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Return on Data: Personalizing Consumer Guidance in Data Exchanges
No full textConsumers routinely supply personal data to technology companies in exchange for services. Yet, the relationship between the utility (U) consumers gain and the data (D) they supply — “return on data” (ROD) — remains largely unexplored. Expressed as a ratio, ROD = U / D. While lawmakers strongly advocate protecting consumer privacy, they tend to overlook ROD. Are the benefits of the services enjoyed by consumers, such as social networking and predictive search, commensurate with the value of the data extracted from them? How can consumers compare competing data-for-services deals? Currently, the legal frameworks regulating these transactions, including privacy law, aim primarily to protect personal data
Maximin
No full textFor regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change, pandemics, or new and emerging technologies, regulators who are unable to conduct standard cost-benefit analysis might be drawn to it. In general, the maximin rule is not a good idea for regulatory policy, because it is likely to reduce rather than to increase well-being. But under four imaginable conditions, that rule is attractive. (1) The worst-cases are very bad, and not improbable, so that it may make sense to eliminate them under conventional cost-benefit analysis. (2) The worst-case outcomes are highly improbable, but they are so bad that even in terms of expected value, it may make sense to eliminate them under conventional cost-benefit analysis. (3) Observers (including regulators) are in circumstances of Knightian uncertainty, where they cannot assign probabilities to imaginable outcomes. (4) The probability distributions may include “fat tails,” in which very bad outcomes are more probable than is usual; it may make sense to eliminate those outcomes for that reason. With respect to (3) and (4), the challenges arise when eliminating dangers also threatens to impose very high costs or to eliminate very large gains. There are also reasons to be cautious about imposing regulation when technology offers the promise of “moonshots,” or “miracles,” offering a low probability or an uncertain probability of extraordinarily high payoffs. Miracles may present a mirror image of worstcase scenarios
The Law of the Market
No full textMuch contemporary discussion of "the market" assumes that it has an immanent logic that leads inexorably to runaway inequality, an erosion of corporate accountability, and the commodification of education, health , politics, and other basic goods. However, markets arise out of and operate through law not just through public regulation but also through private law regimes (in property, contract, and tort) that create entitlements, enforce market exchanges, and limit expropriation. Appreciating the significance of law as the infrastructure of markets reveals that no particular market structure is inevitable. Instead, every market order is the result of a complex set of legal and political choices.
This Issue of Law and Contemporary Problems investigates the legal foundations of market orders. In this Foreword, we rely upon the Articles that follow to offer an intellectual roadmap for a legally-informed study of the market. These rich and thought-provoking Articles underscore the fundamental role of law in the constitution of markets, as well as the options, limits, dangers, and responsibilities that the legal construction of markets entails.
One lesson that we take from these writings is that the market can be thought of as a thick ethical concept that can be understood only by combing facts and norms, which cannot be prised apart without doing damage to both. This means that different forms of the market in fact instantiate differing normative visions of the market. To flesh out and generalize these evaluative aspects, we conclude in Part VI with a sketch of three competing visions: efficient markets, democratic markets, and liberal markets. We acknowledge that real markets are imperfect instantiations, and at times hybrids, of these ideal-types. In addition, the types may be further divided, oftentimes with crucial distinctions among their rival variants. But for purposes of this Foreword, our goal is modest: we have no ambition to offer a complete taxonomy of market orders or to resolve the debate over the market's normative foundations. We hope only to bring home our conclusion that any adequate inquiry into the market must take this normative
debate into account
Tort as Private Administration
No full textWhat does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine's main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law's hidden function is to shape the process by which private parties settle. In particular, core doctrines in tort help to structure and sustain the systems of private administration by which injury claims are actually resolved. Though an observer could hardly guess it from judge-centric theories of tort or by reading the typical reported appellate cases, repeat-play stakeholders such as the plaintiffs' bar, insurers, and others are developing and managing claims resolution facilities that have turned the resolution of one-off tort claims in the United States into something akin to aggregate litigation or a public compensation program. Hidden deep in the shadows of the law, private administration is becoming a standard feature of torts practice with substantial implications for the theory of tort law and litigation
Psychological and Political Contributors to Criminal Culpability: Reply to Brink, Howard and Morse
No full textThis is a reply to David Brink, Jeff Howard and Stephen Morse’s commentaries on my book, The Age of Culpability
The Historical Logics of Work Accident Law: Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and the Law in the Progressive Era.
No full textIf reading books like Nate Holdren’s new Injury Impoverished is what happens to mid-career scholars, then I’m all for aging. Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. He has a live mind, which is animated by his ambitious analytic project to make sense of the law governing the risk of bodily injury for those in the labor market around the turn of the twentieth century. According to Holdren, work accidents were (and are) at their core a form of labor exploitation that reveals the injustices of capitalist labor markets. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating the mass violence of labor exploitation. He
insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form.
Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them.1 But Holdren’s analysis also raises many questions. Holdren identifies new forms of power in the law of work accidents – but he attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way tort law actually worked. He calls for impossibly demanding forms of justice from the law, including forms of personal recognition that are beyond the capacity of human systems to achieve. He misses the ways in which workers coopted new forms of accident law and turned them to their own interests. And his single-minded Marxian focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work accidents.
