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Nudges, Defaults, and the Problem of Constructed Preferences
Get PDFRegulatory bodies have increasingly become interested in “nudges,” or low-cost adjustments to the environment in which people make choices. These interventions promise to give more people what they truly want while preserving freedom of choice. In theory, default rules—a type of nudge—that can survive a thorough cost-benefit analysis should both preserve liberty and enhance welfare. In reality, altering default rules can also change people’s preferences. Neutral cost-benefit analysis is thus impossible, and choosing a default rule therefore influences personal freedom. This Article explains how nudges influence preferences and why this makes neutral cost-benefit analysis impossible for regulators
Keynote: The Battle for Your Brain: Neurotechnology and National Security
No full textProf. Nita Farahany discusses her book, The Battle for Your Brain, and neurotechnology\u27s relation to national security.
Speaker:
Prof. Nita A. Farahany, Robinson O. Everett Professor of Law, Duke Law Schoo
Causation and Conception in American Inventorship
Get PDFIncreasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding consideration of mechanical inventors under current law
Constitutional Hardball and Nationwide Preliminary Injunctions
Get PDFConstitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies.
While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find satisfactory solutions. Proposals for reform have largely focused on near-total elimination of nationwide preliminary injunctions by restraining the power of district judges. Opponents of those reforms rightfully argue that because actions by the executive branch have come to dominate the policy arena, the judiciary is the only branch that can meaningfully constrain partisan executive actions. More bluntly put: the executive policies of the last several years have been so bad as to warrant constitutional hardball.
In this Article, I review the development of preliminary injunctions and judicial partisanship, dissecting exemplar preliminary injunctions from the past several years in politically sensitive cases. Careful review of the actual decisions in question reveals flaws in judicially created doctrines interpreting the four-prong preliminary injunction test that dates back to English courts of equity. These flaws have turned the preliminary injunction doctrine into a mini-trial with virtually no evidence instead of a pragmatic inquiry. Refining the preliminary injunction test is a promising, targeted reform that could preserve the value of preliminary injunctions while reducing their use as a political tool
Error Aversions and Due Process
Get PDFWilliam Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.
Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority views false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and more conviction prone than the minority of potential jurors who agrees with Blackstone.
These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not disposed to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pre-trial screening of criminal cases and stricter limits on prosecution evidence. Furthermore, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions such as bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support
Fishing in the Desert: Modernizing Alaskan Salmon Management to Protect Fisheries and Preserve Fishers\u27 Livelihoods
Get PDFMany Alaskan salmon fisheries are in distress, threatening fishers\u27 livelihoods, food sources, and cultures. This crisis—and the few, blunt tools managers possess to address it— reveals that the current state and federal legal framework for salmon management is inadequate to protect fisheries\u27 health and preserve fishers\u27 livelihoods, especially as the ocean warms and the distribution of species within it significantly changes. First, the current framework\u27s regulatory tools, designed to combat human overuse of a single species, are poorly tailored to mitigating this multicausal, ecosystem-wide crisis. Current science indicates marine heatwaves, habitat degradation, and human use may be major culprits of salmon population decline, whereas existing fisheries management tools are largely designed to handle overharvesting and pit users against one another. A better framework would expand the toolset managers have at their disposal to combat these broader, ecological threats. Second, the tools managers do have within this framework impose the heaviest regulatory burdens on the poorest and most vulnerable, unfairly allocating the costs of managing a changing resource pool. Existing management tools often disproportionately burden the fishers who most directly rely on salmon to feed their families and support their communities. Moreover, as the ocean warms, fish habitats will shift and fish populations may even shrink overall. The users directly reliant on the fishery—subsistence fishers, small-scale fishers, businesses in rural villages, and Alaska Natives—are most vulnerable to changes in the resource stock itself. To protect these groups, a better framework would blunt regulatory tools\u27 impacts on these groups
Brief of Law and Business Professors as Amici Curiae in Support of Respondents
Get PDFOmissions of disclosure required by the Securities and Exchange Commission (SEC or Commission) in Item 303 of Regulation S-K can be a basis for an action under Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act). Disclosures mandated by the SEC in periodic reports are not optional. That these obligations can create a “duty” to disclose under Rule 10b-5(b) is consistent with congressional intent, state court opinions, the common law, and with the longstanding understanding of the federal securities laws (including those of legal scholars and the SEC). This case does not, therefore, seek to “impermissibly expand” the private right of action for securities fraud, but instead to reaffirm the availability of an action that has long existed. Petitioners mostly seek to avoid this result by pointing to language in Section 11 of the 1933 Act.The Supreme Court’s reasoning in Omnicare Inc., v. Laborers District Council Construction Industry Pension Fund, et al., further compels a finding that actions for such omissions can be maintained under Rule 10b-5(b). There is no reason to believe that reaffirming claims under Rule 10b-5 based on omissions of trends and uncertainties will result