Law Commons^™

Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles Eric Hintz

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Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.

This Essay calls for a change: expand the use of a special findings verdict, the general …

Flawed Coalitions And The Politics Of Crime, David Jaros

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Bipartisanship can be dangerous. In the late 1970s, liberal and conservative forces united to discard two centuries of federal sentencing practice and usher in an era of fixed guidelines that would reshape the criminal justice landscape. In the decades that followed, liberals would come to bitterly regret their alliance with conservative sentencing reformers. The guideline regime established by the Sentencing Reform Act ultimately advanced hardline conservative criminal justice goals that were antithetical to the objectives of many of the Act’s former liberal supporters.

Researchers have shown that a particular cognitive bias — cultural cognition — can explain why intense partisan …

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

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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 …

Tontines For The Invincibles: Enticing Low Risks Into The Health-Insurance Pool With An Idea From Insurance History And Behavioral Economics, Tom Baker, Peter Siegelman

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Over one third of the uninsured adults in the U.S. below retirement age are between 19 and 29 years old. Young adults, especially men, often go without insurance, even when buying it is mandatory and sometimes even when it is a low cost employment benefit. This paper proposes a new form of health insurance targeted at this group—the “Young Invincibles”—those who (wrongly) believe that they don’t need health insurance because they won’t get sick. Our proposal offers a cash bonus to those who turn out to be right in their belief that they did not really need health insurance. The …

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

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Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

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This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …