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Articles 1 - 30 of 37
Full-Text Articles in Law
Why Aim Law Toward Human Survival, John William Draper
Why Aim Law Toward Human Survival, John William Draper
Librarian Scholarship at Penn Law
Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.
If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.
There is no better choice. You and all your relatives have rights. The …
The Psychology Of Separation: Border Walls, Soft Power, And International Neighborliness, Diana C. Mutz, Beth A. Simmons
The Psychology Of Separation: Border Walls, Soft Power, And International Neighborliness, Diana C. Mutz, Beth A. Simmons
All Faculty Scholarship
This study assesses the impact of international border walls on evaluations of countries and on beliefs about bilateral relationships between states. Using a short video, we experimentally manipulate whether a border wall image appears in a broader description of the history and culture of a little-known country. In a third condition, we also indicate which bordering country built the wall. Demographically representative samples from the United States, Ireland, and Turkey responded similarly to these experimental treatments. Compared to a control group, border walls lowered evaluations of the bordering countries. They also signified hostile international relationships to third-party observers. Furthermore, the …
Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb
Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb
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A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not …
Corporate Law For Good People, Yuval Feldman, Adi Libson, Gideon Parchomovsky
Corporate Law For Good People, Yuval Feldman, Adi Libson, Gideon Parchomovsky
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This article offers a novel analysis of the field of corporate governance by viewing it through the lens of behavioral ethics. It calls for both shifting the focus of corporate governance to a new set of loci of potential corporate wrongdoing and adding new tools to the corporate governance arsenal. The behavioral ethics scholarship emphasizes the large share of wrongdoing generated by "good people" whose intention is to act ethically. Their wrongdoing stems from "bounded ethicality" -- various cognitive and motivational processes that lead to biased decisions that seem legitimate. In the legal domain, corporate law provides the most fertile …
Justifying Bad Deals, Tess Wilkinson-Ryan
Justifying Bad Deals, Tess Wilkinson-Ryan
All Faculty Scholarship
In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers — even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation …
The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan
The Perverse Consequences Of Disclosing Standard Terms, Tess Wilkinson-Ryan
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Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral part of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the …
Contract Consideration And Behavior, David A. Hoffman, Zev. J. Eigen
Contract Consideration And Behavior, David A. Hoffman, Zev. J. Eigen
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Contract recitals are ubiquitous. Yet, we have a thin understanding of how individuals behave with respect to these doctrinally important relics. Most jurists follow Lon Fuller in concluding that when read, contract recitals accomplish their purpose: to caution against inconsiderate contractual obligation. Notwithstanding the foundational role that this assumption has played in doctrinal and theoretical debates, it has not been tested. This Article offers what we believe to be the first experimental evidence of the effects of formal recitals of contract obligation — and, importantly too, disclaimers of contractual obligation — on individual behavior. In a series of online experiments, …
Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick
Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick
All Faculty Scholarship
There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and …
The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman
The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman
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What parties know and think they know about contract law affects their obligations under the law and their intuitive obligations toward one another. Drawing on a series of new experimental questionnaire studies, this Article makes two contributions.First, it lays out what information and beliefs ordinary individuals have about how to form contracts with one another. We find that the colloquial understanding of contract law is almost entirely focused on formalization rather than actual assent, though the modern doctrine of contract formation takes the opposite stance. The second Part of the Article tries to get at whether this misunderstanding matters. Is …
Frames And Consensus Formation In International Relations: The Case Of Trafficking In Persons, Volha Charnysh, Paulette Lloyd, Beth A. Simmons
Frames And Consensus Formation In International Relations: The Case Of Trafficking In Persons, Volha Charnysh, Paulette Lloyd, Beth A. Simmons
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This article examines the process of consensus formation by the international community regarding how to confront the problem of trafficking in persons. We analyze the corpus of United Nations General Assembly Third Committee resolutions to show that: (1) consensus around the issue of how to confront trafficking in persons has increased over time; and (2) the formation of this consensus depends upon how the issue is framed. We test our argument by examining the characteristics of resolutions’ sponsors and discursive framing concepts such as crime, human rights, and the strength of enforcement language. We conclude that the consensus-formation process in …
Introduction To The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton
Introduction To The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton
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The book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate and giving …
A Psychological Account Of Consent To Fine Print, Tess Wilkinson-Ryan
A Psychological Account Of Consent To Fine Print, Tess Wilkinson-Ryan
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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 …
Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister
Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister
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A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …
Governing Communities By Auction, Abraham Bell, Gideon Parchomovsky
Governing Communities By Auction, Abraham Bell, Gideon Parchomovsky
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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, …
The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
The Effect Of Mental Illness Under U.S. Criminal Law, Paul H. Robinson
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This paper reviews the various ways in which an offender's mental illness can have an effect on liability and offense grading under American criminal law. The 52 American jurisdictions have adopted a variety of different formulations of the insanity defense. A similar diversity of views is seen in the way in which different states deal with mental illness that negates an offense culpability requirement, a bare majority of which limit a defendant's ability to introduce mental illness for this purpose. Finally, the modern successor of the common law provocation mitigation allows, in its new breadth, certain forms of mental illness …
The Psychology Of Contract Precautions, David A. Hoffman, Tess Wilkinson-Ryan
The Psychology Of Contract Precautions, David A. Hoffman, Tess Wilkinson-Ryan
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This research tests the intuition that parties to a contract approach each other differently before the contract is formed than they do once it is finalized. We argue that one of the most important determinants of self-protective behavior is whether the promisee considers herself to be in negotiations or already in an ongoing contract relationship. That shift affects precaution-taking even when it has no practical bearing on the costs and benefits of self-protection: the moment of contracting is a reference point that frames the costs and benefits of taking precautions. We present the results of three questionnaire studies in which …
Legal Promise And Psychological Contract, Tess Wilkinson-Ryan
Legal Promise And Psychological Contract, Tess Wilkinson-Ryan
All Faculty Scholarship
No abstract provided.
Are We Responsible For Who We Are? The Challenge For Criminal Law Theory In The Defenses Of Coercive Indoctrination And "Rotten Social Background", Paul H. Robinson
Are We Responsible For Who We Are? The Challenge For Criminal Law Theory In The Defenses Of Coercive Indoctrination And "Rotten Social Background", Paul H. Robinson
All Faculty Scholarship
Should coercive indoctrination or "rotten social background" be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community's shared intuitions of justice support it. The law’s rejection of such defenses suggests that there …
Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse
Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse
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This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no …
Diverging Family Structure And “Rational” Behavior: The Decline In Marriage As A Disorder Of Choice, Amy L. Wax
Diverging Family Structure And “Rational” Behavior: The Decline In Marriage As A Disorder Of Choice, Amy L. Wax
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The past fifty years have witnessed a growing divergence in family structure by social class, income, education, and race. The goal is to explain why significant segments of the population are moving away from the traditional patterns of family and reproduction. Most demographers acknowledge that external and material constraints fail to account for most of the present dispersion by class and race in marriage, divorce, and patterns of childbearing. Nor do these factors explain the widening of disparities over time. In attempting to improve on prior theories, this paper proposes a different explanation for these developments. It argues that demographic …
Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan
Do Liquidated Damages Encourage Breach? A Psychological Experiment, Tess Wilkinson-Ryan
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This Article offers experimental evidence that parties are more willing to exploit efficient-breach opportunities when the contract in question includes a liquidated-damages clause. Economists claim that the theory of efficient breach allows us to predict when parties will choose to breach a contract if the legal remedy for breach is expectation damages. However, the economic assumption of rational wealth-maximizing actors fails to capture important, shared, nonmonetary values and incentives that shape behavior in predictable ways. When interpersonal obligations are informal or underspecified, people act in accordance with shared community norms, like the moral norm of keeping promises. However, when sanctions …
