Category Archives: Law

Feelin’ Hot, Hot, Hot

The data are in. 2019 was the second-hottest year in modern history. (2016 was the hottest.) The last five years have been the five hottest years on record. According to Petteri Taalas, the Secretary-General of the World Meteorological Organization, “On the current path of carbon dioxide emissions, we are heading towards a temperature increase of 3 to 5 degrees Celsius by the end of the century.” That’s of course presuming that human beings are still around in 2100.

Here is a chart from NASA showing the average global temperature from 1880 to the present. The baseline, represented by zero on the chart, is the average temperature between 1950 and 1980. (“GISTEMP” stands for the Goddard Institute for Space Studies (GISS) Global Surface Temperature Analysis.)

The second figure shows that the temperature increase is not evenly distributed around the Earth, but it concentrated at the poles, particularly the Arctic.

The next chart shows the steep decline of Arctic sea ice from 1880 to the present, this time compared to a baseline of the 1981-2010 average.

Finally, this illustration shows the distribution of the 2019 temperature increase (or decrease) within the continental United States, this time compared to the 20th century average. Obviously, the problem is concentrated in the Southeastern states. (I don’t know why NASA keeps changing the baseline. Maybe they just want to keep us on our toes.)

As if to put an exclamation point on these data, last Friday the Ninth Circuit Court of Appeals, in a 2-1 decision, dismissed the five year long lawsuit (Juliana v. United States) by 21 American young people intended to force the government to do something about climate change on the grounds that climate inaction was putting their constitutional rights to life, liberty and the pursuit of happiness at risk. The Court ruled that it lacked jurisdiction over the climate, and that “the plaintiff’s case must be made to the political branches or to the electorate at large.” Good luck, kids.

The dissenter, District Judge Josephine Stanton, stated: “It is as if an asteroid were barreling toward the Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

You may also be interested in reading:

Climate Spirals

The Cost of Climate Inaction

A “Chilling” Study? Chill!

Given the news media’s interest in surveys, a poorly-designed survey has the potential to spread a lot of misinformation. In late August, Dr. John Villasenor of UCLA surveyed 1500 college students’ understanding of and attitudes toward freedom of speech. He wrote up the results in an essay published by the Brookings Institution, explaining that the survey had not yet been subjected to peer review, but due to “the timeliness of the topic, I believe it is important to get some of the key results out in the public sphere immediately.”

The survey results were covered by several mainstream media, including CNN and the Wall Street Journal. They were summarized by Catherine Rampell of the Washington Post under the title “A chilling study shows how hostile college students are toward free speech.”

In his article, Dr. Villasenor reported five results of the survey.  Respondents were asked “Does the First Amendment protect ‘hate speech?’”  A plurality of 44% answered “no,” compared to 39% who said “yes,” and 16% who didn’t know. They were wrong, since the First Amendment protects offensive speech unless it is a threat or is directed toward producing imminent lawless action. Women were more likely than men to hold this incorrect belief.

Respondents were given the following hypothetical scenario.

A majority of students agreed, with Democrats being more likely than Republicans to condone shouting down a speaker.

They were also asked about the use of violence to silence a speaker.

The approval rate was much lower, but the fact that 19% approved of violence is certainly disconcerting. Men were more likely than women to condone violence.

Given the same scenario, respondents were asked whether “under the First Amendment, the on-campus organization sponsoring the event is legally required to ensure that the event includes not only the offensive speaker but also a speaker who presents an opposing view.” A majority (62%) incorrectly agreed that there was a legal requirement of balance.

Finally, respondents were given an item from a 2016 Gallup poll in which they were asked to choose between two types of university learning environments:

  • Option 1: Create a positive learning environment for all students by prohibiting certain speech or expression of viewpoints that are offensive or biased against certain groups of people.
  • Option 2: Create an open learning environment where students are exposed to all types of speech and viewpoints, even if it means allowing speech that is offensive or biased against certain groups of people.

A 53% majority chose the first option of prohibiting offensive speech, while 47% opted for the more open environment.

