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Crime, Punishment, and Legal Error: A Review of the Experimental Literature
Get PDFWhen individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). The state, given the level of resources allocated to law enforcement, might not be able to produce a suspect.
Limitations on enforcement resources lead to imperfect detection. Evidence production and proof problems cause both mistaken convictions and mistaken acquittals. Errors have many sources, including hindsight bias, lack of complete information about the defendant’s possible options and chosen action, untrustworthy eyewitness testimony, the admission of impartial evidence in trials, and unwillingness or inability to expend resources on detection, among others. We focus here not on the sources of errors, but rather on their effects on deterrence and punishment policy. Our purpose is to briefly summarize the theoretical literature that studies the effects of legal errors on crime and punishment rates, and to critically review studies that report on experiments conducted to test such theories. The theoretical literature includes analyses of both criminal law and civil law violations, and so we cover both here. Part 2 summarizes theories offered to explain and predict how imperfect detection and guilt-determination errors affect crime and punishment rates. Part 3 summaries, synthesizes and critiques experimental studies designed to test the theories. Part 4 catalogs, in broad terms, where we are and offers ideas for potentially fruitful avenues for continued exploration in the lab
The Rhetoric of Bigotry and Conscience in Battles Over Religious Liberty v. LGBT Rights
Get PDFCharges, denials, and countercharges of “bigotry” are a familiar feature in debates over the evident conflict between LGBT rights and religious liberty. A frequent claim is that religious individuals who reject the extension of civil marriage to same-sex couples and seek conscience-based exemptions from state public accommodations law that protect against discrimination on the basis of sexual orientation are being “branded” as bigots. The rhetoric of bigotry raises a number of puzzles. Is sincerity or the appeal to conscience a defense to charge of bigotry? Is a charge of bigotry inferred simply from asserting that society should learn lessons from past civil rights struggles: that now-repudiated forms of discrimination – on the basis of race and sex – are relevant to protecting against discrimination on the basis of sexual orientation? Or from comparing past appeals to conscience and religious beliefs against race mixing to oppose civil rights laws with present appeals to religious beliefs about marriage to oppose civil marriage by same-sex couples or providing them goods and services? Are these analogies inapt because today’s sincere religious believers have nothing in common with yesterday’s segregationists? Does the label “bigot” better apply – as some contend -- to civil rights commissioners and judges who show “intolerance” toward today’s sincere believers by refusing them exemptions and driving from the public square? Does the rhetoric of bigotry serve any useful purpose or is it needlessly provocative? This chapter evaluates the rhetoric of bigotry in two contexts: (1) the controversial U.S. Commission on Civil Rights Report, Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties (2016) and (2) arguments made by the parties and their amici curiae (“friends of the court”) in the closely-watched case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, now before the U.S. Supreme Court
Collaborative Enforcement
Get PDFLabor standards enforcement in the low-wage workplace has long suffered from a lack of capacity, expertise and remedies that blunt the impact of public and private enforcers alike. The question of how to address these pathologies in state and local workplace regulation has gained new urgency with the virtual explosion of regional labor lawmaking and the deregulatory impulses of the new federal administration.
This Article identifies collaboration between state and local agencies and private, public interest organizations (“PIOs”) as one pathway to address these enforcement gaps, by amplifying the deterrent effect of public and private enforcement and 1 by improving legal remedies. This Article offers this form of public-private regulatory experimentation, which it calls “collaborative enforcement,” as a conceptual framework that can (a) effectively and efficiently address enforcement gaps by integrating a range of enforcement tools that public and private enforcers cannot access independently; (b) subject public agency enforcement priorities to political accountability; and (c) facilitate sophisticated types of tripartite regulation championed by earlier scholarship.
Private delegations in collaborative enforcement, however, can create a risk of PIO abuse of the delegation and of public agency cooptation of PIOs, which will require measures to protect public agency and PIO independence. National Labor Relations Act preemption and state nondelegation doctrine do not threaten the core requirements of collaborative enforcement, but do constrain the scope of its delegations and legislative aims. The techniques described in this Article may be applied to other areas of civil enforcement in which underdeterrence is a result of similar enforcement pathologies
The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon
No full textWhen Steven Burd, CEO of the supermarket chain Safeway, cut wages and benefits, starting a five-month strike by 59,000 unionized workers, he was confident he would win. But where traditional labor action failed, a novel approach was more successful. With the aid of the California Public Employees’ Retirement System, a $300 billion pension fund, workers led a shareholder revolt that unseated three of Burd’s boardroom allies.
In The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon, David Webber uses cases such as Safeway’s to shine a light on labor’s most potent remaining weapon: its multitrillion-dollar pension funds. Outmaneuvered at the bargaining table and under constant assault in Washington, state houses, and the courts, worker organizations are beginning to exercise muscle through markets. Shareholder activism has been used to divest from anti-labor companies, gun makers, and tobacco; diversify corporate boards; support Occupy Wall Street; force global warming onto the corporate agenda; create jobs; and challenge outlandish CEO pay. Webber argues that workers have found in labor’s capital a potent strategy against their exploiters. He explains the tactic’s surmountable difficulties even as he cautions that corporate interests are already working to deny labor’s access to this powerful and underused tool.
