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The Perception and Excessive Valuation of Small, Publicized Drinking Water Risks
Get PDFLow probability risks create challenges for individual decisions and potential pressures for government regulation. This article reports original survey evidence regarding the public’s perception and valuation of water-related risks from plastic bottles with bisphenol A, residues in drinking water of the herbicide atrazine, and trace amounts of prescription drugs in water. People who believe that they face high water-related risks generally believe that the risks apply and, given that belief, are willing to pay more to limit the risk. However, the expressed willingness to pay for risk reductions is inordinately high even among those who are unsure of whether they are even exposed to the risk, and therefore may not be reliable as values for the actual benefits
When to Walk Away and When to Risk it All
Get PDFWhile one might expect athletes to be strongly averse to extending their career too long when there is a chance of losing everything due to a concussion or a catastrophic injury, experimental subjects consistently played longer than the optimal amount for risk-neutral decisions. A commitment to the length of play in advance, as in the case of long-term contracts, led to a greater chance of staying beyond the expected payoff-maximizing point. If the decision frame is altered so that decisions are made in each period rather than through an upfront commitment, the magnitude of potential losses is more evident
White Men\u27s Roads through Black Men\u27s Homes : Advancing Racial Equity through Highway Reconstruction
Get PDFRacial and economic segregation in urban communities is often understood as a natural consequence of poor choices by individuals. In reality, racially and economically segregated cities are the result of many factors, including the nation’s interstate highway system. In states around the country, highway construction displaced Black households and cut the heart and soul out of thriving Black communities as homes, churches, schools, and businesses were destroyed. In other communities, the highway system was a tool of a segregationist agenda, erecting a wall that separated White and Black communities and protected White people from Black migration. In these ways, construction of the interstate highway system contributed to the residential concentration of race and poverty and created physical, economic, and psychological barriers that persist.
Today, the interstate highway system is on the verge of transformational change as aging highways around the country are crumbling or insufficient to meet growing demand and must be rebuilt or replaced. The possibility of significant infrastructure development offers an opportunity to redress some of the harm caused by the interstate highway system, to strengthen impacted communities, and to advance racial equity. Still, there is a risk that federal, state, and local highway builders will repeat the sins of the past at the expense of communities of color whose homes, businesses, and community institutions again stand in the path of the bulldozers. Moreover, there is reason to believe that traditional civil rights laws, standing alone, are insufficient to redress the structural and institutional racism that shaped the interstate highway system and continues to threaten communities of color as the highways are rebuilt.
This Article is the first in the legal literature to explore in depth the racial equity concerns and opportunities raised by modern highway redevelopment. It also builds on the work of legal scholars who advocate for addressing systemic racial inequality by requiring that policymakers conduct a thorough and comprehensive analysis of how a proposed action, policy, or practice will affect racial and ethnic groups. The Article concludes by proposing a way forward for highway redevelopment projects: requiring jurisdictions to complete comprehensive racial equity impact studies prior to any construction. Racial equity impact studies have been used or proposed in various contexts to reform racialized institutions and structures. This Article argues that highway redevelopment projects should join this growing list
The Standing of Article III Standing for Data Breach Litigants: Proposing a Judicial and a Legislative Solution
Get PDFData breaches are not going away. Yet victims still face uncertainty when deciding whether and where to file cases against companies or other institutions that may have mishandled their information. This is especially true if the victims have not yet experienced a financial harm, like identity theft, as a result of a data breach. Much of the uncertainty revolves around the standing doctrine and the Supreme Court’s guidance (or lack thereof) on what constitutes a substantial risk of harm sufficient to establish an injury in fact. Federal circuit courts have come to divergent results in data breach cases based on the Supreme Court’s guidance. This Note analyzes these divergent results and shows that the circuits are not as far apart as some commentators have suggested.
This Note then proposes two possible clarifying measures—one judicial and one legislative. The judicial solution is a test the Supreme Court should adopt for evaluating standing in data breach litigation. The test would have courts assess three factors and would allow plaintiffs who have not yet had their data misused to establish standing. Under the test, courts would examine (1) whether the breach was targeted; (2) whether the thief attained information that could lead to financial harm; and (3) whether any portion of the compromised data has been misused. For the legislative solution, this Note proposes language for a private right of action that could be inserted into federal legislation, either as part of comprehensive privacy legislation or in sector-specific privacy legislation
Governing Wicked Problems
Get PDFWicked problems. It just says it all. Persistent social problems-poverty, food insecurity, climate change, drug addiction, pollution, and the list goes on-seem aptly condemned as wicked. But what makes them wicked, and what are we to do about them?