in “information overload” or otherwise inundate investors with excessive disclosure. This assertion rests on a mistaken view of the equity markets and the methods used by investors to access and absorb information provided by public companies. With these markets increasingly dominated by large institutional investors, analysis of disclosure by public companies is commonly driven by technology, with periodic reports accessed electronically and, increasingly, data filed in a machine-readable format. In this environment, there is no realistic likelihood that additional disclosure of trends will overwhelm with excessive detail the sizable group of informed investors who are critical to price formation.Regardless, an increase in responsive disclosure of the sort mandated by Item 303 will benefit investors. MD&A has been viewed as particularly significant to investors. Item 303 was promulgated to enhance the utility of information to investors by moving disclosures beyond historical performance. Trend information assists investors in engaging in appropriate risk assessment. Additional disclosure of this type of information provides greater insight into the future direction of a company’s finances or operations and alerts investors to conditions and trends that management believes have a reasonable likelihood of a material impact on operations or finances that would not be discerned merely from disclosure of historical performance.We believe that the failure to reaffirm that the disclosure requirements contained in Item 303 can give rise to an action under Rule 10b-5, a provision adopted by SEC rulemaking under explicit congressional authorization, will weaken investor confidence in the system of periodic reporting
Retribution or Reconciliation? Post-Conflict Attitudes Toward Enemy Collaborators
No full textArmed groups seeking to govern territory require the cooperation of many civilians, who are widely perceived as enemy collaborators after conflict ends. The empirical literature on attitudes toward transitional justice focuses heavily on fighters, overlooking more nuanced understandings of proportional justice for civilian collaborators. Through a survey experiment conducted in an Iraqi city that was controlled by the Islamic State, we find that variations in the type of collaboration an actor engages in strongly determine preferences for punishment and forgiveness. While exposure to violence is associated with a greater desire for revenge, perceived volition behind an act—a relatively unstudied factor—is much more important. This research provides unique empirical data on the microfoundations of enemy collaborator culpability. By widening our analytical lens to consider a more realistically broad spectrum of enemy collaboration, we avoid affirming a false dichotomy between victims and perpetrators that is commonly adopted in postwar settings
Looking Backward to Move Forward: Ending the History and Tradition of Gun Violence Against the LGBTQ+ Community
Get PDFAnti-LGBTQ+ gun violence is occurring in the United States at an alarming rate. The Department of Homeland Security has even issued a domestic terrorism warning for attacks against the LGBTQ+ community. When the shootings at the Pulse Nightclub in Florida and Club Q in Colorado are combined, fifty-four individuals were murdered and seventy-eight more were wounded while simply existing in an LGBTQ+ space. Both of these targeted shootings occurred within the past six years, indicating that anti-LGBTQ+ gun violence is not a relic of the past. As they were ten years ago, LGBTQ+ individuals are still disproportionately impacted by hate crimes and gun violence.
But, when analyzing the constitutionality of gun regulations under the Second Amendment, the prevalence of anti-LGBTQ+ gun violence today is largely irrelevant under the Supreme Court’s announced approach in 2022 in New York State Rifle & Pistol Association v. Bruen. Instead, our country’s “history and tradition” of gun regulation matters most. Thus, any attempt to move forward in the fight against anti-LGBTQ+ gun violence using gun regulations must pass this backward-looking test. Thankfully, there are options.
This Article argues that two legislative actions can be effective in curbing anti-LGBTQ+ violence while also passing the Court’s Bruen test: (1) expanding and reforming the federal hate crime statute; and (2) expanding the conditions under 18 U.S.C. § 922(g) that prohibit certain individuals from possessing firearms. Those who commit hate crimes should not be able to possess a firearm. Our laws should fully reflect that
Originalism-by-Analogy and Second Amendment Adjudication
Get PDFIn New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United States v. Rahimi provides a much-needed opportunity for clarification and course correction. Without a more disciplined approach, the future of Second Amendment doctrine is dire, as is that of other areas of constitutional law where such tests take root.
This Article begins by explaining Bruen’s approach, which we call originalism-by-analogy. It shares some features with standard forms of originalism and traditionalism but also differs in the degree to which it requires judges to reason analogically directly from the historical record rather than, for example, using historical sources to identify the original public meaning of a constitutional provision. The Article then explains and addresses several challenges of originalism-by-analogy by bringing together two bodies of scholarship that have thus far had little overlap: the voluminous literature on originalism and the generations-old literature on analogical reasoning in law.
We distill three broad challenges for post-Bruen Second Amendment law and scholarship and suggest some partial solutions. First, courts applying Bruen must discern workable principles of relevant similarity—the sine qua non of analogical reasoning—to compare historical and modern laws. Second, doctrine must account for the fundamental differences between past and present, in part through careful attention to the level of generality at which the historical inquiry is conducted. Third, the approach must account for courts’ institutional limitations in conducting a difficult historical inquiry. This includes not overreading silences in the record and also recognizing that—precisely because it requires comparison of past and present—Bruen not only licenses regulatory change but preserves an important role for contemporary empirics and legislative deference