Category Archives: science

Behavior, neuroscience, psychology, science

Teenagers are crazy because they’re just like lizards

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Remember that time you went to the zoo, and there were these huge reptiles, like maybe Komodo Dragons, and they just sat around doing nothing? Except every so often one of them would make some vaguely unpleasant noise, or snap viciously at one of the others? And finally it dawned on you that it was just like watching teenagers, and you could have saved yourself the cost of a ticket by hanging out at the mall food court?

Well, as it turns out, you were on to something. Clinical Psychologist Richard Friedman wrote an interesting piece in Sunday’s New York Times in which he argues that many of the behaviors we associate with adolescence — like risk taking, fear, and anxiety — may be a consequence of asynchronous development of different brain structures:

Different regions and circuits of the brain mature at very different rates. It turns out that the brain circuit for processing fear — the amygdala — is precocious and develops way ahead of the prefrontal cortex, the seat of reasoning and executive control. This means that adolescents have a brain that is wired with an enhanced capacity for fear and anxiety, but is relatively underdeveloped when it comes to calm reasoning.

The amygdala is one of the evolutionarily ancient parts of the brain that is involved in things like the “fight or flight” response. If you enjoy using outdated terms and/or trolling brain researchers (and I do!), you would say that this is a component of the “reptilian” brain. The prefrontal cortex is more like the “thinkin’ and plannin'” region, and part of the “mammalian” brain, in that these structures became larger in the evolutionary lineage leading to mammals (and bigger again in primates, and even more biggerer in humans).

If you’re a Daniel Kahneman fan, the reptilian bit is like the fast-thinking System 1, and the mammalian bit is like the slow-thinking System 2.

These two parts are in a sort of balance in children, but, when you enter adolescence, the System 1 stuff matures more quickly, and it dominates the more reflective System 2. Eventually, System 2 catches up, so that the balance is regained in adults.

We’ve recently learned that adolescents show heightened fear responses and have difficulty learning how not to be afraid. In one study using brain M.R.I., researchers at Weill Cornell Medical College and Stanford University found that when adolescents were shown fearful faces, they had exaggerated responses in the amygdala compared with children and adults.

These developmental patterns may help to explain not only certain stereotypical adolescent behaviors, but also perhaps systematic differences in how adolescents and adults respond to certain medications.

Alright, so what are we going to do with this information?

Parents have to realize that adolescent anxiety is to be expected, and to comfort their teenagers — and themselves — by reminding them that they will grow up and out of it soon enough.

Wait, that’s not a magic bullet solution that will allow me to overcome the challenges of raising a child with little or no effort on my part! Between this and the World Cup, it’s like this isn’t even America anymore!

academia, biology, evolution, genetics, religion, science

Jerry Coyne sees a picture of my poster on twitter, is a dick

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Last week I was in Raleigh, NC for Evolution 2014, this year’s edition of the annual joint meeting of the Society for the Study of Evolution, the Society of Systematic Biology, and the American Society of Naturalists. I brought a poster that presented some work I’ve been doing on how noise (e.g., environmental fluctuation) can select for epistasis (non-linear interactions among different genes). On Monday evening, when I was hanging out by my poster, someone showed me that my Acknowledgements section had made it to twitter:

Screen Shot 2014-06-29 at 7.52.48 PMNow, this is what you might call an underdetermined tweet. Not knowing Alex, I was not sure what the intent was. Was this a sanctimonious evolutionary biologist expressing outrage about the fact that I had funding from the Templeton Foundation, which is viewed skeptically by many biologists because of its interest in religious topics? Or was it someone who thought it was unacceptable to include jokes in your acknowledgement section?

Fortunately, it turns out to be the only answer that won’t make you lose faith in humanity: it was someone being ironic. Alex Stewart is a postdoc working with Josh Plotkin at U Penn. Last year Alex and Josh published a paper in the Proceedings of the National Academy of Sciences, and in their acknowledgements section they thanked a number of funding sources, including the “Foundational Questions in Evolutionary Biology Fund”.

