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Open Access Publications from the University of California

School of Law

UC Irvine

Open Access Policy Deposits

This series is automatically populated with publications deposited by UC Irvine School of Law researchers in accordance with the University of California’s open access policies. For more information see Open Access Policy Deposits and the UC Publication Management System.

Cover page of The messy landscape of eye movements and false memories.

The messy landscape of eye movements and false memories.

(2022)

Eye-Movement Desensitisation and Reprocessing (EMDR) therapy is a common treatment for PTSD. However, skeptics like James Ost question the theoretical underpinnings, highlight inconsistency of empirical findings surrounding the efficacy of such therapy, and warn against unknown drawbacks. Little is known about the impact of the eye movements, a critical component in EMDR, on susceptibility to false memories, and the existing literature is contradictory. We review the literature and present new findings to help tell the story of the effects of eye movements on memory. Taken as a whole, this small body of work suggests that eye movements do not reliably affect susceptibility to misinformation, nor do they appear to enhance memory, but they do seem to increase spontaneous false memories.

Cover page of Patent Performativity

Patent Performativity

(2022)

Patent law remains stubbornly undertheorized; we have surprisingly little understanding of the social role of patents or its implications. To help address this deficit, this paper examines patents as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through Butlerian enactments, to Barnesian social constitutives. I then indicate how patents function in each of these respective modes of performativity, first as performative speech acts, then as normative inscriptions, and ultimately as mechanisms of social fabrication. Drawing on these observations, I identify what it means to perform patents, and suggest some practical and doctrinal implications of patent performativity, particularly for the “gender gap” that is manifest in the patent system.

Cover page of What happens after debriefing? The effectiveness and benefits of postexperimental debriefing.

What happens after debriefing? The effectiveness and benefits of postexperimental debriefing.

(2022)

After participating in an experiment, people are routinely debriefed. How effective is debriefing when the experiments involve deception, as occurs in studies of misinformation and memory? We conducted two studies addressing this question. In Study 1, participants (N = 373) watched a video, were exposed to misinformation or not, and completed a memory test. Participants were either debriefed or not and then were interviewed approximately one week later. Results revealed that, after debriefing, some participants continued to endorse misinformation. Notably, however, debriefing had positive effects; participants exposed to misinformation reported learning significantly more from their study participation than control participants. In Study 2 (N = 439), we developed and tested a novel, enhanced debriefing. The enhanced debriefing included more information about the presence of misinformation in the study and how memory errors occur. This enhanced debriefing outperformed typical debriefing. Specifically, when the enhanced debriefing explicitly named and described the misinformation, the misinformation effect postdebriefing was eliminated. Enhanced debriefing also resulted in a more positive participant experience than typical debriefing. These results have implications for the design and use of debriefing in deception studies.

Cover page of Finding the perfect match: Fingerprint expertise facilitates statistical learning and visual comparison decision-making.

Finding the perfect match: Fingerprint expertise facilitates statistical learning and visual comparison decision-making.

(2022)

Forensic feature-comparison examiners compare-or "match"-evidence samples (e.g., fingerprints) to provide judgments about the source of the evidence. Research demonstrates that examiners in select disciplines possess expertise in this task by outperforming novices-yet the psychological mechanisms underpinning this expertise are unclear. This article investigates one implicated mechanism: statistical learning, the ability to learn how often things occur in the environment. This ability is likely important in forensic decision-making as samples sharing rarer statistical information are more likely to come from the same source than those sharing more common information. We investigated 46 fingerprint examiners' and 52 novices' statistical learning of fingerprint categories and application of this knowledge in a source-likelihood judgment task. Participants completed four measures of their statistical learning (frequency discrimination judgments, bounded and unbounded frequency estimates, and source-likelihood judgments) before and after familiarization to the "ground-truth" category frequencies. Compared to novices, fingerprint examiners had superior domain-specific statistical learning across all measures-both before and after familiarization. This suggests that fingerprint expertise facilitates domain-specific statistical learning-something that has important theoretical and applied implications for the development of training programs and statistical databases in forensic science. (PsycInfo Database Record (c) 2022 APA, all rights reserved).

