Law Commons^™

Excluding Unemployed Workers From Job Opportunities: Why Disparate Impact Protections Still Matter, Helen Norton

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No abstract provided.

The Need To Overrule Mapp V. Ohio, William T. Pizzi

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This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

Happiness In Business Or Law, Peter H. Huang

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This article provides a short introduction to recent happiness research and its applications to business or law that is organized as follows. Section I briefly considers: (1) troubling and not so troubling reservations about happiness research, and (2) how money and happiness are related. Section II concisely surveys two sets of applications of happiness research to business, namely: (1) workplace well-being and meaning, and (2) marketing. Section III succinctly reviews two categories of happiness research implications for law: (1) business regulation, and (2) law student and lawyer happiness.

Long Lines At Polling Stations? Observations From An Election Day Field Study, Douglas M. Spencer, Zachary S. Markovits

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This pilot study represents the first systematic attempt to determine how common lines are on Election Day, at what times of day lines are most likely to form, what are the bottlenecks in the voting process, and how long it takes an average citizen to cast his or her ballot. This study highlights the importance of evaluating polling station operations as a three-step process: arrival, check-in, and casting a ballot. We collected data during the 2008 presidential primary election in California, measuring the efficiency of the operational components of 30 polling stations across three counties. We found statistically significant, and …

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

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In Nudge, Cass Sunstein and Richard Thaler describe how public and private institutions can improve on individual choices by nudging individuals into making selections that are right for them. Rejecting the Econ-101 caricature of the rational utility maximizer as inaccurate, Sunstein and Thaler apply the insights of behavioral economics to show how institutions can improve the delivery of services. Moving beyond attempts to remedy individual cognitive errors, Sunstein and Thaler also argue for "libertarian paternalism" - which they herald as the "Third Way." This Review assesses their claims critically, finding their development of "nudge" and "choice architecture" to be …

Tort Damages And The New Science Of Happiness, Rick Swedloff, Peter H. Huang

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The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution.

One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about …

The Subprime Crisis And The Link Between Consumer Financial Protection And Systemic Risk, Erik F. Gerding

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This Article will appear in a May 2009 symposium issue of the Florida International University Law Review on the global financial crisis. This Article argues that the current global financial crisis, which was first called the “subprime crisis,” demonstrates the need to revisit the division between financial regulations designed to protect consumers from excessively risky loans and safety-and-soundness regulations intended to protect financial markets from the collapse of financial institutions. Consumer financial protection can, and must, serve a role not only in protecting individuals from excessive risk, but also in protecting markets from systemic risk. Economic studies indicate it is …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

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In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive The Demise Of The Rational Actor, Scott A. Moss, Peter H. Huang

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Much employment discrimination law is premised on a purely money-focused "reasonable" employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of "rational" actor populated older economic models but has been since modified by behavioral economics and research on happiness. Behavioral and traditional economists alike have analyzed broad employment policies, such as the wisdom of discrimination statutes, but the devil is in the details of employment law. On the critical damages-and-liability issues the Supreme Court and litigators face regularly, the law essentially ignores the lessons …

Crises, Congress, And Cognitive Biases: A Critical Examination Of Food And Drug Legislation In The United States, Sharon B. Jacobs

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No abstract provided.

The Subprime Crisis And The Link Between Consumer Financial Protection And Systemic Risk, Erik F. Gerding

Publications

This Article argues that the current global financial crisis, which was first called the “subprime crisis,” demonstrates the need to revisit the division between financial regulations designed to protect consumers from excessively risky loans and safety-and-soundness regulations intended to protect financial markets from the collapse of financial institutions. Consumer financial protection can, and must, serve a role not only in protecting individuals from excessive risk, but also in protecting markets from systemic risk. Economic studies indicate it is not merely high rates of defaults on consumer loans, but also unpredictable and highly correlated defaults that create risks for both lenders …

Authentic Happiness & Meaning At Law Firms, Peter H. Huang, Rick Swedloff

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We advocate that law firms can and should foster authentic happiness and meaning in the professional lives of their associates. Based upon empirical and experimental research in behavioral economics and positive psychology, we consider how law firms can implement policies to promote authentic happiness and meaning in their associates' professional lives. We also believe that law schools can and should help to reduce the anxiety, stress, and unhappiness that individuals feel as law students and help them develop abilities to achieve meaningful careers as law firm associates. We provide a guide as to how law firms and law schools can …

How Do Securities Laws Influence Affect, Happiness, & Trust?, Peter H. Huang

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This Article advocates that securities regulators promulgate rules based upon taking into consideration their impacts upon investors' and others' affect, happiness, and trust. Examples of these impacts are consumer optimism, financial stress, anxiety over how thoroughly securities regulators deliberate over proposed rules, investor confidence in securities disclosures, market exuberance, social moods, and subjective well-being. These variables affect and are affected by traditional financial variables, such as consumer debt, expenditures, and wealth; corporate investment; initial public offerings; and securities market demand, liquidity, prices, supply, and volume. This Article proposes that securities regulators can and should evaluate rules based upon measures of …

Emotional Adaptation And Lawsuit Settlements, Peter H. Huang

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In Hedonic Adaptation and the Settlement of Civil Lawsuits, Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur note an unexplored aspect of protracted lawsuits: During prolonged litigation tort victims can adapt emotionally to even permanent injuries, and therefore are more likely to settle--and for less--than if their lawsuits proceeded faster. This Response demonstrates that this is a facile application of hedonic adaptation with the following three points. First, people care about more than happiness: Tort victims may sue to seek justice or revenge; emotions in tort litigation can be cultural evaluations; and people are often motivated by identity and …

Authentic Happiness, Self-Knowledge And Legal Policy, Peter H. Huang

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This Article analyzes three questions: can, how, and should legal policy help people in their individual quests for authentic happiness. This Article adopts psychologist Martin Seligman's definition of the phrase authentic happiness. This Article provides an introduction to examples of legal policies based upon empirical and experimental research in positive psychology, measures of subjective well-being, and quality of life studies.

Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang

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No abstract provided.

A Psychology Of Emotional Legal Decision Making: Revulsion And Saving Face In Legal Theory And Practice, Peter H. Huang, Christopher J. Anderson

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Professor Martha C. Nussbaum is an accomplished scholar in an impressive variety of fields. Drawing on her diverse academic backgrounds, Nussbaum has written extensively about emotions and their importance for law from the perspective of her primary specialty, philosophy. Her book Hiding from Humanity criticizes the roles that two particular emotions, disgust and shame, play in the law. Its central thesis is that, as legal actors, we should be wary of disgust and shame because indulging in those emotions allows us to hide from our humanity - both our humanity in the general sense and also those specific features of …

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

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This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

Against "Academic Deference": How Recent Developments In Employment Discrimination Law Undercut An Already Dubious Doctrine, Scott A. Moss

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When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an "academic deference" argument. Citing the importance of their "academic freedom," defendants and sympathetic courts have asserted that federal courts should decline to "invade" higher education with "federal court supervision." Whether or not courts cite the "academic deference" doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that …

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

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For a long time, social scientists have worried about possible racial discrimination in sentencing in the United States. With a prison population that exceeds two million inmates of whom approximately 48% are African American, the worry over the fairness of the sentencing process is understandable. This article is not about discrimination between racial categories as such, but about a related form of discrimination, namely, discrimination on the basis of a person's Afro-centric features. Section I of the article describes a line of social science research that shows that a person's Afro-centric features have a strong biasing effect on judgment such …

Moody Investing And The Supreme Court: Rethinking The Materiality Of Information And The Reasonableness Of Investors, Peter H. Huang

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This Article critically analyzes the judicial decisions and reasoning of the United States Supreme Court and lower courts accepting certain defenses in securities fraud litigation. This Article develops how and why the core notions of materiality of information and the reasonable investor should be revised in light of recent empirical data, experimental evidence, and theoretical models of moody investing. This Article proposes modifying three recent developments in materiality doctrine to take into account moody investing. In particular, this Article argues that current judicial treatment of puffery is flawed because it neglects the power of puffery to alter moods. This Article …

Subjective Decisionmaking And Unconscious Discrimination, Melissa Hart

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Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying …

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

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This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation …

Action Science And Negotiation, Michael Moffitt, Scott R. Peppet

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No abstract provided.

Trust, Guilt, And Securities Regulation, Peter H. Huang

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This Article analyzes the importance of trust in securities investing and how guilt about breaching such trust has implications for securities regulation. Both U.S. federal securities laws and the regulations of the National Association of Securities Dealers impose high standards of professional conduct upon securities professionals. But exactly what are and should be the legal responsibilities of securities professionals remain the subject of much debate. In particular, courts disagree over when broker-dealers are fiduciaries of their clients. A legal consequence of a fiduciary relationship is a duty of fair dealing. This Article is the first to analyze the emotional, moral, …

Preferences And Rational Choice: New Perspectives And Legal Implications: Introduction, Matthew D. Adler, Claire Finkelstein, Peter H. Huang

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No abstract provided.

Transactional Mediation: Using Mediators In Deals, Scott Peppet

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This article addresses whether third-party mediators could be helpful in deal-making, just as they are in resolving disputes. It makes a theoretical case for such use of mediators and presents preliminary evidence that transactional mediation already is taking place.

International Environmental Law And Emotional Rational Choice, Peter H. Huang

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This paper considers how emotions can foster compliance by rational actors with international environmental law. Many environmental issues are highly emotionally charged. Both supporters of and opponents to international environmental law often feel very strongly about their positions and views. A psychological game-theoretic model focuses on the disciplinary role that losing face may play in compliance with international environmental law. This model implies that non-compliance, especially by high-profile international actors, should be highly and swiftly publicized upon detection and verification. The model also explains why actors care so much about soft, that is, non-binding international environmental law, such as international …

Reasons Within Passions: Emotions And Intentions In Property Rights Bargaining, Peter H. Huang

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This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.

Herd Behavior In Designer Genes, Peter H. Huang

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The ability of individuals to choose their children's genes has increased over time and may ultimately culminate in a world involving free market reprogenetic technologies. Reprogenetic technologies combine advances in reproductive biology and genetics to provide humans increased control over their children's genes. This Article offers economic perspectives that are helpful in understanding the possibly unexpected ethical, legal, and social issues at stake in using reprogenetic technologies for trait enhancement selection. The Appendix analyzes two competitive games that might arise in such a biotechnological society. Specifically, the Article focuses on herd behavior, caused by either a popularity contest or positional …