors can and should read this rapidly growing literature to digest it and see if any of it has legal implications or payoffs. Professor Emeritus and former Dean of Stanford Law School and current President of the William and Flora HEwlett Foundation, Paul Brest teaches a graduate course on JDM at Stanford University. He has co-authored with Professor of Law and Director of the Ulu Lehua Scholars Program at the William S. Richardson School of Law in Honolulu, Hawai'i and Senior Research Fellow at the Center for the Study of Law and Society at the University of California, Berkeley, Linda Hamilton Krieger a book titled Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers amd Policymakers. Chapter 13 of their book analyzes complexities about decision-making including predicting future well-being and Chapter 16 is titled The Role ofAffect In Risky Decisions.
Second, much of business law is premised upon the neoclassical economics model of utility maximization or the behavioral economics challenge to that model. In either case, business law can benefit from recent work on happiness economics because happiness economics raises a more fundamental challenge to and radical critique of neoclassical economics than does behavioral economics. Some view happiness economics as being a proper subset of behavioral economics, while others view happiness economics as being an extension of behavioral economics. In any event, behavioral economics points out that people have bounded rationality, willpower, and self-interest. The theoretical core of behavioral economics is an article titled Prospect Theory: An Analysis of Decision under Risk by Daniel Kahneman and Amos Tversky. This is an article which is likely to have been cited more times than it has been read by law professors and certainly more times than it has been understood by law professors as evidenced by overly broad attempted legal applications.
Happiness economics points out how people often systematically make decisions that fail to maximize their experienced happiness ex post as opposed to their anticipated or predicted happiness ex ante. This robust empirical and experimental finding means that at least in principle there is room for some other party, public or private, to help improve (or take advantage of) people’s JDM. In a recent working paper that is a forthcoming article in the American Economic Review, titled What Do You Think Would Make You Happier? What Do You Think You Would Choose?, Daniel Benjamin, Ori Heffetz, Miles S. Kimball, and Alex Rees-Jones present survey evidence that although what people choose hypothetically and what they predict would maximize their SWB (Subjective Well-Being) typically coincide, there are systematic reversals. They identify such factors as autonomy, family happiness, predicted sense of purpose, and social status to help account for hypothetical choices while controlling for predicted SWB. Their methodology has a number of possible legal and policy applications, including the development of aggregate measures of happiness. Another example is the application of their approach to reconcile the tension between an empirical finding in the article The Paradox of Declining Female Happiness by economists Betsey Stevenson and Justin Wolfers of declining average SWB of American women since the 1970s, both in absolute terms and in relative terms compared to men, with a common intuition that expanded political and economic freedoms for American women have made American women better off. Survey respondents who were asked to rank living in a world with or without such increased political and economic freedoms for women. Significantly more respondents choose to live in a world having expanded political and economic freedoms for women despite believing that a world without such expanded political and economic freedoms would make them happier than the opposite. Their National Bureau of Economic Research working paper 16489 titled Do People Seek to Maximize Happiness? Evidence from New Surveys contains additional examples and more details.
Third, research into two specific emotions, namely fear and greed finds that participants in financial markets are sometimes emotional and sometimes unemotional because they engage in both emotional and unemotional types of mental processing in responding to ever-changing market circumstances. In a series of articles titled,
finance professor Andrew W. Lo posits that many tenets of rational expectations and the so-called efficient markets hypothesis fail to hold always, despite serving as useful benchmarks of what might eventually happen under certain idealized conditions. He speculates that an evolutionary theory of punctuated equilibria involving rare but big environmental shocks resulting in mass extinctions and eruption of new species could apply to financial markets. As Lo points out, law and policy that is based upon assuming rationality or more precisely lack of emotionality is going to be inapt during financial crises. Similarly, law and policy that is based upon assuming emotionality is going to be inapt during financially calm times. His Adaptive Markets Hypothesis implies that effective law and policy should adapt in light of changing financial markets and their participants. Examples of such adaptive business law and policy include:
(1) Countercyclical capital requirements.
(2) Collection, communication, dissemination, publication, and transparency of information about accurate systemic risk measures.
(3) Creation of a Capital Markets Safety Board (CMSB), analogous to the National Transportation Safety Board which conducts an independent investigation of all transportation accidents, in order to perform definitive forensic analysis of past financial crises. The CMSB would be made up of “teams of experienced professionals— forensic accountants, financial engineers from industry and academia, and securities and tax attorneys—that work together on a regular basis to investigate the collapse of every major financial institution.”
As Professor Lo cogently observes,
“The fact that the 2,319-page Dodd-Frank financial reform bill was signed into law on July 21, 2010—six months before the Financial Crisis Inquiry Commission submitted its January 27, 2011 report, and well before economists have developed any consensus on the crisis—underscores the relatively minor scientific role that economics has played in responding to the crisis. Imagine the FDA approving a drug before its clinical trials are concluded, or the FAA adopting new regulations in response to an airplane crash before the NTSB has completed its accident investigation.”
Fourth, central to effective JDM is the development and practice of skills related to emotions and emotional intelligence. A number of business trade books and business school courses focus on how managers can improve their emotional intelligence and in so doing become more effective organizational leaders. Law school clinical and negotiation casebooks and courses often discuss the importance of recognizing and responding appropriately to emotions in attorneys, clients, judges, juries, and other legal actors. For example, in their chapter, If I’d Wanted to Teach About Feelings, I Wouldn’t Have Become a Law Professor, Melissa L. Nelken, Andrea Kupfer Schneider, & Jamil Mahuad present concrete tools for teaching law students about the importance of emotions in negotiation. Yet much of current American legal non-clinical education teaches students explicitly and implicitly that lawyering is just about logical analysis and not about feelings. For example, in another article titled The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation, Erin Ryan writes that "[b]y acknowledging the salience of wise emotionality in individual and collective deliberation, lawyers will not only improve their own personal repertoires, but propel the practice of law, negotiation, and policymaking toward new horizons of efficacy." Similarly, a recent book titled How Leading Lawyers Think: Expert Insights into Judgment and Advocacy by Randall Kiser discusses (at pages 75-85) how important emotional intelligence is to legal practice.
Fifth and finally, law professors can and should incorporate more information about emotions into law school. Many law professors and law students share a common discomfort with and disdain for emotions in part because of what many law students and faculty believe it means to think like a lawyer. For example, see page 422 of the article titled Negotiation and Psychoanalysis: If I’d Wanted to Learn about Feelings, I Wouldn’t Have Gone to Law School by Melissa L. Nelken. In her anthropological study of first–year contracts classes at eight law schools, law professor and senior fellow of the American Bar Foundation Elizabeth Mertz found that being taught to think like a lawyer caused students to lose their sense of self as they develop analytical and emotional detachment, resulting from the discounting of personal moral reasoning and values, as they learn to substitute purely analytical and strategic types of reasoning in place of personal feelings of compassion and empathy.
In fact, empathy is an important skill that lawyers can and should learn. In his article, Thinking Like Nonlawyers: Why Empathy Is a Core Lawyering Skill and Why Legal Education Should Change to Reflect Its Importance, Ian Gallacher analyzes pedagogical implications of lawyers communicating a lot with people who are not lawyers, such as clients, jurors, and witnesses.
In conclusion, a better and more nuanced understanding of what roles emotions generally and happiness particularly can play in human JDM, economic behavior, financial markets, legal practice, and legal education can and should inform how law professors conduct academic research and teach law students.
As promised this post will be about recent proposals advocating that governments adopt various measures of aggregate happiness to complement such traditional measures of economic well-being as Gross Domestic Product (GDP) or Gross National Product (GNP). The basic premise for these proposals can be found in the first major campaign speech that Senator Robert F. Kennedy gave on March 18, 1968 at the University of Kansas. That speech challenged the prevailing orthodoxy of how governments measure progress and well-being.
Not surprisingly, the speech is right in that many items that are part of GNP do not reflect genuine social progress. To be clear and for the record, most economists themselves have long understood that GDP is an imperfect proxy for social welfare. Such proposed refinements as the idea of Net Economic Welfare (NEW) attempt to improve GDP by placing values upon and subtracting the costs on such negative externalities as crime, congestion, and environmental pollution from GDP. The last paragraph of the speech is what proposed social measures of subjective well-being intend to capture:
"Yet the Gross National Product does not allow for the health of our children, the quality of their education, or the joy of their play. It does not include the beauty of our poetry or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials. It measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country; it measures everything, in short, except that which makes life worthwhile. And it can tell us everything about America except why we are proud that we are Americans."
Of course, the claim that GNP "measures everything, in short, except that which makes life worthwhile. And it can tell us everything about America except why we are proud that we are Americans" is a bit overstated. Nonetheless, GNP can be improved to better measure what governments and societies value. There is currently a lively debate over whether and if so, how governments can pragmatically measure aggregate happiness. One reason that such a debate is and will be contested is that once an item is measured and recorded, that item becomes harder to ignore and is likely to become a part of policy discussions. As Kenneth Arrow pointed out on pages 47-48 of his book, The Limits of Organization,
"The Full Employment Act of 1946 amounted to nothing more than a statement that full employment was at last on the Federal agenda, and many felt that this was a hollow victory indeed. But those who opposed it so violently were not deceived; in the long run, this recognition was decisive, though the process of implementing the responsibility was slow indeed. Once an item has arrived on the agenda, it is difficult not to treat it in a somewhat rational manner, if that is at all possible, and almost any considered solution may be better than neglect."
Professors Kahneman and Sugden introduce a methodology of policy evaluation based on experienced utility to environmental economics that avoids well-known problems of preference anomalies for contingent valuation studies. French President Nicolas Sarkozy recently created a Commission on the Measurement of Economic Performance and Social Progress, chaired by 2001 Nobel Laureate in economics, Joseph E. Stiglitz. The report by this commission makes a number of recommendations, including “Recommendation 10: Measures of both objective and subjective well-being provide key information about people’s quality of life. Statistical offices should incorporate questions to capture people’s life evaluations, hedonic experiences and priorities in their own survey." In a discussion paper titled Beyond GDP and Back: What is the Value-Added by Additional Components of Welfare Measurement, economists Sonja C. Kassenboehmer and Christoph M. Schmidt analyze quality-of-life indicators that are suggested in the Stiglitz Report to find that much of the variation in many well-being measures is already well-captured by such traditional economic indicators as GDP and the unemployment rate, but because the correlation of alternative indicators with monetary measures is far from perfect, there is room to augment traditional statistical reporting by non-standard indicators.
British Prime Minister David Cameron recently announced similar plans to collect national well-being measures that incorporate life satisfaction. In an article titled Emotional Prosperity and the Stiglitz Commission, British economist Andrew Oswald argues that countries are capable of and should measure their emotional prosperity and focus on mental well-being. In that article, Oswald summarizes seven studies that suggest emotional prosperity and broad measures of psychological well-being have recently been declining over time. In a National Bureau of Economic Research working paper titled, Beyond GDP? Welfare across Countries and Time, American economists Charles I. Jones and Peter J. Klenow propose a simple summary statistic for a country’s flow of well-being that combines data about consumption, inequality, leisure, and mortality.
In an article titled Happiness and Public Choice, European economists Bruno S. Frey and Alois Stutzer caution that a policy of maximizing aggregate happiness faces a number of difficulties including that it reduces people to being merely happiness metric stations in addition to discounts problems with political institutions and incentive distortion. In their article, they instead propose two practical ways to utilize happiness research for policy: (1) facilitate identification of those institutions that assist people in best achieving their personal goals and in so doing contributing maximally to individual happiness, and (2) provide crucial information as inputs to political discussion process.
Instead of maximizing a measure of aggregate happiness, it might be more politically feasible to minimize a measure of aggregate misery, stress, or unhappiness, such as the U-index, which in their article titled Recent Developments in the Measurement of Subjective Well-Being, Daniel Kahneman and labor economist Alan Krueger proposed and defined to measure the fraction of time that people spend experiencing unpleasant emotions. The U-index provides empirical information about negative emotional experiences that society may care about.
Another way to incorporate happiness data into policy analysis is to introduce maximum levels of a measure of unhappiness or minimum levels of a measure of happiness as constraints that government policies must satisfy while optimizing some objective function or goal besides happiness or unhappiness. This approach is analogous to philosopher Robert Nozick’s approach in his book titled Anarchy, State, and Utopia to incorporating rights as constraints that are not to be violated as opposed to rights as part of a policy goal to be optimized.
In her article titled Happiness on the Political Agenda? PROS and CONS, philosopher Valérie De Prycker argues that actual incorporation of happiness research into policy implicates a number of value-loaded ethical, ideological, and moral issues. But, in his article titled Greater Happiness for a Greater Number Is that Possible and Desirable?, sociologist Ruut Veenhoven believes that empirical research about life satisfaction refutes all theoretical philosophical objections against the greatest happiness principle. In yet a third article titled Greater Happiness for a Greater Number: Some Non-controversial Options for Governments, social scientist Jan C. Ott believes that governments can increase average happiness, eventually reduce happiness inequalities, and realize both purposively by non-controversial means. In another article titled Good Governance and Happiness in Nations: Technical Quality Precedes Democracy and Quality Beats Size, Professor Ott examines how quality of governance and in particular technical as opposed to democratic quality is correlated with average happiness of a country's citizens and finds that technically good governance appears to be a universal condition for happiness independent of culture. Once technical quality of governance reaches a minimum level, democratic quality of governance adds substantially to the positive effects of technical quality of governance upon average happiness.
In his chapter titled That Which Makes Life Worthwhile in the book Measuring the Subjective Well-Being of Nations: National Accounts of Time Use and Well-Being, behavioral economist George Lowenstein proposes that time-use surveys ask people not just about how much positive and negative affect is felt during a particular activity, but also if people believed that a particular activity was a valuable or worthwhile use of their time or instead a waste of their time. In their article titled Accounting for the Richness of Daily Activities, psychologist Mathew P. White and economist Paul Dolan ask people not just about how they felt during a particular activity, but also six additional questions about such non-hedonic aspects of experience as being engaged, focused, and finding meaning. These fundamental insights about how people care about not just positive affect, but also meaning in their lives raise questions about whether law and policy should care more about positive affect versus meaning in people’s lives.
In the article titled The Metrics of Subjective Wellbeing: Cardinality, Neutrality and Additivity, Australian economist Ingebjørg Kristoffersen provides a legitimate source of uneasiness about basing social policies upon aggregation of empirical happiness data via his quantitative analysis of certain mathematical properties of empirical happiness data that continue to remain contentious among economists, namely additivity, cardinality, and neutrality of such data, even though psychologists have to some degree already been able to address how to make international, interpersonal, and intertemporal comparisons of happiness data. This mathematical analysis also serves to provide a cautionary, persuasive critique of recent proposals by law professors for governments to eschew cost-benefit analysis and instead to determine and evaluate policy based upon aggregation of happiness, defined simply as experienced positive feeling.
Finally, a concern with experienced subjective well-being captured by self-reports of happiness is what economist Carol Graham terms a paradox of happy peasants and miserable millionaires, due to differences in anticipations or expectations between poor and rich people. As Graham notes, optimism among poor individuals can be a tool for their survival and parents who are poor may revise their own personal expectations downward but maintain hopeful expectations for their children. If peasants report being happy due to lowered expectations and (perhaps some) hedonic adaptation, while millionaires report misery due to envy towards even richer people and (perhaps unrealistic) expectations, should law and policy be more concerned over self-reported unhappiness of rich people, or about increasing self-reported happiness of poor folks, even if that means encouraging or nudging poor individuals to expect more of their future?
Except for Arizona and Hawaii, the United States ended this calendar's observance of Daylight Saving Time at 2 a.m. local time today. In a fascinating book titled A Time for Every Purpose: Law and the Balance of Life, Harvard University Byrne Professor of Administrative Law Todd D. Rakoff argues that social regulation of time can and should create more room for people to balance time at work with time away from work.
In the article Losing Sleep at the Market: The Daylight-Savings Anomaly, three financial economists document that in international financial markets, the average Friday-to-Monday return on daylight-savings weekends is much lower than expected, with a magnitude 200 to 500 percent larger than the average negative return for other weekends of the year. This finding is consistent with psychological research about how changes in sleep patterns have impacts on accidents, anxiety, decision-making, judgment, reaction time, and problem solving. In this article Winter Blues: A SAD Stock Market Cycle, financial economists found that the lack of sunlight during winter months tends to depress stock prices across international markets. More recently, the article This is Your Portfolio on Winter: Seasonal Affective Disorder and Risk Aversion in Financial Decision Making reported that people with SAD (Seasonal Affect Disorder) exhibited financial risk aversion that varied across seasons because of their seasonally changing affect. SAD-sufferers had much stronger preferences for safe choices during winter than non-SAD-sufferers, and SAD-sufferers did not differ from non-SAD-sufferers during summer.
In two articles, The Psychophysiology of Real-Time Financial Risk Processing and Fear and Greed in Financial Markets: An Online Clinical Study, Andrew Lo and co-authors find traders who respond with too little or too much emotion tend to be less profitable than traders with middle of the range types of emotional responses. Another article Endogenous Steroids and Financial Risk Taking on a London Trading Floor documents that traders tend to make more money on days when their testosterone levels are higher than average.
All of the above differing strands of empirical research share in common the finding that emotions play important roles in how people arrive at financial judgments and financial decisions. Of course, even just a moment of introspection is enough for us to realize that we are like other people in making emotional judgments and emotional decisions. In the article Who's Afraid of Law and Emotions?, the Herma Hill Kay Distinguished Professor of Law at Boalt Hall Kathryn Abrams and Southestern law school professor Hila Keren analyze the ambivalent reactions by mainstream legal academics to law and emotions scholarship and conclude that part of the reason for such responses is the persistence of rationalist tendencies within the legal academy.
I have often heard after making a presentation about emotions in financial markets and regulation the view that emotions could matter in non-financial areas of life and law, but emotions in general and happiness in particular are not what business and business law are and should be about. Such a point of view strikes as being wrong and closed-minded. As economist Andrew J. Oswald cogently observes in the opening paragraphs of his article Happiness and Economic Performance:
"Economic performance is not intrinsically interesting. No-one is concerned in a genuine sense about the level of gross national product last year or about next year's exchange rate. People have no innate interest in the money supply, inflation, growth, inequality, unemployment, and the rest. The stolid greyness of the business pages of our newspapers seems to mirror the fact that economic numbers matter only indirectly.
The relevance of economic performance is that it may be a means to an end. That end is not the consumption of beefburgers, nor the accumulation of television sets, nor the vanquishing of some high level of interest rates, but rather the enrichment of mankind's feeling of well-being. Economic things matter only in so far as they make people happier."
I will expand in a later post on decisions to measure happiness by an increasing number of governments of countries, states, and cities as diverse as Bhutan, England, Guandong province in China, Maryland, and Somerville in Massachusetts. For now, check out:
Finally, Glom readers may find this five-day free virtual event of interest: The Enlightened Business Summit which takes place this week November 7-11 and is hosted by Chip Conley, the founder of Joie de Vivre, a two-time TED Speaker, and author of the book Peak: How Great Companies Get Their Mojo from Maslow and the forthcoming book Emotional Equations: Simple Truths for Creating Happiness + Success:
I am happy to recommend a new blog Brazen And Tenured - Law Politics Nature and Culture from two of my colleagues: Pierre Schlag, Byron White Professor of Constitutional Law, and Sarah Krakoff, Wolf-Nichol Fellow. Pierre's research interests include constitutional law, jurisprudence, legal philosophy, and tort law. Pierre wrote an essay, The Faculty Workshop, which examines how the institution of law school faculty workshops expresses, regulates, and reproduces legal academic behavior, governance, hierarchy, norms, and thought. Sarah's research interests include civil procedure; Indian law, and natural resources law. Sarah is working on a book about the different stages of humans' relationship to nature, which extends her book chapter, Parenting the Planet.
As Pierre described their blog, it's quite idiosyncratic as far as blogs are concerned. That having been said, Glom readers are likely to find their blog to be amusing, informative, and thought-provoking. Here are the two most recent examples.
Pierre's post entitled Tips for Legal Commentators: How to Talk to the Press is a delightful compendium of speaking points. It explains why the legal talking heads who come out of the woodwork to appear on television during any high-profile trial or other legal event always seem to say the same things with a high noise to signal ratio. My personal expeirence when speaking to print media financial journalists about securities fraud, materiality, derivatives, and Goldman Sachs is there is a very high probability (equal to one minus epsilon, where epsilon is a very small positive number) that I'll be misquoted to have said exactly the opposite of what I actually said! Pierre's advice for speaking to journalists has the virtue that it has the property of being subject matter and position invariant. In other words, no matter what legal topic and what viewpoint you have, Pierre's suggested sound bites will apply. Because they are universal and timeless, these quotes have the added virtue of making you sound profound and wise. Finally, these sample responses to media questions are brief, intuitive, memorable, and predictable. Once you deploy one, there is likely to be repeat demand for your expertise. On the other hand, if you do not enjoy being a talking head, then do the opposite of what Pierre recommends to ensure that reporters will not seek you out.
Sarah's post entitled The Economy versus the Environment? Not! (Or Why to Be Tigger Instead of Eeyore this Halloween) is a welcome reminder for both economists and environmentalists that being offered a choice between the economy and the environment is a false dichotomy that privileges a myopic time horizon and local opposed to global perspectives. Her post also nicely dovetails the small but growing literature applying empirical happiness research to support sustainable environmental policy. For example, Daniel A. Farber recently posted a working paper entitled Law, Sustainability, and the Pursuit of Happiness, which demonstrates that sustainability for society and the pursuit of individual happiness do not have to be at odds.
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Outrage over Bank of America's proposal to charge a monthly fee for debit cards has not abated, even though the bank has backed down on making the change. A social media protest to encourage customers to move funds from Bank of America (and other national banks) to credit unions has gained steam. Organizers have named tomorrow, November 5th, "Dump Your Bank Day" (evidently, the "V is for Vendetta" film has staying power and revived popular American interest in Guy Fawkes).
This raises two empirical questions. First, do credit unions treat their customers any better? A great recent paper by Ryan Bubb (NYU Law) and Alex Kaufman both suggests that they do and explains why. The paper provides both a model and empirical evidence that explain how the ownership structure of credit unions reduces the incentive for these lenders to extract hidden fees from their customers compared to for-profit, shareholder-owned banks. (Note that this paper was written long before the "Dump Your Bank" protest started and does not endorse this movement). Here is the abstract:
In this paper we show how ownership of the firm by its customers, as well as nonprofit status, can prevent the firm from exploiting consumer biases. By eliminating an outside residual claimant with control over the firm, these alternatives to investor ownership reduce the incentive of the firm to offer contractual terms that exploit the mistakes consumers make. However, customers who are unaware of their problems making good decisions, and consequent vulnerability to exploitation, may fail to recognize this advantage of non-investor-owned firms and instead continue to patronize investor-owned firms. We present evidence from the consumer financial services market that supports our theory. Comparing contract terms, we find that mutually owned firms offer lower penalties, such as default interest rates, and higher up-front prices, such as introductory interest rates, than do investor-owned firms. However, consumers most vulnerable to these penalties are no more likely to use mutually owned firms.
Ryan presented the paper at a workshop here in Colorado over the summer. One of the questions I had then was why credit unions can't win customers by sending a credible signal that, to put it colloquially, "we'll screw you less." This Bank of America episode provides an interesting answer that perhaps customers are starting to recognize hidden fees and market choices.
A second question is whether this protest will hurt Bank of America and other national banks? There are historical antecedents for this movement. In the 1960s, protestors tried to start bank runs with calls for depositors to withdraw all funds from banks and then re-deposit them. I'm not aware that any banks suffered as a result.
There is a possibility that this current protest may actually help banks somewhat. There have been plenty of news stories of banks complaining about excess deposits. Some banks have mulled charging fees for large corporate customers and large deposits. Still, I would be surprised if BofA welcomed this protest, just as I would be surprised if the protest inflicted more than p.r. damage on BofA.
An article in today's Life section of USA Today titled Movies tap into anger at Wall Street describes how 3 movies in current release mirror public angst over economic inequalities and inequities: Tower Heist, In Time, and the already mentioned in 2 Glom blogs, Margin Call.
This autumn's documentary Chasing Madoff recounts Harry Markopolos’ multi-year crusade to expose the multi-billion dollar Ponzi scheme perpetrated by Bernie Madoff. Alleged victims of this massive fraud include the celebrity couple of Kyra Sedgwick (star of The Closer on TNT) and Kevin Bacon (of the original Footloose (1984) fame). The Dodd-Frank Wall Street Reform and Consumer Protection Act included a broad set of whistleblower provisions under which the Securities and Exchange Commission adopted specific rules and procedures to incentivize potential whistleblowers by way of cash rewards and protection from retaliation.
There is also a 2009 documentary about the subprime mortgage fiasco, which is now available on DVD, American Casino. 2001 economics Nobel laureate Joseph Stigltiz described it as being "a powerful and shocking look at the subprime lending scandal. If you want to understand how the US financial system failed and how mortgage companies ripped off the poor, see this film."
This May, the HBO Films production of Too Big to Fail, based on the book of the same name with the subtitle of The Inside Story of How Wall Street and Washington Fought to Save the Financial System--and Themselves depicted the autumn 2008 U.S. financial crisis and the sequence of (less than intertemporally consistent) policy responses by the Treasury department, the Federal Reserve, and other financial regulators.
Last autumn's Inside Job made a compelling argument in five parts about how the American financial services industry systematically and systemically corrupted the United States government and in so doing brought about changes in banking practices and legal policies that led directly to the Great Recession.
Although the documentary Client 9: The Rise and Fall of Eliot Spitzer focused primarily on the interaction of ego, hubris, power, scandal, sex, and politics, it also touched upon Wall Street and efforts by Spitzer to reform its excesses.