Cover page of Racial Bias in Algorithmic IP

Racial Bias in Algorithmic IP

(2022)

Machine learning systems, a form of artificial intelligence (AI), are increasingly being deployed both for the creation of innovative works and the administration of intellectual property (IP) rights associated with those works. At the same time, evidence of racial bias in IP systems is manifest and growing. Legal scholars have already noted that as AI becomes part of the intellectual property landscape, the biases present in existing IP systems may infect algorithmic processes trained on data from past practices. Unfortunately, much of the discussion to date conflates technical biases in AI systems with social biases, requiring disambiguation of the two. The latter type of bias, social bias, is already endemic throughout IP, and so the addition of AI systems requires special consideration only to the extent that they present special problems. In this Essay I begin identifying such social bias problems that are particular to algorithmic determinations through AI processing. One set of problems relates to the illusion of numerical objectivity; AI outputs tend to be assigned undue weight due to the universal but fallacious impression that they are objective and neutral. A second set of problems relates to the performative nature of algorithmic processes; they tend to produce the effects that they assume and, in the intellectual property context, hold the potential for altering the nature of protected works. Identifying these problems indicates that currently proposed solutions will be inadequate, and points toward a different approach to dealing with racial bias in algorithmic IP.

Cover page of Convicting with confidence? Why we should not over-rely on eyewitness confidence.

Convicting with confidence? Why we should not over-rely on eyewitness confidence.

(2022)

Eyewitness memory researchers have recently devoted considerable attention to eyewitness confidence. While there is strong consensus that courtroom confidence is problematic, we now recognise that an eyewitness's initial confidence in their first identification - in certain contexts - can be of value. A few psychological scientists, however, have confidently, but erroneously claimed that in real-world cases, eyewitness initial confidence is the most important indicator of eyewitness accuracy, trumping all other factors that might exist in a case. This claim accompanies an exaggeration of the role of eyewitnesses' "initial confidence" in the DNA exoneration cases. Still worse, overstated claims about the confidence-accuracy relationship, and eyewitness memory, have reached our top scientific journals, news articles, and criminal cases. To set the record straight, we review what we actually know and do not know about the "initial confidence" of eyewitnesses in the DNA exoneration cases. Further reasons for skepticism about the value of the confidence-accuracy relationship in real-world cases come from new analyses of a separate database, the National Registry of Exonerations. Finally, we review new research that reveals numerous conditions wherein eyewitnesses with high initial confidence end up being wrong.

Cover page of The subtle effects of implicit bias instructions

The subtle effects of implicit bias instructions

(2022)

Judges are increasingly using “implicit bias” instructions in jury trials in an effort to reduce the influence of jurors' biases on judgment. In this article, we report on findings from a large-scale mock jury study that tests the impact of implicit bias instructions on judgment in a case where defendant race was varied (Black or White). Using an experimental design, we collected and analyzed quantitative and qualitative data at the individual and group levels obtained from 120 small groups who viewed a simulated federal drug conspiracy trial and then deliberated to determine a verdict. We find that while participants were sensitized to the importance of being unbiased, implicit bias instructions had no measurable impact on verdict outcomes relative to the standard instructions. Our analysis of the deliberations, however, reveals that those who heard the implicit bias instructions were more likely to discuss the issue of bias, potentially with both ameliorative and harmful effects on the defendant. Most significantly, we identified multiple instances where, in an effort to avoid bias, participants who heard the implicit bias instructions interfered with their own or other participants' appropriate assessments of witness credibility.

Cover page of Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change

Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change

(2021)

Requirements for the protection or restriction of species are based on regulatory classifications such as “native” or “invasive,” which become anachronistic when climate change drives species outside of their historical geographic range. Furthermore, such regulatory classifications are inconsistent across the patchwork of land ownership that species must traverse as they move between jurisdictions or when transported by humans, which obstructs effective regional management. We surveyed the U.S. laws and regulations relevant to species movement and found that the immigration of species to new jurisdictions makes paradoxical existing regulatory language that sets the categories of species deserving protection or removal. Climate change is universal and progressing rapidly, which provides a shrinking window to reconcile regulatory language originally developed for a static environment.