The Distortionary Effect Of Evidence On Primary Behavior, Gideon Parchomovsky, Alex Stein
The Distortionary Effect Of Evidence On Primary Behavior, Gideon Parchomovsky, Alex Stein
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In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information—or, in short, evidence—rational actors will always strive to generate evidence that can later be presented in court and increase their chances of …
Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax
Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax
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The theory of Stereotype Threat (ST) predicts that, when widely accepted stereotypes allege a group’s intellectual inferiority, fears of confirming these stereotypes cause individuals in the group to underperform relative to their true ability and knowledge. There are now hundreds of published studies purporting to document an impact for ST on the performance of women and racial minorities in a range of situations. This article reviews the literature on stereotype threat, focusing especially on studies investigating the influence of ST in the context of gender. It concludes that there is currently no justification for concluding that ST explains women’s underperformance …
Strong Claims And Weak Evidence: Reassessing The Predictive Validity Of The Iat, Hart Blanton, James Jaccard, Jonathan Klick, Barbara Mellers, Gregory Mitchell, Philip Tetlock
Strong Claims And Weak Evidence: Reassessing The Predictive Validity Of The Iat, Hart Blanton, James Jaccard, Jonathan Klick, Barbara Mellers, Gregory Mitchell, Philip Tetlock
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The authors reanalyzed data from 2 influential studies — A. R. McConnell and J. M. Leibold (2001) and J. C. Ziegert and P. J. Hanges (2005) — that explore links between implicit bias and discriminatory behavior and that have been invoked to support strong claims about the predictive validity of the Implicit Association Test. In both of these studies, the inclusion of race Implicit Association Test scores in regression models reduced prediction errors by only tiny amounts, and Implicit Association Test scores did not permit prediction of individual-level behaviors. Furthermore, the results were not robust when the impact of rater …
Invasions Of Conscience And Faked Apologies, Stephanos Bibas
Invasions Of Conscience And Faked Apologies, Stephanos Bibas
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This comment responds to an essay by Jeffrie Murphy, which powerfully notes the limitations and dangers of using remorse and apology as metrics for punishment. But the state is more justified in teaching lessons than Murphy suggests, and retributivism ought to make more room for victim vindication and satisfaction. Gauging sincerity, while difficult, is not impossible. In the end, Murphy offers strong reasons to be cautious. But a humane society ought to be more willing to take chances and, having punished, to forgive. The essay by Jeffrie Murphy to which this comment responds, as well as other authors' comments on …
The Discriminating Mind: Define It, Prove It, Amy L. Wax
The Discriminating Mind: Define It, Prove It, Amy L. Wax
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Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect welldocumented “supply side” disparities between groups in human capital development, qualifications, and behavior. These patterns are not most …
Introducing A "Different Lives" Approach To The Valuation Of Health And Well-Being, Matthew D. Adler, Paul Dolan
Introducing A "Different Lives" Approach To The Valuation Of Health And Well-Being, Matthew D. Adler, Paul Dolan
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We introduce a new “different lives” survey format, which asks respondents to rank hypothetical lives described in terms of longevity, health, happiness, income, and other elements of the quality of life. In this short paper, we show that the format is of policy relevance whether a mental state, preference satisfaction or extra-welfarist account of well-being is adopted and discuss some of the advantages the format has over standard formats, such as contingent valuation surveys and QALY-type methods. An exploratory survey indicates that the format is feasible and that health and happiness might be more important than income and life expectancy.
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
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The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …
Intuitions Of Justice: Implications For Criminal Law And Justice Policy, Paul H. Robinson, John M. Darley
Intuitions Of Justice: Implications For Criminal Law And Justice Policy, Paul H. Robinson, John M. Darley
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Recent social science research suggests that many if not most judgements about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies. This article …
White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas
White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas
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This symposium essay speculates about how Booker's loosening of the Federal Sentencing Guidelines is likely to affect white-collar plea bargaining and sentencing. Prosecutors' punishment intuitions and the strong white-collar defense bar will keep white-collar sentencing from growing as harsh as drug sentencing, but the parallels are nonetheless ominous. The essay suggests that the Sentencing Commission revise its loss-computation rules, calibrate white-collar sentences to their core purpose of expressing condemnation, and adding shaming punishments and apologies to give moderate prison sentences more bite.