Taboo Procedural Tradeoffs: Examining How the Public Experiences Tradeoffs Between Procedural Justice and Cost

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face this vexing difficulty when conducting the cost-benefit analysis envisioned by Mathews v. Eldridge under the Due Process Clause, and upon amendment of the Federal Rules of Civil Procedure, federal courts will face this difficulty under newly amended Rule 1. This difficulty poses several intertwined questions. Is the Mathews v. Eldridge conception of cost-benefit analysis under the Due Process Clause consistent with how the public experiences tradeoffs between procedural justice and cost? Does the public, for example, treat procedural justice as an ordinary monetizable consumer preference, or does the public experience procedural justice as a deeply human, sacred, moral, and dignitary value? In addition, newly amended Rule 1 now affirmatively requires parties to weigh and strike procedural tradeoffs. Yet, a crucial threshold question remains—how do members of the public experience these tradeoffs; how would members of the public, for example, experience tradeoffs between procedural fairness and cost? Consistent with the themes of the inaugural Conference on Psychology and Lawyering, we draw on psychological science and harness psychological experiments to investigate these questions. First, we examine whether the public is willing to pay to upgrade from procedural unfairness to procedural fairness. Relatedly, we examine the public’s maximum willingness to pay to enhance procedural fairness. Next, we examine whether the public is willing to accept payments to downgrade from fair process to unfair process. Stated another way, is the public willing to monetize and exchange the procedural justice afforded to them? Thus, we examine the public’s minimum willingness to accept the descent from procedural justice to procedural injustice. Last, we examine whether these willingness-to-pay (“WTP”) and willingness-to-accept (“WTA”) values vary with the underlying interests at stake. In this way, and joining in the collective efforts of those who seek to coalesce the field of psychology and lawyering, we illustrate how Law & Psychological Science, a form of naturalized legal inquiry and behavioral realism, that examines legal problems by infusing law with insights from the psychological and behavioral sciences, can be harnessed in the realm of civil procedure and dispute system design to cast new light on vexing problems to benefit courts, procedural regulators, and legal professionals. The Article proceeds as follows: in part I, the Article offers a theoretical orientation, presenting social-psychological research on procedural justice, taboo tradeoffs, relational theory, and the sacred-value protection model. In part II, the Article reports an experiment conducted with members of the American public, discussing first methods then results. In part III, the Article presents a general discussion regarding the implications of this research on procedural regulation, including implications for the cost-benefit analysis envisioned by Mathews v. Eldridge under the Due Process Clause and concerns raised under newly amended Rule 1, and turns then to civil procedure pedagogy. Last, the Article closes with next steps for this line of research and conclusions

Human-Centered Civil Justice Design

This Article introduces a novel approach to improving the civil justice system, referred to as human-centered civil justice design. The approach synthesizes insights and practices from two interdisciplinary strands: human-centered design thinking and dispute system design. The approach is rooted in human experiences with the processes, systems, people, and environments that members of the public encounter when navigating the civil justice system and how these experiences interact with the entangled web of hardships and legal adversities they face in the everyday. Human-centered civil justice designers empathize with the intended beneficiaries and stakeholders of the civil justice system, seeking to deeply understand those served and to partner with these communities to create innovative solutions stemming from people\u27s actual needs, concerns, and experiences. Civil justice designers develop this understanding by engaging in perspective-taking through immersion, interviews, observation, and, more generally, empirical and psychological inquiry. They seek to understand stakeholders\u27 perspectives and experiences before narrowing and identifying the civil justice problems to be solved. These designers ideate and brainstorm a range of desirable human-centered solutions before winnowing them down based on feasibility and financial viability. Human-centered civil justice design harnesses psychological and behavioral science to understand how members of the public experience the civil justice system and their encounters with legal officials. The public\u27s needs, aspirations, concerns, and experiences of justice are the root of human-centered civil justice design. Throughout this process, designers harness pilots to develop insight from stakeholders on the causes, conditions, and nature of civil justice problems. These pilots are empirically tested with randomized controlled trials (RCTs) to explore their system-wide effects before interventions are adopted. The approach accommodates the reality of a dynamic civil justice system that seeks to promote diverse process values that are at times in tension, such as efficiency and promoting human dignity. After introducing human-centered civil justice design, the Article applies this approach by first evaluating the design process by which the 2015 amendments to the Federal Rules of .Civil Procedure were developed and then discussing implications for civil procedure rulemaking and managerial judging

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal concepts such as intent, intentionality, mens rea, and scienter should be reexamined and reconstructed. In Tellabs, the Supreme Court instructed federal courts to dismiss federal securities complaints, unless a reasonable person would deem the inference of scienter to be cogent, and at least as compelling as any opposite inference one could draw from factual allegations in the complaint. The Courts of Appeals are divided, however, on whether this framework applies at summary judgment. When viewed from a social psychological perspective, Tellabs promotes effective judicial decision making. Tellabs broadens the epistemic goal of decision making to include consideration of both dispositional and situational factors. When federal courts explicitly consider alternative explanations and causes of the defendants’ actions, jurists are more likely to consider situational explanations and avoid the Fundamental Attribution Error, resulting in more accurate decisions. Tellabs, therefore, offsets the tendency to over-attribute fraudulent intent to conduct appearing unreasonable only in hindsight

Doing Unrepresented Status: The Social Construction And Production Of Pro Se Persons