Of course, no list of movies related to the recent financial crises would be complete without including documentary film-maker Michael Moore's 2009, Capitalism: A Love Story, which criticizes the current American economic system in particular and capitalism in general. At one point, it asks if capitalism is a sin and whether Jesus would be a capitalist, who wanted to maximize profits, deregulate banking, and have the sick pay out of pocket for pre-existing conditions via clips from Jesus of Nazareth. Moore asks if one could patent the sun and questions how the brightest American youth are drawn towards finance and not science. He proceeds to Wall Street asking for non-technical explanations of derivative securities in general and credit default swaps in particular. Both a former vice-president of Lehman Brothers and current Harvard University economics professor Kenneth Rogoff fail to clearly explain either term. Moore thus concludes that our complex economic system and its arcane terminology exist simply to confuse people and that Wall Street effectively has a crazy casino mentality.
Finally, the PBS Nova episode, Mind Over Money, which originally aired on April 26, 2010 asks whether markets can possibly be rational when people clearly are not. In other words, is there a version of the efficient markets hypothesis that can be true in a world populated by at least some boundedly rational actors? In posing this question, the show offers an entertaining, yet quite informative survey of elements of behavioral economics and finance. Its companion website provides additional resource materials concerning the role of emotions in financial decision-making. The debate which it depicts between the University of Chicago school of economics and the behavioral economics approach (including scenes of Dick Thaler playing pool) is a bit overdone and perhaps unintentionally comical, but it raises the question of whether it matters for law and policy how people make their financial judgments and decisions? Of course, the natural follow-ups of if so, then how and if not, then why not, are questions about which business law professors, Glom readers, and policy makers are likely to have perhaps quite strong and certainly divergent opinions.
A television program that has become quite popular is the USA network's original dramatic series White Collar, which is based upon the premise of an F.B.I. agent solving white collar crimes with the assistance of consultant who is a former (and current?) art thief and con man extraordinaire. Episodes have featured a black widow, baby selling, bank robbery, black market kidneys, bond theft, collusion, corporate espionage, derivatives, financial fraud by a Wall Street brokerage firm, identity theft, and political corruption.
It is reminiscent of the 1960's campy, classic, and tongue-in-cheek television series, It Takes A Thief.
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I recently saw the movie, Margin Call, which is currently playing in theaters and is available on demand at Comcast. There are curretly 34 reviews of it by viewers at imdb, where it has a rating of 7.3 out of 10.
I also just finished reading this paper, Fear, Greed, and Financial Crisis: A Cognitive Neuroscience Perspective, prepared for a forthcoming handbook on systemic risk. This chapter is by finance professor Andrew Lo, who is the director of the MIT laboratory for financal engineering. He also wrote another excellent paper which Glom readers are likely to find of interest, namely Reading About the Financial Crisis: A 21-Book Review, that was prepared for the Journal of Economic Literature.
In the interests of full disclosure, I taught at Temple law school a seminar titled Law, Emotions, and Neuroscience and co-taught at Yale law school with professor Dan Kahan a seminar titled Neuroscience and the Law. The seminars covered some basic materials about affective,cognitive, and social neuroscience before analyzing the potential and limits of applications to business law, conflict resolution, criminal law, ethics, evidence, morality, paternalism, and social policy. Media coverage of neuroscience and law has a tendency to focus almost exclusively on such controversial issues as free will and responsibility in the criminal law context. Glom readers are more likely to focus on neuroeconomics and neurofinance, two nascent fields that ask how human brains engage in JDM (Judgment and Decision Making) in general and over time and under risk in particular.
Also, as cognitive neuroscientist Michael Gazzaniga recently stated: responsibility, like generosity, love, pettiness, and suspiciousness, is a strongly emergent property, which although being derived from biological mechanisms, has fundamentally distinct properties, just like the case of ice and water. The press and the public also seem to be fascinated with very colorful fMRI brain scans because they like the idea of being as the Wall Street Journal science writer, Sharon Begley, calls them: cognitive papparazi.
My system 1 believes in synchronicity, so this post, as evidenced by its title's homage to Lo's chapter, approaches the movie Margin Call from a cognitive neuroscience perspective informed by Lo's chapter. Lo provides a brief history of what we know about brains. He then explains how fear and the amygdala can exacerbate financial crises. He also demonstrates how the reward of money appears to share the same neural system and the release of the neuortransmitter dopamine into the nucleus accumbens as these rewards do: beauty, cocaine, food, music, love, and sex.
Lo proceeds to discuss a neurophysiological explanation for Kahneman and Tversky's experiment demonstrating people's aversion to sure loss. Lo proposes a neuroscientifically informed view of rationality that differs very much from an economic rational expectations conception, with the key difference being the role that emotion plays in JDM. Lo extends his analysis from individuals to groups by explaining the neurophysiology of mirror neurons, theories of mind, social interactions, and the efficient markets hypothesis. He concludes his neuroscience survey by describing the marvels and limits of the human prefrontal cortex, also known as the "executive brain." Of particular interest to Glom readers is decision fatigue, documented recently among judges rendering favorable parole decisions around 65% of the time at the start of and close to 0% by the end of each of 3 daily sessions that were separated by 2 food breaks (a late morning snack and lunch). This empirical finding that parole rates increased after food breaks is consistent with recent experimental research finding that glucose can reverse decision fatigue and the common adage to not make important decisions when tired.
Lo provides several practical and reasonable suggesions based upon cognitive neurosciences about how policymakers can engage in financial reform to deal with systemic risk. He concludes by advocating that financial economists utilize the great recession to re-conceptualize, rethink, and revamp neoclassical economics by forging a consilience between the neurosciences and financial economic theory. Building a deeper and better understanding of economic phenomena through improved economic models and intellectual frameworks can and should lead to a more appropriate financial regulatory infrastructure.
And now onto a few comments about the movie Margin Call. Without giving away the plot for those who may want to see it without any knowledge of its ending, this movie raises ethical and moral questions about individual versus social optimality, trading on the basis of private information, panic selling, professional codes or norms of behavior, and the costs a company may impose on society and pay to others to survive. There is certainly lots of fear and greed on display in this film. Set over the course of a day and sleepless night in NYC, the movie viscerally illustrates various forms of JDM and how individuals and groups of individuals can persevere under stress and time pressures. It is a movie that can and should provoke discussion about what could have been done differently by individuals, financial firms, and regulators. It is a film that I'm going to put on the list of movies at the start of the chapter about business law in the text, Law and Popular Culture: Text, Notes, and Questions (LexisNexis Matthew Bender, 2007) by David Ray Papke, Melissa Cole Essig, Christine Alice Corcos, Lenora P. Ledwon, Diane H. Mazur, Carrie Menkel-Meadow, Philip N. Meyer, Binny Miller, and myself that we are revising for a second edition.
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As promised at the conclusion of my first post, this post concerns a riddle that Danny Kahneman posed about how our experiencing selves differ systematically from our remembering selves. Based upon a number of subjective well-being (SWB) surveys and neuroscience studies, people's remembered emotions are usually rosier than people's experienced emotions, and people are motivated to make choices based upon their predicted emotions which tend to coincide with their emotional memories. In a TED talk, Kahneman nicely illustrates his central thesis that anticipated memories of experiences as opposed to the actual anticipated experiences themselves motivate people’s behavior by stating that very frequently and to a large degree people take vacations in service of their remembering selves.
As comedian Dave Barry jokingly points out, "the human race is far too stupid to be deterred from tourism by a mere several million years of bad experiences, and today we’re traveling in larger numbers than ever." In fact, empirical studies find that not only do prospective reports of vacation enjoyment and retrospective ones converge, but also both predicted and remembered affect are more positive than affect concurrently reported during vacations. Another study that compared students’ predicted, concurrently experienced, and remembered affect respectively before, during, and after their spring break vacations found that predicted and remembered affect is both more positive and more negative than concurrently experienced affect, but remembered affect best predicts undergraduates’ desires of taking similar vacations in the future.
Despite the many expected and inevitable hassles of travel, it seems intuitively plausible that some people would prefer to actually experience a vacation in addition to having fond memories of that vacation. The idea that some people may not just want anticipated memories is viscerally illustrated by a debate among characters in the science fiction thriller, Total Recall, about utilizing the services of Rekall, Inc. which is a corporation that provides implanted false memories of ideal virtual holidays.
Of course, none of us remembers every single moment in our lives and of those moments that we do remember, not all of them are remembered with equal clarity or emphasis. Naturally, our memories are fallible and imperfect. But such an observation compares human memories to records of a computer or some other infallible and perfect recording device left on 24/7. Such a comparison misconstrues human memory as having a goal of perfect recall. Psychologist William James pointed out, "[s]election is the very keel on which our mental ship is built. And in this case of memory its utility is obvious. If we remembered everything, we should be on most occasions be as ill off as if we remembered nothing." Instead, we remember to help us derive meaning from and make sense of all the moments in our lives. People only remember that which is personally meaningful, and what is meaningful to people often changes during their lifetimes in light of subsequent events (e.g. divorce or infidelity).
Father Guido Sarducci, a famous, fictional character on the National Broadcasting Company late night program Saturday Night Live in the 1970s and 1908s that original cast member comedian Don Novello created and played, proposes in a very entertaining monologue to start a new university that would teach in five minutes only that information which students on average would remember five years after leaving college. For example, he jokes that his Five Minute University Spanish class teaches only "¿Como está usted?" which means "how are you" and "muy bien" which means "very well" because that is pretty much all that most students remember five years after taking four semesters of college Spanish. Similarly, his economics class teaches "Supply and Demand" only. He concludes by saying: "I'm not sure, but I'm pretty sure, right next door to the five minute university, I might open up a little law school. You got another minute?"
Of course, his central point that most college students remember only very little of the vast amount of material that they study in four years of college or three years of law school applies not only to students, but also people more generally. An influential expert on human memory and law, psychologist Elizabeth Loftus points out that people’s memories not only are constructed rather than being played back liked a video recording, but also can be influenced by suggestive language and images. In a justifiably famous experiment of 120 people who had visited Disneyland or Disney World, Elizabeth Loftus and Jacquie Pickrell found that 30% of people who had read a phony advertisement for Disneyland with a photograph of Bugs Bunny just outside of the Magic Kingdom reported that indeed they remembered, or knew, they had actually seen and met Bugs Bunny at Disneyland and even shook his hand (or paw). That memory has to be false though because Bugs Bunny is a Warner Brothers character and not part of the Disney universe.
Psychological research confirms that people’s emotional memories depend on their current emotions, current appraisals and interpretations of past experiences, and coping efforts in addition to personality traits. Psychologists Linda Levine, Martin Safer, and Heather Lench point out that misremembering emotions can promote such goal-directed behavior as authoring articles, climbing mountains, conducting research, having children, and raising children. They also explain how incomplete and inaccurate affective memories also can facilitate people’s abilities to cope with ongoing challenges. A study by a leading marriage and parenting expert, John Gotmman, found that even implicit measures of couples’ affective memories of their marriage can predict divorce better than observational measures of marital problem solving and better than self-reports of current marital satisfaction that can be informed by explicit memories.
It is important to realize that emotional memories record ongoing relationships between past events and people’s goals implies that such emotional records are more accurate if people update them based upon their current goals and beliefs. As As Levine, Safer, and Lench nicely state it, "[i]n the same way, updating a map when new roads are built makes it more accurate." The chief purpose of people's memory could be to guide their future behavior instead of maintaining a faithful record of their past.
Neuroscientists Larry Cahill, James McGaugh, and Elizabeth Parker discovered that a small number of people are able to recall detailed moment-to-moment events from their entire lives. They proposed the term hyperthymesia to describe such extremely superior autobiographical memory. Actress Marilu Henner, who is perhaps best known for her starring role as Elaine O'Connor-Nardo on the popular television program Taxi, is the only one of (at that time) six Americans diagnosed to have such nearly endless memories, that has children or is married (her current marriage is her third), suggesting that having a good relationship might be related to being able to forget and so lose some arguments. Marilu Henner is a technical consultant for a new television program called Unforgettable, starring Poppy Montgomery as Carrie Wells, a New York City police detective, who utilizes her hyperthymesia, to help solve homicide cases.
Psychologist Pascal Boyer suggests that "distorted" memories can be part of a highly efficient and functional biological system that balances costs of information storage and retrieval of past experiences against benefits of utilizing memories to improve present fitness-enhancing decision-making. Incomplete and selective memories, viewed as beliefs about past occurrences, can thus be seen to be particular examples of functionally adaptive misbeliefs generally. Viktor Mayer-Schönberger, a professor of internet governance and regulation, explains how forgetting played important roles during the history of humankind, ranging from facilitating forgiveness that provides opportunities for second chances to helping people make sound decisions that are not encumbered by their past. He also analyzes how digital technology makes it possible to end forgetting and illustrates problems from and solutions to everlasting digital memory.