None of this is to gainsay the significance of Holdren’s contributions, which are many and which demand attention in the literature. The analytic ambition and the successes of the book make it a work warranting serious engagement. In what follows I describe the scholarly context for Holdren’s intervention and set out the structure of his book’s important arguments. I then elaborate what I see as the limits of those arguments. I end with a note on the personal dimensions of the book for its author and on where the literature should go from here. Holdren is a work accident victim himself. The engine of his own experience propels the book forward. Its energy may press the field forward, too
Fees, Fines,and theFunding of Public Services
No full textSince 2018, the Liman Center at Yale Law School and Harvard Law School’s Criminal Justice Policy Program (CJPP), in partnership with the Fines &Fees Justice Center and the BerkeleyLawPolicy Advocacy Clinic, have collaborated to mitigate the problems faced by peopleof limited means and resources who interact with criminal punishmentsystems around the United States.Through a series of workshops and materials, we have examined how law has enabledand, on occasion, limitedtheseharms, experienced disproportionately by communities of color. Budget pressures are part of what drivesstate and local governmentsto rely on monetary sanctions.Reform effortshave, at times, beenstymied by arguments that governments “need” the money generated byregressive fines and fees. In 2008, during and afterthe Great Recession, state and local governments responded to sudden budget pressures by searching for new streams of revenues—includingfrom a host of legal assessments. Given that experience, we know that the economic disruptions created by the current COVID-19crisiswill likely result ingovernments’consideringadditional use of monetary sanctions and “user”fee financing to generate revenue.The current economic constraints place strains on subnational budgets even more acute than those experienced a dozen years ago. Thus, we fear that governments may scale up the imposition and the enforcement of monetary sanctions. More tools are needed to resist these efforts, as the economic effects of the pandemicwill frame the years to come
An EU Citizens' Assembly on Refugee Law and Policy
No full textGiven the long-standing and all too familiar democratic deficiencies of the EU, which have been exacerbated by the economic and other crises afflicting the EU over the past decade, could Ireland’s recent experience with citizens’ assemblies yield any relevant lessons for the European Union? I suggest in this Article that it could.
Despite initiatives for democratic reform, parliamentary elections, a powerful European Parliament, democratically elected representatives in the Council of Ministers, a legally enshrined principle of transparency, a strong EU court, and various layers of legal and constitutional rights protection, at the core of the EU’s democracy deficit is the fact that it still lacks responsiveness to
the preferences of its citizens.1 True, there is a directly elected parliament, but there are no European political parties. Ultimately, there is no way for citizens to ensure that their vote in European parliament elections translates into any kind of recognizable influence on EU policy making. Further, despite a powerful—and in many ways impressive—European Parliament, there remains a problem of executive dominance in the EU.2 This executive dominance in turn is exacerbated by the opaqueness of the EU political system and by the technocratic, complex workings of the EU supranational institutions. These institutions are highly inaccessible to citizens and difficult for them to understand or access, making it hard for them to feel a sense of being adequately represented.
The democratic crisis is no longer unique to the European Union, if it ever was. The decline of citizen participation in elections and the growth of public mistrust in, and alienation from, traditional political parties and processes is a more widespread problem today and is certainly not peculiar to the EU. Since the eruption of the Brexit-Trump phenomena in 2016, if not before, increasingly alarming studies have been published on the apparent decline in support for democracy and the waning belief in the value of democracy, particularly on the part of younger people across various democratic states.3 Democracy is in crisis in many parts of the world, including in those parts that had experienced decades or more of democratic rule, and authoritarianism - with
its supposed attractions to those who no longer believe that democratic systems can provide the public goods they seek - is on the rise
Implementing Checklists to Improve Police Responses to Co-Victims of Gun Violence
No full textOver 12,000 people die of gun homicides in the United States annually, leaving behind loved ones (“co-victims”) burdened by psychological trauma and economic loss. The state has tasked police as the primary responders to gun violence, but police often exacerbate trauma in every interaction with co-victims, from investigative follow-ups to failing to connect them to trauma counseling.2 Police are intimately involved with gun violence survivors and the families of the deceased for months or even years after the incident. At each juncture, police represent the state in deeply sensitive and delicate interactions that have dramatic implications for the ripple effects of gun violence.
We build on the checklist model that has improved public safety outcomes in other complex, high-intensity professional contexts to propose a checklist for police detectives to follow in the aftermath of gun violence. Although checklists would likely improve police responses to co-victims of non-gun violence, we focus on gun violence because it constitutes a disproportionately harmful share of illegal serious injuries and deaths. To build the checklist, we reviewed the general orders of five police departments to better understand what guidance, if any, is currently given to police personnel regarding how they should interact with gun violence victims. We also interviewed fourteen co-victims in three of these cities who have lost at least one family member to gun violence, for critical perspectives on police responses to the victimization of their loved ones
Accountable Compensation: The Progressive Case for Stakeholder-Focused, Board-Empowering Executive Compensation Laws
No full textShareholder primacy has long dominated American legal thought and politics across the ideological spectrum. Over the past several years, however, U.S. political progressives have begun to criticize shareholder primacy, arguing that corporations should also serve other stakeholders. This Note conducts the first academic analysis of this emerging movement’s executive compensation policy proposals. This Note finds that stakeholder-primacy progressives have failed to propose policies that would effectively regulate executive compensation. Given the connection between rising executive compensation and economic inequality, this finding is surprising and concerning. The final Part develops an original executive compensation policy proposal for the progressive stakeholder primacy movement