In a study that is sure to make faculty meetings around the country even less pleasant, Timothy Judge, Beth Livingston, and Charlice Hurst found that more "agreeable" men earn less than disagreeable male colleagues. The earnings differential between agreeable and disagreeable women was less pronounced. At the same time, the pay gap between disagreeable men and disagreeable women was larger than the gap between agreeable men and agreeable women. This fascinating study attempts to tease out whether conforming/not conforming to gender stereotypes might explain part of the gender gap in pay. And its implications go far beyond that.
A few links to tide you over during your tryptophan-induced torpor:
- Many law faculty dream (or so I’ve heard) of splitting their school in two and separating themselves from various colleagues (mimicking the good bank/bad bank model). Well Penn State is doing just that with its two campuses. (See the Dan Filler’s short post at the Faculty Lounge and the comments thereto);
- In the NY Review of Books, Elaine Blair reviews Every Love Story is a Ghost Story, D.T. Max’s bio of David Foster Wallace. It’s fascinating discussion of how Wallace drew on his own experience in addiction recovery, to create not only characters but a map out of the intellectual wilderness of “self-consciousness and hip fatigue” in American culture high and low;
- David Nasaw has slices of his new book, The Patriarch: The Remarkable Life and Turbulent Times of Joseph P. Kennedy at Slate;
- In the New Yorker, Nick Paumgarten explores the eternal musical afterlife in the Grateful Dead tape archives;
- Steve Bainbridge on vino for Thanksgiving (what about post-Thanksgiving?) and shareholder empowerment and banks.
- Track grandma’s flight home at FlightRadar24.
Youtube - uploaded by chasefukuoka61
So the "other matter" on which I've been working this semester is Baby #3. At this point, I feel like we're officially joining the ranks of the insane (except of course, for my fellow bloggers Christine, Lisa, and Gordon, who handle 3+ child-parenting with grace and aplomb!). Baby is due in December, and my semester to-do list includes finishing teaching Corporations and co-teaching an ethics seminar, writing an exam, grading an exam, potty-training Daughter #2, and getting her to share a room and "big girl bed" with Daughter #1. Add to that 2 newish writing projects and 4 conferences/colloquia. To you shaking your head, realize this: ambitious as this might sound, it's much easier to do anything when baby is on the inside.
Then in September our older dog, Meghan, died. I've tried to write a follow-up sentence at least 10 times, and everything winds up seeming trite or inadequate, so I'll leave it there. But it was a big change for us: we were a 2-dog household before we had children. I'd gotten Meghan as a puppy my last year of law school, and she and our second dog, Henry, were ideal dogs for kids. Mellow and with a firm understanding of the rules of the house (don't steal food or run away; you can loll on whatever furniture you see fit), they spent the majority of each day lying around the house. Comforting companionship that demanded very little.
About 3 weeks after Meghan's death I added another task to this semester's list: finding a second dog. It sounds quick, I know, but the loss hit Henry hard: he'd never been a solo dog, and he seemed increasingly depressed and out of sorts. We all were. And with a new baby on the way, the task integrating a new dog took on some urgency.
I'm lucky to have friends in the dog rescue community, and so with some trepidation I placed an order for a dog: 1-2 years old, female, housebroken, good with children and with dogs, no major health issues. I felt guilty about it: Meghan was a 6-week-old SPCA special, and Henry came from a foster home at about 6 months. I kind of expect to deal with housebreaking, teething, and training when I get a new dog. Part of the bargain, the responsibility of the good dog owner. But my friend assured me that plenty of dogs killed at shelters fit my description, and that giving a dog a home was what counted.
So we told the girls we were "fostering" Sweet Pea, who was 4 years old but otherwise fit my order to a T. You can guess the rest. Sweet Pea has gotten out and stolen food a few times, and there have been some casualties as she endeavors to understand the difference between child toys and dog toys. Her hind foot is a little wonky, as my parents would say, from being hit by a car in her youth and healing incorrectly.
In short, she's perfect.
I write this post to suggest that, if you're thinking about getting a dog but dread that initial getting-acclimated period because you just don't have the time, you can probably find one that will be pretty easy to adopt. You may even feel guilty about how easy it really is.
