Law Commons^™

Law, Environment, And The “Nondismal” Social Sciences, William Boyd, Douglas Kysar, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the …

A Critical Examination Of The Climate Engineering Moral Hazard And Risk Compensation Concern, Jesse Reynolds

Jesse Reynolds

The Political Economy Of Oil Spill Damage Assessment: Nrda And Deepwater Horizon, Matt Nichols, Judith T. Kildow Dr

Working Papers

The federal effort to quantify and capture non-market damages to coastal ecosystems from the 2010 Deepwater Horizon oil spill, Phase II of United States of America v. BP Exploration and Production, centers on the Natural Resource Damage Assessment (NRDA) process. This paper makes the case that the current NRDA process has done a poor job protecting the public interest and resolving the issues surrounding oil spills from deep water drilling activities. After 5 years, the findings of the NRDA still remain sealed from both affected maritime communities and academic researchers until litigation is settled with civil and criminal fines …

An Examination Of South Carolina’S Institutions Of Reform And Their Impact On The Self-Narratives Of African American Men, Ashley E. Krejci-Shaw

Capstone Collection

In the State of South Carolina (SC), African American male adolescents disproportionately face disciplinary action in public schools and other institutions. In 2013, South Carolina’s Department of Juvenile Justice (SCDJJ) released data that listed Black male children comprising 57% of all juvenile referrals in the state. This disproportionate trend is also present in South Carolina’s correctional system. In 2013, South Carolina’s Department of Corrections (SCDOC) reported that out of 20,777 male prisoners, 13,631 were Black. For adolescents or young adults looking to continue their education, alternative programs are available. One program that captures educationally displaced children in South Carolina is …

A Psychological Account Of Consent To Fine Print, Tess Wilkinson-Ryan

All Faculty Scholarship

The moral and social norms that bear on contracts of adhesion suggest a deep ambivalence. Contracts are perceived as serious moral obligations, and yet they must be taken lightly or everyday commerce would be impossible. Most people see consent to boilerplate as less meaningful than consent to negotiated terms, but they nonetheless would hold consumers strictly liable for both. This Essay aims to unpack the beliefs, preferences, assumptions, and biases that constitute our assessments of assent to boilerplate. Research suggests that misgivings about procedural defects in consumer contracting weigh heavily on judgments of contract formation, but play almost no role …

Demand For Breach, Tess Wilkinson-Ryan

All Faculty Scholarship

These studies elicit behavioral evidence for how people weigh monetary and non-monetary incentives in efficient breach. Study 1 is an experimental game designed to capture the salient features of the efficient breach decision. Subjects in a behavioral lab were offered different amounts of money to break the deal they had made with a partner. 18.6% of participants indicated willingness to break a deal for any amount of profit, 27.9% were unwilling to breach for the highest payout, and the remaining subjects identified a break-point in between. Study 2 is an online questionnaire asking subjects to take the perspectives of buyers …

Distributional Consequences Of Public Policies: An Example From The Management Of Urban Vehicular Travel, Winston Harrington, Elena Safirova, Conrad Coleman, Sébastien Houde, Adam M. Finkel

All Faculty Scholarship

This paper uses a spatially disaggregated computable general equilibrium model of a large US metropolitan area to compare two kinds of policies, “Live Near Your Work” and taxation of vehicular travel, that have been proposed to help further the aims of “smart growth.” Ordinarily, policy comparisons of this sort focus on the net benefits of the two policies; that is, the total monetized net welfare gains or losses to all citizens. While the aggregate net benefits are certainly important, in this analysis we also disaggregate these benefits along two important dimensions: income and location within the metropolitan area. The resulting …

The Homo [Not So] Economicus And The Law: A Critique Of Positive Theory Of Rational Choice In The Law [En Español], Daniel A. Monroy

Daniel A Monroy C

From the Behavioral Economics point of view, this paper presents a critic to one dimension of rational choice theory that is widely accepted by Law and Economics scholars. Our hypothesis is that (i) individuals deviate anomalously but predictably of normative assumption of rational choice. We suggests that, (ii) more than –unbounded– rational self interested individuals, in certain contexts, people tend to deviate from this normative behavior and also, tend to judge the behavior of other people, according to the consistency of these behaviors with a hypothetical situation commonly referred to as the "reference transaction".

