Law Commons^™

Institutionalized Silence: The Problem Of Child Voicelessness In Divorce Proceedings, Brandon Sadowsky

Brandon Sadowsky

In this paper, I present the current state of child representation in divorce proceedings. I argue that children should be represented in all divorce proceedings. I then consider the best interest and client-directed models of child representation and argue that each model is supported by important intuitions: paternalism and autonomy, respectively. I try to formulate a hybrid model that satisfies both of these intuitions.

Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman

ellen p. goodman

The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated in the relevant law and commentary. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to …

Logical Inconsistencies In The Law Of Euthanasia, Matthew M. Pustay

Matthew M. Pustay

In American jurisprudence the subject of assisted death is one that evokes strong feelings from people on both sides of the argument. In addition to being a legal issue, this discussion is closely tied to morality, personal politics and religion. Herein, this paper will show that based on the current American jurisprudence and standards of medical practice, there is a fundamental incoherency both morally and logically in the arguments opposing the practice of voluntary active euthanasia.

Logical Inconsistencies In The Law Of Euthanasia, Matthew M. Pustay

Matthew M. Pustay

In American jurisprudence the subject of assisted death is one that evokes strong feelings from people on both sides of the argument. In addition to being a legal issue, this discussion is closely tied to morality, personal politics and religion. Herein, this paper will show that based on the current American jurisprudence and standards of medical practice, there is a fundamental incoherency both morally and logically in the arguments opposing the practice of voluntary active euthanasia.

Little Brother Is Watching You: New Paternalism On The Slippery Slopes, Mario J. Rizzo

Mario Rizzo

The “new paternalism” claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed …

The Knowledge Problem Of The New Paternalism, Mario J. Rizzo

Mario Rizzo

The “new paternalism” is a set of policy prescriptions based on recent findings in behavioral economics whose purpose is to help individuals overcome a wide variety of behavior and cognitive biases. According to its proponents, it does not aim at replacing the preferences of individuals with those of the paternalist but rather to uncover the “true” preferences of individuals, that is, the preferences they would have if they had perfect knowledge, unlimited cognitive abilities and no lack of willpower. The purpose of this Article is to show that new paternalist policies founder on the shoals of a profound knowledge problem …

Law, Morality, And Economics: Integrating Moral Constraints With Economic Analysis Of Law , Barak Medina, Eyal Zamir

Barak Medina

Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Thus, for example, it presumably approves the deliberate killing of one innocent person to save the lives of two, and the breaking of a promise whenever it would produce slightly more net benefit than keeping it.

Moderate deontology prioritizes such things as autonomy, basic liberties, truth telling, and promise keeping over the promotion of good outcomes. It holds that there are constraints …

Nullificatory Juries, David A. Hoffman, Kaimipono D. Wenger

David A Hoffman

In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to …

How Relevant Is Jury Rationality?, David A. Hoffman

David A Hoffman

This essay reviews "Punitive Damages: How Juries Decide" by Cass Sunstein, et al. The book provides a good example of a recent trend: the use of behavioralist research to justify surprisingly paternalistic legal reforms. While critics of behavioralism often contend that its theoretical foundations are weak, this approach is unlikely to prove an effective rejoinder in the new debate about what kinds of paternalism are made permissible by human "irrationality". A better approach: (1) notes the lack of a nexus between behavioralism and the supposed emergent necessity of paternalist reforms; and (2) suggests that juror unwillingness to apply cost-benefit formula …

Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea

David A Hoffman

This article describes important recent developments in normative law and economics, and the difficulties they create for the project of efficiency-based legal reform. After long proceeding without a well articulated moral justification for using economic decision procedures to choose legal rules, scholars have lately begun to devote serious attention to developing a philosophically attractive definition of well-being. At the same time, the empirical side of law and economics is also being enriched with an improved understanding of the complexities of individuals' decision-making behavior. That is where the problems begin. Scholars may have better, more plausible conceptions of well-being in hand, …