So we're buying a new minivan tomorrow. More on the whys and wherefores of that later, but through dumb luck we seem to have stumbled on a good time to buy a car. I write up our experience for whatever it's worth.
Step 1: Test drive in June. The new model year starts shipping around September. Who knew? I thought it was later in the year, more like October or November. But no, dealers appear to be desperate and Honda, at least, is offering "dealer cash" to dealers who can move out those stale, tired old 2012 vehicles fast.
Step 2: Use a car buying service. Both AAA and USAA (our insurer) offer TrueCar free to their members. It's not clear to me how TrueCar makes its money (insights welcome), but we filled out an online form detailing what we'd like, and then they emailed us the contact information of two Atlanta dealerships offering us a few thousand dollars off the price of the car. One of them called the house literally 5 minutes later, offering us a few thousand dollars more off the price. Off to the races!
Step 3: Bargain over email. An initial email from a sales agent read: "We do have a black one in stock and I am hoping that you will want to get together this weekend to go over all of your options." Ha. I emailed back that we lived over an hour away and wouldn't be driving to Atlanta without a deal in hand.
Step 4: Check with your local dealer and see if they can match the price. Sadly, they couldn't. But they told me I was getting a good deal.
Step 5: Post about your story and hope that readers chime in with helpful tips that don't make you feel like a chump who missed out on some basic bargaining tactics.
Step 6: Remember that. no matter what, it could be worse (start at :44 or, if pressed for time. 3:11):
WaPo is remembering the crash of Air Florida Flight 90, which happened 30 years ago today. Seventy-five people died in the crash, which I remembered last week while riding to Reagan National after the AALS annual meeting. One reason that crash is so memorable to me is "The Man in the Water," Roger Rosenblatt's famous essay:
The person most responsible for the emotional impact of the disaster is the one known at first simply as “the man in the water.” (Balding, probably in his 50s, an extravagant moustache.) He was seen clinging with five other survivors to the tail section of the airplane. This man was described by [Donald Usher and Eugene Windsor, a park-police helicopter team,] as appearing alert and in control. Every time they lowered a lifeline and flotation ring to him, he passed it on to another of the passengers. “In a mass casualty, you’ll find people like him,” said Windsor. “But I’ve never seen one with that commitment.” When the helicopter came back for him, the man had gone under. His selflessness was one reason the story held national attention; his anonymity another. The fact that he went unidentified invested him with a universal character. For a while he was Everyman, and thus proof (as if one needed it) that no man is ordinary.
Still, he could never have imagined such a capacity in himself. Only minutes before his character was tested, he was sitting in the ordinary plane among the ordinary passengers, dutifully listening to the stewardess telling him to fasten his seat belt and saying something about the “No Smoking” sign. So our man relaxed with the others, some of whom would owe their lives to him. Perhaps he started to read, or to doze, or to regret some harsh remark made in the office that morning. Then suddenly he knew that the trip would not be ordinary. Like every other person on that flight, he was desperate to live, which makes his final act so stunning.
For at some moment in the water he must have realized that he would not live if he continued to hand over the rope and ring to others. He had to know it, no matter how gradual the effect of the cold. In his judgment he had no choice. When the helicopter took off with what was to be the last survivor, he watched everything in the world move away from him, and he deliberately let it happen.
Yet there was something else about our man that kept our thoughts on him, and which keeps our thoughts on him still. He was there, in the essential, classic circumstance. Man in nature. The man in the water. For its part, nature cared nothing about the five passengers. Our man, on the other hand, cared totally. So the timeless battle commenced in the Potomac. For as long as that man could last, they went at each other, nature and man; the one making no distinctions of good and evil, acting on no principles, offering no lifelines; the other acting wholly on distinctions, principles, and, one supposes, on faith.
Since it was he who lost the fight, we ought to come again to the conclusion that people are powerless in the world. In reality, we believe the reverse, and it takes the act of the man in the water to remind us of our true feelings in this matter. It is not to say that everyone would have acted as he did, or as Usher, Windsor, and [Lenny Skutnik, who jumped into the icy water to drag an injured woman to shore]. Yet whatever moved these men to challenge death on behalf of their fellows is not peculiar to them. Everyone feels the possibility in himself. That is the abiding wonder of the story. That is why we would not let go of it. If the man in the water gave a lifeline to the people gasping for survival, he was likewise giving a lifeline to those who observed him.
