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Speakers/Abstracts
Benito
Arruņada and Veneta
Andonova (Universitat Pompeu Fabra, Barcelona,
Spain)
Courts'
Discretion in the Evolution of Western Law: Why did common
and civil law differ in the allocation of rulemaking powers to
courts and what are the lessons for the institutional development of
a market economy? This paper analyzes, as a process aimed at
protecting freedom of contract and founding the market economy, the
evolution of common and civil law, two legal traditions that differ
mainly in that civil law courts enjoy lesser discretion. We argue
that the optimal degree of discretion in judicial rule making is
determined by a trade-off of the comparative advantages of
legislative and judicial rule making, and judicial agency costs
caused by self-interest and cognitive biases. Originally, judicial
discretion in common and civil law was optimally adapted to
different circumstances, mainly rooted in the anomalously
evolutionary transition enjoyed by English common law as opposed to
the revolutionary environment of the civil law. From this
perspective, discussions on the efficiency and performance of both
legal traditions hold little water. Our argument suggests that
institutional development should instead aim at identifying the
local circumstances that define the balance of the institutional
trade-off.
Erica Beecher-Monas
(University of Arkansas at Little Rock)
How
scientifically valid is the use of cognitive psychology's heuristics
and biases research in legal scholarship?:
The "heuristics and biases" research
program of cognitive psychology arose as an explicit challenge to
the economists' rational choice models of human behavior. Concepts
of bounded rationality have been widely adopted by many legal
scholars (in behavioral economics, to name just one application) as
well as some economists. Yet these uses by legal scholars have been
criticized as improperly generalizing a narrow field of research to
problems which the research was never designed to address. In this
talk, I will discuss the scientific validity of a number of these
applications and suggest some further areas in which decision
theory, evolutionary and behavioral biology may be useful in
understanding and developing the legal system.
Susan Crawford
(Cardozo School of Law)
The Biology of
the Broadcast Flag: If we consider innovation as a complex
adaptive system that is dynamic and dissipative, greater complexity
will be achieved through self-organization -- yielding unpredictable
novelty. How do top-down instructions to "innovate according to the
rules" (as in the context of the proposed broadcast flag regulation)
affect the health of this system? The "broadcast flag" regulation
now being considered by the FCC would require all machines that show
us TV signals to follow the rules of a "flag" embedded in content by
locking flagged content down, forbidding unauthorized transmission
of such content (even within home networks). An answer to whether we
should have such a scheme in place may be revealed by reformulating
the way we understand innovation. The MPAA wants us to carefully
avoid complexity and hierarchically manage nearly all technical
processes that touch their content (a deterministic view, aimed at
protecting existing business models). In the end, however, such an
approach is destined to create rigid, maladaptive machines and uses
of content and will frustrate the continued growth of the innovation
system -- the health of which was the aim of copyright protection in
the first place.
Helen E.
Fisher - Keynote Speaker
(Department of Anthropology,
Rutgers University)
Lust, Romance,
Attachment: The Brain Chemistry of the Three Primary Mating Emotions
and Their Impact on Crime and Punishment: This talk
discusses the brain circuitry and evolution of the three primary
mating emotion/motivation systems in the brain, lust, romantic
attraction and attachment, with particular emphasis on our FMRI
brain scanning study of romantic love. Then it explores how these
brain systems affect patterns of adultery and divorce, as well as
stalking behavior and other crimes of passion.
Lawrence A. Frolik
(University of Pittsburgh School of Law)
The Lure of the Rational Person or Why Do We
Prefer Mr. Spock to Hamlet?: One of the
abiding attractions to Westerners is the Rational Person, both as an
individual and as a model of what we think we are and should aspire to
be. Consider, for example, Sherlock Holmes who was so rational that he
wouldn't waste precious brain cells with unnecessary knowledge such as
did the sun revolve around the earth or earth around the sun. Didn't
know, didn't care. Holmes sired, speaking metaphorically, many
off-spring including the estimable Mr. Spock. He who was almost
incapable of not thinking and acting rationally. And we loved him.
Even his goodbye, "Live long and prosper," made sense.
In contrast Hamlet, with his indecisiveness, his
histrionics, and his passions disturbs us. Why can't he just ascertain
the facts, analyze his options and take action. In short, why can't
Hamlet be more like Holmes. And why are we so attracted to Spock and
Holmes?
I will examine the evolutionary answer to the
questions of why we are so attracted to the rational person and why
are we so drawn to the powers of reason?
Barry Goldman
(Adjunct, Wayne State University Law School)
Gaming the
System IS the System: Coevolution of the Process and the
Practitioner: How might evolutionary theory explain
and predict the history and development of Alternative Dispute
Resolution? Step 1. Lawyers, as self-interested actors, seek to
exploit opportunities presented by "loopholes" in the legal system.
Step2. The legal system adapts. Step 3. Repeat Steps 1. and 2.
Oliver R. Goodenough
(Vermont Law School)
Natural Born
Lawyers: How is the role of the law and the activity of
lawyers grounded in human biology? This talk will explore how law
and lawyers fit in as with evolved human biology. Although often
reviled, lawyers and the law can work with and strengthen the
evolved human capacities for maintaining productive sociality.
Neurological and behavioral evidence will be combined with theory
and modeling in this presentation.
Claire A. Hill
(Chicago-Kent College of
Law) and Erin O'Hara
(Vanderbuilt Law School)
Monitoring and Trust: An
Evolutionary Perspective: What does evolutionary theory
tell us about how the law can best improve fraud-detection efforts?
When the "easy" questions about how corporate directors could have
been duped by the managers in Enron, WorldCom and the other debacles
have been answered, harder (and more interesting) questions will
remain. How do we detect fraud? How should monitors monitor? We look
at these questions through an evolutionary lens, asking how the
evolutionarily adaptive environment has prepared us for the task. How
do we decide at what "level" to monitor--whether we are dealing with
"friend" or "foe"? How fine-grained should our assessments of who we
are dealing with be? Most broadly, how do we conserve computational
resources--how do we best balance our need to detect fraud with our
other needs.
Marco Janssen (CIPEC, Indiana
University)
How a Change in Rules Can Affect
Behavior and Outcomes: Goons, Guards, and Outcomes in Hockey:
What is the response of a heterogeneous population to a change in the
rule for monitoring? In the 1998-99 and 1999-2000 season of the NHL
Hockey League an experiment was performed by changing the number of
referees from one to two. Previous studies, using data of the
experimentation seasons, found no evidence of reduction of rule
breaking at the INDIVIDUAL (player) level when monitoring was
increased. Our analysis uses a longer time scale of penalty minutes
and salaries of different type of players and suggest that adaptation
occurred at the TEAM level, which is explained with a game theoretic
analysis.
Gregory Todd Jones & Douglas Yarn
(Georgia State University College of Law)
Evaluative Dispute Resolution Under
Uncertainty: Framing, Confirmatory Evidence Bias, and the Expected
Value of Imperfect Information:
How might evolutionary theories of "shifted
rationality" help to explain departures from rational expectations
models related to the processing of third party evaluative information
in the context of legal negotiation? Following and extending our talk
at last years conference, we present experimental results comparing
the utilization of probabilistic information with a more conservative
Bayesian optimum that of the expected value of imperfect information.
We also consider, and attempt to control for, the influence of
psychological framing of legal alternatives and the influence of
confirmatory evidence bias. Finally, we examine evolutionary theories
of bounded rationality and adaptive thinking and explore possible
interventions for improving information utilization and the efficacy
of facilitated negotiation.
Owen D. Jones (Arizona
State University College of Law & School of Life Science)
The Biologically Literate Lawyer:
How might we categorize the different ways in which evolutionary
analysis in law can prove useful? The talk is based on a draft
article that provides an overview, with examples, of at least thirteen
different ways in which evolutionary analysis in law can aid legal
thinkers. These range from increasing efficiency, clarifying causal
links, and exposing unwarranted assumptions to revealing selection
pressures of law, assessing comparative effectiveness of legal
strategies, and revealing deep patterns in legal architecture.
