University of Arkansas at Little Rock
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Employment Law—Antidiscrimination—Falling Into the Legal Void: How Arkansas Can Protect Unpaid Interns From Discrimination and Harassment
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Criminal Law—The Federal Sentencing Guidelines: Examining the Physical Restraint Sentencing Enhancement
Get PDFThe Farcical Samaritan\u27s Dilemma
Get PDF“[T]he hypothesis is that modern man has become incapable of making the choices that are required to prevent his exploitation by predators of his own species[.]”
This article explores one of the foundational pillar theories of Law and Economics and specifically Public Choice Theory as espoused by Nobel Laureate James M. Buchanan: the “Samaritan’s Dilemma.” Using the Biblical parable of the Good Samaritan, Buchanan imagines a “dilemma” faced by the Good Samaritan when encountering a beaten and bloodied man left to die on the road to Jericho. Using Game Theory, Buchanan constructs a moral quandary that the man from Samaria must necessarily resolve within himself in deciding ultimately whether to lend aid to the beaten man left to die.
Law and Economics, born in the twentieth century, theoretically establishes “efficiency” as its baseline. In evaluating the law from this efficiency perspective, neoclassical Law and Economics economists’ primary hypothesis is that individuals are rational and respond to incentives in a rational fashion. Law and Economics is built on the fundamental belief that markets, particularly free markets, are “more efficient than courts.” Undergirding this theorizing is the presumption that incentives are the primary motivators of individual behavior; how individuals respond to incentives provides a laser-like focus for Law and Economics. If human actors are “rational and respond to incentives” in a rational manner, then how rationality is defined becomes important for Law and Economics hypothesizing. Bottom line rationality for the Law and Economics economist is that individuals are motivated by self interest and that the rational reaction to an incentive will be to act in a self-interested, wealth-maximizing way. Put simply, a Law and Economics economist would consider a legal situation efficient where rights are allocated “to the party who is willing to pay the most for [them].” Conversely, when an incentive generates an action that results in a penalty, individuals will perform that action less to avoid the penalty.
Law and Economics employs Game Theory to mathematically predict how individuals will react in given scenarios based on incentives provided and rationalities defined. In determining mathematically and logically actions that “players” should take to secure the best outcomes for themselves in a wide array of “games,” Game Theory considers itself the “science of strategy.” Perhaps the greatest overriding consideration when employing Game Theory is the interdependence of all choices employed by all players/participants. Or, stated another way, the ultimate outcome for each participant is dependent on the choices or strategies of all participants, requiring players to think about their own strategies while considering the strategies of all other players in coming to their own conclusions. Working through strategies to likely predicted outcomes, based on rational reaction to incentives, is the game or puzzle in Game Theory.
With that brief introduction to Law and Economics and Game Theory, this article begins by reconstructing the Biblical parable of the Good Samaritan. Next, the article will provide a fundamental description of the Samaritan’s Dilemma, as espoused by Public Choice economist James Buchanan, explaining how Buchanan’s theory turns the Christian parable upon its head. Next, the article will describe the reasons that the Samaritan’s Dilemma is a farce – a theory best left conceptualized rather than instrumentalized. In describing the farcical Samaritan’s Dilemma, the article will focus on racial capitalism and its historical evolution as a means of understanding the hollow siren’s call of this concocted “Dilemma.” Finally, the article will introduce the reasons that the Samaritan’s Dilemma together with much of law and economics theorizing is intellectually bankrupt. Thereafter, the article will call for a deeper intellectual critique of Law and Economics than has been marshaled to date
Toward a Socially Just Peace in the War on Drugs?: The Illinois Cannabis Social-Equity Program
Get PDFLaudably, when Illinois legalized the recreational use of cannabis, it also sought to repair the damage wrought by the War on Drugs (WOD)through its social-equity initiatives. That harm included excessive and disproportionate incarceration in communities of color, over-policing within those communities, and all of the social and economic harms implicit in those realities. This harm necessarily creates intergenerational harm, as parents and children lose necessary pillars of support. Moreover, compelling evidence suggests that the progenitors of the WOD in-tended this harm. Measured against this historic social injustice, the social equity efforts in Illinois fail to secure a material unwinding of the WOD harms. Illinois needs a broader approach to ending the War on Drugs beyond cannabis. Treatment should displace criminalization for narcotics. Expungements should become automatic and more widely available. The state should immediately issue more social-equity licenses in affected communities. Investment of revenues from cannabis and other decriminalized drugs in affected communities should continue
Nobody\u27s Business: A Novel Theory of the Anonymous First Amendment
Get PDFNamelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one\u27s ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one\u27s conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where there is sufficient justification, they may enjoy a privilege not to be. One such privilege--the privilege to participate in community thinking--is based in the First Amendment interest that persons have in developing their thinking with others without having to be held responsible for it. I argue that this privilege was not applicable eleven years ago to the challengers in Doe v. Reed and is, for somewhat similar reasons, not applicable to the challengers in the Supreme Court\u27s most recent anonymity case: Americans for Prosperity Foundation v. Bonta. I argue it was wrongly decided
Reclaiming Establishment: Identity and the ‘Religious Equality Problem’
Get PDFSince at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary\u27s religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson\u27s holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment Clause by prohibiting restrictions on the use of public funds for core religious purposes anytime government provides a generally available public benefit. They also undermine a unique architectural feature of the Religion Clauses which considers “religion”--or religious conduct, to be more exact--constitutionally special and commands a requisite degree of separation between church and state.
This Article employs a conceptual framework that reimagines religious freedom\u27s key components as constitutionally distinguishable from one another. It argues that religious identity implicates an equality right that is legally distinct-- and severable--from religious belief and practice (e.g., free exercise) which trigger fundamental rights interests. An explicit acknowledgment of a “right to religious identity” that requires full substantive equality between religious and nonreligious entities only when they engage in secular conduct can bring much needed clarity, and stability, to an emerging religious equality jurisprudence that is increasingly at odds with settled constitutional principles. This right should be housed in the Establishment Clause because its equality principle prohibits government from discriminating between religious and secular identities (and among religious denominations), while its separation principle precludes it from directly benefiting religious exercise. Ultimately, a reconceptualization of religious freedom doctrine informed by the distinctive features of identity can help rectify the doctrinal imbalance between the Religion Clauses resulting from Free Exercise “bloat” and empower the Establishment Clause to reclaim its rightful place in the constitutional hierarchy