As behaviorial economist George Loewenstein and philosopher Jon Elster observed, the moral philosopher Jeremy Bentham realized that much of people’s experiences of pleasure and pain are due not from direct experiences, but instead from indirect contemplation of experiences in their past or future, that is, from anticipations and memories of experiences. Differences in how people remember versus experience affect in general and happiness in particular poses a fundamental normative question of which one, if either, is more important. In a fascinating article, organizational psychologist and management scholar Robert Sutton hypothesizes that visitors to Disneyland are likely to remember and report positive bygone feelings they experienced during their visits, but forget and fail to report negative bygone feelings they experienced during their visits. Sutton offers these well-documented psychological forces to explain such inaccurate reconstruction of people’s emotions: (1) a Pollyanna effect, (2) editing of memories to maintain cognitive consistency, and (3) pressures of social norms in reconstructing past feelings. Sutton further hypothesizes this inclination to remember pleasant feelings but forget unpleasant emotions is accentuated by people taking photographs during their visits. Sutton also suggests that somewhat inaccurate positive anticipations, experiences, and memories of visits to Disneyland and most other events in life can be healthy and self-fulfilling. Recently, Disneyland and Walt Disney World launched a "Let the Memories Begin" marketing campaign to feature vacationers’ photographs and videos in television commercials and social media. Memories and photographs of moments in our lives are intimately related. As novelist Milan Kundera states about how people remember love affairs, "memory does not make films, it makes photographs."
Kahneman believes that when people think of the future, they do not usually think of lived experiences, but instead think of anticipated memories. He therefore believes that people actually choose between memories of experiences as opposed to between actual experiences. He sums up his viewpoint quite nicely with a compelling metaphor about one’s remembering self tyrannically dragging along one’s experiencing self through experiences that one’s experiencing self does not require and had no voice in choosing. As psychologist Frederic Bartlett states, "the past is continually being re-made, reconstructed in the interests of the present."
Just yesterday psychologists Andrew Steptoe and Jane Wardle published an empirical study in the Proceedings of the National Academy of Sciences finding that positive affect self-reported by 3,853 people aged 52 to 79 years old at different times over a single day utilizing ecological momentary assessment, which is a technique for measuring experienced well-being, predicted the rates of death five years later after controlling for demograhic factors, depressed mood, health behaviors, health indicators, and negative affect. In other words, people's experiences of positive emotions on just one day predicted their survival rates five years later! Of course a lot more future research can and should follow up this one study. But, the relationship between happiness and mortality has to be quite robust given the relatively small sample size of people and observations just being on a single day. This latest study contributes to an already growing body of research sugegsting that positive affect is correlated with benefical health-relevant cardiovascular, inflammatory, and neuroendocrine outcomes.
I have written a working paper which advocates that law and policy should care more about people's experiences than memories if and when those experiences result in chronic health or stress consequences that either (1) societies care about more than individuals do (because of externalities, public bads, or public goods) or (2) individuals also care about, but were unaware of, do not remember, or are unable to act upon (due to self-control problems). My draft analyzes examples of chronic health or stress effects from such experiences as dense and long commutes, discrimination, unhealthy eating, lack of regular physical exercise, sedentary behavior, and poor or no financial/retirement planning.
If you are at Law & Society this Friday and Saturday, come to the mini-conference on Entrepreneuship & Law that Brian Broughman (Indiana - Maurer School of Law) and our own Gordon Smith (BYU) have organized. Here is the line up:
Friday, June 3, 2011
8:15 am to 10:00 am Regulating Entrepreneurs 2122 (Chair: Brian Broughman)
- Mira Ganor (Texas), The Power to Issue Stock
- Erik Gerding (New Mexico), Shadow Banking, Financial Innovation, and Regulatory Arbitrage
- Michelle Harner (Maryland), Mitigating Financial Risk for Entrepreneurs
- Poonam Puri (Toronto), The Regulatory Burden of Corporate Law
- Discussants: Kristin Johnson (Seton Hall) & Sarah Lawsky (UC Irvine)
12:30 pm to 2:15 pm Governance Structure of Entrepreneurial Firms 2322 (Chair: Brian Broughman)
- Brian Broughman (with (Jesse Fried & Darian Ibrahim), Delaware Law as Lingua Franca: Evidence from VC-Backed Startups
- George Geis (Virginia), Organizational Contracting and Third Party Rights
- Alicia Robb (Kauffman Foundation), Entrepreneurial Finance and Performance: A Transaction Cost Economics Approach
- Discussant: Bobby Bartlett (UC Berkeley)
Saturday, June 4, 2011
8:15 am to 10:00 am Law, Entrepreneurship, and Innovation 3116 (Chair: Gordon Smith)
- Mike Burstein (Harvard), Exchanging Information without Intellectual Property
- Sean O’Connor (Univ. of Washington), Transforming Professional Services to Build Regional Innovation Ecosystems
- Peter Lee (UC Davis), The Accession Insight and Patent Infringement Remedies
- Karl Okamoto (Drexel), Law and Entrepreneurship: An Assessment Approach
4:30 pm to 6:15 pm Global Entrepreneurship 3519 (Chair: Gordon Smith)
- Afra Afsharipour (University of California, Davis), US Private Equity Investments in India
- Sofia Johan (York Univ.)(with April Knil and Nathan Mauck), Determinants of Sovereign Wealth Fund Investment in Private Equity
- Gordon Smith, Stability and Adaptability
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Vic Fleischer and some of my other future colleagues at Colorado are holding a faculty reading group this summer that will cover some of the "classic" (or destined to be classic) law and economics articles from the last ten years.
To generate a syllabus (or canon), let's crowdsource. What would you pick as the most influential law & economics articles since 2000? I'll cull a list for a later post from your comments below. Ideas in business law fields (widely construed) would be particularly welcome.
Here is one rough, provocative list just to get the discussion rolling (and of course any list is going to be woefully incomplete):
Theory of the Firm
Henry Hansmann & Reinier Kraakman, The Essential Role of Organizational Law, 110 Yale L. J. 387 (2000)
Henry Hansmann, The Ownership of Enterprise (Harvard University Press 1996)
Edward M. Iacobucci & George G. Triantis, Economic and Legal Boundaries of Firms, 93 Va. L. Rev. 515 (2007)
Ron Gilson & Reinier Kraakman, Reinventing the Outside Director: An Agenda for Institutional Investors, 43 Stan. L. Rev. 863 (1991)
Rob Daines, The Incorporation Choices of IPO Firms, 77 NYU L. Rev. 1559 (2002)
John Coates, Explaining Variation in Takeover Defenses: Blame the Lawyers, 89 Cal. L. Rev. 1301 (2001)
Ron Gilson, Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete, 74 N.Y.U. L. Rev. 575 (1999)
Bankruptcy, Consumer, and Commercial Law
Douglas Baird & Bob Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751 (2002)
Elizabeth Warren & Oren Bar-Gill, Making Credit Safer, 157 U. Pa. L. Rev. 1 (2008-2009)
William Henderson & Marc Galanter, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 Stan. L. Rev. 1867 (2007-2008)
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What would you recommend for readings in political economy? For financial regulation? For the topic of network effects?