Desde la perspectiva del Behavioral Economics, …

The Construction Of Morals, Daniel L. Chen, Susan Yeh

Susan Yeh

When do policies generate expressive or backlash effects? Recent economic models suggest that where a proscribed activity is prevalent, permissive laws liberalize attitudes toward partakers while increasing utility. The opposite occurs in communities where the proscribed activity is rare. To test these predictions, we randomize data entry workers to transcribe newspaper summaries of liberal or conservative court decisions about obscenity. We find that liberal obscenity decisions liberalize individual and perceived community standards and increase utility. Yet religious workers become more conservative in their values, identify as more Republican, view community standards as becoming more liberal, and report lower utility. Workers …

“Robbing Peter To Pay Paul”: Economic And Cultural Explanations For How Lower-Income Families Manage Debt, Laura M. Tach, Sara Sternberg Greene

Faculty Scholarship

This article builds upon classic economic perspectives of financial behavior by applying the narrative identity perspective of cultural sociology to explain how lower-income families respond to indebtedness. Drawing on in-depth qualitative interviews with 194 lower-income household heads, we show that debt management strategies are influenced by a desire to promote a financially responsible, self-sufficient social identity. Families are reluctant to ask for assistance when faced with economic hardship because it undermines this identity. Because the need to pay on debts is less acute than the need to pay for regular monthly expenses like rent or groceries, debts receive a lower …

Extended Preferences And Interpersonal Comparisons: A New Account, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Are Individuals Fickle-Minded?, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

Game theory has been used to model large-scale social events — such as constitutional law, democratic stability, standard setting, gender roles, social movements, communication, markets, the selection of officials by means of elections, coalition formation, resource allocation, distribution of goods, and war — as the aggregate result of individual choices in interdependent decision-making. Game theory in this way assumes methodological individualism. The widespread observation that game theory predictions do not in general match observation has led to many attempts to repair game theory by creating behavioral game theory, which adds corrective terms to the game theoretic predictions in the hope …

Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young

Faculty Scholarship

No abstract provided.

Tax, Command -- Or Nudge?: Evaluating The New Regulation, Brian Galle

Georgetown Law Faculty Publications and Other Works

This Article compares for the first time the relative economic efficiency of “nudges” and other forms of behaviorally-inspired regulation against more common policy alternatives, such as taxes, subsidies, or traditional quantity regulation. Environmental economists and some legal commentators have dismissed nudge-type interventions out of hand for their failure to match the revenues and informational benefits taxes can provide. Similarly, writers in the law and economics tradition argue that fines are generally superior to non-pecuniary punishments.

Drawing on prior work in the choice-of-instruments literature, and contrary to this popular wisdom, I show that nudges may out-perform fines, other Pigouvian taxes, or …

Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach

All Faculty Scholarship

No abstract provided.

Stewardship In The Interests Of Systemic Stakeholders: Re-Conceptualizing The Means And Ends Of Anglo-American Corporate Governance In The Wake Of The Global Financial Crisis, Zhong Xing Tan

Journal of Business & Technology Law

No abstract provided.

"Nudging" Better Lawyer Behavior: Using Default Rules And Incentives To Change Behavior In Law Firms, Nancy B. Rapoport

Scholarly Works

This article examines how incentives in law firms can affect lawyer behavior and suggests some possible changes to incentive structures and default rules that might improve the ethical behavior of lawyers.