The concept of wicked problems as something more than a generic description has its origins in the late 1960s. Professor Horst Rittel of the University of California, Berkeley, Architecture Department posed the term in a seminar to describe that class of social system problems which are ill-formulated, where the information is confusing, where there are many clients and decision makers with conflicting values, and where the ramifications in the whole system are thoroughly confusing. Rittel and his colleague Melvin Webber later refined the concept in a 1973 publication, Dilemmas in a General Theory of Planning, in which they developed their now-famous list of ten distinguishing properties of wicked problems:
1. There is no definitive formulation of a wicked problem.
2. Wicked problems have no stopping rule.
3. Solutions to wicked problems are not true-or-false, but good- or-bad.
4. There is no immediate and no ultimate test of a solution to a wicked problem.
5. Every solution to a wicked problem is a one-shot operation ; because there is no opportunity to learn by trial-and-error, every attempt counts significantly.
6. Wicked problems do not have an enumerable (or exhaustively desirable) set of potential solutions, nor is there a well-described set of permissible operations that may be incorporated into the plan.
7. Every wicked problem is essentially unique
Thirteenth Amendment Litigation in the Immigration Detention Context
Get PDFThis Article analyzes how the Thirteenth Amendment has been used to prevent forced labor practices in immigration detention. The Article assesses the effectiveness of Thirteenth Amendment litigation by dissecting cases where detainees have challenged the legality of labor requirements under the Trafficking Victims Protection Act. Given the expansion in immigration detention, the increasing privatization of detention, and the significant human rights implications of this issue, the arguments advanced in this Article are not only currently relevant but have the potential to shape ongoing dialogue on this subject
Expanding the Reach of Progressive Prosecution
No full textThis Symposium comes at a critical juncture for America\u27s prosecutors. One important question- Is there room for a new kind of prosecutor? - has already been answered. Self-styled progressive prosecutors are flourishing in jurisdictions across the country. The question remains whether the progressive prosecutor movement will have a lasting impact and, if so, what that impact will be. One way this question will be answered is through the movement\u27s influence on the many prosecutors who are open to reform but unlikely to adopt the progressive label or accompanying rhetoric. This Essay explores this theme by discussing, first, the rise of progressive prosecution and, second, how this movement\u27s initial success can stimulate the long-overdue development of a generally applicable, normative theory of the prosecutor\u27s role. It suggests a conceptualization of the American prosecutor as a caretaker for the criminal justice system, who should default to lenience when that system becomes so congested and punitive that it cannot deliver on its constitutional ideals
Reducing Medical Malpractice Loss Reserve Volatility Through Tort Reform
No full textThis study examines how tort reform affects uncertainty in insurance markets by testing whether noneconomic damage caps influence reserving volatility for medical malpractice insurers. Using a panel of insurers from 1986 to 2009, we estimate the determinants of loss reserve error volatility and focus on how this volatility is influenced by the percent of premiums an insurer writes that are subject to noneconomic damage caps. We find empirical evidence that tort reform reduces reserve volatility over the subsequent 3- and 5-year periods, consistent with tort reform improving insurers’ loss forecasting ability. Our findings address outcomes of tort reform that are prominent concerns of legislators, regulators, and policyholders. This article contributes both to the literature examining the insurance market effects of tort reform and to the literature examining loss reserving practices
The Wicked Problem of Zoning
Get PDFZoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as “wicked” those problems that technocratic expertise cannot necessarily solve. Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by “right and wrong” but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today.
Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights. More recently, progressive housing advocates have begun to criticize zoning for making thriving cities unaffordable and for exacerbating racial segregation. Environmentalists argue that zoning is responsible for urban sprawl and for increasing carbon emissions. Economists blame zoning for restricting residential mobility, which limits fluidity in labor markets and thereby reduces the agglomeration surplus that thriving places like New York and San Francisco should be producing. And these are just some of the concerns. The breadth of these criticisms reveals the multiplicity of issues implicated by modern zoning—from the balance of public power and private rights, to distributional concerns, environmental interests, economic efficiency, and externalities along many dimensions. Most do not admit of a single “right” answer. Zoning is a wicked problem, indeed
Designing Law to Enable Adaptive Governance of Modern Wicked Problems
Get PDFThis Article contributes to the development of adaptive governance theory by articulating and situating the role of formal law and government as the facilitator, but not central controller, of adaptive governance. To advance the understanding of adaptive governance, we argue that it can be understood in the broader context of scholarship covering the observed emergence of new governance, the efforts to develop theoretical understandings through decentered theory, and the refinement of constitutional understanding through democratic experimentalism. Synthesis of these three themes in turn informs the role of law and government in working with emergent governance responses to complexity to manage change and wicked problems. This inter- and transdisciplinary exercise reveals that the role of law and government in adaptive governance is to leave space for local innovation and private governance. Law and government must provide the catalyzation, facilitation, steering, and oversight essential for public and private institutions to respond at the rate and complexity of change in large-scale social-ecological systems, and they must do so while advancing good governance