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Abstract:
The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and legitimate for private and public institutions to affect behavior while also respecting freedom of choice. Often people's preferences are ill-formed, and their choices will inevitably be influenced by default rules, framing effects, and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people's choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. Examples are given from many areas, including savings behavior, labor law, and consumer protection.

paternalism, savings, behavioral economics, libertarianism

Abstract:
Cost-benefit analysis is often justified on conventional economic grounds, as a way of preventing inefficiency. But it is most plausibly justified on cognitive grounds -- as a way of counteracting predictable problems in individual and social cognition. Poor judgments, by individuals and societies, can result from certain heuristics; from informational and reputational "cascades"; from thinking processes in which benefits are "on screen" but costs are not; from ignoring systemic effects of one-shot interventions; from seeing cases in isolation; and from intense emotional reactions. Cost-benefit analysis serves as a corrective to these cognitive problems. In addition, it is possible to arrive at an "incompletely theorized agreement" on cost-benefit analysis -- an agreement that does not depend on controversial arguments (e.g., the view that "willingness to pay" should be the basis for all social outcomes) and that can attract support from a variety of reasonable views. There is discussion as well of the role of "distributional weights" and other equitable factors in cost-benefit analysis. The conclusion is that the best argument for cost-benefit analysis is rooted in cognitive psychology and behavioral economics.

Abstract:
In a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments. For example, people who are opposed to the minimum wage are likely, after talking to each other, to be still more opposed; people who tend to support gun control are likely, after discussion, to support gun control with considerable enthusiasm; people who believe that global warming is a serious problem are likely, after discussion, to insist on severe measures to prevent global warming. This general phenomenon -- group polarization -- has many implications for economic, political, and legal institutions. It helps to explain extremism, "radicalization," cultural shifts, and the behavior of political parties and religious organizations; it is closely connected to current concerns about the consequences of the Internet; it also helps account for feuds, ethnic antagonism, and tribalism. Group polarization bears on the conduct of government institutions, including juries, legislatures, courts, and regulatory commissions. There are interesting relationships between group polarization and social cascades, both informational and reputational. Normative implications are discussed, with special attention to political and legal institutions.

Abstract:
Prediction markets are markets for contracts that yield payments based on the outcome of an uncertain future event, such as a presidential election. Using these markets as forecasting tools could substantially improve decision making in the private and public sectors.

We argue that U.S. regulators should lower barriers to the creation and design of prediction markets by creating a safe harbor for certain types of small stakes markets. We believe our proposed change has the potential to stimulate innovation in the design and use of prediction markets throughout the economy, and in the process to provide information that will benefit the private sector and government alike.

prediction markets, public policy, forecasting, regulation

Abstract:
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.

death penalty, capital punishment, moral theory, political theory, theory of punishment, deterrence, life

Abstract:
Why does the American Constitution lack certain social and economic guarantees, which appear in most contemporary constitutions? This essay explores four possible answers: chronological, cultural, institutional, and realist. The chronological explanation emphasizes the fact that in the late eighteenth century, social and economic rights simply were not on the viewscreen for constitution-makers. The point is correct, but as a complete account, the chronological explanation fails for the simple reason that constitutional meaning changes over time. The institutional explanation emphasizes that Americans typically see constitutional rights not as mere goals or aspirations, but as pragmatic instruments for judicial enforcement. The difficulty with the institutional explanation is that social and economic rights can, in fact, be enforced judicially. The cultural explanation sees the absence of social and economic rights as part of the general failure of socialist movements in the United States ("American exceptionalism"). The problem with this explanation is that social and economic rights can in fact coexist with a market economy. The realist explanation places a spotlight on the underappreciated fact that the United States Supreme Court came very close, in the 1960s and 1970s, to recognizing social and economic rights under the Constitution. The Court's refusal to recognize such rights was largely a result of the presidential election of 1968 and in particular of four critical appointments by President Nixon. This is an important source of "American exceptionalism" in the domain of social and economic rights. Here as elsewhere, there is a possibility of multiple equilibria, and with a small difference or two, the United States might well have had an equilibrium that included social and economic rights.

Abstract:
The last decade has witnessed the birth of the New Legal Realism - an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin's suggestion that such reasoning is a search for integrity. Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law.

legal realism, jurisprudence, social influences, conformity, group polarization

Abstract:
The precautionary principle has been highly influential in legal systems all over the world. In its strongest and most distinctive forms, the principle imposes a burden of proof on those who create potential risks, and it requires regulation of activities even if it cannot be shown that those activities are likely to produce significant harms. Taken in this strong form, the precautionary principle should be rejected, not because it leads in bad directions, but because it leads in no directions at all. The principle is literally paralyzing - forbidding inaction, stringent regulation, and everything in between. The reason is that in the relevant cases, every step, including inaction, creates a risk to health, the environment, or both. This point raises a further puzzle. Why is the precautionary principle widely seen to offer real guidance? The answer lies in identifiable cognitive mechanisms emphasized by behavioral economists. In many cases, loss aversion plays a large role, accompanied by a false belief that nature is benign. Sometimes the availability heuristic is at work. Probability neglect plays a role as well. Most often, those who use the precautionary principle fall victim to what might be called "system neglect," which involves a failure to attend to the systemic effects of regulation. Examples are given from numerous areas, involving arsenic regulation, global warming and the Kyoto Protocol, nuclear power, pharmaceutical regulation, cloning, pesticide regulation, and genetic modification of food. The salutary moral and political goals of the precautionary principle should be promoted through other, more effective methods.

burden of proof, behavioral economics

Abstract:
With respect to questions of fact, people use heuristics - mental short-cuts, or rules of thumb, that generally work well, but that also lead to systematic errors. People use moral heuristics too - moral short-cuts, or rules of thumb, that lead to mistaken and even absurd moral judgments. These judgments are highly relevant to law and politics. Examples are given from a number of domains, with an emphasis on appropriate punishment. Moral framing effects are discussed as well.

rules of thumb, moral judgments

Abstract:
To evaluate theories of interpretation, it is necessary to focus on institutional considerations - to ask how actual judges would use any proposed approach, and to investigate the possibility that an otherwise appealing approach will have unfortunate dynamic effects on private and public institutions. Notwithstanding this point, blindness to institutional considerations is pervasive. It can be found in the work of early commentators on interpretation, including that of Jeremy Bentham; in the influential work of H.L.A. Hart, Ronald Dworkin, and Henry Hart and Albert Sacks; and in much contemporary writing. This blindness to institutional considerations creates serious problems for the underlying theories. The problems are illustrated with discussions of many disputed issues, including the virtues and vices of formalism; the current debate over whether administrative agencies should have greater interpretive freedom than courts; and the roles of text, philosophy, translation, and tradition in constitutional law. In many cases, an understanding of institutional capacities and dynamic effects should enable diverse people, with different views about ideal legal interpretation, to agree on what actual legal interpretation should entail.

Abstract:
Do social and economic rights belong in a democratic constitution? Skeptics have wondered whether it is possible to constitutionalize such rights without imposing an untenable managerial responsibility on courts. In an extraordinary decision, the Constitutional Court of South Africa has provided a new approach to social and economic rights, one that respects the fact of limited resources while also requiring governmental attention to basic needs. This new approach might be called an administrative law model of constitutional rights. It contains considerable promise, because it recognize rights to reasonable programs, rather than to protection of each individual, a path that might well be beyond governmental capacities.

Abstract:
Greenhouse gas reductions would cost some nations much more than others, and benefit some nations far less than others. Significant reductions would impose especially large costs on the United States, and recent projections suggest that the United States has relatively less to lose from climate change. In these circumstances, what does justice require the United States to do? Many people believe that the United States is required to reduce its greenhouse gas emissions beyond the point that is justified by its own self-interest, simply because the United States is wealthy, and because the nations most at risk from climate change are poor. This argument from distributive justice is complemented by an argument from corrective justice: The existing "stock" of greenhouse gas emissions owes a great deal to the past actions of the United States, and many people think that the United States should do a great deal to reduce a problem for which it is largely responsible. But there are serious difficulties with both of these arguments. Redistribution from the United States to poor people in poor nations might well be desirable, but if so, expenditures on greenhouse gas reductions are a crude means of producing that redistribution: It would be much better to give cash payments directly to people who are now poor. The argument from corrective justice runs into the standard problems that arise when collectivities, such as nations, are treated as moral agents: Many people who have not acted wrongfully end up being forced to provide a remedy to many people who have not been victimized. The conclusion is that while a suitably designed climate change agreement is in the interest of the world, a widely held view is wrong: Arguments from distributive and corrective justice fail to provide strong justifications for imposing special obligations for greenhouse gas reductions on the United States. These arguments have general implications for thinking about both distributive justice and corrective justice arguments in the context of international law and international agreements.

Abstract:
Two studies test whether people believe in optimal deterrence. The first provides people with personal injury cases that are identical except for variations in the probability of detection, and explores whether lower probability cases produce higher punitive damage awards, and whether higher probability cases produce lower awards. No such effect is observed. The second asks people whether they agree or disagree with administrative and judical policies that increase penalties when the probability of detection is low, and decrease penalties when the probability of detection is high. Substantial majorities reject these administrative and judical policies. Policy implications for the role of the jury in achieving deterrence are explored.

Abstract:
This paper tests the question whether people favor optimal deterrence policies. More particularly, it asks whether people are willing to increase penalties when the probability of detection is low, or to decrease penalties when the probability of detection is high. Two experiments are reported, suggesting that people do not spontaneously think in terms of optimal deterrence, and that people would have objections to policies based on the goal of optimal deterrence. Institutional implications are briefly discussed.

Abstract:
When people make moral or legal judgments in isolation, they produce a pattern of outcomes that they would themselves reject, if only they could see that pattern as a whole. A major reason is that human thinking is category-bound. When people see a case in isolation, they spontaneously compare it to other cases that are mainly drawn from the same category of harms. When people are required to compare cases that involve different kinds of harms, judgments that appear sensible when the problems are considered separately often appear incoherent and arbitrary in the broader context. Another major source of incoherence is what we call the translation problem: The translation of moral judgments into the relevant metrics of dollars and years is not grounded in either principle or intuition, and produces large differences among people. The incoherence produced by category-bound thinking is illustrated by an experimental study of punitive damages and contingent valuation. We also show how category-bound thinking and the translation problem combine to produce anomalies in administrative penalties. The underlying phenomena have large implications for many topics in law, including jury behavior, the valuation of public goods, punitive damages, criminal sentencing, and civil fines. We consider institutional reforms that might overcome the problem of predictably incoherent judgments. Connections are also drawn to several issues in legal theory, including valuation of life, incommensurability, and the aspiration to global coherence in adjudication.

