9th SEAL Conference Program
The Society for Evolutionary Analysis in Law (SEAL) is a scholarly association dedicated to fostering interdisciplinary exploration of issues at the intersection of law, biology, and evolutionary theory; improving the models of human behavior relevant to law; and promoting the integration of life science and social science perspectives on law-relevant topics through scholarship, teaching, and empirical research. Relevant disciplines include, among others, evolutionary and behavioral biology, cognitive science, complex adaptive systems, economics, evolutionary psychology, psychiatry, behavioral ecology, behavioral genetics, primatology, evolutionary anthropology, and gender relations. SEAL welcomes all those with serious scholarly interests in evolutionary processes and law.
DAY ONE — FRIDAY, OCTOBER 26, 2007
8:00 to 9:00 Breakfast at the Grant Street Inn
9:15 to 9:30 Welcome (Room 213, Law Building)
9:30 to 10:00 Institutions and Mechanism Design – Describing Structures of Cooperation
Oliver R. Goodenough, Professor of Law, Vermont Law School
Can we link legal rules into a broader description of the structures of cooperation? Classical economic modeling gave insufficient attention to the structural requirements of trade and cooperative interaction. Evolutionary theory recognized the problem, but often became trapped in a vocabulary of selfishness. A combination of game theory and institutional economics helps us to redress the balance, and leads us to a clearer understanding of the pathways to cooperative interaction. These pathways can be established in a range of modalities, from a commitment to values in individual psychology, through customary institutions, legal rules, and even the physical world.
10:00 to 10:30 Game Theory and the Structure of Moral and Legal Obligation
Robin Bradley Kar, Associate Professor of Jurisprudence and Law, and Deputy Director, Loyola Center for Interdisciplinary and Comparative Jurisprudence, Loyola Law School in Los Angeles
How might contemporary advances in evolutionary psychology and evolutionary game theory illuminate the structure (and special features) of our native senses of moral and legal obligation? Legal systems depend critically on the capacity of individuals to act out of a sense of obligation, but much of the existing legal literature presupposes a picture of our human motivation that fails to appreciate important features of how this sense of obligation functions. This talk will present arguments based in evolutionary game theory and evolutionary psychology to suggest that we employ a specific psychological attitude — an “obligatum” — to respond to obligations, and that this attitude has a number of special structural features, owing to its specific evolutionary stability conditions. An understanding of how our native sense of obligation functions should put even greater pressure on the rational actor model than is typically found in the behavioral economics literature.
10:30 to 10:45 15-Minute Break
10:45 to 11:15 Gender and Trust
June Carbone, Professor of Law, Santa Clara University
What is the importance of gender in the creation of trust? It would argue that as scholars turn to the creation of trust, the issue of gender becomes more salient. The talk would 1) review the game theory literature, which finds that women are more sensitive to contextual clues than men, and men are more likely to be altruistic when it increases the size of the pie, while women are more likely to be altruistic when it brings up the bottom. 2) The talk would review the autism and mirror neuron literature that suggests that gender is a factor in the development of a theory of mind, and able to anticipate the reaction of others. 3) The talk would consider evolutionary explanations for the differences. The obvious one focuses on the female role in childrearing, but Gerda Lerna emphasizes the importance of female outmarriage in the creation of patriarchy and it offers a supplementary explanation. 4) The talk would suggest that these gender differences mean that the balance between the stereotypically masculine and the stereotypically feminine is important to the construction of human institutions. It ends with speculation on the implications for employment discrimination, corporate governance and international development.
11:15 to 11:45 Sexual Selection and Dress-Grooming Codes
Julie A. Seaman, Assistant Professor, Emory University School of Law
What might evolutionary analysis, and more specifically, the theory of sexual selection, tell us about the legitimacy under Title VII of sex-differentiated dress and grooming codes in the workplace? In the years since Title VII outlawed sex discrimination by employers, courts have continued to uphold as non-discriminatory various sex-differentiated dress and grooming codes; indeed, these codes are unique in that they facially differentiate on the basis of sex and yet are not subject to the usual legal test for facially discriminatory employment rules. In recent years, several scholars and some courts have begun to note a tension between these grooming cases and the increasingly prominent “sex-stereotyping” theory of discrimination recognized by the Supreme Court in Price Waterhouse v. Hopkins. In this paper, I look for inspiration to evolutionary explanations of differences in “dress” between male and female animals in order to explore whether sex-differentiated dress codes are simply reflections of benign social norms, as many courts insist, or rather whether they should be invalidated as illegal sex discrimination.