In this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate on two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person is; rather, pro se status is socially constructed. In describing this doing of unrepresented status, I describe a dynamic process in which societal decisions influence the very presence and prevalence of unrepresented persons within our civil justice system (the social production of unrepresented persons) and the way in which the meaning of these unrepresented persons is, in turn, socially constructed into pro se persons—such as through the application of stereotypes, schemas, biases, expectations, and labels onto these unrepresented persons (the social construction of pro se persons). This dynamic process—this doing of unrepresented status—varies with and depends on the contexts and social identities of the persons involved (Part IV). This novel understanding of the doing of unrepresented status stands in contrast to the belief that unrepresented persons are natural, inherent, or fixed features of a civil justice system or that pro se status is a stable essence, or an essential nature, that explains the presence of unrepresented persons in the civil justice system

Beyond Common Sense: A Social Psychological Study of Iqbal\u27s Effect on Claims of Race Discrimination

Federal Rule of Civil Procedure 8(a) once operated as a notice pleading rule, requiring plaintiffs to set forth only a short and plain statement of their claim. In Bell Atlantic Corp. v. Twombly, and then Ashcroft v. Iqbal, the United States Supreme Court recast Rule 8(a) into a plausibility pleading standard. To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal requires federal courts, when deciding whether a complaint is plausible, to draw on their judicial experience and common sense. Courts apply this standard at the commencement of litigation, evaluating the plausibility of claims before discovery - before evidence has been gathered and presented. This highly subjective pleading standard applies to all claims, including claims of discrimination by members of stereotyped groups. In short, under Iqbal, federal courts must grapple at the inception of litigation with deciding whether members of stereotyped groups have pleaded plausible claims of discrimination, relying on their intuitions and common sense, rather than evidence. The nature of this new pleading standard raises pressing and profound questions about the psychology of judging: Might Iqbal rest on a flawed theory of judgment and decision making? Can judges draw on common sense, rather than evidence, to adjudicate claims of discrimination by members of stereotyped groups without the subtle effect of implicit bias? This Article sheds light on these questions by drawing on social psychological research. From findings in the field of social psychology, the Article first forms hypotheses and then conducts an empirical legal study that closely examines how federal courts have adjudicated motions to dismiss Black plaintiffs\u27 claims of race discrimination

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal concepts such as intent, intentionality, mens rea, and scienter should be reexamined and reconstructed. In Tellabs, the Supreme Court instructed federal courts to dismiss federal securities complaints, unless a reasonable person would deem the inference of scienter to be cogent, and at least as compelling as any opposite inference one could draw from factual allegations in the complaint. The Courts of Appeals are divided, however, on whether this framework applies at summary judgment. When viewed from a social psychological perspective, Tellabs promotes effective judicial decision making. Tellabs broadens the epistemic goal of decision making to include consideration of both dispositional and situational factors. When federal courts explicitly consider alternative explanations and causes of the defendants’ actions, jurists are more likely to consider situational explanations and avoid the Fundamental Attribution Error, resulting in more accurate decisions. Tellabs, therefore, offsets the tendency to over-attribute fraudulent intent to conduct appearing unreasonable only in hindsight

Beyond Common Sense: A Social Psychological Study of Iqbal\u27s Effect on Claims of Race Discrimination

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination. In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups. Decades of social psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit bias will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate for Black plaintiffs’ claims of race discrimination in the workplace. A statistical analysis of 208 cases examined judicial decision-making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies show that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.5% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 suggests that White and Black judges are applying Iqbal differently. White judges dismissed these claims at a higher rate (57.5%) than Black judges (33.3%). Study 3 shows a trend in which White judges, as compared to Black judges, are more likely to dismiss Black plaintiffs\u27 claims of race discrimination. In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups

Beyond Common Sense: A Social Psychological Study of Iqbal\u27s Effect on Claims of Race Discrimination

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination. In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups. Decades of social psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit bias will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate for Black plaintiffs’ claims of race discrimination in the workplace. A statistical analysis of 208 cases examined judicial decision-making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies show that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.5% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 suggests that White and Black judges are applying Iqbal differently. White judges dismissed these claims at a higher rate (57.5%) than Black judges (33.3%). Study 3 shows a trend in which White judges, as compared to Black judges, are more likely to dismiss Black plaintiffs\u27 claims of race discrimination. In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups

Living on a trophic subsidy: Algal quality drives an upper-shore herbivore’s consumption, preference and absorption but not growth rates

Indexación: Scopus.The transfer of seaweeds from subtidal bottoms to nearby intertidal rocky shores is a common but often overlooked phenomenon. Freshly detached seaweeds often represent critical trophic subsidies for herbivores living in upper-shore rocky intertidal areas, such as the marine snail Diloma nigerrima. This species relies on three species of seaweeds for food and displays feeding strategies to deal with a resource that is scarce and at times unpredictable. This study focused on the nutritional quality of freshly detached algae (Durvillaea antarctica, Lessonia spicata and Lessonia trabeculata) and measured Diloma nigerrima’s algal consumption rates in trials with and without choice. Absorption efficiency and growth of individual snails fed on each alga were also measured. Durvillaea antarctica had the highest nutritional quality and was the most consumed algae in both single and multiple-choice trials. Absorption efficiency was also highest for D. antarctica but growth rates of snails fed with this species were similar to those fed with the other algae. Combined, these results suggest that D. nigerrima has the ability to discriminate among seaweeds based on their nutritional quality. A potential increase in oxygen uptake when D. nigerrima is consuming the preferred food item is also proposed as a plausible hypothesis to explain the mismatch between snails’ preference and growth rate. These results aim to guide further studies on trophic subsidies and their role in coastal systems. © 2018 Quintanilla-Ahumada et al. This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.https://journals.plos.org/plosone/article?id=10.1371/journal.pone.019612