Behavior, environment

Abstract:
How does jury deliberation affect the pre-deliberation judgments of individual jurors? Do deliberating juries reduce or eliminate the erratic and unpredictable punitive damage awards that have been observed with individual jurors? In this paper we make progress on these two questions, in part by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that juries did not produce less erratic and more predictable awards than individuals, but actually made the problem worse, by making large awards much larger and small awards smaller still, even for the same case. Thus, a key effect of deliberation is often to polarize individual judgments, a pattern that has been found in many other group decision making contexts. This finding of polarization--the first of its kind in the particular context of punitive damage awards--has important implications for jury awards involving both punitive and compensatory damages, and raises questions about the common belief that groups, and in particular juries, generally make better decisions than individuals.

Abstract:
An availability cascade is a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception of increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs - activists who manipulate the content of public discourse - strive to trigger availability cascades likely to advance their agendas. Their availability campaigns may yield social benefits, but sometimes they bring harm, which suggests a need for safeguards. Focusing on the role of mass pressures in the regulation of risks associated with production, consumption, and the environment, Professor Timur Kuran and Cass R. Sunstein analyze availability cascades and suggest reforms to alleviate their potential hazards. Their proposals include new governmental structures designed to give civil servants better insulation against mass demands for regulatory change and an easily accessible scientific database to reduce people's dependence on popular (mis)perceptions.

availability heuristic, informational cascades, reputational cascades, cost-benefit analysis

Abstract:
Current estimates of regulatory benefits are too low, and likely far too low, because they ignore a central point about valuation - namely, that people care not only about their absolute economic position, but also about their relative economic position. We show that where the government currently pegs the value of a statistical life at about $4 million, it ought to employ a value between $4.7 million and $7 million. A conservative reading of the relevant evidence suggests that when government agencies are unsure how to value regulatory benefits along a reasonable range, they should make choices toward or at the upper end.

We begin by showing that the nation is nearing the end of a first-generation debate about whether to do cost-benefit analysis, with a mounting victory for advocates of the cost-benefit approach. The second-generation debate, now underway, involves important issues about how to value costs and benefits. Conventional estimates tell us the amount of income an individual, acting in isolation, would be willing sacrifice in return for, say, an increase in safety on the job. But these estimates rest on the implicit, undefended, and crucial assumption that people's well-being depends only on absolute income. This assumption is false. Considerable evidence suggests that relative income is also an important factor, suggesting that gains or losses in absolute income are of secondary importance unless they alter relative income. When a regulation requires all workers to purchase additional safety, each worker gives up the same amount of other goods, so no worker experiences a decline in relative living standards. The upshot is that an individual will value an across-the-board increase in safety much more highly than an increase in safety that he alone purchases.

Regulatory decisions should be based on the former valuation rather than the latter. When the former valuation is used, dollar values should be increased substantially - conservatively, by 25 to 50 percent. Upward revisions of such magnitude clearly have important implications for a broad range of policy debates currently informed by cost-benefit analysis.

We also show that an understanding of the importance of relative position suggests a rationale for various nonwaivable contractual terms in employment law, such as health care, parental leave, job security, and leisure. These terms, which have been attacked as welfare-reducing by many economists, give people important benefits with little or no impact on relative economic position. As with regulations that boost workplace safety, such contract terms may therefore be much more attractive when purchased by all than when purchased in isolation.

Abstract:
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.

judicial ideology, collegial concurrences

Abstract:
Each government agency uses a uniform figure to measure the value of a statistical life. This is a serious mistake. The very theory that underlies current practice calls for far more individuation of the relevant values. According to that theory, the value of statistical lives should vary across risks. More controversially, the value of a statistical life should vary across individuals - even or especially if the result would be to produce a lower number for some people than for others. One practical implication is that a higher value should be given to programs that reduce cancer risks. Should government use a higher VSL for programs that disproportionately benefit the wealthy - and lower VSL for programs that disproportionately benefit the poor? A serious complication here is that sometimes the beneficiaries of regulation pay only a fraction or even none of its cost; when this is so, the appropriate VSL for poor people might be higher, on distributional grounds, than market evidence suggests. An understanding of this point has implications for foundational issues about government regulation, including valuation of persons in poor and wealthy nations.

valuation, statistical life, disaggragation

Abstract:
This review-essay explores the uses and limits of cost-benefit analysis in the context of environmental protection, focusing on three recent books: Priceless, by Frank Ackerman and Lisa Heinzerling; Cellular Phones, Public Fears, and A Culture of Precaution, by Adam Burgess; and Catastrophe: Risk and Response, by Richard A. Posner. The review-essay emphasizes three principal limitations on the use of cost-benefit analysis. First, it is important to distinguish between the easy cases for cost-benefit analysis, in which the beneficiaries of regulation pay all or almost all of its cost, from the harder cases, in which the beneficiaries pay little for the environmental protection that they receive. In the harder cases, net welfare gains and distributional advantages are possible even if environmental regulation fails cost-benefit analysis. Second, there are possible uses, in the environmental context, of maximin rather than cost-benefit analysis, especially when regulators are attempting to control catastrophic risks where probabilities cannot be assigned. An Anti-Catastrophe Principle makes sense for such situations. Third, human beings are citizens, not merely consumers, and this point requires abandonment of the willingness to pay criterion in some contexts.

environmental protection, Ackerman & Heinzerling, Burgess, Posner

Abstract:
Cognitive and social psychologists have uncovered a number of features of ordinary thinking about risk. Giving particular attention to the work of Paul Slovic, this review-essay explores how an understanding of human cognition bears on law and public policy. The basic conclusion is that people make many mistakes in thinking about risk and that sensible policies, and sensible law, will follow statistical evidence, not ordinary people. The discussion explores the use of heuristics, the effects of cascades, the role of emotions, demographic differences, the role of trust, and the possibility that ordinary people have a special "rationality" distinct from that of experts. Because people are prone to error, what matters, most of the time, is actual risk, not perceived risk.

Abstract:
People are often reluctant to make decisions by calculating the costs and benefits of alternative courses of action in particular cases. Knowing, in addition, that they may err, people and institutions often resort to second order strategies for reducing the burdens of, and risk of error in, first order decisions. They make a second order decision when they choose one from among such possible strategies. They adopt rules or presumptions; they create standards; they delegate authority to others; they take small steps; they pick rather than choose. Some of these strategies impose high costs before decision but low costs at the time of ultimate decision; others impose low costs both before and at the time of ultimate decision; still others impose low costs before decision while exporting to others the high costs at the time of decision. We assess these second-order strategies and provide grounds for choosing among them in both legal and nonlegal contexts, by exploring the extent to which they minimize the overall costs of decision and costs of error. We also attempt to cast light on political, legal, and ethical issues raised by second-order decisions.

Abstract:
People are often reluctant to make decisions by calculating the costs and benefits of alternative courses of action in particular cases. Knowing, in addition, that they may err, people and institutions often resort to second-order strategies for reducing the burdens of, and risk of error in, first-order decisions. They make a second order decision when they choose one from among such possible strategies. They adopt rules or presumptions; they create standards; they delegate authority to others; they take small steps; they pick rather than choose. Some of these strategies impose high costs before decision but low costs at the time of ultimate decision; others impose low costs both before and at the time of ultimate decision; still others impose low costs before decision while exporting to others the high costs at the time of decision. We assess these second-order strategies and provide grounds for choosing among them in both legal and nonlegal contexts, by exploring the extent to which they minimize the overall costs of decision and costs of error. We also attempt to cast light on political, legal, and ethical issues raised by second-order decisions.

Abstract:
The legal system should rely much more than it now does on statistical evidence. It should be cautious about the judgments of experts, who make predictable cognitive errors. Like everyone else, experts have a tendency to blunder about risk, a point that has been shown to hold for doctors, whose predictions significantly err in the direction of optimism. We present new evidence that individual doctors' judgments about the ordinary standard of care are incorrect and excessively optimistic. We also show how this evidence bears on legal determinations of negligence, by doctors and others.

Abstract:
Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light.

conspiracy theories, social networks, informational cascades, group polarization

Abstract:
Do animals have rights? Almost everyone believes in animal rights, at least in some minimal sense; the real question is what that phrase actually means. By exploring that question, it is possible to give a clear sense of the lay of the land - to show the range of possible positions, and to explore what issues, of theory or fact, separate reasonable people. On reflection, the spotlight should be placed squarely on the issue of suffering and well-being. This position requires rejection of some of the most radical claims by animal rights advocates, especially those that stress the "autonomy" of animals, or that object to any human control and use of animals. But this position has radical implications of its own. It strongly suggests, for example, that there should be extensive regulation of the use of animals in entertainment, in scientific experiments, and in agriculture. It also suggests that there is a strong argument, in principle, for bans on many current uses of animals.

regulation, animal rights, animals in research

Abstract:
Like everyone else, academics are susceptible to informational and reputational signals. Sometimes academics lack confidence in their methods and beliefs, and they pay a great deal of attention to the methods and beliefs of others. The academic study of law is particularly subject to cascade effects, as people follow signals that they participate in amplifying. Some of these effects run their course quickly, whereas others last a long time. Leaders can play a special role in starting and stopping cascades; external shocks play a special role in the academic study of law; sometimes like-minded people within academia move one another to extremes. This informal essay, the Foreword to the forthcoming annual book review issue of the Michigan Law Review, discusses these points in a tentative and impressionistic way, with brief comparisons to other fields.

Law and Economics, Behavioral Economics, Academics

Abstract:
The most fundamental issues in labor and employment law involve the choice among three alternatives: waivable employers' rights, waivable employees' rights, and nonwaivable employees' rights. By combining standard contract analysis with a perspective informed by behavioral economics, it is possible to obtain a much better understanding of the underlying issues. Contrary to the conventional view: workers are especially averse to losses, and not so much concerned with obtaining gains; workers often do not know about legal rules, including key rules denying them rights; workers may well suffer from excessive optimism; workers care a great deal about fairness, and are willing to punish employers who have treated them unfairly, even at workers' own expense; many workers greatly discount the future; and workers often care about relative economic position, not absolute economic position. These points suggest the advantages, in many cases, of relying on waivable employees' rights, an approach designed to inform workers without providing the rigidity and inefficiency associated with nonwaivable terms. At the same time, these points suggest, though more ambiguously, the hazards of allowing workers to waive their rights in accordance with standard contract principles. Procedural constraints (e.g., cooling off periods) and substantive constraints (e.g., "floors") on waiver may be appropriate. Norm change and preference change are also discussed. Applications include job security; parental leave; vacation time; health care; unionization; occupational safety and health; discrimination on the basis of age, race, and sex; waivers by unions; and workers' compensation. The basic conclusion is that waivable employees' rights are a promising and insufficiently explored option in many areas of labor and employment law.

Abstract:
The most fundamental issues in labor and employment law involve the choice among three alternatives: waivable employers' rights, waivable employees' rights, and nonwaivable employees' rights. By combining standard contract analysis with a perspective informed by behavioral economics, it is possible to obtain a much better understanding of the underlying issues. Contrary to the conventional view: workers are especially averse to losses, and not so much concerned with obtaining gains; workers often do not know about legal rules, including key rules denying them rights; workers may well suffer from excessive optimism; workers care a great deal about fairness, and are willing to punish employers who have treated them unfairly, even at workers' own expense; many workers greatly discount the future; and workers often care about relative economic position, not absolute economic position. These points suggest the advantages, in many cases, of relying on waivable employees' rights, an approach designed to inform workers without providing the rigidity and inefficiency associated with nonwaivable terms. At the same time, these points suggest, though more ambiguously, the hazards of allowing workers to waive their rights in accordance with standard contract principles. Procedural constraints (e.g., cooling off periods) and substantive constraints (e.g., "floors") on waiver may be appropriate. Norm change and preference change are also discussed. Applications include job security; parental leave; vacation time; health care; unionization; occupational safety and health; discrimination on the basis of age, race, and sex; waivers by unions; and workers' compensation. The basic conclusion is that waivable employees' rights are a promising and insufficiently explored option in many areas of labor and employment law.

Abstract:
The communications revolution has thrown into question the value of public interest obligations for television broadcasters. But the distinctive nature of this unusual market--with "winner- take-all" features, with viewers as a commodity, with pervasive externalities from private choices, and with market effects on preferences as well as the other way around--justifies a continuing role for government regulation in the public interest. At the same time, regulation best takes the form, not of anachronistic command-and-control regulation, but of (1) disclosure requirements, (2) economic incentives ("pay or play"), and (3) voluntary self-regulation through a privately administered code. Some discussion is devoted to free speech and antitrust issues, and to the different possible shapes of liability and property rules in this context, treating certain programming as a public "good" akin to pollution as a public bad.

Abstract:
In an important but thus far unnoticed development, federal courts have created a new series of "default principles" for statutory interpretation, authorizing regulatory agencies, when statutes are unclear, (a) to exempt trivial risks from regulation and thus to develop a kind of common law of "acceptable risks," (b) to take account of substitute risks created by regulation, and thus to engage in "health-health" tradeoffs, (c) to consider whether compliance with regulation is feasible, (d) to take costs into account, and (e) to engage in cost-benefit balancing, and thus to develop a kind of common law of cost-benefit analysis. These cost-benefit default principles are both legitimate and salutary, because they give rationality and sense the benefit of the doubt. At the same time, they leave many open questions. They do not say whether agencies are required, and not merely permitted, to go in the direction they indicate; they do not indicate when agencies might reasonably reject the principles; and they do not say what, specifically, will be counted as an "acceptable" risk or a sensible form of cost-benefit analysis. Addressing the open questions, this essay urges that the principles should ordinarily be taken as mandatory, not merely permissive; that agencies may reject them in certain identifiable circumstances; and that steps should be taken toward quantitative analysis of the effects of regulation, designed to discipline the relevant inquiries. An understanding of these points should promote understanding of emerging "second generation" debates, involving not whether to adopt a presumption in favor of cost-benefit balancing, but when the presumption is rebutted, and what, in particular, cost-benefit analysis should be taken to entail.

Abstract:
In many settings, human beings are boundedly rational. A distinctive and insufficiently explored legal response to bounded rationality is to attempt to "debias through law," by steering people in more rational directions. In many important domains, existing legal analyses emphasize the alternative approach of insulating outcomes from the effects of boundedly rational behavior, often through blocking private choices. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in the very different approach of debiasing through law by reducing or even eliminating people's boundedly rational behavior. In important contexts, these efforts to debias through law can avoid the costs and inefficiencies associated with regulatory approaches that take bounded rationality as a given and respond by attempting to insulate outcomes from its effects. This paper offers a general account of how debiasing through law does or could work to address legal questions across a range of areas, from consumer safety law to corporate law to property law. Discussion is also devoted to the risks of government manipulation and overshooting that are sometimes raised when debiasing through law is employed.

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Abstract:
Human beings are often boundedly rational. In the face of bounded rationality, the legal system might attempt either to debias law, by insulating legal outcomes from the effects of boundedly rational behavior, or instead to debias through law, by steering legal actors in more rational directions. Legal analysts have focused most heavily on insulating outcomes from the effects of bounded rationality. In fact, however, a large number of actual and imaginable legal strategies are efforts to engage in debiasing through law - to help people reduce or even eliminate boundedly rational behavior. In important contexts, these efforts promise to avoid the costs and inefficiencies associated with regulatory approaches that take bounded rationality as a given and respond by attempting to insulate outcomes from its effects. This Article offers both a general theory of debiasing through law and a description of how such debiasing does or could work to address central legal questions in a large number of domains, from employment law to consumer safety law to corporate law to property law. Discussion is devoted to the risks of overshooting and manipulation that are sometimes raised when government engages in debiasing through law.

labor, employment

Abstract:
How can groups elicit and aggregate the information held by their individual members? The most obvious answer involves deliberation. For two reasons, however, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. The unfortunate results include the propagation of errors; hidden profiles; cascade effects; and group polarization. A variety of steps should be taken to ensure that deliberating groups obtain the information held by their members. Because of their ability to aggregate privately held information, information markets substantial advantages over group deliberation. These points bear on discussion of normative issues, in which deliberation might also fail to improve group thinking.

Cascades, group polarization, statistical groups, deliberation, information markets, prediciton markets

Abstract:
How can groups elicit and aggregate the information held by their individual members? The most obvious answer involves deliberation. For two reasons, however, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. The unfortunate results include the propagation of errors; hidden profiles; cascade effects; and group polarization. A variety of steps should be taken to ensure that deliberating groups obtain the information held by their members. Because of their ability to aggregate privately held information, information markets substantial advantages over group deliberation. These points bear on discussion of normative issues, in which deliberation might also fail to improve group thinking.

Cascades, group polarization, statistical groups, deliberation, information markets, prediciton markets

Abstract:
Moral intuitions operate in much the same way as other intuitions do; what makes the moral domain is distinctive is its foundations in the emotions, beliefs, and response tendencies that define indignation. The intuitive system of cognition, System I, is typically responsible for indignation; the more reflective system, System II, may or may not provide an override. Moral dumbfounding and moral numbness are often a product of moral intuitions that people are unable to justify. An understanding of indignation helps to explain the operation of the many phenomena of interest to law and politics: the outrage heuristic, the centrality of harm, the role of reference states, moral framing, and the act-omission distinction. Because of the operation of indignation, it is extremely difficult for people to achieve coherence in their moral intuitions. Legal and political institutions usually aspire to be deliberative, and to pay close attention to System II; but even in deliberative institutions, System I can make some compelling demands.

indignation, punishment, moral heuristics

Abstract:
New work on heuristics and biases has explored the role of emotions and affect; the idea of "dual processing"; the place of heuristics and biases outside of the laboratory; and the implications of heuristics and biases for policy and law. This review-essay focuses on certain aspects of "Heuristics and Biases: The Psychology of Intuitive Judgment", edited by Thomas Gilovich, Dale Griffin, and Daniel Kahneman. An understanding of heuristics and biases casts light on many issues in law, involving jury awards, risk regulation, and political economy in general. Some attention is given to the possibility of "moral heuristics" - rules of thumb, for purposes of morality, that generally work well but that also systematically misfire.

emotions and affect; bias; "Heuristics and Biases: The Psychology of Intuitive Judgment," by Thomas Gilovich, Dale Griffin, Daniel Kahneman; jury awards; risk regulation

Abstract:
When strong emotions are triggered by a risk, people show a remarkable tendency to neglect a small probability that the risk will actually come to fruition. Experimental evidence, involving electric shocks and arsenic, supports this claim, as does real-world evidence, involving responses to abandoned hazardous waste dumps, the pesticide Alar, and anthrax. The resulting "probability neglect" has many implications for law and policy. It suggests the need for institutional constraints on policies based on ungrounded fears; it also shows how government might effectively draw attention to risks that warrant special concern. Probability neglect helps to explain the enactment of certain legislation, in which government, no less than ordinary people, suffers from that form of neglect. When people are neglecting the fact that the probability of harm is small, government should generally attempt to inform people, rather than cater to their excessive fear. But when information will not help, government should respond, at least if analysis suggest that the benefits outweigh the costs. The reason is that fear, even if it is excessive, is itself a significant problem, and can create additional significant problems.

Probability, behavioral economics, cost-benefit analysis, environmental regulation

Abstract:
Over the last thirty years, climate change and depletion of the ozone layer have been widely believed to be the world's largest environmental problems. The two problems have many similarities. Both involve global risks created by diverse nations, and both seem to be best handled through international agreements. In addition, both raise serious issues of intergenerational and international equity. Future generations stand to lose a great deal, whereas the costs of restrictions would be borne in the first instance by the current generation; and while wealthy nations are largely responsible for the current situation, poorer nations are anticipated to be quite vulnerable in the future. But an extraordinarily successful agreement, the Montreal Protocol, has served largely to eliminate the production and use of ozone-depleting chemicals, while the Kyoto Protocol has spurred only modest steps toward stabilizing greenhouse gas emissions. What accounts for the dramatic difference between the two protocols? Part of the explanation lies in the radically different self-interested judgments of the United States; part of the explanation lies in the very different payoff structures of the two agreements. Influenced by the outcome of a purely domestic cost-benefit analysis involving reductions in ozone-depleting chemicals, the United States enthusiastically supported the Montreal Protocol. Influenced by the very different outcome of cost-benefit analyses for reductions in greenhouse gas emissions, the United States aggressively opposed the Kyoto Protocol. An examination of the two protocols suggests that neither agreement fit the simple structure of a prisoner's dilemma, in which a nation gain from an enforceable agreement, gains even more if it is the only nation not to comply while all others do, and lose most if it, and everyone else, pursue their own national self-interest. For the United States, at least, compliance with the Montreal Protocol would have been justified even if no other country had complied; for the United States, and for several other countries, compliance with the Kyoto Protocol would not have been justified even if all other parties had complied. An understanding of the judgments that surround the two protocols indicates that even though moral considerations require the United States to spend a great deal to protect citizens in other nations, and even though such considerations can influence behavior, the nation is unlikely to act in response solely to those considerations. A general implication is that any international agreement to control greenhouse gases is unlikely to be effective unless the United States believes that it has more to gain than to lose. An illuminating wrinkle, also suggestive of the role of domestic self-interest, is that some European nations, above all the United Kingdom, initially contended that ozone depletion was a greatly exaggerated problem while later calling for strong controls on greenhouse gases.

environmental problems, international agreements, cost-benefit analysis

Abstract:
The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero - the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer's case-by-case view has enjoyed significant victories. Two trilogies of cases - one explicitly directed to the Step Zero question, another implicitly so directed - suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron's scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved.

Chevron U.S.A. v. Natural Resources Defense Council, Inc.

Abstract:
Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of debiasing through law.

Abstract:
From the legal point of view, there is nothing at all new or unfamiliar in the idea of "animal rights;" on the contrary, it is entirely clear that animals have legal rights. Indeed, the rise of legal rights for animals has been one of the most distinctive features of the last thirty years of federal statutory law. An investigation of the question of standing helps show that the real issues involve problems of enforcement and scope. Human beings often do and should have standing to protect animal rights; animals lack such standing, but only because Congress has failed to give them standing. Animal welfare statutes should be amended to grant a private cause of action, to human beings and animals alike, against those who violate them, so as to allow private claimants to supplement agency enforcement efforts. This modest step could do a great deal to prevent the unjustified suffering of animals.

Abstract:
How is constitutionalism possible, when people disagree on so many questions about what is good and what is right? This essay, written for a special issue of Social Research on Difficult Decisions, explores the role of two kinds of incompletely theorized agreements amidst sharp disagreements about the largest issues in social life. The first consist of agreements on abstract formulations (freedom of speech, equality under the law); these agreements are crucial to constitution-making as a social practice. The second consist of agreements on particular doctrines and practices; these agreements are crucial to life and law under existing constitutions. Incompletely theorized agreements help illuminate an enduring constitutional puzzle: how members of diverse societies can work together on terms of mutual respect amidst intense disagreements about both the right and the good. Such agreements help make constitutions and constitutional law possible, even within nations whose citizens cannot concur on the most fundamental matters.

Abstract:
Much of the time, human beings do what others do. This is perfectly sensible, because the actions and statements of other people convey valuable information about what should be done. In addition, most people want the good opinion of others, and this desire promotes conformity. But conformity can lead both groups and institutions in unfortunate and even catastrophic directions. The most serious problem is that by following others, people fail to disclose what they know and believe, thus depriving society of important information. Those who dissent, and who reject the pressures imposed by others, perform valuable social functions, often at their own expense, material or nonmaterial. These points are illustrated by reference to theoretical and empirical work on conformity, cascades, and group polarization. An understanding of the role of conformity and dissent casts new light on a variety of legal issues, including the expressive function of law; the institutions of the American constitution; the functions of free speech in wartime; the debate over the composition of the federal judiciary; and affirmative action in higher education.

behavioral economics, social interactions, courts, democracy

Abstract:
Contrary to a common picture of relationships in a market economy, people often express communal and membership-seeking impulses via consumption choices, purchasing goods and services because other people are doing so as well. Shared identities are maintained and created in this way. Solidarity goods are goods whose value increases as the number of people enjoying them increases. Exclusivity goods are goods whose value decreases as the number of people enjoying them increases. Distinctions can be drawn among diverse value functions, capturing diverse relationships between the value of goods and the value of shared or unshared consumption. Though markets spontaneously produce solidarity goods, individuals sometimes have difficulty in producing such goods on their own, or in coordinating on choosing them. Here law has a potential role. There are implications for trend setting, clubs, partnerships, national events, social cascades, and compliance without enforcement.

Abstract:
When national security conflicts with individual liberty, reviewing courts might adopt one of three general orientations: National Security Maximalism, Liberty Maximalism, and minimalism. National Security Maximalism calls for a great deal of deference to the President, above all because of his authority as Commander-in-Chief of the Armed Forces. Liberty Maximalism asks courts to assume the same liberty-protecting posture in times of war as in times of peace. Minimalism asks courts to follow three precepts: the President needs clear congressional authorization for intruding on interests having a strong claim to constitutional protection; fair hearings should generally be provided to those who have been deprived of their freedom; and courts should discipline their own authority through narrow, incompletely theorized rulings. Of the three positions, Liberty Maximalism is the easiest to dismiss; courts will not and should not adopt it. National Security Maximalism is far more plausible, but it is in grave tension with the constitutional structure, and it is built on excessive optimism about the incentives of the President. The most appealing approach is minimalism, which does remarkably well in capturing prominent decisions of the Supreme Court in World War I, World War II, the Cold War, and the war on terrorism.

individual liberty, national security, Presidential authority, constitution, terrorism

Abstract:
Over the coming decades, the increasingly popular "precautionary principle" is likely to have a significant impact on policies all over the world. Applying this principle could lead to dramatic changes in decision making. Possible applications include climate change, genetically modified food, nuclear power, homeland security, new drug therapies, and even war.

We argue that the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all. In contrast, balancing costs against benefits can offer the foundation of a principled approach for making difficult decisions.

precautionary principle, decisions, non-arbitrary

Abstract:
Fearsome risks are those that stimulate strong emotional responses. Such risks, which usually involve high consequences, tend to have low probabilities, since life today is no longer nasty, brutish and short. In the face of a low-probability fearsome risk, people often exaggerate the benefits of preventive, risk-reducing, or ameliorative measures. In both personal life and politics, the result is damaging overreactions to risks. We offer evidence for the phenomenon of probability neglect, failing to distinguish between high and low-probability risks. Action bias is a likely result.

Abstract:
Some of the most important disagreements about how aggressively to respond to the threat of climate change turn on the choice of the discount rate. A high discount rate implies relatively modest and slow reductions; a low discount rate implies immediate and dramatic action. The debate between the two sides reflects a disagreement between the positivists, who argue for a market rate, and the ethicists, who urge that the positivist approach violates the duty of the present to the future. We argue that the positivists are largely right, and that the question of discounting should be separated from the question of the ethical duties of the present. Discounting is a means of taking account of opportunity costs, and a refusal to discount may well hurt, rather than help, future generations. Nonetheless, it is also possible that cost-benefit analysis with discounting will impose excessive harms on future generations. If so, the proper response is to make investments that will help those generations, not to refuse to discount. We also explore several questions on which the ethicists' legitimate objections require qualification of the positivists' arguments, justifying a low discount rate for climate change policy.

discounting, future generations, climate change, intergenerational neutrality

Abstract:
When, if ever, is it legitimate for law to ban sex discrimination by religious institutions? It is best to approach this question by noticing that most of the time, ordinary civil and criminal law are legitimately applied to such institutions. For example, members of religious organizations cannot commit torts, even if the commission of torts is said to be part of their religious practices. Many people seem to accept what might be called an Asymmetry Thesis, which holds that sex equality principles may not be applied to religious institutions, whereas ordinary civil and criminal law may indeed be applied to them. This essay argues that the Asymmetry Thesis cannot be defended, and that much of the time, sex equality principles are properly applied to religious institutions. Discussion is also devoted to the controversial idea that facially neutral laws may be applied to religious institutions even if they have a severe adverse effect on religious practices.

sexual, equality, religion, freedom, neutrality

Abstract:
As many treaties and statutes emphasize, some risks are distinctive in the sense that they are potentially irreversible or catastrophic; for such risks, it is sensible to take extra precautions. When a harm is irreversible, and when regulators lack information about its magnitude and likelihood, they should purchase an option to prevent the harm at a later date - the Irreversible Harm Precautionary Principle. This principle brings standard option theory to bear on environmental law and risk regulation. And when catastrophic outcomes are possible, it makes sense to take special precautions against the worst-case scenarios - the Catastrophic Harm Precautionary Principle. This principle is based on two foundations: an appreciation of people's failure to appreciate the expected value of truly catastrophic losses; and an understanding of the distinction between risk and uncertainty. The Irreversible Harm precautionary Principle must, however, be applied with a recognition that irreversible harms are sometimes on all sides of social problems, and that such harms may be caused by regulation itself. The Catastrophic Harm Precautionary Principle must be applied with an understanding that in some cases, eliminating the worst-case scenario causes far more serious problems than it solves. The normative arguments are illustrated throughout with reference to the problem of global warming; other applications include injunctions in environmental cases, genetic modification of food, protection of endangered species, and terrorism.

risks, precautions, irreversible, harm, precautionary, principle

Abstract:
As many treaties and statutes emphasize, some risks are distinctive in the sense that they are potentially irreversible or catastrophic; for such risks, it is sensible to take extra precautions. When a harm is irreversible, and when regulators lack information about its magnitude and likelihood, they should purchase an "option" to prevent the harm at a later date - the Irreversible Harm Precautionary Principle. This principle brings standard option theory to bear on environmental law and risk regulation. And when catastrophic outcomes are possible, it makes sense to take special precautions against the worst-case scenarios - the Catastrophic Harm Precautionary Principle. This principle is based on two foundations: an appreciation of people's failure to appreciate the expected value of truly catastrophic losses; and an understanding of the distinction between risk and uncertainty. The Irreversible Harm precautionary Principle must, however, be applied with a recognition that irreversible harms are sometimes on all sides of social problems, and that such harms may be caused by regulation itself. The Catastrophic Harm Precautionary Principle must be applied with an understanding that in some cases, eliminating the worst-case scenario causes far more serious problems than it solves. The normative arguments are illustrated throughout with reference to the problem of global warming; other applications include injunctions in environmental cases, genetic modification of food, protection of endangered species, and terrorism.

precautionary principle, irreversibility, catastrophe, risk, uncertainty, probability

Abstract:
Instead of ranking law schools through statistical aggregations of expert judgments, or by combining a list of heterogeneous factors, it would be possible to rely on a market test, simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may lead some or many students to make bad choices and thus to participate in the production of inaccurate rankings.