Through some mechanism that appears to be named “Todd”, this paper was brought to the attention of Jerry Coyne, evolutionary biologist at U Chicago and blogger at Why Evolution is True.  Along with people like PZ Myers and Richard Dawkins, Coyne is a prominent and vocal critic of Intelligent Design and of the efforts by religious groups to undermine the teaching and study of evolution.

So why did Coyne care about this paper? Because apparently, if you look into the Foundational Questions in Evolutionary Biology Fund, it is a big pot of money at Harvard Univeristy, which was put there by the John Templeton Foundation. Coyne gets mad whenever anyone has anything to do with Templeton. And, in this case, he professed outrage over the fact that they had “disguised” their funding source.

Now, I’m guessing that when Coyne saw Alex’s picture, he did not notice or recognize the name, as he seems to have read the comment as straight-up, unironic outrage, and he jumped on the bandwagon with his own short post, summed up by his comment, “Unacceptable indeed!” He goes on:

Okay, who are these miscreants?

The good news is that scientists clearly recognize the woo-ish nature of Templeton, as well as its nefarious mission to pollute science with religion. (Note, though that, contra the slide, Templeton has disavowed all forms of creationism, including intelligent design.)

The bad news is that four collaborators on this project took Templeton money anyway.

This is pretty awesome. I don’t think I’ve ever been called a miscreant before.

The rest of this is sort of weird, though. I think it is fair to say that the scientists recognize the fact that Templeton is perceived as “woo-ish” by many in the evolutionary biology community. However, most of their funding these days, including this grant, is pretty much straight-up science. Also, if you read the acknowledgements, which state that the work is not creationist, and then read Coyne’s comment, it makes you wonder if he knows what contra means.

That is, the point here is not to say, “This is not creationism, unlike most of what Templeton funds”. The point is to say, “This is not creationism, despite what you might wrongly assume about what Templeton funds.”

Most of the comments go back and forth on the issues you’d expect, so I’ll limit myself to Coyne’s. His first is this:

Would you take money from the Council of Conservative Citizens (a segregationist organization), or the Tea Party to do pure science? How about the Nazi Party? Is there no organization so nefarious that you wouldn’t take their money?

Really, people take it not to further the science, but to further their careers, because you need funding to get tenure, promotions, and so on.

I do fault those who take Templeton money, for they’re lending their imprimatur to an organization whose aim is the corruption of science. That’s precisely why Templeton funds “pure” science–to give them cover for their investigations of “spirituality and science”–the so-called “Big Questions.”

That’s some classic straw-man bullshit right there, although you have to give him credit for going full Godwin in his first comment, thereby saving his community the embarrassment of being the first to bring up a bogus Nazi analogy. That’s leadership!

And while I can be (and have been) accused of many things, compromising my principles to get tenure may be the least valid.

As for my imprimatur, I can’t lend it to Templeton, because back when I was in Santa Fe, I loaned it to Jeremy Van Cleve, and he never returned it!

And how do you take money from an organization like that without compromising “all principles”? The same way you take money from The Council of Conservative Citizens without compromising all principles?

The fact is that you’ve compromised principles simply by taking the money.

First off, again, the analogy with segregationist or racist organizations (which, to the best of my knowledge, are not major sources of science funding anyway), is ridiculous and seems disingenuous. Or maybe Jerry Coyne honestly believes that Templeton is a force for evil on the level of The Council of Conservative Citizens or the Nazi Party, but I think that’s a position that would be hard to find much support for, even among evolutionary biologists.

So we’re left with what, a slippery slope argument, maybe? Or a one-drop argument?  There’s two problems with that. First, whether or not you let your scientific conclusions be influenced by your funder’s (perceived) agenda is up to you. If you’re an honest scientist, you do your work and say what you believe to be true. If some agency or foundation won’t fund you in the future because they don’t like what you said, so be it.

Second, the same argument applies to all sources of funding. For example, the funding structure at NIH strongly rewards confirmation bias and the overinterpretation of marginally significant statistics. As a consequence, the biomedical literature is riddled with unreproducible results. The funding, hiring, and promotion structures in academia have done far more to corrupt science than even the bogeyman version of Templeton that inhabits Jerry Coyne’s mind.

Maybe the intent [of the acknowledgement] is a bit nebulous, but it’s factually incorrect (Templeton doesn’t fund crea[ti]onism or ID any longer), and unprofessional as well. If you’re going to take money from someone, you don’t diss them in public. I bet if Templeton found out about this (I won’t tell them!) they wouldn’t give any more $$.

I love this last one, as it concisely captures the angry incoherence of the argument. First, it accuses me (inaccurately) of claiming that Templeton funds creationism. Second, it accuses me (inaccurately) of dissing them. Third, it suggests that if Templeton found out they had been dissed (which they weren’t), they would spitefully refuse funding in the future (which they probably wouldn’t).

Note that the overarching theme here is that I am bad and foolish, but for contradictory reasons:

I’m bad for taking money from an organization with an alleged religious agenda. But look! I’m foolish, because they have actually renounced that agenda! Gotcha!

I’m bad for taking money from an organization with an agenda, because I will constrain what I say, for fear of losing future funding. But look! I’m foolish, because I did not constrain what I said! Gotcha!

So, if I may build on Coyne’s Nazi analogy, the morality being proposed seems to be something like this: Jerry Coyne would never take money from the Nazi Party, but if he did, he would never publicly criticize the Nazis!

But, to be fair, these comments were probably never meant to support such a close reading. A more accurate characterization might be that Coyne starts from the ideological position that no one should ever take money from Templeton. As someone who has received funding from Templeton, I am therefore someone who is bad and foolish. Starting from this “bad and foolish” conclusion, Coyne works backwards, using whatever evidence and arguments will get him from my poster to that conclusion. This includes misinterpreting my statement (through disingenuousness, carelessness, or a combination of the two) as well as employing arguments that seem logically inconsistent.

Or maybe this is a Colbert-like performance piece, where he takes on the persona of “Jerry Coyne” to illustrate how dogmatically espousing an ideology corrupts the reasoning process. If that’s the case, my hat is off to you, Professor Coyne! Well played!

academia, psychology, science, scientific misconduct

Hauser Report Confirms What Everyone Already Thought

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Last Friday, the Boston Globe brought us an update on everyone’s favorite data-falsifying former Harvard psychology professor, the man who put the a** in a**ertainment bias, Marc Hauser. The story summarizes a report prepared by Harvard and submitted to the Office of Research Integrity back in 2010, and which the Globe got hold of via a FOIA request. You can look at the 85-page report for yourself, if you like that sort of thing.

The basic story is that Hauser was not fabricating data the way one might fabricate results to show a connection between vaccination and autism when no such connection exists. Instead, he repeatedly made small tweaks to data in order to push the results towards his preferred conclusion. And then, also repeatedly, when someone would raise a question, he would be sort of a dick about it. One example from the Globe’s story:

In a second, related experiment, a collaborator asked to be walked through the analysis because he or she had obtained very different results when analyzing the raw data. Hauser sent back a spreadsheet that he said was simply a reformatted version, but then his collaborator made a spreadsheet highlighting which values had apparently been altered.

Hauser then wrote an e-mail suggesting the entire experiment needed to be recoded from scratch. “Well, at this point I give up. There have been so many errors, I don’t know what to say. . . . I have never seen so many errors, and this is really disappointing,” he wrote.

In defending himself during the investigation, Hauser quoted from that e-mail, suggesting it was evidence that he was not trying to alter data.

The committee disagreed.

“These may not be the words of someone trying to alter data, but they could certainly be the words of someone who had previously altered data: having been confronted with a red highlighted spreadsheet showing previous alterations, it made more sense to proclaim disappointment about ‘errors’ and suggest recoding everything than, for example, sitting down to compare data sets to see how the ‘errors’ occurred,” the report states.

Ah, yes, the old “mistakes were made” gambit.

The 2010 report was the culmination of a three-year investigation into Hauser’s lab. Hauser was suspended from teaching, and then resigned from Harvard in 2011. He currently devotes his time to working with at-risk youth on Cape Cod. The youths are presumably at risk of not having their papers published in high-impact journals, due to the fact that their results are not statistically significant when accurately reported.

biology, evolution, genetics, population genetics, race, science

12,000-Year-Old Underwater Skeleton and the Peopling of the Americas

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So, a paper published in Science yesterday describes the analysis of the skull and mitochondrial DNA of a skeleton discovered in Hoyo Negro, a water-filled cave beneath the surface of the Yucatán Peninsula.  In addition to the human skeleton (whom the scientists named “Naia” before removing her head for further study), the cave contains the remains of 26 other large mammals, including a saber-tooth tiger and some sort of a mammoth-type thing.

Check out the story over at National Geographic for some cool underwater pictures.

There are a couple of things that make this an interesting story. First of all, it’s a freaking underwater cave with a 12,000-year-old human skeleton and a saber-tooth tiger. Second, it adds an interesting piece of data to our understanding of how people first came to America. (Spoiler: the answer is not “Jesus brought them on the Ark”.)

The standard story of the colonization of the Americas goes something like this. Back during the last ice age(s), maybe 15,000 to 25,000 years ago, the sea levels were lower, and there was a land bridge connecting Siberia to Alaska. During that period, people from Northeastern Asia crossed over and spread throughout North and South America. Thousands of years later, their descendants had the misfortune of being discovered by the Europeans.

The dates of archaeological sites throughout the hemisphere generally fit with this story, as do genetic data collected from contemporary Native Americans and from skeletal remains. Native Americans, both past and present, are genetically most closely related to the peoples of Siberia, and the genetic divergence between the two groups is consistent with the populations having separated around the time when the land bridge existed.

The problem is that when you look at skull shapes (“cranio-facial morphology”), they seem to tell a different story.  Contemporary Native Americans have facial features similar to those found in Northeastern Asia. But “Paleoamericans” (dating from more than about 9,000 years ago) have features more closely resembling those found in African and Southeast Asian populations.

Those features suggest a different story, one where humans arrived in America in two waves. In this scenario, the humans who crossed the Bering land bridge would be the second wave, perhaps displacing the original, first-wave settlers. This is a story that entered the public consciousness more than fifteen years ago, following the discovery of “Kennewick Man”, who was described as possessing “caucasoid” features by James Chatters, who is also the first author on this paper. A certain strain of “thinker” took this to mean that the White people who came to America were not colonizers, but liberators, having been the continent’s original inhabitants.

The single-wave model suggests the possibility that the difference in skull morphology observed between earlier and later Paleoamericans represents evolutionary change that occurred after the migration across the land bridge. At first blush, this seems a bit questionable, since it would have the American population evolving to more closely resemble their genetic relatives in Asia, but only after having become geographically separated from those relatives.

The persistence of this controversy is due, in part, to the fact that the genetic data has generally come from different sources than the morphological data. This is where Naia comes in. Naia has the longer, more slender, Africa-esque cranium found in other early sites, but her mitochondrial DNA haplotype is a typical Native American one. This seems to support the idea that the people who left these narrow skulls all over America and the people who left their descendants all over America were the same people.

The biggest caveat, of course, is that this is a single skeleton. It is exciting and informative, since very few samples of this age have been discovered, and none of them have been of this quality. But those small numbers also mean that anything we discover about this skeleton is bound to be consistent with multiple stories, and things are unlikely to be resolved without a lot more data.

The other caveat is that the mitochondrial DNA is only one piece of the genetic history. It is possible that these really were two separate populations, and that Naia just happened to have some second-wave ancestors on her mother’s side. If we were to examine the rest of her genome, we might find some or all of it to be more similar to some other population (like the lost thirteenth tribe, who immigrated to America from Israel and/or Kobol).

