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Speakers/Abstracts
Andrews, Paul W. (University
of New Mexico)
Cognitive
Adaptations for Social Problem-solving: Some
Evidentiary Implications: Judges and jurors are
often called upon to perform cognitively complex social tasks in the
courtroom (e.g., make judgments about the mental states or internal
attributes of other people). However, people have a suite of cognitive
biases and heuristics that interfere with the truth-seeking roles of judges and
jurors. I discuss some of the possible evolutionary reasons underlying
these biases, outline ways in which they can be overcome, and discuss
their strategic significance in light of evidentiary issues.
Colarelli, Stephen M.
(Department of Psychology, Central
Michigan University)
Designer Diversity
Versus Random Selection: Implications of Evolutionary Psychology for
Diversity and Affirmative Action:
An evolutionary
perspective suggests that random selection above a threshold is a
reasonable and justifiable approach to making selection decisions in
large organizations, particularly where diversity and fairness are
considerations. Applicants
of every possible racial (and ethnic) composition would be eligible
for admission in proportion to their representation in the applicant
pool. The fairness of
random selection above a threshold is simple to comprehend – much
more so than the complex statistical and sociological models of
fairness. Finally,
random selection above a threshold is unlikely to affect performance
or organizational efficiency because ability tests scores do not
predict skillful performance beyond the short term.
Gibbons, Hugh (Franklin Pierce Law
Center)
The Biological Basis of Rights:
Legal rights are an emergent feature of human brains, along a causal
path that runs from the fact of brains, through the emergence of mind,
to actions, to the risks they create, and to the duties that are
caused by those risks. Positive law taps the force of this biological
process by defining entitlements, which create duties, the breach of
which cause rights in exactly the same way as the breach of the
emergent duty of care. Many common legal dualities -- from positive
law/organic law to principles/policies to the distinction between pure
and perfect systems -- can be traced to the dual source of duties and
rights.
Goodenough, Oliver (Vermont
Law School)
Contrasting Cortical
Function in Law and Justice: I have argued previously that the
classical distinctions between Law and Justice reflect different neurological
capacities which humans can apply to problems of right and wrong. In a
preliminary experiment at the University of London, my collaborators and I
have tested this hypothesis through an MRI scanning experiment involving
product liability problems. The results of the experiment strongly support the
basic hypothesis and suggest other possible characteristics of the mental
processes underlying word based legal reasoning and the intuitive sense of
justice.
Hathaway, Oona A. (Boston
University School of Law)
Path Dependence in the
Law: The Course and Pattern of Legal Change in a Common Law System:
The term path dependence is generally used to refer to processes in which
outcomes depend upon the particularities of the historical path that leads
to them. I move beyond this broad definition by identifying three separate
models of historical evolution and change, one of which draws from
evolutionary biology. I describe in some detail the characteristics and
consequences of this form of path dependence and demonstrate how it yields
specific analytical insights into the American common law system, which is
built on the explicitly backward-looking doctrine of stare decisis. I
conclude with a normative analysis of the doctrine of stare decisis, arguing
that where the costs of path dependence are high, the application of stare
decisis should be relaxed.
Jones, Owen D.
(Arizona State University College of Law)
Proprioception,
Non-Law, and Biolegal History: Evolutionary analysis in law
can help to explain and predict some of the larger patterns that
human legal systems tend to reflect. This talk will propose several
preliminary steps, and a possible methodological framework, for
developing a comprehensive, cross-cultural "biolegal
history" that could integrate an understanding of human
behavioral biology with knowledge of contemporary legal features.
LaBlanc, Gregory (University
of Virginia)
Can Disgust Play a
Useful Role in the Law?: Disgust is widely criticized
by legal theorists, including Marth Nussbaum and Dan Kahan, for its
antidemocratic and non-rational manifestations in the form of racism,
sexism, and homophobia. They propose that disgust never be used to
inform judicial decisionmaking, yet evolutionary biology suggests that
the emotion of disgust evolved to serve very important functions and
can be shaped through education and experience. In this paper,
following O.W. Holmes and William Miller, I use an evolutionary
framework to determine the potential uses of disgust in the law.
McGinnis, John (Cardozo
School of Law)
Social Regulation
of Men and Women: The relation between men and women affects
our politics and social regulation. This subject naturally lends
itself to biological analysis, because differences between males and
females shape the social behavior of all animals. The paper offers an
explanation of contemporary social regulation bearing on men and
women, including family and employment law. It attempts to show how a
realistic view of these differences integrated with other biological
facts about humans such as self-interest as well as the effects of
changing technology on the human environment better explains these
changing regulations than theories of social construction.
Pinker, Steven -
Keynote Speaker (MIT Dept. of
Brain and Cognitive Sciences)
The Blank Slate, the
Noble Savage, and the Ghost in the Machine: Why does talk of human
nature inspire such fear and loathing in so many people? I suggest that
it challenges three deeply held beliefs: the blank slate (the mind has
no innate structure), the noble savage (people are naturally good), and
the ghost in the machine (behavior is not caused by physical events).
The beliefs are thought to undergird indispensable moral values, and
challenges to the beliefs are therefore thought to challenge the values.
If the mind has innate structure, then different people (or races,
classes, or sexes) could have different innate structures, justifying
discrimination and oppression. If evils such as rape, greed, or
prejudice are innate, that would make them natural and hence good, or at
best unchangeable, making attempts at social change futile. If behavior
is caused by physical events in the brain, people could not be held
responsible for their actions, unleashing endless Twinkie defenses. And
if our values and choices are mere reflexes of an evolutionarily shaped,
genetically programmed brain, they would be shams and life would be
stripped of meaning and purpose. I show that the fears are based on
non-sequiturs. Egalitarianism is the moral decision to ignore group
statistics in judging individuals, not an empirical claim about
sameness. The naturalistic fallacy (natural = good) is a fallacy.
Responsibility is a moral policy about consequences of behavior, and is
no more undermined by genetic or evolutionary explanations of behavior
than it is by environmental ones. And the meaning and purpose that
people ascribe to life are not compromised by explanations of the
ascribing process.
[Dr. Pinker is the author
of numerous books on cognitive science and evolutionary psychology,
including "How the Mind Works." For further information,
visit: http://www.mit.edu/~pinker/.]
Rubin, Paul H. (Dept.
of Economics & School of Law, Emory University)
Human Evolution
and Political Power: Freedom has been an important
characteristic of human political systems throughout most of our
existence, and humans have a strong taste for freedom, but males have
sought political power as a way of obtaining access to females. With
the beginning of sedentary societies and of agriculture, the power of
dominants increased substantially. Modern western society limits the
power of dominants, and individuals have more freedom now than at any
time since our ancestors were hunter-gatherers. There are substantial
benefits from limiting government power, and great dangers of allowing
it to increase, so it is a puzzle to explain why so many seek to
increase the power of government relative to other institutions in our
society.
Ruhl, J. B. (Florida
State University College of Law)
Adaptation,
Adaptive Institutions, and Adaptive Management: Over
the past two decades, natural resources management policy has
increasingly adopted an approach called "adaptive
management" as the means of implementing policy goals.
This trend has been particularly rapid and broad in the past five
years. But adaptive management remains poorly defined, and the
history of conventional administrative law institutions--i.e.,
legislative delegation, agency discretion, judicial review, and
public participation--suggests that significant reform would be
needed to fulfill the vision of adaptive management as it is
depicted. In this talk I will explore what insights bio-evolutionary
and complex systems principles of adaptation hold for the prospect
of retooling the administrative state toward an adaptive management
framework.
