Teaching Partisan Bias

250px-New_York_Mets_Insignia.svgWhen I moved to Boston a few years ago, I presumed my lifelong passion for baseball would wane. After all, what room is there for a Mets fan in this American League city? But recently, teaching behavioral legal ethics to my professional responsibility students has caused me to watch more Red Sox baseball games than anticipated (or at least the highlights online). Let me explain.

In the last few weeks of the semester, we have been focusing on the duties lawyers owe to courts and third parties (MR 3.3, 3.4, etc.). We started this module by reading Andrew Perlman’s excellent article that raises important questions about whether lawyers can be objective in assessing the permissible boundaries of advocacy (for an overview, here is his presentation at the UNLV Lawyering and Psychology conference). Andy’s main point is to question what he calls the “Objective Partisan Assumption,” that is, the prevailing view in legal ethics theory that lawyers can make relatively accurate assessments about the propriety of their own advocacy. Relying on decades of empirical research from social psychology, he demonstrates that, contrary to prevailing wisdom, partisanship tends automatically to override objectivity. In our class discussion, I asked my students to consider this research and Andy’s arguments in determining whether passionate advocacy by lawyers might cloud their objectivity in applying the rules.

The conversation was fruitful, if a bit abstract — at least until we started to discuss the Red Sox and Yankees. For those who haven’t been following this epic rivalry, there were two controversial calls in games last week concerning the new use of instant replay. The videos of both are here and here. After inquiring how many of my students were fervent Red Sox fans (a majority, of course; although Yankees fans were well-represented), we watched one of the clips – involving whether a Yankee player pulled his foot off second base when tagged by the Red Sox infielder (the runner was called safe, even though the replay seems to indicate otherwise). I asked how many thought the umpire made the right call. Not surprising, partisan bias reared its head: those who identified as Red Sox fans were adamant that the Yankee player was out, while the Yankees fans came to the opposite conclusion (this, even though the video shows that the Yankee player was out, which raises an interesting question of whether motivated reasoning is limited to ambiguous situations).

1951pufootballtteamresized06Of course, my class survey claims no scientific validity, but it did provide a window to discuss the classic psychology experiment, “They Saw a Game,” which is the progenitor of much of the research in this area (and which Andy and others have cited prominently). So, if you find that a 1950s football game between Dartmouth and Princeton is not riveting enough to capture the imagination of your students, may I suggest that a more recent rivalry in your home town might just do the trick — even if the rivalry involves two teams you find distasteful!

[Update 01/24/15:  For an entertaining podcast about the “They Saw a Game” study, including background on the football game itself, listen here]

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