Shortly after the article was published, doubts about the validity of the survey were raised, with one critic labeling it “junk science.” It turns out that Dr. Villasenor is a professor of electrical engineering with no prior experience conducting surveys. His research was sponsored by the conservative Charles Koch Foundation. Of course, neither of these facts necessarily invalidates the survey.

A more important problem is that it is not clear how Dr. Villasenor obtained his sample. He does not claim that the survey was administered to a random sample of college students, but merely that the sample was “geographically diverse” and “approximately mirrors” the undergraduate population. This has led critics to conclude that he used a convenience sample of students who were available, but not necessarily representative of college students. Dr. Villasenor has acknowledged that this was an “opt-in” survey, a term used to refer to a survey using volunteers whose biases are unknown.

Dr. Villasenor further irritated survey experts by stating the confidence intervals, or the margin or error, around his results. This is inappropriate unless a random sample is used. (It should be noted that Dr. Villasenor covered his butt by saying that these confidence intervals were valid “to the extent” that his respondents were representative of college students, without actually claiming that they were representative.)

Dr. Villasenor also neglected to mention that his survey was conducted just a few days after the white supremacist rally in Charlottesville, VA, in which a peaceful demonstrator was killed. This violent incident may have temporarily reduced students’ tolerance for offensive speech.

Finally, it should be noted that in 2016, when Gallup asked a nationally representative sample of college students, carefully chosen using probability sampling, to choose between the two learning environments described above, 78% chose Option 2, the more open environment. While it is possible that student attitudes have changed dramatically in the past year, it is also possible that differences in sampling were responsible for the discrepancy.

Catherine Rampell defended Dr. Villasenor’s survey, correctly noting that no survey uses perfect random sampling in that sense that respondents are randomly chosen from a complete and accurate single list of all the college students in the country. However, her defense blurs the distinction between carefully conducted probability sampling and the apparently more haphazard methods used by Dr. Villasenor.

Sophia McClennen of Penn State has labeled Villasenor’s survey an example of “blue-baiting,” in which conservative organizations attempt to manufacture doubt about free speech protections on campus in order to undermine public confidence in higher education.  (This may be working.)

At the very least, the controversy suggests that journalists should be careful to determine that professional sampling techniques are used before reporting survey results.  On the other hand, some college students did give these responses, even if they came from a biased sample. This suggests that high schools and universities should devote more attention to educating students on the meaning and scope of the First Amendment.

You may also be interested in reading:

Republicans Say Colleges are Bad For the Country

The Problem is Civil Obedience

Judging by the last few days’ letters to the Pittsburgh Post-Gazette, the Trumped-up controversy over NFL players protesting racial injustice has angered that segment of our country’s population that disapproves of civil disobedience. Trust the late historian Howard Zinn to have the perfect response. (Thanks to columnist Will McCorkle for reminding me of this quote.)

Civil disobedience is not our problem. Our problem is civil obedience. Our problem is that people all over the world have obeyed the dictates of leaders . . . and millions have been killed because of this obedience. . . Our problem is that people are obedient all over the world in the face of poverty and starvation and stupidity, and war, and cruelty. Our problem is that people are obedient while the jails are full of petty thieves . . . (and) the grand thieves are running the country. That’s our problem.

In this video, Matt Damon reads longer excerpts from the speech from which this passage was drawn. Dr. Zinn delivered it in 1970, when Americans were protesting the Vietnam War.

Of course, it’s more than a little incongruous to hear a speech condemning (among other things) wealth inequality read by an actor who earns $20 million or more for making a single film.

Crime in Slow Motion

The research I’m about to present resonates with a personal experience of mine. Three years ago, I served on a jury that acquitted Cheswick, PA, councilman Jonathan Skedel on a charge of assaulting Joe Ferrero, president of the Cheswick Volunteer Fire Department. (I was stunned when the prosecutor allowed a retired college professor whose field is social psychology to sit on the jury.) The charge resulted from a fistfight between the two men in which Ferrero suffered facial injuries requiring dental surgery. The fight took place in the parking lot of a physical therapy clinic and the entire episode was captured by one of our ubiquitous surveillance cameras.

The video was played several times during the trial, both at real speed and in slow motion. In his summation, the prosecutor paused the video just before Mr. Skedel delivered the punch which injured Mr. Ferrero, and stated that Mr. Skedel could have stopped the fight at that point, but instead decided to assault Mr. Ferrero.

During the jury’s deliberations, I was disturbed to discover that some of my fellow jurors accepted the prosecutor’s definition of the situation. I tried my best to argue—with limited success—that pausing the video was an artificial intervention in what was, in reality, a continuous episode that provided little opportunity for conscious deliberation by either man. The jury eventually acquitted Mr. Skedel, but this was probably due to the majority’s belief that both men had acted equally badly, and it was unfair to single out one of them for prosecution.

Playing crime scene videos in slow motion, or pausing them at critical points, is common practice in jury trials and their effects should be investigated. The former of these issues was the subject of four experiments by Dr. Eugene Caruso of the University of Chicago and his colleagues. They compared the effects of watching a video either in slow motion or at regular speed. Their slow motion was 2.25 times slower than regular speed. The researchers measured participants’ estimates of how much time had passed, and their judgments of the intentionality of the defendant’s behavior.

Three of these experiments used a surveillance video from a Philadelphia trial in which the defendant, John Lewis, was convicted of first degree murder for  shooting a man during a convenience store robbery. Here it is (in slow motion).

They measured the intentionality of the act because the real jury had to decide whether the defendant was guilty of first degree murder, which is premeditated, or second degree murder, which is not.

Study 1 showed that participants in the slow motion condition estimated that more time had passed than those in the real time condition, and saw the defendant’s behavior as more intentional. Further analysis showed that their judgments of intention were mediated by their estimates of how much time had passed. The researchers refer to this effect of slow motion on perceived intentionality as the intentionality bias. It occurs because the participants mistakenly infer that the defendant had more time to think before acting than he actually had. Study 2 replicated this finding with a video of a professional football tackle involving violent contact. (You might want to remember this the next time you watch a slow motion replay during a sports event.)

Mr. Lewis’s lawyers argued on appeal that showing the slow motion video had biased the jurors, causing them to see his actions as more intentional than they actually were. The judges rejected this argument because, they said, the jurors were shown the video at regular speed as well as slow motion, and because the amount of elapsed time was stamped on the video.

The researchers effectively demolished both of these arguments. Study 3 added a “time salient” condition in which participants were reminded that they could see how much time had elapsed from the time stamp on the videotape (which was present in all conditions). This reduced the amount of intentionality bias produced by slow motion, but did not eliminate it. Finally, Study 4 included a condition in which participants were shown the video twice, first at regular speed and again in slow motion. This too reduced the magnitude of the intentionality bias but did not eliminate it.

Summarizing the data, the researchers calculated that, prior to deliberation, juries randomly composed of Study 1 participants would be almost four times as likely to unanimously believe that the killing was premeditated in the slow motion condition.

Unfortunately, Dr. Caruso and his colleagues did not include a condition in which the video was paused immediately before the critical action took place. My guess is that such a condition would have further increased the intentionality bias, since it stretches the length of the presentation.

The use of slow motion is often justified on the grounds that it provides a “better” look at an event, and this may be true in some instances. However, when intentionality is at issue, slow motion also produces a biased causal attribution for the event. These studies are probably too late to help Mr. Lewis, who was sentenced to death and is awaiting execution.

You may also be interested in reading:

A Downside of Police Body Cameras

Chomsky, Greenwald and Snowden on Privacy

Last night, there was a panel discussion entitled “A Conversation on Privacy” at the University of Arizona, featuring Noam Chomsky, Glenn Greenwald and (live from an undisclosed location) Edward Snowden. The discussion was moderated by Nuala O’Connor of the Center for Democracy and Technology. The video is about two hours long. Although it starts off slowly, your patience will be amply rewarded by the end.

No, this isn’t a lobby card from Frankenstein Meets the Wolf Man. It’s actually an image from the poster advertising the panel discussion.

The discussion was broadcast via Livestream, which I was unable to insert directly into the blog. To watch it, click on the link below. If you’re familiar with the participants, you can skip the introductions. The discussions starts about 11 minutes into the video.

http://livestream.com/azpm/events/4958510/videos/116998760