Seto,
Theodore (Loyola, Los Angeles)
Intergenerational
Decision Making: An Evolutionary Perspective: I am in the process of
developing a theory of normative obligation based on evolutionary
and game theory. The present article outlines relevant parts of that
theory and explores their implications for intergenerational
decision making. Unlike the current dominant model for such decision
making - cost/benefit analysis discounted to present value - my
theory posits that the present matters only because it makes the
future possible. I identify an alternative long-term normative
objective consistent with both evolutionary theory and our
intuitions about ethics - to wit, the survival, evolution, and
integrative expansion of something I label our "We," that
is, the set of actors to whom feel reciprocal moral obligation.
Siebrasse, Norman (University
of New Brunswick, Canada)
Is There One
Right Answer to Legal Questions?: A reconciliation of
materialist and ideological approaches
to law is provided using an evolutionary/cognitive science
model of the role of ideas. It is argued that the fitness
landscape in human behavioural space is rugged, and that
ideas (broadly defined, to include a spectrum of abstraction
from ideology to legal principles) are heuristics used to
determine "long" steps in searching such a landscape, thus
allowing escape from purely local maxima. The ideas themselves
though, cannot be globally optimized, but are determined in large
part by historical contingencies (path dependence). The conclusion
is that ideas, and in particular legal principles, matter, even in a
fundamentally materialist account of legal development.
Smith, Thomas A. (Professor
of Law, University of San Diego)
Equality,
Evolution and Partnership Law: Equal sharing is an
ancient rule in partnership law. The existence of a predisposition
towards egalitarian sharing rules in simple productive settings
would help explain equal sharing as a partnership default rule. The
prevalence of egalitarianism in simple human societies suggests
human nature may include an evolved disposition toward
egalitarianism in settings, such as hunting and meat sharing, that
are analogous to simple business partnerships.
Stake, Jeffrey
(Indiana University School of Law)
An Evolutionary Angle on
Prior Possession and Adverse Possession: Scarcity of resources
creates competition for them, and some forms of competition can be harmful,
even deadly, for the competitors. Organisms can reduce the costs of
competition by adopting strategies for determining the outcome of fights
without physical damage. We might expect our rules of property to reflect
evolutionarily stable strategies for reducing the costs of allocating
resources among competitors.
Wada, Mikihiko (Professor
of Law, Hosei University, Tokyo (currently Visiting Scholar, Health
Law Dept., Graduate School of Public Health, Boston University))
Working out on
your Fitness? Great... but how is our Law
Working?: This presentation essays to examine and evaluate
the Japanese family law and inheritance law in the Civil Code, which
have much to do with reproduction, human behavior and psychology
related to evolution and fitness, in an endeavor to take half a step
toward explaining human law from the perspective of evolutionary
theory, using the tool of "fitness" with reference to
reciprocal altruism, incest taboo, or mate guarding. The
presentation includes the analyses of the Japanese Civil Code
Articles on loan, lease, incest taboo, paternity, support,
consanguinity, will and heirs' legal portion, and finally,
introducing the concepts of degrees of "fit succession
(FS)," of "presumed fit succession (PFS)," and of
"inclusively fit succession (IFS)," the examination and
evaluation of the reforms on wife's share in succession, 1898 to
present. It will reveal the effectiveness, and at the same time, the
limitation of such perspective.
Weeden, Jason
(University of Pennsylvania (Psychology)
The Coming Storm:
Paternity Testing in 21st-Century Politics: In this talk I
predict that an enormous political battle over the availability of
paternity testing will soon erupt, rivaling in scope the ongoing fight
over abortion rights. Similar to my analysis of abortion
attitudes presented at earlier SEAL conferences, I will argue that
this new fight over paternity testing will be fueled by differently
situated individuals rationally (though not necessarily consciously)
supporting positions that enhance their inclusive genetic interests.
I will predict in as much detail as I can what kinds of people will be
positioned on the different sides of this new battle over paternity
testing, the kinds of arguments they are likely to use, etc.
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