The odd thing is that we do not even really believe that the man in the water lost his fight. “Everything in Nature contains all the powers of Nature,” said Emerson. Exactly. So the man in the water had his own natural powers. He could not make ice storms, or freeze the water until it froze the blood. But he could hand life over to a stranger, and that is a power of nature too. The man in the water pitted himself against an implacable, impersonal enemy; he fought it with charity; and he held it to a standoff. He was the best we can do.
Sadness tinged this Christmas and New Year's for me, as it did for so many others, because of the news of Larry Ribstein's untimely passing. Amidst shepherding children through holiday traditions, and up and down the East Coast, I have been reflecting on what Larry meant to me.
Here's the Larry story I kept coming back to:
It's early September of this year, and I'm struggling with framing the theoretical portion of my latest draft. It's crunch time: I've arranged weekend babysitting because I need to get this puppy out the door. The good news: I have a new spin! The bad news: I need feedback. Any law professors at their computers this weekend are unlikely to be able to spare the time for me. Except...
Friday night I email Larry, asking him if he has the time to look at a draft. He writes back: "sure".
12:10 Saturday I get comments back from Larry, and a suggestion for a source to help with reframing.
1:57 I've read the source, give the framing another whirl, and email him back at with a follow-up question.
2:08 he emails me with an answer.
2:25 I'm emailing again, suggesting an alternate frame and asking for his thoughts.
2:37 Larry emails back, suggesting a change in emphasis.
2:45 I email back.
3:01 Larry responds.
3:24 I email back.
4:00 Larry responds.
Finally, the section is done. And it's stronger and richer than it was just 24 hours ago. I send my last email at 4:07. It reads: "You're hilarious. And a treasure. Thanks again, U"
On a Saturday afternoon. For a junior colleague. At another institution. Even as it was happening, I couldn't believe how lucky I was. Larry was smart, he was blunt, he was quick, he was generous. Each quality is rare taken individually; together, they are unheard of.
But it was his love of movies that really got me. Larry organized the best conference I think I'll ever go to. I mean, instead of having a list of articles to read, we had a viewing list--I spent March 2009 trying to watch as many movies as possible. For that alone, I'm in his debt.
After all the hype and Oscar drama, I finally saw Avatar when it came out on DVD. I was not impressed. This manipulative simplistic story almost won Best Picture? Really? I emailed Larry to ask what he thought. His reply was terse: "I wouldn't see Avatar unless strapped to a seat and threatened with torture."
God, I'll miss you, Larry. We all will.
Julia Child's Mastering the Art of French Cooking has been on my bookshelf for two years, mostly unused, since my wife purchased it for me after we first saw Julie and Julia. When we saw that movie again last week, I was inspired to take down the book and cook some eggs.
Well-cooked eggs are scrumptious, and cooking eggs well seems easy when you watch Julia:
Evidence that a picture is a worth a thousand words, the instructions in Mastering the Art of French Cooking for making an omlette -- which has only four ingredients (eggs, butter, salt, and pepper) -- are seven pages long! This is why most people never cook from Julia's classic book.
But I have been drawn in, attracted by Julia's emphasis on technique as the key to great cooking. In the original forward of the book, she wrote: "the excellence of French cooking, and of good cooking in general, is due more to cooking techniques than to anything else."
Although I have enjoyed cooking since childhood, when I spent hours in the kitchen with my mother, I am largely reliant on recipes. Julia promises something more:
Our primary purpose in this book is to teach you how to cook, so that you will understand the fundamental techniques and gradually be able to divorce yourself from a dependence on recipies.
This approach to cooking resonates with me right now. As I have contemplated my goals for the next year, Mastering the Art of French Cooking has become a metaphor for the manner in which I want to approach my teaching, my scholarship, my Church service, my family interactions, and my personal development. "Precision in the small details," Julia observed, "can make the difference between passable cooking and fine food." It's already clear to me that Mastering the Art of French Cooking is not just about food.