In the changing landscape of law practice — where law firm profits are threatened by such changes as increased pressure from clients to economize and the concomitant opportunities for clients to shop around for the most efficient lawyers — are there ways to change how things are done in law firms so that firms can provide more efficient and ethical service? This article suggests that an understanding of cognitive …

Consumption, Risk And Prioritarianism, Matthew D. Adler, Nicolas Treich

Faculty Scholarship

In this paper, we study consumption decisions under risk assuming a prioritarian social welfare function, namely a concave transformation of individual utility functions. Under standard assumptions, there is always more current consumption under ex ante prioritarianism than under utilitarianism. Thus, a concern for equity (in the ex ante prioritarian sense) means less concern for the risky future. In contrast, there is usually less current consumption under ex post prioritarianism than under utilitarianism. We discuss the robustness of these results to learning, and to other forms of prioritarian social welfare functions.

Book Review, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, Jonah B. Gelbach

All Faculty Scholarship

Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them. Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action. I …

Behavioral Economics And Insurance Law: The Importance Of Equilibrium Analysis, Tom Baker, Peter Siegelman

All Faculty Scholarship

Because choosing insurance requires consumers to assess risks and probabilities, the demand for insurance has proven to be fertile ground for identifying deviations from rational behavior. Consumers often shun the insurance against large losses that they rationally should want (e.g., floods); and they are attracted to insurance against small losses (extended warranties, low deductibles) that no rational individual should purchase. But the welfare consequences of behavioral anomalies in insurance are complex, because consumers’ irrational behavior takes place in a market profoundly shaped by informational asymmetries. Under some conditions, deviations from rational behavior may actually generate insurance market equilibria that produce …

Judging Similarity, Shyamkrishna Balganesh, Irina D. Manta, Tess Wilkinson-Ryan

All Faculty Scholarship

Copyright law’s requirement of substantial similarity requires a court to satisfy itself that a defendant’s copying, even when shown to exist as a factual matter, is quantitatively and qualitatively enough to render it actionable as infringement. By the time a jury reaches the question of substantial similarity, however, the court has usually heard and analyzed a good deal of evidence: about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and on occasion the market effects of the defendant’s …

Governing Communities By Auction, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Common interest communities have become the property form of choice for many Americans. As of 2010, sixty-two million Americans lived in common interest communities. Residents benefit from sharing the cost of common amenities – pools, lawns, gazebos – and from rules that ensure compliance with community expectations. But decisionmaking in common interest communities raises serious concerns about minority abuse and manipulation, a problem well known to all property law students. Decisions about which amenities will be provided and which rules will be enacted are typically made through some combination of delegation and voting. Delegates often act for their own benefit, …

Behaviorism In Finance And Securities Law, David A. Skeel Jr.

All Faculty Scholarship

In this Essay, I take stock (as something of an outsider) of the behavioral economics movement, focusing in particular on its interaction with traditional cost-benefit analysis and its implications for agency structure. The usual strategy for such a project—a strategy that has been used by others with behavioral economics—is to marshal the existing evidence and critically assess its significance. My approach in this Essay is somewhat different. Although I describe behavioral economics and summarize the strongest criticisms of its use, the heart of the Essay is inductive, and focuses on a particular context: financial and securities regulation, as recently revamped …

Behavioral Approaches To Environmental Policy Analysis: A Case Study Of Offshore Wind Energy In The North American Great Lakes, Erik Edward Nordman

Erik Edward Nordman

Behavioral economics, including prospect theory, offers new approaches to environmental policy analysis. The utility of behavioral approaches to environmental policy analysis is illustrated using a case study of offshore wind energy policy in Michigan, USA. Michigan has attempted to clarify the permitting process for offshore wind energy but those efforts have failed. Prospect theory suggests that Michigan legislators are, for the most part, risk averse to policy reforms as the state emerges from its “one-state recession” and into a gains domain. Legislators from some coastal districts perceive offshore wind development as a threat to coastal quality of life, are risk-seeking …

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan