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Experimental Jurisprudence
Get PDF“Experimental jurisprudence” draws on empirical methods to inform questions typically associated with jurisprudence and legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates on and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is not only consistent with traditional jurisprudence; it is an essential branch of it
Siege Starvation: A War Crime of Societal Torture
Get PDFA recent amendment to the Rome Statute of the International Criminal Court has drawn unprecedented attention to the war crime of starvation of civilians as a method of warfare. It comes at a time when mass starvation in war is resurgent, devastating populations in Yemen, Ethiopia, Syria, South Sudan, Nigeria, and elsewhere. The practice has also drawn the scrutiny of the United Nations Security Council. And yet, despite this heightened profile and sharpened urgency, what precisely is criminally wrongful about starvation methods remains underspecified.
A common way of thinking about the criminal wrong is as a form of killing or harming civilians. Although its differentiating particularities matter, the basic wrongfulness of the crime inheres, on this view, in it being an attack on those who ought not be attacked. For some, this supports a broad interpretation of the starvation ban. However, for others, the graduality of starvation preserves the continuous possibility of the avoidance or minimization of civilian death or harm in a way that direct kinetic attacks do not. In combination with the method’s purported military utility, this distinctive incrementalism has underpinned arguments for the permissibility of certain forms of siege and other deprivation and a narrow interpretation of the starvation crime.
Drawing on the moral philosophy of torture, this Article offers a different normative theory of the crime. Starvation, like torture, is peculiarly wrongful in its distortion of victims’ biological imperatives against their capacities to formulate and act on higher-order desires, political commitments, and even love. This process does not merely raise the cost of fulfilling those commitments. Instead, starvation tears gradually at the very capacity of those affected to prioritize their most fundamental commitments, regardless of whether they would choose to do so under the conditions necessary to evaluate matters with a “contemplative attitude.” Rather than palliating, the slowness of starvation methods is at the crux of this torturous wrong. Recognizing this redefines the meaning and place of the crime in the framework of international criminal law
Political Stare Decisis
Get PDFThe doctrine of stare decisis famously instructs judges to respect past decisions even if they believe these decisions are wrong. Many believe stare decisis serves venerable values and bemoan its apparent demise in various apex courts around the world. But can something like stare decisis appear in politics too? In other words, can we expect public officials, much like we expect judges, to also adhere to past decisions even if they think these decisions are wrong? Or when they face temptations to ignore the past?
If we rely on our normal intuitions about politics, or observe its current state around the world, the answer seems to be “no.” And while previous scholarship presents a more qualified view, this literature is greatly incomplete. It focuses on a limited set of domestic and international institutions that primarily resemble judicial ones. Alternatively, this scholarship is preoccupied with the normative or interpretive question of how domestic and international courts should incorporate what looks like a political analogy to stare decisis into legal doctrine. As a result, we are left uncertain about how broad the phenomenon of constraint by the past in politics really is. We are also left unsure about where the phenomenon is likely to appear, how exactly it operates, and what we might be able to do to achieve more (or less) of this type of constraint. In a world where so much of what seems wrong in domestic and global politics appears connected to the rushed erosion of the past, or its increased stickiness, this omission is significant.
This Article fills this gap by offering a comprehensive explanatory and functional theory of the role of the past as a constraint in domestic and global politics, or, in short, a theory of political stare decisis. Given the stakes of the past in politics today, the Article suggests what public officials and institutional designers in domestic and international politics might be able to do to deliberately “tinker” with political stare decisis. For example, how officials can establish entirely new political precedents that will constrain in the future, how they might strengthen existing political precedents that they like (or weaken political precedents they dislike), and what solutions are generally available to make political stare decisis more robust.
The Article concludes with a more jurisprudential point. While much in the discussion demonstrates that political stare decisis and the more familiar institution of judicial stare decisis substantially diverge, the Article claims that these differences may be much less meaningful than meets the eye. Instead of completely divergent practices, judicial stare decisis may ultimately be nothing more than one species of political stare decisis. The Article argues that acknowledging this fact significantly improves our understanding of judicial stare decisis. Among other things, it shows us when judicial stare decisis is “for suckers” and when it is not; it flags new ways to strengthen judicial stare decisis in jurisdictions where it seems to have dramatically weakened; and it illuminates how those who work to achieve their goals through domestic and international courts and their precedents should appropriately (and effectively) approach this task
Collectivist Cultures and the Emergence of Family Firms
No full textUsing a sample of 1,103 Chinese private-sector firms that went public during 2004–16, we find that founders of firms from regions with stronger collectivist cultures engage more family members as managers, retain more ownership in the family, and share the controlling ownership with more family members. These findings are robust to a battery of diagnostic tests to account for alternative institutional factors that may induce the relationships. The results are consistent with the hypothesis that because the collectivist culture reduces information asymmetry, shirking problems, and associated monitoring costs among family members, more family ownership and management are expected in firms when founders are from collectivist regions. The overall evidence supports the theory of the firm pioneered by Harold Demsetz and his coauthors
An Aggregation Theory of Character Evidence
No full textCourts frequently depart from Federal Rule of Evidence 404, which prohibits evidence of a person’s prior acts to prove that the person acted according to a certain character. This leads to verdicts that are unpredictable and based on behavior not at issue in a case. I develop a theory of aggregation evidence, a new concept that draws on principles of estimation and data aggregation in statistics and ties together evidence from a broad range of contexts. I apply this theory to analyze the effects of character evidence on accuracy and to understand why and when courts depart from the rule against character evidence. I show that a type of character evidence that I call objective-chance evidence stands apart from other forms of character evidence in its ability to improve accuracy. I then argue that a formal exception for this type of evidence may lead to a more coherent rule
Third-Party Moral Hazard and the Problem of Insurance Externalities
No full textInsurance can lead to loss or claim creation not only by insureds but also by uninsured third parties. These externalities—which we call third-party moral hazard—arise because insurance creates opportunities both to extract rents and to recover otherwise unrecoverable losses. Using examples from health, automobile, kidnap, and liability insurance, we demonstrate that the phenomenon is widespread and important and that the downsides of insurance are greater than previously believed. We explain the economic, social, and psychological reasons for this phenomenon and propose policy responses. Contract-based methods that are traditionally used to control first-party moral hazard can be welfare reducing in the context of its third-party analog, so new approaches are required
Hard Cases Make Bad Law? A Theoretical Investigation
No full textI use formal models to probe the aphorism “Hard cases make bad law.” The analysis illuminates important features of the common-law process, especially the influence of case characteristics on lawmaking and the role of strategic litigators. When a case raises concerns that are not reflected in doctrine, the court might distort the law to avoid a hardship. Distortion is more likely when the case is important or the facts are close to the border of legality. Litigators may exploit courts’ attention to extradoctrinal concerns by strategically selecting cases for litigation. Surprisingly though, a strategic litigator improves lawmaking relative to random case selection—even when her preferences are far from the ideal rule—if her influence over case selection is modest. The effect is more nuanced when the strategic litigator has greater selection power. Finally, the analysis incorporates a judicial hierarchy with asymmetric information and fact-finding discretion
Criminal Stereotypes of Muslim and Arab Americans and the Impact on Evaluations of Ambiguous Criminal Evidence
No full textIn the US legal system, jurors may make good-faith efforts to construe and apply facts and law, but extralegal considerations are difficult to avoid, and under some circumstances lay constructions of liability and criminality may be vulnerable to bias. We explore whether stereotype effects in juries’ decision-making are sensitive to the stringency of the burden of persuasion. This article represents an important addition to the growing field of experimental jurisprudence and empirical legal studies, as it uses a novel computational method to visualize a stereotype of a specific criminal subtype. More importantly, it tests the intersection of the stereotype with legal conclusions for different standards of proof. For the less-stringent criminal standard— probable cause, which typically is used in a grand-jury setting—the stereotype mattered to the outcome, with the clear implication that lax standards may leave room for jurors to improperly consider extralegal factors like race and ethnicity