Law Commons^™

Should I Stay Or Should I Go? The Gender Gap For Securities And Exchange Commission Attorneys, Stephen J. Choi Ii, Mitu Gulati, Adam C. Pritchard

Articles

Most research on the gender gap in the legal profession focuses on the private sector. We look at the gender gap in a setting where one might expect the gaps to be smaller: the Division of Enforcement of the Securities and Exchange Commission (SEC), which has a reputation for providing employees with good childcare and work flexibility. We find a substantial gender gap in assignments but only a modest one in pay. Men are also more likely to move laterally and more likely to move to lucrative private-sector jobs. What causes these gaps? The primary explanation for the gender gap …

Reckless Juveniles, Kimberly Thomas

Articles

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …

Privacy Preserving Social Norm Nudges, Yifat Nahmias

Michigan Technology Law Review

Nudges comprise a key component of the regulatory toolbox. Both the public and private sectors use nudges extensively in various domains, ranging from environmental regulation to health, food and financial regulation. This article focuses on a particular type of nudge: social norm nudges. It discusses, for the first time, the privacy risks of such nudges. Social norm nudges induce behavioral change by capitalizing on people’s desire to fit in with others, on their predisposition to social conformity, and on their susceptibility to the way information is framed. In order to design effective social norm nudges, personal information about individuals and …

Implicit Bias's Failure, Samuel Bagenstos

Articles

The 2016 presidential election was a coming-out party of sorts for the concept of implicit bias-and not necessarily in a good way. In answering a question about race relations and the police during the vice-presidential debate, Mike Pence introduced the topic. Offering his explanation for why the Fraternal Order of Police had endorsed the Trump-Pence ticket, Pence said:

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Incentivizing Lawyers To Play Nice: A National Survey Of Civility Standards And Options For Enforcement, Cheryl B. Preston, Hilary Lawrence

University of Michigan Journal of Law Reform

In the last decade, most commentators assume that lawyers’ behavior is now diving to new lows, notwithstanding a flurry of professionalism and civility creeds adopted in the 1980s and 1990s. Proponents of making such creeds enforceable argue that a return to professionalism may improve lawyers’ well-being, restore the public’s confidence in lawyers, and raise the expectations of behavior, not only with respect to civility but also with respect to violations of the Rules of Professional Conduct (hereinafter, as adapted in various jurisdictions, the Rules of Professional Conduct or the Model Rules)

企業の社会的責任と戦略的租税行動 [Corporate Social Responsibility And Strategic Tax Behavior], Reuven S. Avi-Yonah, Keisaku Koga Translator

Articles

This paper addresses two questions. First, from the perspective of the corporation, should the corporation cooperate and pay the corporate tax, or should it engage in "strategic" tax behavior designed to minimize or eliminate its corporate tax burden? Second, from the perspective of the state, should the state use the corporate tax just to raise revenue, or should it also try to use it as a regulatory tool to steer corporate behavior in directions that it deems beneficial to society? The paper argues that whatever our view of the nature of the corporation and of the legitimacy of corporate social …

Tmi? Why The Optimal Architecture Of Disclosure Remains Tbd, Ryan Bubb

Michigan Law Review

We are inundated with disclosures in our daily lives. In one of the more evocative passages in their stimulating new book, More Than You Wanted to Know, Omri Ben-Shahar and Carl E. Schneider imagine a day in the life of someone who actually reads all those disclosures (pp. 95–100). During a commercial on the morning news, the protagonist hits pause on the TiVo to catch the fine print that would otherwise fly by. Breakfast is a slog, requiring close reading of the toaster’s ominous label and the disheartening nutrition facts on the butter and jam. More of the same awaits …

The Transformative Potential Of Attorney Bilingualism, Jayesh M. Rathod

University of Michigan Journal of Law Reform

In contemporary U.S. law practice, attorney bilingualism is increasingly valued, primarily because it allows lawyers to work more efficiently and to pursue a broader range of professional opportunities. This purely functionalist conceptualization of attorney bilingualism, however, ignores the surprising ways in which multilingualism can enhance a lawyer's professional work and can strengthen and reshape relationships among actors in the U.S. legal milieu. Drawing upon research from psychology, linguistics, and other disciplines, this Article advances a theory of the transformative potential of attorney bilingualism. Looking first to the development of lawyers themselves, the Article posits that attorneys who operate bilingually may, …

Behaviorally Informed Regulation, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir

Book Chapters

Policy makers typically approach human behavior from the perspective of the rational agent model, which relics on normativc, a priori analyses. The model assumes people make insightful, well-planned, highly controlled, and calculated decisions guided by considerations of personal utility. This perspective is promoted in the social sciences and in professional schools and has come to dominate much of the formulation and conduct of policy. An alternative view, developed mostly through empirical behavioral research, and the one we will articulate here, provides a substantially difierent perspective on individual behavior and its policy and regulatory implications. According to the empirical perspective, behavior …

The Case For Behaviorally Informed Regulation, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir

Book Chapters

Policymakers approach human behavior largely through the perspective of the “rational agent” model, which relies on normative, a priori analyses of the making of rational decisions. This perspective is promoted in the social sciences and in professional schools, and has come to dominate much of the formulation and conduct of policy. An alternative view, developed mostly through empirical behavioral research, provides a substantially different perspective on individual behavior and its policy implications. Behavior, according to the empirical perspective, is the outcome of perceptions, impulses, and other processes that characterize the impressive machinery that we carry behind the eyes and between …

Behaviorally Informed Financial Services Regulation, Michael S. Barr, Sendhil Mullainathan, Eldar Shafir

Other Publications

Financial services decisions can have enourmous consequences for household well-being. Households need a range of financial services - to conduct basic transactions, such as receiving their income, storing it, and paying bills; to save for emergency needs and long-term goals; to access credit; and to insure against life's key risks. But the financial services system is exceedingly complicated and often not well-designed to optimize house-hold behavior. In response to the complexity of out financial system, there has been a long running debate about the appropriate role and form of regulation. Regulation is largely stuck in two competing models - disclosure, …

Third-Party Tax Administration: The Case Of Low- And Moderate-Income Households, Michael S. Barr, Jane K. Dokko

Articles

Using a unique household-level data set, this article investigates the taxfiling experiences and refund behavior of low- and moderate-income (LMI) households. We document households' tax-filing behavior, attitudes about the withholding system, use of tax refunds to consume and save, and the mechanisms by which households would prefer to receive their income. We also document the prevalence of the use of tax-preparation services and the receipt of tax refunds and refund-anticipation loans. Finally, we argue that there may be a role for tax administration to enable LMI households to make welfare-improving financial decisions.

The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric A. Feldman

Michigan Journal of International Law

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material …

Tax Filing Experiences And Withholding Preferences Of Low- And Moderate-Income Households Preliminary Evidence From A New Survey, Michael S. Barr, Jane Dokko

Other Publications

The United States Federal income tax code has an enormous potential to shape the economic and financial decisions of taxpaying households. Tax rates, compliance laws, and the withholding system create incentives, as do the methods by which the Treasury collects tax receipts and disburses tax refunds. The role of third party service providers in this incentive structure is less well understood, even though tax preparation firms play important roles in our tax system. Nationally, more than half of taxpayers use paid preparers to submit their tax returns. Low- and moderate-income (LMI) households are among those who use the paid tax …

When Nice Guys Finish First: The Evolution Of Cooperation, The Study Of Law, And The Ordering Of Legal Regimes, Neel P. Parekh

University of Michigan Journal of Law Reform

This Note adds to the scholarship in the area of Evolutionary Analysis and the Law (EA). EA is a paradigm that comments on the implications of evolution on the law. EA recognizes that many complex human behaviors that the law seeks to regulate have evolutionary origins that remain relevant today. This Note details how an understanding of the evolutionary basis of cooperation can bring about favorable revisions and reforms in the law.

Following a review of the scientific foundation of EA, this Note sets forth the proposition that humans have an evolutionarily developed tendency to cooperate, an idea that contrasts …

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Overcoming A Lawyer's Dogma: Examining Due Process For The "Disruptive Student", Jessica Falk

University of Michigan Journal of Law Reform

This Note explores how traditional due process functions in the context of school expulsion hearings. Traditional due process is inadequate in the case of "chronically disruptive" students because these students have lost their property right in education long before the law requires a due process hearing. Instead, new avenues of due process that are better adapted to the educational setting must be explored. Lawyers should expect schools to identify students' with behavioral problems before expulsion becomes imminent and assist students in overcoming these problems. This "educational due process" not only helps to protect troubled student's education, but it is also …

The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

Michigan Journal of Gender & Law

This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

Law, Self-Pollution, And The Management Of Social Anxiety, Geoffrey P. Miller

Michigan Journal of Gender & Law

This article considers the anxieties about masturbation and spermatorrhoea from the standpoint of cultural-legal analysis. Seen from this perspective, the worries about masturbation provided an object onto which social anxieties could be displaced and thereby managed. Norm entrepreneurs who played on public fears manipulated basic cultural polarities in order to present masturbation and spermatorrhoea as objects of horror and disgust-things that needed to be expelled, if possible, from the body social.

