Social and Behavioral Sciences Commons^™

Harsanyi 2.0, Matthew D. Adler

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How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” (SWFs) to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately explained the basis for these numbers.

John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful …

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

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In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.

Blackmail, Mitchell N. Berman

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Blackmail - the wrongful conditional threat to do what would be permissible - presents one of the great puzzles of the criminal law, and perhaps all of law, for it forces us to explain how it can be impermissible to threaten what it would be permissible to do. This essay, a contribution to forthcoming collection of papers on the philosophy of the criminal law, seeks to resolve the puzzle by building on, and refining, an account of blackmail that I first proposed over a decade ago, what I termed the "evidentiary theory of blackmail." In doing so, it also critically …

Examining Gender Stereotypes In New Work/Family Reconciliation Policies: The Creation Of A New Paradigm For Egalitarian Legislation, Rangita De Silva De Alwis

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No abstract provided.

The Legitimating Role Of Consent In International Law, Matthew J. Lister

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According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but …

Punishment As Contract, Claire Oakes Finkelstein

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This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …

"Let 'Em Play" A Study In The Jurisprudence Of Sport, Mitchell N. Berman

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No abstract provided.

Provocation As Partial Justification And Partial Excuse, Mitchell N. Berman

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The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. It traces back to the twelfth century, and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists. The dominant scholarly view holds that provocation is best explained and defended …

Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen

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No abstract provided.

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

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No abstract provided.

What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts

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No abstract provided.

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

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A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …

Replay, Mitchell N. Berman

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This paper explores a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he must let it stand even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer‟s FIFA World Cup, commentators proposed not only that soccer employ instant replay, but also that it follow the NFL in directing officials to overturn …

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

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No abstract provided.

Breaching The Mortgage Contract: The Behavioral Economics Of Strategic Default, Tess Wilkinson-Ryan

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Underwater homeowners face a quandary: Should they make their monthly payments as promised or walk away and save money? Traditional economic analysis predicts that homeowners will strategically default (voluntarily enter foreclosure) when it is cheaper to do so than to keep paying down the mortgage debt. But this prediction ignores the moral calculus of default, which is arguably much less straightforward. On the one hand, most people have moral qualms about breaching their contracts, even when the financial incentives are clear. On the other hand, the nature of the lender-borrower relationship is changing and mortgage lenders are increasingly perceived as …

On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank

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In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, …

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

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In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Mercy, Crime Control, And Moral Credibility, Paul H. Robinson

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If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more …

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

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No abstract provided.