J. B. Ruhl (Florida State
University)
Radical Openness as an
Evolutionary Force in Legal Systems: Is the legal system best
understood as a complex system exhibiting very high levels of
"openness"--that is, feedback between partitions within the legal
system as well as between the legal system as a whole and other social
systems--and if so, what should we do about it? There is a growing
body of literature suggesting that the legal system exhibits many
qualities of complex adaptive systems. One of the hallmark
characteristics of large CAS behavior is openness--feedback between
subsystems that leads to emergence of higher level system behavior. As
openness reaches very high levels, predictability of system and
subsystem behavior diminishes. The thesis of the presentation is that
the legal system has reached radically high levels of openness,
requiring that we reconceive how to manage large sociolegal issues
such as, in the example used for this presentation, natural resources
conservation. For example, water allocation law, water quality law,
and endangered species protection law, once thought to be distinct
partitions of this field of law, have converged in many large scale
ecosystem settings to produce volatile legal controversies that have,
to date, defied conventional resource management responses. The talk
will explore the implications of these dynamics for law.
A. Jean Thomas
From Conflict to
Performance: Progressive Legal Thought and the Evolution of Political
Action - What is the behavioral basis of unconventional,
informal political action? Traditional models of political action
focus on the behavior of well-organized interest groups operating
within the sphere of ordinary politics. But legal discourse also
recognizes the significance of extraordinary politics. Under this
model, political behavior is based on the performance of informal
social conventions and loosely organized socio-political movements. My
presentation explores the behavioral basis of dynamic political
conduct from two perspectives: modern collective behavior theory, and
the cognitive basis of political metaphors, symbols and rituals.
Panel on Intelligent Design
Creationism
Paper 1:
John M. Lynch, Barrett Honors
College & Institute of Human Origins, Arizona State University.
The Discovery Institute has claimed that Intelligent Design is "a
new science for a new century". This paper takes an historical
perspective, introducing the major players within this cultural
movement, and situating them within the broader context of American
anti-evolutionism since 1859. Drawing from the history and philosophy of
science, I will demonstrate how the development of methodological
naturalism within scientific inquiry during the 18th and 19th
centuries illustrates the intellectual poverty of Design as an explanans.
It will thus be shown that IDC is neither "science" nor "new".
Paper 2: Barbara Forrest, Department of History and Political
Science, Southeastern Louisiana University.
Given the possibility of future litigation, what is the evidence
that "intelligent design" is actually (1) a religious movement and (2)
the most recent variation of traditional creationism?
"Intelligent design" (ID) is being promoted in a number of states
(e.g., Michigan, Minnesota, Texas, and New Mexico) as a viable
scientific alternative to evolutionary theory, suitable for teaching in
public school science classes, and its promoters will expand their
efforts to other states. Given the aggressive, well-funded strategy of
ID's proponents and the receptiveness of scientifically untrained school
officials and supportive politicians, litigation is likely at some
point. Using empirical evidence and philosophical analysis, this paper
will show that ID is both a religious movement and the most recent
variant of traditional creationism.
Paper 3:
Dennis D. Hirsch, Capital University Law School.
Intelligent design
advocates are actively working at both the federal and state levels to
integrate the intelligent design idea into the public school classroom.
This talk will describe the most significant of these efforts. It will
begin with the so-called "Santorum Amendment," an attempt by a U.S.
Senator to include language supportive of the intelligent design
position in the No Child Left Behind Act of 2001. It will then
chronicle efforts in various states to incorporate intelligent design
into science standards, biology classrooms, science textbooks and other
aspects of the public school curriculum.
Paper 4:
Steven G. Gey, College of Law, Florida State University.
On two separate
occasions the Supreme Court has held that the inclusion of creationism
in a public school science curriculum would violate the Establishment
Clause of the First Amendment. Proponents of "intelligent design" theory
argue that these precedents--Epperson v. Arkansas and Edwards
v. Aguillard--do not apply to the latest version of creationism.
Intelligent design proponents argue, among other things, (1) that
changes in Establishment Clause doctrine since Epperson and Edwards have
undermined those decisions, (2) that the free speech protections of the
First Amendment require public schools to permit discussions of
intelligent design, and (3) that the exclusion of specific references to
God in intelligent design creationism eliminates the constitutional
problem created by the expressly religious underpinnings of earlier
versions of creationism. This talk will review the constitutional basis
for the Court's creationism decisions and respond to the arguments that
the religious nature of intelligent design theory has been muted to the
point that its inclusion in the public school science curriculum is
constitutionally acceptable.
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