Will we get the rest of Naia’s genome? I hope so, but we’ll see. It is relatively easy to collect mitochondrial DNA from archaeological samples, since there are hundreds of copies of the small, circular mitochondrial chromosome in each cell. There are only two copies per cell of the rest of the genes, which reside in the cell’s nucleus. So, it is possible that the sample was sufficiently well preserved that mitochondrial DNA could be extracted, but degraded enough that the nuclear DNA is not recoverable.

Whatever the eventual conclusion, the story will be interesting. Either the peopling of America involved a mixture of multiple populations that will be fun to unravel, or it involved some interesting, almost convergent, morphological evolution. Stay tuned!

academia, biology, Ronin Institute, science

On Schekman’s Call to Boycott the “Luxury” Science Journals

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So, over at the Ronin Blog, I have posted my thoughts on the column written by new Nobel Laureate Randy Schekman where he urges all of us to boycott the journals Science, Nature, and Cell.

The basic argument is that the core problem is not these journals, but the use of publication in these journals (and other, equally superficial metrics) as proxies for quality.

Read it. Read It! READ IT!

academia, biology, evolution, genetics, science, Uncategorized

Five Reasons Biologists Should Use Preprint Servers

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So, following my previous post, I got some interesting feedback from a couple of biologists who were not completely sold on the idea of posting preprints of your work to the arXiv (or, now, the bioRxiv). Or, rather, they were not convinced that the cost-benefit calculus worked out in favor of posting. After all, as one person pointed out, there are already a bunch of hoops to jump through on the way to publication, what with formatting, revising, angrily cursing reviewer number 2, reformatting, resubmitting, and whatnot. What does posting to a preprint server do for you, beyond adding another step?

Well, it occurs to me that this is probably a question shared by a lot of biologists out there, so I thought I would share the reasons I’ve come up with.

  1. Open Access. You want your work to be available to the widest possible audience, right? When some enthusiastic young researcher is searching the literature, and they stumble across your seminal work on tribble parthenogenesis, you don’t want them getting Spock-blocked by some crappy paywall. Sure, maybe their University has an overpriced subscription to the obscure journal you published in, but maybe it doesn’t. Or maybe it’s a pain for them to access it via the proxy server when they’re off campus. Or maybe this young researcher doesn’t have access because he and/or she is an independent scholar, because they’re actually too smart and creative to work for The Man. Maybe they’ll just scroll down the search results page until they find another paper by your grad-school nemesis — the one who never chipped in his fair share for pizza — and you’ve lost another citation. Don’t let this happen to you! Make sure that your work is freely, and easily, accessible to everyone everywhere.
  2. Speed. You’ve finished your research, you’ve blindly written down the p-value that the software you downloaded from the internet spit out — er, I mean, “double-checked the statistics”, and you’ve written a beautiful discussion section that skillfully implies that your results are going to revolutionize not only your own field, but any field whose scientists have sufficient foresight to follow in your footsteps. But now you have to wait for six months or a year, or maybe longer, before your paper appears in print, and, of course, by that time, even you will have moved on to more interesting problems. If you post to a preprint server, though, your work is available immediately. And, if you make revisions in response to reviewer comments, you can post the revised version there, too. Some journals (e.g., Evolution) will even let you post the final, published, journal-formatted PDF to the preprint server after some time (12 months following publication for Evolution). So, the fact that you’re getting your work out there early does not mean that you’re committing to something less than the final version.
  3. Normalization. At this point, most biology journals are okay with authors posting their manuscripts to preprint servers, but some still are not. Not to name names (*cough* Elsevier *cough*), but some publishers would still like to hold on to an outdated publishing model where they can earn obscene profits through ownership of a product to which they contribute little to no value. The more biologists publish preprints — and commit to publishing only in journals that permit prepublication — the more pressure it places on publishers to stop rent-seeking. Basically, it is a really easy way to nudge the world of academic publishing in the direction of justice. Or, you know, if you prefer, you can keep feeding those paywall parasites like the rest of your Vichy scientist colleagues. No judgment here.
  4. Feedback. When you’re desperately worried about getting out publications so that you can get your degree, or get tenure, or whatever, it is easy to forget the real purpose of peer review. In an ideal world, peer review means that experts in your field look closely at your work and help you to make it better. By posting a preprint, you are able to get comments from the entire community — at an early enough stage that those comments might actually help you to improve the paper before it fossilizes.
  5. The Left Side of History. Look, the fact is, this is the direction that everything is moving. And you need to ask yourself, years from now, do you want to be the stodgy, old, out-of-touch professor who doesn’t post preprints, and who has to get their grad students to help set their powerpoint presentation to full-screen mode? Or do you want to be the super-cool hipster prof, who could say things like, “I’ve been posting on bioRxiv since you were in diapers”, but who would never actually say that, because it would make you sound like a total dickhead? At future Thanksgiving dinners, do you want to be your field’s Liz Cheney, or its Mary Cheney?*