Larry Ribstein presented a paper in a conference at Lewis & Clark Law School in October 1996. I was a young corporations professor, and he was already a big name in the field. We had recently tussled in an email forum on limited liability companies -- which Larry subsequently edited and published in The Business Lawyer -- and I was not sure what to expect of him in person. Those who knew Larry understand that he could be rather direct in defending his views (or, as Larry Solum observed, he "defended his vision of law with a tenacity and rigor that is rare, even among law professors"), and, truth be told, I was a bit afraid of him. Over the two days of the conference, however, I found myself increasingly drawn to him at meals and during the breaks. The second day of the conference involved a trip up the Columbia Gorge and then to the Timberline Lodge on Mt. Hood for dinner. Larry and I spent much of that day talking, cementing a friendship that I count as one of my most treasured in the academy.
Over the ensuing 15 years, Larry and I often presented at the same conferences, and we usually sat together to watch and discuss the presentations. We collaborated on various blogging adventures, and I was looking forward to seeing him next week at the AALS Annual Meeting. Isn't it amazing and wonderful that so many of us could feel this sense of intimate connection to him?
How is that possible?
As I have reflected about Larry's passing over the past day, I realize that he was my friend because we shared a love of ideas, and he was my mentor because he taught me the importance of getting those ideas right. A few years back, I presented a piece called "Unlimited Shareholder Power" at a symposium at Notre Dame. Larry was also on the program, and after my presentation, he immediately approached with with some comments. I knew that he would not be enamored with my proposals, which finally appeared in print this fall, but I am still struck by the generosity of his comments. He seemed quite taken with my idea that each corporation could become a "laboratory of corporate governance," and we played with that idea for some time.
This type of interaction was the norm with Larry Ribstein. He was all about developing great ideas. And I loved him for that.
Here are a few more thoughts after learning about the loss of Larry Ribstein.
Larry could write faster than I could think, and write damn well too. Once, in a debate of over coffee on Citizens United, Larry told me that had I read his writings on the topic and I would have see why I was wrong. I responded that if I devoted all my time to reading his output, I wouldn’t have any time to write myself. There was no shame being outmatched by Larry in an argument. There was always a danger of being preempted. If I thought of writing something, chances were Larry had already published multiple times on the same topic (and had two more drafts on ssrn that year).
Larry also showed that being analytically rigorous did not prevent one from being intellectually generous. I met Larry at one of the first conferences I attended and the first where I presented. I was nervous as hell and did not know anyone. When I went back to my hotel room to unwind, I received an e-mail from Larry out of the blue. He apologized that he missed my presentation and asked if he could look at a draft. I had been reading his work when I was still in practice. Why would a senior scholar of his stature care about someone with no reputation who was just starting out? After seeing other tributes to Larry, I realize that he supported a lot of young scholars – even when they didn’t share his strong viewpoints.
And his viewpoints were strong. He was a powerful advocate for the power of free markets. He defended his ideas even in areas in which the political winds blew gale force the opposite way. Even when (and perhaps particularly if) you disagreed with him, he did you a profound favor. He forced you to hone and clarify your arguments. The label of “ideological” is often used pejoratively and casually to dismiss arguments. But Larry was ideological in a truer sense. He was committed to rigorously and systematically working out ideas, ideals, and their consequences.
Larry’s contribution to the academy far exceeded even his large body of scholarship. I miss him.
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 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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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.
Here is an amusing article from the Economist that reports on a study from Israeli scholars that shows delectable evidence that Israeali parole board judges are more likely to be lenient immediately after a meal. On the other hand, there is evidence that being slightly hungry sharpens the intellect.
I'm not sure whether to evaluate this evidence before or after dinner.
A few months ago, I argued that typing legal documents on the computer leads to sloppier product, less careful legal thinking, and perhaps even greater risk when compared to writing long hand (or typing on a typewriter) in the good old days. Here is an article from noted professor and critic Witold Rybczynski exploring whether a similar dynamic of using computers to draft has led to similar sloppiness in architecture.