Social and Behavioral Sciences Commons^™

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

Partitioning Sorted Sets: Overcoming Choice Overload While Maintaining Decision Quality, Benedict C.G. Dellaert, Tom Baker, Eric J. Johnson

All Faculty Scholarship

We investigate the joint use of partitioning and sorting as a choice architecture to overcome consumer choice overload in large product sets. Partitioning first presents a small initial set of alternatives with the option to click through to see the remaining alternatives. Sorting presents alternatives in order of attractiveness based on a user model that is helpful to the decision-maker. We propose that Sets with Partitioning and Sorting (SPSs) improve consumers’ choice outcomes by increasing their focus on the most attractive alternatives and their use of more compensatory decisions. Results from two controlled survey-based experiments and a field study in …

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

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Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by the courts …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

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American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

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Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new …

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

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This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to …

Before International Tax Reform, We Need To Understand Why Firms Invert, Michael S. Knoll

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A wave of corporate inversions by U.S. firms over the past two decades has generated substantial debate in academic, business, and policy circles.

The core of the debate hinges on a couple of key economic questions: Do U.S. tax laws disadvantage U.S.-domiciled companies relative to their foreign competitors? And, if so, do inversions improve the competitiveness of U.S. multinational firms both abroad and at home?

There is unfortunately little, if any, empirical work directly determining whether U.S.-based MNCs are currently tax-disadvantaged compared to their foreign rivals, or measuring the amount by which (if any) U.S.-based MNCs improve their competitive position …

Law And Psychology Grows Up, Goes Online, And Replicates, Krin Irvine, David A. Hoffman, Tess Wilkinson-Ryan

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Over the last thirty years, legal scholars have increasingly deployed experimental studies, particularly hypothetical scenarios, to test intuitions about legal reasoning and behavior. That movement has accelerated in the last decade, facilitated in large part by cheap and convenient Internet participant recruiting platforms like Amazon Mechanical Turk. The widespread use of MTurk subjects, a practice that dramatically lowers the barriers to entry for experimental research, has been controversial. At the same time, law and psychology’s home discipline is experiencing a public crisis of confidence widely discussed in terms of the “replication crisis.” At present, law and psychology research is arguably …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow

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Digital tokens have been used to raise substantial amounts of money. But little attention has been paid to the tax consequences surrounding their issuance and sale. There are significant potential tax liabilities lurking in the use of digital tokens. But, because of the anonymity inherent in the blockchain structures used for the issuance of tokens and payments for them, there is a significant question as to whether those tax liabilities will ever be collected.

The Use And Reliability Of Federal Nature Of Suit Codes, Christina L. Boyd, David A. Hoffman

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When filing a civil case in a federal district court, attorneys must identify one, and only one, of ninety issue area nature of suit (NOS) codes that best describes their case. While this may seem like a trivial moment in litigation, the selection of this single descriptor has significant implications for court statistics, empirical research findings, and the allocation of resources to federal courts, including judgeships. Despite the import of NOS codes, there is little within the process of choosing them to guarantee reliability in the selected NOS codes. To assess how reliable NOS codes are, we examine a database …

Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group

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In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors …

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

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This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

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This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

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Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others …

The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni

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Intransitive choices, or cycling, are generally held to be the mark of irrationality. When a set of rules engenders such choices, it is usually held to be irrational and in need of reform. In this article, we prove a series of theorems, demonstrating that all feasible legal regimes are going to be rife with cycling. Our first result, the legal cycling theorem, shows that unless a legal system meets some extremely restrictive conditions, it will lead to cycling. The discussion that follows, along with our second result, the combination theorem, shows exactly why these conditions are almost impossible to meet. …

Taxation, Competitiveness, And Inversions: A Response To Kleinbard, Michael S. Knoll

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In this report, I argue that the inversion situation is more nuanced, complex, and ambiguous than Edward D. Kleinbard acknowledges, and I challenge Kleinbard’s claim that U.S. multinationals are on a tax par with their foreign competitors.

Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr.

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This paper examines the effects of hedge fund activism and so-called wolf pack activity on the ordinary human beings—the human investors—who fund our capital markets but who, as indirect of owners of corporate equity, have only limited direct power to ensure that the capital they contribute is deployed to serve their welfare and in turn the broader social good.

Most human investors in fact depend much more on their labor than on their equity for their wealth and therefore care deeply about whether our corporate governance system creates incentives for corporations to create and sustain jobs for them. And because …

The Limits Of Performance-Based Regulation, Cary Coglianese

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Performance-based regulation is widely heralded as a superior approach to regulation. Rather than specifying the actions regulated entities must take, performance-based regulation instead requires the attainment of outcomes and gives flexibility in how to meet them. Despite nearly universal acclaim for performance-based regulation, the reasons supporting its use remain largely theoretical and conjectural. Owing in part to a lack of a clear conceptual taxonomy, researchers have yet to produce much empirical research documenting the strengths and weaknesses of performance-based regulation. In this Article, I provide a much-needed conceptual framework for understanding and assessing performance-based regulation. After defining performance-based regulation and …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

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Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Neuroscience In Forensic Contexts: Ethical Concerns, Stephen J. Morse

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This is a chapter in a volume, Ethics Challenges in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse …

How Should Justice Policy Treat Young Offenders?, B J. Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson, Anthony D. Wagner

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The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

Strict Liability's Criminogenic Effect, Paul H. Robinson

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It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

Achieving Antidiscrimination Objectives Through “Safe Harbor” Rules For Cases Of Chronic Hiring Aversion, Samuel Estreicher

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Class Action Reform: Closing The Courthouse Doors On Victims, One Lawsuit At A Time, Henry C. Johnson

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

The Hidden Structures Of Inequality: The Federal Reserve And A Cascade Of Failures, Emma Coleman Jordan

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Exit Rights, Pluralism, And Equal Citizenship: Why Religious Exemptions Are Still Worth It, William Simpson

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Behind Closed [Blue] Doors: Officer-Involved Domestic Violence And § 1983’S Potential, Anna Joseph

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Masthead

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.