1,720,969 research outputs found
Negligence and Insufficient Activity: The Missing Paradigm in Torts
Get PDFConventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties\u27 incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of tort liability, justifies the application of controversial regulatory rules recently challenged before the Supreme Court, and supports overturning the standard guidelines concerning the choice between negligence and strict liability
Criminal Sanctions in the Defense of the Innocent
Get PDFUnder the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of sufficient size, the legal system can induce fact finders to convict only if sufficient admissible evidence proves a defendant\u27s guilt. This Article applies this theoretical framework to three concrete contexts that involve a high risk of erroneous convictions: inchoate crimes, the right to silence, and the punishment of recidivists. It shows that a sanctioning regime that is attuned to the probative function of punishment can protect innocent defendants from unsubstantiated convictions while obeying the dictates of both deterrence and retribution
Uncertainty Revisited: Legal Prediction and Legal Postdiction
Get PDFLegal scholarship, following rational-choice theory, has traditionally treated uncertainty as a single category. A large body of experimental studies, however, has established that individuals treat guesses concerning the future differently than guesses concerning the past. Even where objective probabilities and payoffs are identical, individuals are much more willing to predict a future event (and are more confident in the accuracy of their predictions) than they are willing to postdict a past event (and are also less confident in the accuracy of their postdiction). For example, individuals are more willing to bet on the results of a future die toss than they are willing to bet on the results of a past toss. After presenting the robust psychological and experimental economic literature, this Article demonstrates the relevance of the behavioral differences concerning past and future uncertainties to legal policy. It shows that the prediction-postdiction findings are important for the design of legal norms, the choice among competing law-enforcement strategies, and the application of various sentencing practices. This Article shows that the making of legal norms, the detection of violators, and the infliction of sanctions may generate different types of uncertainty involving predictions and postdictions that policymakers can exploit to provide optimal incentives
Matching Probabilities: The Behavioral Law and Economics of Repeated Behavior
Get PDFIndividuals often repeatedly face a choice of whether to obey a particular legal rule. Conventional legal scholarship assumes that whether such a choice is made repeatedly or is a one-time event has no effect on individuals\u27 decisions. In either case, individuals are expected to maximize their payoffs. Experimental studies, however, suggest that individuals facing a recurring choice, in contrast to individuals making the choice only once, do not behave as maximizers. Instead, individuals facing the choice repeatedly apply the strategy of probability matching. For example, individuals failed to maximize when presented with a die with four red faces and two white faces, and asked to predict the colors of a series of rolls. Although maximization demands consistently betting on the red, individuals preferred a mixed approach; red was chosen in 2/3 of the rolls and white in 1/3 of the rolls. This Article presents several normative and descriptive applications that probability matching has in the legal context. Normatively, it shows how probability matching affects optimal investment in law enforcement. Descriptively, it suggests that probability matching provides a new rationale for existing legal doctrines, such as the imposition of punitive damages on repeated wrongdoers, the imposition of harsher sanctions on recidivists, and rules attributing liability for the mere infliction of risks. This Article thus shows that experimental findings corroborate the intuition that law ought to, and in fact does, differentiate sharply between repeated and single-instance behavior
Insufficient Activity and Tort Liability: A Rejoinder
Get PDFIn our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the costs of such behavior. We hoped that our article would spark new interest in the interplay between tort liability and levels of care and activity. We are fortunate that three prominent tort scholars have already provided important insights on both our positive argument and our policy recommendations. These responses vary in their assessments of our contribution to legal scholarship. While some find that our article addresses an interesting omission in tort law scholarship and highlights a missing paradigm that is central to negligence doctrine, others consider it a novel brick on a road that runs in the wrong direction. Nevertheless, and although the responses focus on different parts of the article, they share several important objections to our analysis
Torts Mismatches
No full textIn torts, the damages required for full compensation of the victim and optimal deterrence of the injurer are normally the same. This correspondence is perfectly natural: If the injurer fully compensates the victim, then the injurer will completely internalize his externalities. Yet sometimes full compensation and optimal deterrence do not align. A well-known example is punitive damages, in which victims are purposely overcompensated to optimally deter injurers. What the literature has failed to acknowledge is that these torts mismatcheswhen full compensation of victims and optimal deterrence of injurers are incompatibleoccur elsewhere and explain controversial and unresolved doctrinal areas of torts. When these mismatches occur, often the result is deep inconsistency on two levels. First, courts of different jurisdictions will disagree, leading to doctrinal ambiguities. Second, within a jurisdiction, tort law will at times and without explanation prioritize compensation while it will at other times prioritize deterrence. For example, the U.S. Supreme Court has prioritized compensation when determining the implications of tax on tort damages but has prioritized deterrence when crediting third-party tort settlements, all without any acknowledgment of the incoherence. This Article offers a detailed exploration of torts mismatches. Descriptively, we show that such mismatches explain important areas of doctrinal controversy: for example, why courts persistently disagree on how tort damages should account for tax, depreciation, and the presence of third-party settlements. We identify four analytically distinct types of mismatches. We then investigate the implications of our account for courts and tort scholars. For courts, compensation-deterrence battles raise deep concerns about consistency, the rule of law, and judicial transparency. Because they involve a conflict between two well-accepted, neutral principles—compensation and deterrence— courts become effectively unconstrained in such contexts, allowing ideological and other biases to influence decisionmaking. For tort scholars, these mismatches provide a more productive focal point beyond the well-worn debates about consequentialism versus corrective justice. Finally, the Article discusses some of the root causes of torts mismatches and investigates solutions for eliminating or ameliorating them
Less Crime, More (Vulnerable) Victims: Game Theory and the Distributional Effects of Criminal Sanctions
No full textHarsh sanctions are conventionally assumed to primarily benefit vulnerable targets. Contrary to this perception, this article shows that augmented sanctions often serve the less vulnerable targets. While decreasing crime, harsher sanctions also induce the police to shift enforcement efforts from more to less vulnerable victims. When this shift is substantial, augmented sanctions exacerbaterather than reducethe risk to vulnerable victims. Based on this insight, this article suggests several normative implications concerning the efficacy of enhanced sanctions, the importance of victims funds, and the connection between police operations and apprehension rates.
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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