Abstract:
It is increasingly clear that the world would be better off with an international agreement to control greenhouse gas emissions. What remains poorly understood is that the likely costs and benefits of emissions controls are highly variable across nations. Most important, prominent projection suggest that the world's leading emitters - the United States and China - have weak incentives to participate in an agreement that would be optimal from the standpoint of the world. The first problem is that any significant emissions effort would probably be exceedingly expensive for both nations. The second problem is that on prominent projections, the United States and China are unlikely to be the most serious losers from climate change. There are two ways to eliminate the resulting obstacle to an international agreement. The first is through altering the perceived cost-benefit analysis for both countries. The second is through an understanding that both nations, and the United States in particular, are under a moral obligation not to inflict serious harm on the highly vulnerable citizens of Africa, India, and elsewhere. Existing proposals for unilateral action on the part of the United States seem to stem from an unruly mixture of confusion, hope, and a sense of moral obligation. There are also interesting differences between the situations of the two leading emitters: Because China is much poorer and has much lower per capita emissions, it is especially difficult to interest China in taking aggressive steps to reduce its emissions.

Abstract:
It is increasingly clear that the world would be better off with an international agreement to control greenhouse gas emissions. What remains poorly understood is that the likely costs and benefits of emissions controls are highly variable across nations. Most important, prominent projection suggest that the world's leading emitters - the United States and China - have weak incentives to participate in an agreement that would be optimal from the standpoint of the world. The first problem is that any significant emissions effort would probably be exceedingly expensive for both nations. The second problem is that on prominent projections, the United States and China are unlikely to be the most serious losers from climate change. There are two ways to eliminate the resulting obstacle to an international agreement. The first is through altering the perceived cost-benefit analysis for both countries. The second is through an understanding that both nations, and the United States in particular, are under a moral obligation not to inflict serious harm on the highly vulnerable citizens of Africa, India, and elsewhere. Existing proposals for unilateral action on the part of the United States seem to stem from an unruly mixture of confusion, hope, and a sense of moral obligation. There are also interesting differences between the situations of the two leading emitters: Because China is much poorer and has much lower per capita emissions, it is especially difficult to interest China in taking aggressive steps to reduce its emissions.

climate change, greenhouse gasses, cost benefit analysis, Kyoto Protocol

Abstract:
The Supreme Court's decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when the underlying moral judgments have become anachronistic, as demonstrated by a pattern of nonenforcement. A key problem here is procedural; it involves an absence of fair notice and arbitrary exercise of discretion. This understanding of the decision has implications for the many imaginable constitutional challenges to other laws involving sex and sexual orientation. After Lawrence, states are certainly prohibited from banning fornication; they are almost certainly forbidden to ban use of sexual devices. Bans on prostitution, incest, and adultery stand on firmer grounds, though even here responsible challenges can be imagined. After Lawrence, the Constitution almost certainly forbids public discrimination against those who have engaged in homosexual conduct, at least outside of certain specialized contexts (most notably the military). The hardest cases involve the failure to recognize same-sex marriages. The ban on same-sex marriages cannot be said to be an anachronism, even though it is not easy, in principle, to reject the law struck down in Lawrence while permitting states to deny gays and lesbians the right to marry. One general lesson, underlined by Lawrence, is that political and social change is usually a precondition for changed interpretation of the Constitution.

liberty, equal protection of the laws, substantive due process, homosexual rights

Abstract:
Many groups make their decisions through some process of deliberation, usually with the belief that deliberation will improve judgments and predictions. But deliberating groups often fail, in the sense that they make judgments that are false or that fail to take advantage of the information that their members have. There are four such failures. (1) Sometimes the predeliberation errors of group members are amplified, not merely propagated, as a result of deliberation. (2) Groups may fall victim to cascade effects, as the judgments of initial speakers or actors are followed by their successors, who do not disclose what they know. Nondisclosure, on the part of those successors, may be a product of either informational or reputational cascades. (3) As a result of group polarization, groups often end up in a more extreme position in line with their predeliberation tendencies. Sometimes group polarization leads in desirable directions, but there is no assurance to this effect. (4) In deliberating groups, shared information often dominates or crowds out unshared information, ensuring that groups do not learn what their members know. All four errors can be explained by reference to informational signals, reputational pressure, or both. A disturbing result is that many deliberating groups do not improve on, and sometimes do worse than, the predeliberation judgments of their average or median member.

deliberation, cascades, group polarization, hidden profiles

Abstract:
Because risks are all on sides of social situations, it is not possible to be globally "precautionary." Hence the Precautionary Principle, in its strongest forms, runs into fatal conceptual difficulties; any precautions will themselves create hazards of one or another kind. When the Precautionary Principle seems to give guidance, it is often because of the availability heuristic, which can make some risks stand out as particularly salient, whatever their actual magnitude. The same heuristic helps to explain differences across groups, cultures, and even nations in the perception of risks, especially when linked with such social processes as cascades and group polarization. An important complication here here is that what is available is sometimes a result of predispositions, cultural and otherwise. There are complex links among availability, social processes for the spreading of information, and predispositions.

precautionary principle, risk

Abstract:
Many judges are minimalists. They favor rulings that are narrow, in the sense that they govern only the circumstances of the particular case, and also shallow, in the sense that they do not accept a deep theory of the legal provision at issue. In law, narrow and shallow decisions have real advantages insofar as they reduce both decision costs and error costs; make space for democratic engagement on fundamental questions; and reflect a norm of civic respect. In many cases, however, minimalism is hard to justify in these ways. Sometimes small steps increase the aggregate costs of decisions; sometimes they produce large errors, especially when they export decision-making burdens to fallible people. Predictability is an important variable, and minimalist decisions can compromise predictability. Sometimes large, nonminimalist steps serve democratic values and do not compromise the norm of civic respect. It follows that the justifications for minimalism are unconvincing in many contexts. The debate between minimalists and their adversaries is closely related to the debate between those who prefer standards and those who prefer rules, though there are some important differences.

minimalism, standards, rules, constitutional interpretation

Abstract:
Can computers, or artificial intelligence, reason by analogy? This essay urges that they cannot, because they are unable to engage in the crucial task of identifying the normative principle that links or separates cases. Current claims, about the ability of artificial intelligence to reason analogically, rest on an inadequate picture of what legal reasoning actually is. For the most part, artificial intelligence now operates as a kind of advanced version of LEXIS, offering research assistance rather than analogical reasoning. But this is a claim about current technology, not about inevitable limitations of artificial intelligence; things might change in the future.

Abstract:
How does jury deliberation affect the pre-deliberation judgments of individual jurors? In this paper we make progress on that question by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that with respect to dollars, deliberation produces a "severity shift," in which the jury's dollar verdict is systematically higher than that of the median of its jurors' predeliberation judgments. A "deliberation shift analysis" is introduced to measure the effect of deliberation. The severity shift is attributed to a "rhetorical asymmetry," in which arguments for higher awards are more persuasive than arguments for lower awards. When judgments are measured not in terms of dollars but on a rating scale of punishment severity, deliberation increased high ratings and decreased low ratings. We also find that deliberation does not alleviate the problem of erratic and unpredictable individual dollar awards, but in fact exacerbates it. Implications for punitive damage awards and deliberation generally are discussed.

Abstract:
In protecting safety, health, and the environment, government has increasingly relied on cost-benefit analysis. In undertaking cost-benefit analysis, the government has monetized risks of death through the idea of "value of a statistical life" (VSL), currently assessed at about $6.1 million. Many analysts, however, have suggested that the government should rely instead on the "value of a statistical life year" (VSLY), in a way that would likely result in significantly lower benefits calculations for elderly people, and significantly higher benefits calculations for children. I urge that the government should indeed focus on life-years rather than lives. A program that saves young people produces more welfare than one that saves old people. The hard question involves not whether to undertake this shift, but how to monetize life-years, and here willingness to pay (WTP) is generally the place to begin. Nor does a focus on life-years run afoul of ethical limits on cost-benefit analysis. It is relevant in this connection that every old person was once young, and that if all goes well, young people will eventually be old. In fact, a focus on statistical lives is more plausibly a form of illicit discrimination than a focus on life-years, because the idea of statistical lives treats the years of older people as worth far more than the years of younger people. Discussion is also devoted to the uses and limits of the willingness to pay criterion in regulatory policy, with reference to the underlying welfare goal and to the nature of moral and distributional constraints on cost-benefit balancing.

safety, health, cost-benefit analysis, environment, value of a statistical life, value of a statistical life year, discrimination

Abstract:
What are the effects of deliberation about political issues? This essay reports the results of a kind of Deliberation Day, involving sixty-three citizens in Colorado. Groups from Boulder, a predominantly liberal city, met and discussed global warming, affirmative action, and civil unions for same-sex couples; groups from Colorado Springs, a predominately conservative city, met to discuss the same issues. The major effect of deliberation was to make group members more extreme than they were when they started to talk. Liberals became more liberal on all three issues; conservatives became more conservative. As a result, the division between the citizens of Boulder and the citizens of Colorado Springs were significantly increased as a result of intragroup deliberation. Deliberation also increased consensus, and dampened diversity, within the groups. Implications are explored for the uses and structure of deliberation in general.

politics, political issues, deliberation, liberal, conservative

Abstract:
President Bush's Military Order establishing Military Commissions was greeted with impassioned criticism in the press, the legal academy, and Congress. Sixty years earlier, in the midst of World War II, President Roosevelt established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action.

Our purpose in this paper is not to investigate, except in passing, issues of law and policy. We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular?

The most tempting, and common, explanation for the different reactions is that there is a significant difference in law - that President Roosevelt's Order stands on much firmer legal ground than President Bush's order. We show that this and related explanations are weak. The different reactions are best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive authority and military authority. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift. After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.

Abstract:
For over two decades, federal agencies have been required to analyze the benefits and costs of significant regulatory actions and to show that the benefits justify the costs. But the regulatory state continues to suffer from significant problems, including poor priority-setting, unintended adverse side-effects, and, on occasion, high costs for low benefits. In many cases, agencies do not offer an adequate account of either costs or benefits, and hence the commitment to cost-benefit balancing is not implemented in practice. A major current task is to ensure a deeper and wider commitment to cost-benefit analysis, properly understood. We explain how this task might be accomplished and offer a proposed executive order that would move regulation in better directions. In the course of the discussion, we explore a number of pertinent issues, including the defects of the record of the last two decades, the "precautionary principle," the value of "prompt letters," the role of distributional factors, and the need to incorporate independent agencies within the system of cost-benefit balancing.

cost-benefit analysis, regulation, administrative law

Abstract:
In resolving conflicts between individual rights and national security, the Supreme Court has often said that Congress must unambiguously authorize presidential action; the Court has also attempted to ensure that defendants are not deprived of their liberty except pursuant to fair trials. These decisions, a form of liberty-promoting minimalism, reject claims of unilateral or exclusive presidential authority. The Court's decision in Hamdan v. Rumsfeld reflects a distinctive clear statement principle, one that bans the President from convening a military commission, or otherwise departing from the standard adjudicative forms, unless Congress explicitly authorizes him to do so. The Court's conclusion diverges sharply from a plausible alternative view, which is that in view of the President's role as Commander-in-Chief, he should be permitted to construe ambiguous enactments as he see fits. The Court's approach has implications for numerous other problems involved in the war on terror. Most generally, it suggests the need for clear congressional authorization for presidential action that intrudes on liberty or departs from well-established historical practices. More specifically, it significantly weakens the President's argument on behalf of the legality of warrantless wiretapping by the National Security Agency.

terrorism, military commissions, warrantless wiretapping, Commander-in-Chief

Abstract:
In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable interpretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern.

Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.

Chevron, Supreme Court, regulation

Abstract:
For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

Abstract:
Two of the most important sources of catastrophic risk are terrorism and climate change. The United States has responded aggressively to the risk of terrorism while doing very little about the risk of climate change. For the United States alone, the cost of the Iraq war is now in excess of the anticipated cost of the Kyoto Protocol. The divergence presents a puzzle; it also raises more general questions about both risk perception and the public demand for legislation. The best explanation for the divergence emphasizes bounded rationality. Americans believe that aggressive steps to reduce the risk of terrorism promise to deliver significant benefits in the near future at acceptable cost. By contrast, they believe that aggressive steps to reduce the risk of climate change will not greatly benefit American citizens in the near future - and they are not willing to pay a great deal to reduce that risk. This intuitive form of cost-benefit analysis is much influenced by behavioral factors, including the availability heuristic, probability neglect, outrage, and myopia. All of these contribute, after 9/11, to a willingness to support significant steps to respond to terrorism and to relative indifference to climate change. It follows that Americans are likely to support such steps in response to climate change only if one of two conditions is met: the costs of those steps can be shown to be acceptably low or new information, perhaps including a salient incident, indicates that Americans have much to gain from risk reduction in the relatively near future.

risk, catastrophic risk

Abstract:
Two of the most important sources of catastrophic risk are terrorism and climate change. The United States has responded aggressively to the risk of terrorism while doing very little about the risk of climate change. For the United States alone, the cost of the Iraq war is now in excess of the anticipated cost of the Kyoto Protocol. The divergence presents a puzzle; it also raises more general questions about both risk perception and the public demand for legislation. The best explanation for the divergence emphasizes bounded rationality. Americans believe that aggressive steps to reduce the risk of terrorism promise to deliver significant benefits in the near future at acceptable cost. By contrast, they believe that aggressive steps to reduce the risk of climate change will not greatly benefit American citizens in the near future - and they are not willing to pay a great deal to reduce that risk. This intuitive form of cost-benefit analysis is much influenced by behavioral factors, including the availability heuristic, probability neglect, outrage, and myopia. All of these contribute, after 9/11, to a willingness to support significant steps to respond to terrorism and to relative indifference to climate change. It follows that Americans are likely to support such steps in response to climate change only if one of two conditions is met: the costs of those steps can be shown to be acceptably low or new information, perhaps including a salient incident, indicates that Americans have much to gain from risk reduction in the relatively near future.

terrorism, climate change, catastrophic risk

Abstract:
The concept of "irreversibility" plays a large role in many domains, including public health, medical practice, and environmental protection. Indeed, the concept is explicit in some statements of the Precautionary Principle. But the idea of irreversibility remains poorly defined. Because of the flow of time, any loss is, in a sense, irreversible. On one approach, irreversibility might be understood as a reference to the value associated with taking precautionary steps that maintain flexibility for an uncertain future ("option value"). On another approach, irreversibility might be understood to refer to the qualitatively distinctive and even unique nature of certain losses - a point that raises a claim about incommensurability. The two conceptions fit different problems. These ideas can be applied to a wide assortment of environmental and public health questions, including overuse of antibiotics, genetic modification of food, avian flu, and climate change.

irreversibility, incommensurability, option value, public health, climate change

Abstract:
The Court's decision in District of Columbia v. Heller might be taken in three different ways. First, it might be seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution. Second, it might be seen as analogous to Lochner v. New York, in which a majority of the Court invoked a dubious understanding of the Constitution in order to override the democratic will. Third, it might be taken as analogous to Griswold v. Connecticut, in which a majority of the Court, proceeding in minimalist fashion, used the Constitution to vindicate the contemporary judgments of a national majority. It is true that in emphasizing constitutional text and structure, the Court spoke in terms close to those in Marbury; indeed, Heller is the most self-consciously originalist opinion in the history of the Supreme Court. It is also true that many historians reject the Court's understanding of the Second Amendment, making it plausible to see the ruling as a modern incarnation of Lochner. But the timing and context of the decision suggest that Griswold is the most illuminating analogy. In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier. The claimed analogy between Griswold and Heller fits well with the fact that Heller is a narrow ruling with strong minimalist elements. No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments.

minimalism, gun control, originalism, second amendment

Abstract:
Based on an address for a conference on Law and Transformation in South Africa, this paper explores problems with two twentieth-century approaches to government: the way of markets and the way of planning. It urges that the New Progressivism simultaneously offers (1) a distinctive conception of government's appropriate means, an outgrowth of the late-twentieth-century critique of economic planning, and (2) a distinctive understanding of government's appropriate ends, an outgrowth of evident failures with market arrangements and largely a product of the mid-twentieth-century critique of laissez faire. It emphasizes the need to replace bans and commands with appropriate incentives, and to attend to social norms and social meanings in leading human behavior in welfare-promoting directions. The ultimate goal is to promote some of the goals associated with America's New Deal and Europe's social democracy, but without using the crude, inflexible, and often counterproductive methods associated with those approaches. Some attention is devoted to the effects of globalization, the AIDS crisis, crime prevention, and the role of economic growth.

Abstract:
Some eleven million 401(k) plan participants take a concentrated equity position in their retirement savings account, investing more than 20% of the balance in their employer's common stock. Yet investing in the stock of one's employer is a risky investment on two counts: single securities are riskier than diversified portfolios (such as mutual funds), and the employee's human capital is typically positively correlated with the performance of the company. In the worst-case scenario, illustrated by the Enron bankruptcy, workers can lose their jobs and much of their retirement wealth simultaneously. For workers who expect to work for the company for many years, a dollar of company stock can be valued at less than 50 cents to the worker after accounting for the risks. But employees still invest voluntarily in their employers' stock, and many employers insist on making matching contributions in stock, despite the fact that a dollar of investment or contribution may be worth only 50 cents on the dollar. How can competitive labor markets sustain a situation in which employers and employees make such a fundamental miscalculation? We provide evidence that employees underestimate the risk of owning company stock, while employers overestimate the benefits associated with employee stock ownership relative to its costs. This evidence provides strong reasons to consider legal reforms in this domain. We make suggestions that would increase employees' freedom of choice and improve their welfare, but without imposing significant costs on well-meaning but ill-informed employers.

Bounded rationality, company stock, behavioral economics, employee compensation

Abstract:
What does cost-benefit mean, or do, in actual practice? When agencies are engaging in cost-benefit balancing, what are the interactions among law, science, and economics? This Article attempts to answer that question by exploring, in some detail, the controversy over EPA's proposed regulation of arsenic in drinking water. The largest finding is that science often can produce only "benefit ranges," and wide ones at that. With reasonable assumptions based on the existing science data, the proposed arsenic regulation can be projected to save as few as 0 lives and as many as 112. With reasonable assumptions, the monetized benefits of the regulation can range from $0 to $560 million. In these circumstances, there is no obviously right decision for government agencies to make. These points have numerous implications for lawyers and courts, suggesting the ease of bringing legal challenges, on grounds specified here, and the importance of judicial deference in the face of scientific uncertainty. There are also policy implications. Agencies should be given the authority to issue more targeted, cost-effective regulations. They should also be required to accompany the cost-benefit analysis with an effort to identify the winners and losers, so as to see if poor people are mostly hurt or mostly helped.

Arsenic, regulatory study, environment, cost-benefit, EPA

Abstract:
The Supreme Court has said that there is a constitutional "right to marry"; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that the right to marry falls within the "fundamental" rights branch of equal protection doctrine, and is not properly understood in terms of substantive due process; it also follows that the state could abolish the official institution of marriage tomorrow. With respect to scope, the essay identifies a minimal understanding, to the effect that the right to marry is enjoyed by any couple consisting of one adult man and one adult woman. The minimal understanding can claim a plausible defense in a tradition-based understanding of fundamental rights; and on institutional grounds, a tradition-based understanding has a great deal of appeal. Its problem is that it has a degree of arbitrariness. This is a formidable problem, but for reasons of prudence, federal courts should not adopt a broader understanding that would, for example, require same-sex marriages to be recognized. The essay concludes with some remarks on the possible abolition of the official institution of marriage. It explains that there are plausible grounds for objecting to that institution and that there is a real question whether the current system would be chosen if a society were starting from scratch. It emphasizes that marriage is emphatically an government-run licensing system, embodying a set of governmental mandates and conditions. An understanding of this point should inform constitutional discussion, which ought not to proceed by identifying religious and official marriage, or by pretending that the official institution is in some sense natural and foreordained.

marriage, equal protection, Supreme Court

Abstract:
Administrative regulations and tort law both impose controls on activities that cause mortality risks, but they do so in puzzlingly different ways. Under a relatively new and still-controversial procedure, administrative regulations rely on a fixed value of a statistical life representing the hedonic loss from death. Under much older law, tort law in most states excludes hedonic loss from the calculation of damages, and instead focuses on loss of income, which regulatory policy ignores. Regulatory policy also disregards losses to dependents; tort law usually allows dependents to recover for loss of support. Regulatory policy generally treats the loss of the life of a child as equivalent to the loss of the life of an adult; tort law usually treats the loss of the life of a child as less valuable. Regulatory policy implicitly values foreigners as equal to Americans; tort law does not. We argue that both areas of law make serious mistakes in valuing life and that each should learn from the other. Regulatory policy properly focuses on hedonic loss from death, and tort law should adopt this approach. But regulatory policy should imitate tort law's individualized approach to valuing the loss from death, including its inclusion of losses to dependents. If these changes were made, tort awards would be more uniform and predictable, and regulations would be less uniform and more stringent. In addition, average tort damages for wrongful death would be at least twice as high as they are today. With respect to dollar judgments for mortality risks, a pervasive issue is how to combine accuracy with administrability and predictability; both bodies of law could do far better on this score.

mortality, risk, administrative regulations, hedonic loss, damages, dollar judgments

Abstract:
Reports of the death of the nondelegation doctrine have been greatly exaggerated. Rather than having been abandoned, the doctrine has merely been renamed and relocated. Its current home consists of a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own. These canons forbid extraterritorial application of national law, intrusions on state sovereignty, decisions harmful to Native Americans, and absolutist approaches to health and safety. The nondelegation canons are far preferable to the old nondelegation doctrine, because they are subject to principled judicial application, and because they do not threaten to unsettle so much of modern government.

Abstract:
Many consumers would be willing to pay something to reduce the suffering of animals used as food. The problem is that existing markets do not disclose the relevant treatment of animals, even though that treatment would trouble many consumers. Steps should be taken to promote disclosure, so as to fortify market processes and to promote democratic discussion of the treatment of animals. In the context of animal welfare, a serious problem is that people's practices ensure outcomes that defy their existing moral commitments. A disclosure regime could improve animal welfare without making it necessary to resolve the most deeply contested questions in this domain.

animal rights, animal welfare, disclosure strategies

Abstract:
This paper urges that one of the great, quasi-theological debates in legal theory depends on answers to empirical questions. The debate is whether courts should be "formalistic," that is, whether they should interpret statutory terms in accordance with their literal meaning, or whether they should be permitted to reject literal meaning by reference to "purposes," or canons of constructions, or considerations of policy. Any good answer turns on what approach will minimize decision costs and error costs, and that depends on empirical judgments about the likely performance of courts and legislatures. There is discussion as well of information-eliciting and market-mimicking default rules in the interpretation of contracts and statutes.

Abstract:
Under Marbury v. Madison, it is emphatically the province and duty of the judicial department to say what the law is. But as a matter of actual practice, statements about what the law is are often made by the executive department, not the judiciary. In the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron v. Natural Resources Defense Council, the most-cited case in modern public law. Chevron reflects a salutary appreciation of the fact that the executive is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. But the theory that underlies Chevron remains poorly understood, and in the last two decades, significant efforts have been made to limit the executive's interpretive authority. In general, these efforts should be resisted. The principal qualification involves certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient.

Marbury v. Madison, law, judiciary, Supreme Court

Abstract:
When the Environmental Protection Agency (EPA) issues national ambient air quality regulations, it should meet two requirements. First, the EPA should specify, to the extent possible in quantitative terms, the range of benefits that it believes will follow from each new rule it seeks to promulgate. It should specify as well the range of benefits that it believes would follow from at least two alternate approaches, one stricter and one more lenient than the chosen regulation. In the process the agency should describe the level of "residual risk" under all three options. Second, the EPA should explain why it believes the chosen rule to be preferable to the alternatives - that is, why the benefits to flow from the selected rule justify that rule and why the benefits that would follow from the alternative rules, more and less stringent, fail to justify it.

If necessary, the courts should require the EPA to carry out the proposed tasks. But when the EPA does perform these tasks, and does so reasonably, the courts should uphold the underlying regulations.

The introduction of these changes would eliminate the need for any resurgence of interest in the nondelegation doctrine, which should be reserved only for the most egregious cases. The Clean Air Act is constitutional.

Abstract:
This article argues (1) against revival of the nondelegation doctrine, and (2) in favor of a kind of "democracy-forcing minimalism" for administrative law. As against a prominent recent trend in the DC Circuit, it claims that the nondelegation doctrine should be reserved only for the most egregious cases and that its appropriate use is in tools of statutory construction and certain "nondelegation canons." The Clean Air Act is constitutional because it sets floors and ceilings on agency action. But in issuing ambient air quality standards, the EPA should be required to compare the chosen standard with at least two alternatives, one more stringent and one less stringent; it should quantify the benefits of the three options, to the extent feasible; and it should explain why the chosen alternative is preferable in terms of the "residual risk." Reviewing courts should require the EPA to perform this task, usually by "remanding without invalidating" inadequately justified air quality regulations. There is discussion as well of possible amendments to the Clean Air Act.

Abstract:
The most important and illuminating early writing on Brown v. Bd. of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court's decision was sufficiently "neutral." At the same time, Black's argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court's decision. Nonetheless, the legal culture needs more voices like Black's.

Brown v. Bd. of Education, equal protection, racism, segregation

Abstract:
When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon-group polarization-has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others in situations of (1) common sources of information; (2) highly unrepresentative group membership; (3) statements that are made to obtain approval; and (4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders-the folly of crowds. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.

polarization, bayesians, behavior, credulous bayesianism, legal theory

Abstract:
When members of deliberating groups speak with one another, their predeliberation tendencies often become exacerbated as their views become more extreme. The resulting phenomenon - group polarization - has been observed in many settings, and it bears on the actions of juries, administrative tribunals, corporate boards, and other institutions. Polarization can result from rational Bayesian updating by group members, but in many contexts, this rational interpretation of polarization seems implausible. We argue that people are better seen as Credulous Bayesians, who insufficiently adjust for idiosyncratic features of particular environments and put excessive weight on the statements of others where there are 1) common sources of information; 2) highly unrepresentative group membership; 3) statements that are made to obtain approval; and 4) statements that are designed to manipulate. Credulous Bayesianism can produce extremism and significant blunders. We discuss the implications of Credulous Bayesianism for law and politics, including media policy and cognitive diversity on administrative agencies and courts.

extermism, conformity, social interactions, cognitive diversity

Abstract:
To establish causation, a tort plaintiff must show that it is "more probable than not" that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.

causation, negligence, medical malpractice, standard of care

Abstract:
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of "debiasing" that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.

Chevron, group polarization, legal realizm, politicized judicial voting

Abstract:
There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. The default rule can create an endowment effect, making employees value certain rights more simply because they have been granted such rights in the first instance. Similarly, the default rule for savings plans, set by employers or law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate; either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers' welfare. A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead employee confusion or bargaining strategy.

employment law, labor, labor economics, behavioral economics

Abstract:
There have been many efforts to reconcile judicial review with democratic self-government. Some such efforts attempt to justify judicial review if and to the extent that it promotes self-rule. "Active Liberty," by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizing as it does the need for close attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparate ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis on consequences. Breyer's argument is convincing insofar as it challenges "originalist" approach on pragmatic grounds. It is more vulnerable insofar it downplays the inevitable role of judicial discretion in the characterization of purposes and the evaluation of consequences. Those who emphasize consequences, and active liberty, might well end up embracing textualism, or even broad judicial deference to legislative majorities. Moreover, it is not simple to deduce, from the general idea of "active liberty," concrete conclusions on the issues that concern Breyer, such as affirmative action, campaign finance reform, privacy rights, and commercial advertising. Many competing approaches to these issues, and to interpretation as a whole, can also march proudly under the pragmatic banner.

Active Liberty, Justice Stephen Breyer

Abstract:
In constitutional law, first-order perfectionism represents an effort to cast the Constitution's ideals in the best constructive light. Ronald Dworkin's conception of law as "integrity" can be seen as a form of first-order perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another form of second-order perfectionism. Whether first-order perfectionism is best, and what kind of second-order perfectionism might be chosen instead, cannot be decided without an appreciation of the characteristics of relevant institutions. Under certain institutional assumptions, originalism is preferable; under other assumptions, first-order perfectionism, Thayerism, or minimalism may be the right approach. Freestanding normative assessments are also inescapable. For example, originalism cannot be evaluated without some kind of assessment of the results that it would produce. These claims have implications for first-order perfectionism of the sort defended by Dworkin and more recently by James Fleming.

Abstract:
A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, ambiguous statutes are usually interpreted to conform to international law, and statutes are usually not understood to apply outside of the nation's territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in various settings, the cost of American deference to foreign interests is less than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes so as to apply extraterritorially, or so as to conflict with international law, it should be permitted to do so. The analysis of the interpretive power of the executive follows by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to such interpretation; sometimes it operates as a valuable analogy.

Chevron, international law

Abstract:
Recent scientific innovations, and proposed legislation, have raised questions about the nature of the constitutional right to reproductive freedom, and in particular about whether there is a constitutional "right to clone." This essay urges that as a matter of substantive due process, rationality review is probably appropriate, and that restrictions on both reproductive and therapeutic cloning would and should survive constitutional scrutiny. At the same time, many of the arguments for banning both forms of cloning are based on ignorance, myths, and speculation. It is extremely important to distinguish between reproductive and nonreproductive cloning, and it is equally important to distinguish among the various rationales for banning each. Some of those rationales have some, but others, including some of the most influential, are exceedingly weak.

Abstract:
Inequalities often persist because both the advantaged and the disadvantaged stand to lose from change. Despite the probability of loss, moral indignation can lead the disadvantaged to seek to alter the status quo, by encouraging them to sacrifice their material self-interest for the sake of equality. Experimental research shows that moral indignation, understood as a willingness to suffer in order to punish unfair treatment by others, is widespread. It also indicates that a propensity to apparently self-defeating moral indignation can turn out to promote people's material self-interest, if and because others will anticipate their actions. But potential rebels face collective action problems. Some of these can be reduced through the acts of "indignation entrepreneurs," giving appropriate signals, organizing discussions by like-minded people, and engaging in acts of self-sacrifice. Law is relevant as well. By legitimating moral indignation and dissipating pluralistic ignorance, law can intensify and spread that indignation, thus increasing its expression. Alternatively, law can delegitimate moral indignation, or at least raise the cost of its expression, thus stabilizing a status quo of inequality. But the effects of law are unpredictable, in part because it will have moral authority for some but not for others; here, too, heterogeneity is an issue both for indignation entrepreneurs and their opponents. Examples are given from a range of areas, including labor-management relations, sexual harassment, civil rights, and domestic violence.

moral indignation, disadvantaged, equality, labor-management relations, sexual harassment, civil rights, domestic violence

Abstract:
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are "arbitrary" or "capricious." In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a "hard look" at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are "arbitrary." This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

Administrative Procedure Act, State Farm, Supreme Court

Abstract:
Recent empirical work demonstrates that people's self-reported happiness is remarkably resilient to many large changes in life conditions; apparently significant adverse events often inflict little or no hedonic damage. One reason for this surprising result is people's power of adaptation. An additional and perhaps more fundamental reason involves attention: Most of the time, people go about their lives without attending to, or focusing on, adverse conditions, and hence those conditions inflict little hedonic harm. If people make hedonic forecasting errors about their own lives, they are highly likely to make such errors when assessing hedonic losses experienced by other people. These findings have important implications for the legal system, especially in the context of awards for pain, suffering, and hedonic losses. A special problem is that if people adapt to adverse changes because they cease to focus on them, the context of litigation will produce a serious distortion, because the attention of juries and judges is specifically focused on adverse changes. But there are two qualifications. First, some losses inflict significant hedonic damage, because people cannot help focusing on them; chronic pain, anxiety, and depression are the most obvious examples. Second, people may suffer capability loss without suffering hedonic loss, and the legal system should award compensation for capability damages.