Race In The Courtroom: Perceptions Of Guilt And Dispositional Attributions, Samuel R. Sommers, Phoebe C. Ellsworth

Articles

The present studies compare the judgments of White and Black mock jurors in interracial trials. In Study 1, the defendant’s race did not influence White college students’ decisions but Black students demonstrated ingroup/outgroup bias in their guilt ratings and attributions for the defendant’s behavior. The aversive nature of modern racism suggests that Whites are motivated to appear nonprejudiced when racial issues are salient; therefore, the race salience of a trial summary was manipulated and given to noncollege students in Study 2. Once again, the defendant’s race did not influence Whites when racial issues were salient. But in the non-race-salient version …

Sentimental Stereotypes: Emotional Expectations For High-And Low-Status Group Members, Larissa Z. Tiedens, Phoebe C. Ellsworth, Batja Mesquita

Articles

Three vignette studies examined stereotypes of the emotions associated with high- and low-status group members. In Study 1a, participants believed that in negative situations, high-status people feel more angry than sad or guilty and that low-status people feel more sad and guilty than angry. Study 1b showed that in response to positive outcomes, high-status people are expected to feel more pride and low-status people are expected to feel more appreciation. Study 2 showed that people also infer status from emotions: Angry and proud people are thought of as high status, whereas sad, guilty, and appreciative people are considered low status. …

Review Of The Appearance Of Impropriety: How The Ethics Wars Have Undermined American Government, Business, And Society, By Peter W. Morgan And Glenn H. Reynolds., Jordan B. Hansell

Michigan Law Review

Rameshwar Sharma needed cash to continue his research on two proteins, alpha2A and alpha2GC, so he turned to the federal government. At the time he submitted his grant application, Sharma had completed a good deal of work on alpha2A but very little on alpha2GC At some point while typing his forty-six page grant application, Sharma realized that repeatedly typing alpha2A and alpha2GC was annoying. To ease his pain, he created macro keys that he could hit whenever he wished to type either protein. Big mistake. On page twenty-one he hit the wrong key, inserting alpha2GC where alpha2A should have been. …

Deconstructing The Ideology Of White Aesthetics, John M. Kang

Michigan Journal of Race and Law

In this Article, the author provides a discussion on the dynamic between race and aesthetics. The author states that because Whites are the dominant group in America, they dictate what is beautiful. The consequence of this power dynamic is that the dominant group, Whites, can exercise preferences in deciding how to look or express themselves, whereas people of color are limited to either conforming to an imposed White standard or rejecting it. The author starts by laying out some of the features to what he terms the "ideology of White aesthetics." He then commences to examine how this ideology has …

Religion And Child Custody, Carl E. Schneider

University of Michigan Journal of Law Reform

In this Essay, I want to reflect on some problems at the intersection of religion, law, and the family. Specifically, I will explore the ways courts may consider a parent's religiously motivated behavior in making decisions about the custody of children. More precisely still, I will ask two questions. First, may a court refuse to award custody because of a parent's religiously motivated behavior in a dispute between a natural mother and a natural father? Second, when should a court agree to resolve a dispute between divorced parents over the religious upbringing of their children? These are topics of quiet …

Understanding Legal Compliance, V. Lee Hamilton

Michigan Law Review

A Review of Why People Obey the Law by Tom R. Tyler

Sociobiology And The Law: The Biology Of Altruism In The Courtroom Of The Future, Charles F. Weiss

Michigan Law Review

A Review of Sociobiology and the Law: The Biology of Altruism in the Courtroom of the Future by John H. Beckstrom

Understanding The Jury With The Help Of Social Science, Stephen Saltzburg

Michigan Law Review

A Review of Inside the Jury by Reid Hastie, Steven Penrod and Nancy Pennington

Law For The Elephant: Property And Social Behavior On The Overland Trial, Michigan Law Review

Michigan Law Review

A Review of Law for the Elephant: Property and Social Behavior on the Overland Trial by John Phillip Reid

Abortion And The Presidential Election Of 1976: A Multivariate Analysis Of Voting Behavior, Maris A. Vinovskis

Michigan Law Review

Despite the widespread public interest in the role of the abortion controversy in American politics today, no one has attempted to analyze systematically its impact on the electorate. Some national opinion surveys have asked voters whether or not they would be influenced by a candidate's position on abortion, but they have not attempted to ascertain its relative importance, compared to other considerations, in the final deliberations of the electorate. In an effort to provide a more systematic study of the role of abortion in American politics today, this Article analyzes the campaign to elect the President of the United States …