11:45 to 1:15 Lunch
1:15 to 1:45 Biological Assumptions of Feminist Reforms
Deborah Weiss, Lecturer, University of Texas School of Law
Can feminist legal reforms be based on the assumption that there are no biological differences between men and women? The most pressing problems facing women today require not sameness of treatment but accommodation of differences, especially in the area of sex and family relations. To address these problems without reviving objectionable traditionalist stereotypes, feminists must examine the immense literature on the exact nature of these sex differences.
1:45 to 2:15 Genetic Innovations – At What Cost?
Gaia Bernstein, Associate Professor of Law, Seton Hall University School of Law
What are the costs of our exclusive focus on innovation in the field of genetics? The intellectual property wars are on. Yet, Innovation is uniformly admired by all sides to the debate. In this paper I demonstrate that contrary to common belief innovation has only recently become a central social value. I then explore the costs to our exclusive focus and uniform agreement on innovation, namely, that while admiring the glamorous, the innovative, we tend to disregard the mundane – the everyday use of the technologies that surround us. Particularly, I show that our focus on the effects of patent rights on innovation in the area of genetics results in neglect of the effect of the very same patents on the diffusion of genetic testing technology.
2:15 to 2:30 15-Minute Break
2:30 to 3:00 An Evolutionary Theory of Justice: A Reply to Rawls’ Proposed Legal Question
F.E. Guerra-Pujol, Associate Professor, Catholic University of Puerto Rico School of Law
Is a purely descriptive theory of justice possible? My thesis is that justice is more a product of human nature or emotion and less a product of human reason or rationality. Specifically, man’s sense of justice consists of moralistic aggression or punitive sentiments towards cheaters (cheating being defined objectively or behaviorally as ‘costexternalization’ behavior). In essence, my theory is ‘justice as cheater-punishment’ (or justice as cost-internalization) and that man’s intuitive sense of justice serves essentially the same function as animal signals such as warning cries and alarm calls. Finally, I propose a simple mathematical model to show that man’s sense of justice has evolved (i.e., was favored by natural or sexual selection) because moralistic aggression enhances individual (not group) fitness in a wide variety of human interactions.
3:00 to 3:30 The Law Instinct
Michael D. Guttentag, Associate Professor of Law, Boyd School of Law, University of Nevada at Las Vegas
What constitutes a law instinct and is there evidence of such an instinct? This article explores whether we have an innate predisposition to create, follow, and enforce social rules, a predisposition which might be called a “law instinct.” This exploration brings together insights from jurisprudence with scholarship on the evolutionary basis of human behavior, and uses a method of analysis similar to that used to study the human language faculty. Findings from experimental economics and neuroscience are particularly suggestive that such an instinct exists.
3:30 to 3:45 15-Minute Break
3:45 to 4:15 Judicial Prestige and Influence as an Evolutionary Phenomenon
Daniel Martin Katz, J.D. M.P.P., Ph.D. Pre-Candidate, Political Science and Public Policy, University of Michigan
How might a network mapping of federal law clerk traffic help uncover the evolutionary nature of prestige and influence in the federal judicial hierarchy? Having collected available information for every federal judicial law clerk employed by every Article III judge during the full term of the “natural” Rehnquist Court (1995-2004), we use these approximately 20,000 clerk events to craft a series of network based visualizations. Like many network studies, we find the clerk traffic displays many classic properties such as hubs and cliques while still maintaining a relatively short average path length between judicial actors. Undoubtedly imposing an impact upon “the path of the law,” even during this relatively short period of inquiry, the structure of this influence network transforms significantly.