These claims have broader implications for questions of law and policy, including appropriate priority-setting for governments concerned with the welfare of their citizens. For example, increases in Gross Domestic Product are not correlated with increases in self-reported happiness, in a way that raises serious questions about the focus on GDP; but perhaps GDP growth is connected with social gains that are not captured by self-reported happiness. There are also fundamental questions about the relationships among hedonic consequences, meaning, and the ingredients of a good life. The simplest conclusion is that pervasive existence of hedonic forecasting errors raises the possibility that both economic and regulatory policies are misdirected.

happiness, pain and suffering, hedonic damages, relative position, loss aversion, hedonic forecasting errors, legal system, GDP

Abstract:
Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.

Abstract:
Economists often analyze questions of law and policy by reference to the criterion of private willingness to pay (WTP), with the belief that people's WTP for a good is an accurate proxy for the welfare that they would obtain from that good. For two reasons, the proxy is crude. The first problem is that people may not pay for all of the benefits they receive, and in such cases, use of WTP may lead in unfortunate directions, even or especially if welfare is our lodestar. Inefficient results may nonetheless increase welfare. The second and more fundamental problem is that people may be willing to pay for goods whose acquisition does not improve their welfare. People typically choose on the basis of their affective forecasting, and their affective forecasts can lead them to make bad blunders. Sometimes people overestimate the welfare effects of both losses and gains. These points have many implications for law and policy. In particular, juries are probably offering greatly inflated dollar awards for hedonic damages, and the outcome of cost-benefit analyses, based on WTP, may not capture welfare, suitably defined. The absence of a connection between increases in Gross Domestic Product and self-reported happiness is highly suggestive here.

willingness to pay, welfare, cost-benefit analysis, affective forecasting

Abstract:
For over two decades, federal agencies have been required to analyze the benefits and costs of significant regulatory actions and to show that the benefits justify the costs. But the regulatory state continues to suffer from significant problems, including poor priority-setting, unintended adverse side-effects, and, on occasion, high costs for low benefits. In many cases, agencies do not offer an adequate account of either costs or benefits, and hence the commitment to cost-benefit balancing is not implemented in practice. A major current task is to ensure a deeper and wider commitment to cost-benefit analysis, properly understood. We explain how this task might be accomplished and offer a proposed executive order that would move regulation in better directions. In the course of the discussion, we explore a number of pertinent issues, including the actual record of the last two decades, the precautionary principle, the value of prompt letters the role of distributional factors, and the need to incorporate independent agencies within the system of cost-benefit balancing.

Abstract:
At first glance, it is puzzling to suggest that courts should care whether the public would be outraged by their decisions; judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause it is meant to promote or impose serious social harms, judges have reason to hesitate on consequentialist grounds. The prospect of public outrage might also suggest that the Court's ruling would be incorrect on the merits; if most people disagree with the Court's decision, perhaps the Court is wrong. Those who adopt a method on consequentialist grounds are more likely to want to consider outrage than are those who adopt an interpretive method on nonconsequentialist grounds (including some originalists). The epistemic argument for attention to outrage is greatly weakened if people suffer from a systematic bias or if the public view is a product of an informational, moral, or legal cascade. There is also a strong argument for banning consideration of the effects of public outrage on rule-consequentialist grounds. Judges might be poorly suited to make the relevant inquiries, and consideration of outrage might produce undue timidity. These points have general implications for those who favor popular constitutionalism, or judicial restraint, on democratic grounds. An understanding of the consequentialist and epistemic grounds for judicial attention to public outrage also offers lessons for the decisions of other public officials, including presidents, governors, and mayors, who might be inclined to make decisions that will produce public outrage.

judicial independence, popular constitutionalism, passive virtues, Condorcet Jury Theorem, consequentialism

Abstract:
Because risks are on all sides of social situations, it is not possible to be "precautionary" in general. The availability heuristic ensures that some risks stand out as particularly salient, whatever their actual magnitude. Taken together with intuitive cost-benefit balancing, the availability heuristic helps to explain differences across groups, cultures, and even nations in the assessment of precautions to reduce the risks associated with climate change. There are complex links among availability, social processes for the spreading of information, and predispositions. If the United States is to take a stronger stand against climate change, it is likely to be a result of available incidents that seem to show that climate change produces serious and tangible harm.

Abstract:
Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the President to protect national security. Burkean minimalists oppose, and are opposed, by three groups: originalists, who want to recover the original understanding of the Constitution; rationalist minimalists, who favor small steps but who are often critical of traditions and established practices; and perfectionists, both liberal and conservative, who want to read the Constitution in a way that fits with the most attractive political ideals.

No approach to constitutional law makes sense in every imaginable world. The argument for Burkean minimalism is strongest in domains in which three assumptions hold: originalism would produce intolerable results; established traditions are generally just, adaptive to social needs, or at least acceptable; and the theory-building capacities of the federal judiciary are sharply limited. Burkean minimalists face a number of unresolved dilemmas, above all involving the appropriately Burkean response to non-Burkean, or anti-Burkean, precedents.

Edmund Burke

Abstract:
Excessive borrowing, no less than insufficient savings, might be a product of bounded rationality. Identifiable psychological mechanisms are likely to contribute to excessive borrowing; these include myopia, procrastination, optimism bias, "miswanting," and what might be called cumulative cost neglect. Suppose that excessive borrowing is a significant problem for some or many; if so, how might the law respond? The first option involves weak paternalism, through debiasing and other strategies that leave people free to choose as they wish. Another option is strong paternalism, which forecloses choice. Because of private heterogeneity and the risk of government error, regulators should have a firm presumption against strong paternalism, and hence the initial line of defense against excessive borrowing consists of information campaigns, debiasing, and default rules. On imaginable empirical findings, however, there may be a plausible argument for strong paternalism in the form of restrictions on various practices, perhaps including "teaser rates" and late fees. The two larger themes, applicable in many contexts, involve the importance of an ex post perspective on the consequences of consumer choices and the virtues and limits of weak forms of paternalism, including debiasing and libertarian paternalism.

Abstract:
Many people believe that the problem of climate change would be best handled by an international agreement that includes a system of cap and trade. Such a system would impose a global cap on greenhouse gases emissions and allocate tradable emissions permits. This proposal raises a crucial but insufficiently explored question: How should such permits be allocated? It is tempting to suggest that in principle, allocation should be done on a per capita basis, with the idea that each person should begin with the same entitlement, regardless of place of birth. This idea, pressed by many analysts and by the developing world, can be defended on grounds of either welfare or fairness. But on both grounds, per capita allocations run into serious objections. If fairness is understood in terms of equally or proportionally sharing the burdens of a climate treaty, per capita allocations are not fair because they do not take into account all the effects of such a treaty. Any agreement to reduce greenhouse gas emissions will give more benefits to some nations than to others, and will impose more costs on some nations than on others; in these circumstances, per capita emissions rights give the appearance but not the reality of fairness. For those who seek redistribution to those who need help, on grounds of either welfare or fairness, per capita allocations of emissions rights are at best a mixed blessing. Some rich nations are highly populated, and some poor nations have small populations; there is essentially no relationship between size of population and per capita wealth. Per capita allocations would also create serious incentive problems, and they would face decisive objections from the standpoint of feasibility: Per capita rights would transfer hundreds of billions of dollars annually from the United States to China and India, and the United States is most unlikely to sign a treaty with that consequence. Comparisons are drawn between per capita allocations and other approaches, including those based on existing emissions rates and those with self-conscious redistributive aims. A general goal is to balance welfarist and fairness goals with feasibility constraints; per capita allocations do a poor job of achieving that balance, and an insistence on that approach might make the climate change problem intractable. These conclusions have general implications for thinking about normative goals and practical limitations in the context of international law.

climate change, distribution, emissions rates, international law

Abstract:
Is an accommodation reasonable, under the Americans with Disabilities Act, if and only if the benefits are roughly proportional to the costs? How should benefits and costs be assessed? Should courts asks about how much disabled employees are willing to pay to obtain the accommodation, or instead how much they would have to be paid not to have the accommodation? How should stigmatic or expressive harms be valued? This essay, written for a symposium on the work of Judge Richard A. Posner, engages these questions in a discussion of an important opinion in which Judge Posner denied accommodations involving the lowering of a sink in a kitchenette and a request for telecommuting. The problem with the analysis in that opinion is that it does not seriously analyze either costs or benefits. A general lesson is that while cost-benefit balancing can helpfully discipline unreliable intuitions about the effects of requested accommodations, it can also incorporate those intuitions. Another lesson is that stigmatic harms and daily humiliations deserve serious attention as part of the inquiry into which accommodations are reasonable, and that the removal of those harms and humiliations can create real benefits. Adequate cost-benefit analyses must attempt to measure and include those benefits.

disability, reasonable Accommodation, cost-benefit analysis

Abstract:
Courts have recently developed a new principle of interpretation: Administrative agencies are not bound by the literal language of regulatory statutes, if they are attempting to ensure against absurd or patently unreasonable outcomes. This principle is an effort to allow agencies to overcome the occasionally pathological rigidity of regulatory statutes, at least when those statutes must be applied in circumstances that Congress could not possibly anticipate. The new principle deserves widespread approval. After all, courts have long refused to interpret statutes literally in cases of absurdity. While it is possible to question the extent to which courts should feel free to inquire into the absurdity of an application of a statutory text, agencies have strong advantages over courts, because they are in a better position to know whether literalism, or departures from literalism, will improve the regulatory system. These points are connected with a more general one: Theories of interpretation should focus less on abstractions about democracy and legitimacy, and more on institutional capacities and concrete consequences. An appreciation of this suggestion fits well with courts' emerging enthusiasm for allowing agencies to interpret statutes more flexibly than courts do.

Abstract:
Constitutional limits on government's power to regulate the culture and the arts, newly salient in light of the controversy involving the Brooklyn Museum, are best understood by distinguishing among (a) content-neutral, (b) content-based, and (c) viewpoint-based restrictions, and also among (a) criminal and civil sanctions, (b) "penalties," and (c) mere failure to fund. The resulting three-by-three matrix provides an understanding of the vast bulk of current constitutional law. At the same time, several serious puzzles are created by current law: the distinction between viewpoint discrimination and content discrimination can be thin in the context of art; it is hard to know what counts as a "mere" failure to fund; and the law contains important uncertainties about selective funding. There is discussion as well of government subsidies of the market for culture and art.