* Answer: You want to be your field’s Lon Chaney.

math, networks, science

SFI MOOC on Complex Systems

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So, are you looking to learn something new this fall? Do you want to understand the difference between things that are “complex” versus “complicated”? Have you always wanted to understand what the hell Jeff Goldblum’s character was talking about in Jurassic Park?

Well, you’re in luck! Check out Introduction to Complexity, a MOOC (Massively Open Online Course) being offered through the Santa Fe Institute. The course is being taught by Melanie Mitchell, a long-time member of the SFI community, and a professor of computer science at Portland State University. She taught this class last year, and all of the feedback I heard was very positive. Now, second time around, I assume that any kinks that might have existed will have been worked out.

The course officially started on September 29, but you can still enroll, since all of the material is online. And, it’s FREE!!

Here’s the official course description:

In this course you’ll learn about the tools used by scientists to understand complex systems. The topics you’ll learn about include dynamics, chaos, fractals, information theory, self-organization, agent-based modeling, and networks. You’ll also get a sense of how these topics fit together to help explain how complexity arises and evolves in nature, society, and technology. There are no prerequisites. You don’t need a science or math background to take this introductory course; it simply requires an interest in the field and the willingness to participate in a hands-on approach to the subject.

And here’s Melanie describing the course:

http://youtu.be/z_MlMLom-es

Check it out, as well as the other courses that will offered in the future through SFI’s Complexity Explorer program: http://www.complexityexplorer.org/online-courses

science

Big Data

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So, whenever claims that they are going to solve a difficult problem by using “Big Data”, I want you to think of this definition.

Screen Shot 2013-06-29 at 1.05.05 PM

 

Also, remember that “Big Data” is the title of Star Trek: TNG themed slash fiction that is being written right now.

culture, science

Swarm-Based Legal Action

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So, last Thursday (June 20), the Supreme Court issued its ruling on the case of American Express Co. et al versus Italian Colors Restaurant et al.

The basics of the case are this. If you are a merchant who accepts American Express cards, you sign a contract with American Express. One of the clauses of that contract is that you can not participate in a class-action lawsuit against American Express. Instead, if you think they are doing something wrong, you commit to going through individual arbitration.

A group of merchants wanted to file a class-action lawsuit against American Express because they felt that it was violating antitrust legislation by using its monopoly status to charge merchants elevated fees.

So, if the contracts these merchants signed agreed to individual arbitration, and waived the right to file a class-action suit, why did they go ahead and file a class-action suit anyway?

Well, their argument was that compiling the legal documentation and expert analysis required to prove the anti-trust case would cost hundreds of thousands or millions of dollars. On the other hand, the payout to each merchant, should the suit prove successful, would be only in the tens of thousands of dollars. Therefore, even if they won, each merchant would have to spend more than they were awarded. So, they argued, because of the economics of the situation, they should be allowed to file a class-action suit, where those legal costs could be shared.

The court ruled (5-3) that no, the fact that you will spend more on arbitration than you would earn in a settlement is not sufficient reason to invalidate the class-action waiver in the contract.

Now, I don’t have a legal opinion on that ruling — other that that, despite the fact that it was authored by Scalia, it actually sounds reasonable — however, I do wonder what the consequences might be down the road, and what could be done differently.

In particular, I would expect this type of waiver clause to proliferate. Worst-case scenario, such a waiver would effectively immunize companies from all legal action where (1) the payout to individual litigants would be low, and (2) where some non-trivial level of legal and/or technical expertise was required to substantiate the complaint.

Enter the Swarm

So, here’s an idea for you: swarm-based legal action. Here’s roughly how I imagine it would work.

The simplest version would be just a pooling of resources outside of a formal class-action suit. You collect your litigants together. Someone (the collection of litigants, or maybe a law firm working on some sort of contingency basis) pays to put together the expert documentation, and each litigant takes that documentation separately into their own arbitration process. You could imagine some sort of sharing agreement: 25% of the proceeds from each arbitration go to the individual litigant, 75% goes to a common pool. The common pool is used to pay costs, and whatever is left over is divided among all litigants.

  1. This would mean that research costs involved in proving the case would be shared, making arbitration economically feasible.
  2. This would provide a sort of hedge for the participants — under the assumption that there is some noise in the arbitration process, depending on factors ranging from the individual personalities involved in a particular arbitration hearing to what everyone had for lunch.
  3. But, by not communalizing all of the proceeds, you make sure there is an incentive for individual litigants not to phone it in.

Now, the question is, would this be legal?

The dissenting Supreme Court opinion suggests that it might not be (hence their feeling that the class-action waiver should be voided):

The agreement’s problem is that it bars not just class actions, but also all mechanisms – many existing long before the Sherman Act, if that matters – for joinder or consolidation of claims, informal coordination among individual claimants, or amelioration or arbitral expenses. See supra, at 7. And contrary to the majority’s assertion, the Second Circuit well understood that point: It considered, for example, whether Italian Colors could shift expert expenses to Amex if its claim prevailed (no) or could join with merchants bringing similar claims to produce a common expert report (no again). See 554 F. 3d 300, 318 (2009).

The point about a common expert report in the Second Circuit ruling (here — follow-up 2012 ruling here) relates to another clause in the Card Acceptance Agreement, which they quote:

The arbitration proceeding and all testimony, filings, documents and any information relating to or presented during the arbitration proceedings shall be deemed to be confidential information not to be disclosed to any other party.

But surely there is a way around this. For example, the merchants could reach their agreement about cost-sharing in the preparation of the report, and, once they had committed to this agreement, would gain access to it. Then, they could use the information in that report in their arbitration (or not — with the confidentiality clause there would be no verifying it).

The only question is whether or not the outcome of the arbitration would be subject to the confidentiality clause. If it were, you would have to structure it as a straight-up purchase of expert documentation, with the expert and legal fees paid at a flat rate (not contingent on the outcome of the arbitration), and divided among all of the merchants. You would lose the benefit of being able to hedge outcomes by partial sharing of the proceeds, but you would still be able to make it work.

The Smart Swarm

But, what if you can report back with the outcome of the arbitration process — at least a win/lose outcome, or, preferably, a dollar amount? Then, you could open up a new set of possibilities, where you turn the requirement for individual arbitration from a handicap into a collective advantage.

Instead of producing a single expert report and legal filing, maybe you produce a diversity of documentation — versions that perhaps vary in their framing or emphasis. Then run though the first set of arbitration procedures — see what works and what does not work — discard ineffective strategies and build new diversity around successful ones.

Basically, use the fact that you have a large population of individuals or businesses to optimize your arbitration strategy using an Evolutionary algorithm.

For this to work, the only real requirement would be the ability to report back out of arbitration what the outcome was. This is critical for two reasons:

  1. For the evolutionary learning to take place, you have to know the outcome of each experiment.
  2. A common pool, where proceeds are shared, would be required to get individuals to buy into the scheme, particularly at the early stages, where you are explicitly asking some people to go into arbitration with what you suspect may be sub-optimal strategies, for the purpose of improving the function of the swarm as a whole.

In fact, I think this might be a winning strategy more generally, not just in circumstances where class-action suits are prohibited.

What do you think, armchair legal scholars?