4:15 to 4:45 Placebos and Beneficient Deception
Adam Kolber, Laurance S. Rockefeller Visiting Fellow, Princeton University; Associate Professor of Law, University of San Diego
What are the reasons (evolutionary or otherwise) for placebo effects, and how do they inform issues about the law and ethics of deceptive placebo use? In November 2006, the American Medical Association adopted a new ethics provision categorically prohibiting doctors from using placebos deceptively. I argue that the AMA’s policy is overbroad, insensitive to patient preferences, and likely to have unforeseen consequences. Rather, deceptive placebos should be treated as scarce medical resources — used sparingly but not categorically prohibited.
4:45 to 6:45 Reception and Dinner (Law faculty lounge)
6:45 to 8:00 Keynote Presentation (Law faculty conference room)
Abigail A. Baird, Assistant Professor of Psychology, Vassar College
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DAY TWO — SATURDAY, OCTOBER 27, 2007
8:00 to 9:00 Breakfast (Grant Street Inn)
9:00 to 9:15 Announcements (Room 213)
9:15 to 9:45 Understanding Resistance to Apology, Forgiveness, and Reconciliation in Inter-group Conflict
Douglas Yarn, Professor of Law, Georgia State University College of Law & Executive Director of the Interuniversity Consortium on Negotiation and Conflict Resolution, and Gregory Todd Jones, Faculty Research Fellow, Georgia State University College of Law & Director of Research, Interuniversity Consortium on Negotiation and Conflict Resolution
How can institutions be designed to address environmental differences influencing intergroup conflict in the modern world? Reconciliation involves a cycle of psycho-social behaviors — cooperation, trust, fairness, vengefulness, and forgiveness. As social animals, humans have evolved heuristics, biases, and emotions to facilitate these behaviors. As a result, individuals are likely to have similar neurochemical reactions to a particular set of stimuli yielding these behaviors. In order to understand resistance to apology, forgiveness, and reconciliation, we must understand the evolutionary biology that underlies behavior in this context. Inter-group conflict in the modern world creates particular challenges for behavior adapted to a much different ancestral environment.
9:45 to 10:15 Network Dynamics and the Evolution of Institution
Gregory Todd Jones, Faculty Research Fellow, Georgia State University College of Law Director of Research, Interuniversity Consortium on Negotiation and Conflict Resolution
How might law (and other institutions) adaptively address the changing nature of our characteristic social structure? Modern living affords present day humans a bounty of benefits that reduce morbidity and mortality, offer comforts that would seem astonishing to most of our ancestors, and all but eliminate the threats of most predators. Along with these benefits, however, have emerged discrepancies between modern and ancestral environments that may present us with a variety of unanticipated ills. Humans evolved in small groups, consisting of approximately 150 individuals largely made up of extended kin networks. There is mounting evidence that social networks in this environment of evolutionary adaptedness (EEA) were largely egalitarian with a structure that would most closely approximate a homogeneous regular lattice with a characteristic single-peak degree distribution. On the other hand, evidence also suggests that many natural, social, and technological networks analyzed today are more heterogeneous exhibiting multi-peaked degree distributions. Much of social structure is determined to conform to either small world networks or scale-free networks. It appears that the characteristic social structure of humans has changed significantly in the 10,000 years since the Pleistocene epoch (the EEA), giving rise to the need for adaptive institutional interventions (such as the law).
10:15 to 10:30 15-Minute Break
10:30 to 11:00 Evolution and Forgiveness
Theodore Y. Blumoff, Professor of Law, Adjunct Professor of Medical Education, Mercer University
Do evolutionary principles provide data that contributes to our understanding of one of the more formal of our reconciling human emotions, namely, forgiveness, which is often described in neo-Kantian terms as a lesser (or even supererogatory) duty? This paper argues that forgiveness, operating through either multi-level selection or co-evolution, is one of the emotions that serves to reconcile innate psychological mechanisms and open-ended evolutionary phenomena. Forgiveness serves as a counterpoint to vengeance; both are necessary emotions for the creation and preservation of stable communities, large and small.
11:00 to 11:30 Saving for Retirement – Why Do We Fail?
Lawrence A. Frolik, Professor of Law, University of Pittsburgh School of Law
What inherent traits cause individuals to fail to adequately save for retirement despite the federal tax incentives and the obvious need to do so? Broadly understood, the endowment effect discourages efficient savings for retirement. Due to the preference for what they have over what they might get, individuals value current consumption over saving for future consumption. When they do save, they rarely adjust their saving by sector, e.g. bonds versus stocks, because the endowment effect (plus aversion to the risk of loss) causes them to overvalue present investments over the alternatives, and so they do not efficiently invest their retirement savings.
11:30 to 11:35 Break
11:35 to 12:05 Harm and Punishment: An fMRI Investigation
Owen D. Jones, Professor of Law & Professor of Biological Sciences, Vanderbilt University
How might functional magnetic resonance imaging (fMRI) aid our understanding of the evolved neural activities associated with assigning blame and determining punishments?Large-scale cooperation among unrelated individuals in humans evolved, in part, as a function of the human abilities and propensities to establish social norms and to sanction those who violate those norms. Third-party legal decision-making in criminal contexts includes two essential functions: 1) assessing responsibility of the accused for harmful acts; and 2) (assuming responsibility) determining appropriate punishment. To explore the neural underpinnings of these two legal decision-making processes, my colleagues and I scanned subjects with functional magnetic resonance imaging (fMRI) while they engaged in determining the appropriate punishment for protagonists in criminal scenarios that differed in both the degree of responsibility for the action and the severity of the resultant harm. The talk will describe the experiment and the results.
12:05 to 1:15 Lunch
1:15 to 1:45 Designing Institutions vs. Aligning Interests? An ERP Study of When Jurors Trust Statements Made at Trial
Cheryl Boudreau, Assistant Professor of Political Science, University of California, Davis
What does neuroscientific evidence tell us about the conditions under which jurors will trust the statements of attorneys and their witnesses? The results of my EEG experiments assess whether and under what conditions jurors trust the statements of attorneys and their witnesses. I find that, behaviorally, subjects are equally willing to trust someone who has common interests with them and who is made trustworthy by an institution, such as a penalty for lying; interestingly, subjects’ brain activity suggests that they are much more confident in their decisions when they hear the statements of someone who has common interests with them. This suggests a number of lessons for how attorneys and witnesses might best persuade jurors, and it also demonstrates that institutions are not cognitive substitutes for common interests.
1:45 to 2:15 Evolution, First Movers, and Herds
Claire Hill, Professor of Law, University of Minnesota School of Law
If evolutionary pressures have encouraged herd behavior, does this suggest that regulation ought to try to counter those pressures and if so, how? The subprime “crisis” continues to unfold. Would-be homeowners borrowed money they couldn’t afford to pay back; they now face losing their homes and losing all the sums they paid towards their homes. Investors bought mortgages that are worth less than they’d thought; they face considerable losses as well; some individuals are losing their jobs as a result, and some firms are entering bankruptcy. Other parties are adversely affected as well.
The puzzle from a traditional economic perspective is far more in the behavior of the investors than in that of the would-be homeowners. The famous “lemons” model, and common sense, suggest that when somebody is touting the next fantastic thing, the thing is complex, and the person who is doing the touting has a great deal to gain by selling it, the buyer would be skeptical — if anything, too skeptical, more skeptical than ‘fundamentals warranted.’ But apparently buyers (and rating agencies) were ready to believe what the touters were saying. And the touters, too, may have convinced themselves of the great value of what they were touting. Why?
In my account, a few people (first movers/first adopters) become persuaded, and others then follow. In the finance field, there are various known and widely used strategies. They are widely used in significant part because for any given financial manager, following the strategy means he won’t do any worse than the others following the strategy. He can limit the extent to which he looks stupid; he’s hard pressed to find a novel strategy that guarantees that he’ll look smart.
The evolutionary issue is this: Recall the evolutionary accounts of various physical phenomena, such as nausea. There may be something adaptive about copying others’ strategies about herd behavior. Perhaps the analogy will be profitable in helping us understand how hard-wired herd behavior is — the next step would be to consider what sorts of regulatory intervention might be possible if it’s determined that such behavior can be undesirable.
2:15 to 2:30 Break
2:30 to 3:00 TBA
Jeffrey Stake, Professor of Law, Indiana University School of Law – Bloomington
END of Scholarship Conference