The Rise of the Working-Class Shareholder is a rare good-news story for American workers, an opportunity hiding in plain sight. Combining legal rigor with inspiring narratives of labor victory, Webber shows how workers can wield their own capital to reclaim their strength.https://scholarship.law.bu.edu/books/1126/thumbnail.jp
Georgia Practice Materials: A Selective Annotated Bibliography
No full textThis bibliography lists and describes both primary and secondary sources commonly used in the current practice of law in Georgia. It is divided into four main parts: (1) General Publications, which includes reference publications and primary sources; (2) Periodicals; (3) Internet Resources; and (4) Practice Treatises and Materials. When a source is available in a variety of formats, the authors provide the alternatives for accessing the source in the annotations
The Continuing Duty in Reality: A Preliminary Empirical Look
No full textThe continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases since 1989, duties to former clients exist in state ethics rules as well as the ABA Model Rules of Professional Conduct. The duty has been further operationalized in non-capital litigation through a 2010 ABA formal ethics opinion concerning disclosures by trial counsel to prosecutors in ineffective assistance of counsel (IAC) claims, case law and scholarship. There are no empirical data concerning its operation in practice, and these are difficult to obtain because much of the continuing duty operates through informal practices. This paper describes the results of a brief survey intended to develop these data
Legal Scholarship and External Critique in EU Law
Get PDFThe propensity to engage in a sustained critique of EU law marbles several contributions in this Volume and certainly animates this chapter. This generally critical stance takes the present stage of legal Europeanization as a fact and aims to make full use of the possibilities for political and social justice it can currently support, but at the same time it decries its many structural and dynamic drawbacks. In doing so, this critical project borrows liberally from CLS without fear of misreading or misappropriation. Irreverence in this context is a feature, not a bug. The CLS toolkit is clearly useful to European scholars, but there is no pretense here of fidelity to the original CLS conception. Transformations can be productive on EU soil, and there is no reason not to utilize, albeit in a different epistemic environment, the motivational force of lessons drawn from far-away places or times
The Case for Investor Ordering
Get PDFWhether corporate arrangements should be mandated by public law or “privately ordered” by corporations themselves has been a foundational question in corporate law scholarship. State corporation laws are generally privately ordered. But a significant and growing number of arrangements are governed by “corporate regulations” created by the U.S. Securities and Exchange Commission (SEC). SEC corporate regulations are invariably mandatory. Whether they should be is the focus of this Article./= / \u3e/= / \u3eThis Article contributes to the ongoing debate by showing that whether mandatory or privately-ordered rules are optimal depends on the nature of investors, and their incentives in choosing corporate arrangements. The rise of institutional investors means that investors can now be relied on to choose optimal arrangements, because institutional investors will make informed decisions about corporate arrangements and will internalize their effects on the capital markets./= / \u3e/= / \u3eThis Article thus makes the case for a third alternative: “investor ordering.” For all but a few corporate regulations, investor ordering will result in the same or greater aggregate net benefit as mandatory regulations./= / \u3e/= / \u3eThe optimality of investor ordering of SEC corporate regulations has important implications. First, the D.C. Circuit’s jurisprudence on cost-benefit analysis will require the SEC to consider investor ordering. In the many cases where investor ordering would be superior to mandatory regulation, were the SEC to nevertheless implement a mandatory regulation, it would be susceptible to invalidation by the D.C. Circuit under the Administrative Procedure Act./= / \u3e/= / \u3eSecond, investor ordering substantially reduces the burden of the D.C. Circuit’s recent requirements for SEC cost-benefit analysis. This reduces the overall cost of SEC rule making, or permits the SEC to promulgate more regulations on its fixed budget. It also sidesteps the considerable academic debate about the value of cost-benefit analysis for corporate regulations./= / \u3e/= / \u3eThird, investor ordering reduces the need for retrospective analysis. To the extent retrospective analysis remains necessary, investor ordering makes it more straightforward and also permits lower-cost regulatory experimentation. Investor ordering therefore allows for a more dynamic regulatory system./= / \u3e/= / \u3eThese benefits mean that the SEC should implement investor ordering as its default approach for new regulation and for deregulation. This Article considers a number of promising candidates for investor ordering among potential and proposed SEC regulations, and for deregulation of contentious existing SEC regulations. Investor ordering also has important implications for state corporation laws and for federal legislation
Then and Now: Mark Pettit’s Modern Unilateral Contracts in the 1980s and in the Age of Blockchains
Get PDFHaving read Jack Beermann and Fran Miller’s moving and insightful essays, I find myself unable to express in further words how wonderful Mark was and how much I miss him. I ask therefore that Jack and Fran allow me to join their celebration of Mark’s inimitable brilliance and generosity. What I offer today is a particular word of praise for an article by Mark which is not only my favorite, but also an extremely well regarded contribution to contract law scholarship: Modern Unilateral Contracts. 1 In this oft-cited and oft-quoted piece,2 published in this Law Review in 1983, Mark took issue with the conventional wisdom of the time. He showed that unilateral contracts did not belong at the far margins of contract law, where Karl Llewellyn and others would have them,3 but rather, very near the center, where they were doing major work for the little guy in a range of judicial proceedings.4 I will first highlight the impact, both doctrinal and jurisprudential, of this article at the time Mark wrote it. I will then move the clock to the present day and discuss the striking analytical value of unilateral contracts in the age of blockchains and smart contracts—a testament to Mark’s insight and evergreen legacy