Let's assume that the applicant data noted by Erik, the WSJ, and countless gleeful business school admissions officers, are a real turning point. The bubble has burst. What follows for how the ABA should conduct the accreditation process?
I'll start with a Lewisian anecdote. I've the honor of chairing Temple's self-study committee this year, as we prepare for our sabbatical site visit next fall. As a part of the "accreditation process," I attended an ABA workshop in the summer of 2010 for site accreditors and law school representatives. The room, at an airport hotel in Chicago, was full - Gordon Smith was in the house! - and the plenary session sometimes informative. I'd also estimate that it cost the attendees an aggregate of $250,000 to attend, taken from student tuition dollars, when fully all of the benefit could have been achieved with podcasts, online presentations, and e-materials.
As the conference began, the ABA's Representative gave a speech lauding the standards, which he argued could be employed to good ends. He comforted us by noting that no one, ever, emerges from accreditation without a demerit requiring correction. That is, the accreditation process is set up so that a law school must engage with the ABA's corrective hand. But the highlight was the Representative's joyful boast that several new schools had been guided toward a successful accreditation, and there were an additional handful of prospective schools in the pipeline. He neglected to mention that we were then in the middle of the worst job market for new lawyers in several generations. As I recall, his announcement was met with applause. I felt like a guy on the Titanic, watching the band play on.
Indeed, there was something profoundly odd about the whole shebang. (And I say that hopefully without any prejudice to Temple's re-accreditation, which I expect will go as smoothly as one could expect.)The ABA folks have convinced themselves that the Standards are welfare maximizing, and that the ABA must keep law schools honest by dictating small details of their operations (45,000 class minutes, antiquated and paternalistic attendance policies, written strategic plans and self studies, study spaces, ugly tables on websites, matches between catalogues and offered courses, etc.) At the same time, the ABA doesn't want to engage in substantive regulation - suggesting that there are perhaps too many mediocre law schools in particular regions, asking whether it is smart to pay $50,000 to go to a new law school in California. Cynics would attribute the former characteristic to bureaucratic mission creep, the latter to antitrust concerns.
So the result is this: the ABA accreditation standards meddle into law schools operations and resist innovation in pedagogy. They therefore significantly raise the cost of educating students at existing law schools. But the standards don't ultimately serve as an effective check on entry, meaning that students (who pay more than they should for education) are competing in a world of lower demand for their services but higher supply of graduates. This is the worst of all possible worlds. The legal education market would be much better off if the ABA were replaced by an accreditation agency that didn't have the same guild-driven stake in the status quo.
But we're not in that world, nor will be soon. So what should the ABA do? Rather than nipping schools for failing to achieve some sets of metrics, or not utilizing a particular internal operating procedure, or having classrooms with noisy air conditioners, the ABA should act more like the SEC, and require (merely) disclosure of facts deemed material to "market" actors -- alumni, prospective faculty, prospective students. Auditing would also seem appropriate - coupled with punishment for severe violations. The ABA has a really powerful weapon at its disposal that other accrediting agencies do not - the power of licencing. It ought to use it to clean up the data, right quick.
What information should be disclosed? It's not obvious that the current focus on employment and salary statistics is the right approach. That's not to say that law school should hide employment statistics - or obscure them - but rather that having the Bar mandate a particular form of disclosure is a bad idea in a world where Bar-driven employment outcomes are the most variable and therefore most important part of the USNews rankings, which desperately needs a constantly changing set of measures to stave off the wolves at the door. (Having done some research into the determinants of rankings, let me just say this to Bob Morse: your plea for data transparency was funny and profoundly ironic.) I also worry that disclosure of salary data will have anticompetitive effects in the smaller firm part of the labor market. I could be convinced otherwise, but it strikes me that a better set of accreditation-driven disclosures would include the following:
- Actual law school cost: what was the retail price paid by every member of the class (anonymous, of course, and probably displayed in a histogram with 50 or so bins). How did the school account for scholarships (was it a real dollar cost out of endowment, or a setoff). What percentage of students ended up paying more than their originally bargained retail price? What was the distribution of incidental costs?
- Actual law school debt: how many students took on debt, how much debt, and under what terms;
- Bar Passage: for every member of the class, the passage statistics, no matter how many times the test was taken;
- A Retrospective Survey: some kind of nationally-designed survey, patterned after LSSSE, that evaluates whether graduates were happy with their education and the opportunities it brought them. Time series data would be really helpful in informing applicants. A key reporting question: "did you get your money's worth"?;
- Law School Budgeting: This is a complicated topic, but the basic idea would be to provide each student a school specific version of the taxpayer receipt. How is money spent? This would give applicants, students, faculty, staff and alumni a good sense of the school's priorities. At the same time, the budget could disclose the law school's relationship to the central university.
I'd largely dump the substantive & strategic Standards and focus energy on enforcing these disclosure principles. I'd cancel site visits. Generally, I think prospective students and consumers would be better off if schools, and States Bars, picked their own paths. But the big purpose to these reforms would be to permit innovation & to reduce costs, which I think crucial to the future of domestic legal education.
Who would be made worse off were we to substitute disclosure for regulation? Current faculty members, prospective faculty members, and (I think) practicing lawyers, all of whom would expect to see lower rents. Also, perhaps, we'd reduce the likelihood of law professors and administrators taking politically unpopular positions, and representing politically unpopular clients. This strikes me as a cost that is worth bearing, though many of my friends and colleagues, who are both wise and reasonable, disagree.
If you are in San Francisco for the AALS Meeting in 2 weeks, check out the AALS Insurance Law Section's program on behavioral economics and Insurance regulation on Saturday, January 8th from 10:30 AM-12:15 PM in the Hilton. Daniel Schwarcz (Minnesota) will be moderating the following panel:
Tom Baker (University of Pennsylvania Law School);
Michelle E. Boardman (George Mason University School of Law);
Russell Korobkin (University of California, Los Angeles School of Law);
Joshua C. Teitelbaum (Georgetown University Law Center)
As an editorial aside, there is still much good work to be done in the application of behavioral economics to law, particularly as this field grows out of its adolescence. We are past the stage of whether behavioral biases and cognitive limitations affect individual decision-making and moving to much more difficult questions such as: which of the laundry list of biases is at work on any given decision? When and to what extent does a particular bias affect a particular decision? How do different groups of inviduals exhibit different biases? The low hanging fruit has been picked clean. There are lots of data in all sorts of fields showing anomalies inconsistent with rational actor models. But the challenge is now to move beyond speculating that a particular bias causes the anomaly and then proposing a policy remedy towards providing clearer links between particular biases and particular changes in behavior. If the easy pickings are gone, there is still a lot of ripe fruit higher up in the tree. Check out this section meeting!