• Selected
• Entire List

Abstract:
It is generally well understood that the proper standard of proof in criminal cases is the familiar beyond a reasonable doubt standard. Recently, however, there have been proposals to create a new standard of proof - such as "beyond all doubt" or "no doubt" - for capital cases as a way of protecting against erroneous convictions. These proposals have become more urgent in light of revelations of serious errors in capital cases in recent years.

This paper critiques such proposals. I argue that a higher standard of proof in capital cases can only be coherently justified on consequentialist grounds; and, if consequences are what matters, a higher standard of proof is unlikely to have the desired effect. Decades of empirical evidence show that changes to the wording of jury instructions are likely to have little, if any, impact on how jurors reach their decisions.

As an alternative, I propose several other changes that might actually help guard against erroneous convictions in capital cases. First, I suggest either eliminating or altering the present system of "death qualification" of jurors in capital cases, which leads to an artificially low standard of proof in such cases. Second, I suggest several changes to the way in which jurors are instructed. Changing the verbal formulation is not likely to be effective, but instructing jurors at the beginning, rather than the end, of the case in the standard of proof; giving jurors written instructions; and finally, expressing the standard of proof in quantitative terms to ease comprehension all may achieve more satisfactory results.

reasonable doubt, standard of proof, capital punishment, jury instructions

Abstract:
Some new technologies succeed, while others fail. Networks and multi-sided platforms are an important, but often-overlooked, explanation for these successes and failures. Many technologies will be successful only if their promoters can convince two (or more) sets of heterogeneous users to simultaneously embrace the technology. For example, in the case of credit cards, both consumers and merchants must decide to use the technology. For high definition (HD) televisions, both consumers and broadcasters must adopt the innovation. If only consumers adopted credit cards and HD, but merchants and broadcasters respectively did not, the technologies would fail: with no stores in which to use them, credit cards are as worthless (or perhaps even more so) than HD televisions that have no HD programming.

Because market success for many technologies requires coordination between different groups, there is a powerful incentive for innovators and entrepreneurs to get the government involved: government action, both direct and indirect, can strongly influence consumer and merchant behavior, and thereby ensure simultaneous adoption of the technology. Depending upon the situation, the government may (1) provide the information that allows individuals to coordinate their behavior; (2) pass legislation or adopt policies aimed at reducing concerns about a technology, (3) provide incentives to induce individuals to adopt new technologies, or (4) force change by eliminating or curtailing older technologies.

In this paper, we model how various groups decide whether to adopt and use networked and multi-platform technologies. We also explore when, if ever, the government should involve itself in influencing the success of such technologies. Drawing primarily on a rich set of examples from the payments industry, we conclude that the government generally should not intervene. First, technology moves fast and the government usually moves slowly. Second, with a bit of time, new technologies that are sufficiently advantageous are likely to flourish without government intervention. Third and finally, government interference may have the unintended consequence of dampening the incentive to invest in new technologies in the first instance.

Payments, Norms, Electronic Commerce, Law, Banking, Government

Abstract:
Modern medicine routinely employs race. This phenomenon, and the underlying rationale that salient biological differences exists between races, has been almost completely ignored by the law journals, although race in other contexts obsesses them. This is a serious omission since medicine's growing acceptance of using race in both research and treatment is at least as objectionable as other "racial profiling." Further, stressing genetic racial differences triggers associations with the eugenics movement and repeated "scientific" efforts of the last century to prove the intellectual inferiority of African-Americans.

From a genetic perspective, there is no such thing as race; instead race is socially constructed. But, when viewing race as an indicator of the geographic origin of one's ancestors, race can, in some limited circumstances, be characterized by differences in genetic frequencies that may have an impact on disease or its treatment, particularly when also linked to environmental or behavioral influences. Any such differences among population groups are nevertheless generally not very important from a medical perspective, although it might be sometimes appropriate to use race as a proxy for genetic (as well as environmental and behavioral) differences. The law nonetheless currently broadly proscribes the use of race, and the use of race in medicine is deeply problematic from a normative perspective because it may validate racism by confirming the salience of genetic differences.

Accordingly, use of race should be severely circumscribed. It should be permissible where race-focused studies and race-based outreach are concerned, but race-based screening, as we define that term, and racial exclusion in clinical trials should not be permitted. Racial differences in treatment (including diagnostic screening) should be permissible only in the quite rare circumstances where there is a bona fide treatment rationale. Under this test, the key requirement would be a scientific basis for believing not that race was helpful in diagnosis and treatment but rather that race was the best available method at the time.

health law, race, discrimination, genetics

Abstract:
According to the traditional understanding, proof beyond a reasonable doubt requires a high level of certainty before a jury convicts someone of a crime. This view is often framed in explicitly utilitarian terms: that a high standard of proof is justified because the costs of erroneously convicting an innocent person are so much higher than the costs of erroneously acquitting a guilty person. Empirical evidence, though, suggests that the standard reasonable doubt jury instruction does not actually require as much certainty as we generally assume. The common response to this observation is to propose improvements to the instruction to ensure that juries will require a high level of certainty. This Article contends that this solution is misguided because it wrongly presumes that the instruction needs to be fixed. Instead, what needs to change is our understanding of reasonable doubt. Using the expected utility model of decision theory, as well as insights from behavioral economics and the social norms literature, this Article suggests that the reasonable doubt standard of proof is inevitably flexible in nature: in some cases juries will require more proof than in other cases. The Article goes on to suggest that this result is in fact preferable to a standard of proof that requires a high level of certainty in all criminal cases.

Abstract:
The Supreme Court's decision in Apprendi v. New Jersey reinserted the jury into the sentencing process by requiring juries to find any facts that increase the defendant's sentence above the statutory maximum. The case is puzzling because the trend for over 200 years has to been to limit, not increase, the jury's involvement in sentencing. Many commentators have nonetheless praised Apprendi because it promises to undermine the existing sentencing system and reduce the sentences of hundreds, if not thousands, of defendants. This Article suggests that Apprendi has a hidden cost: it will result in more convictions, even as it reduces the average sentence. This is because Apprendi, like jury sentencing more generally, presents the jury with multiple "guilty" options from which to choose. Modern behavioral economics shows that when decisionmakers are given such additional choices, the tendency is to increase the overall selection of that category of choice. The result is that after Apprendi, more defendants will be convicted at trial. This Article then considers whether the trade-off created by Apprendi - more convictions for lower sentences - might make sense. The general rejection of jury sentencing, which promises the exact same trade-off, suggests that the answer is no. Jury sentencing, however, has expanded in one area - capital punishment. Thus, this Article examines whether Apprendi might be analogized to the capital sentencing decisions, but concludes that it is difficult, although not impossible, to justify Apprendi's trade-off.

Apprendi, jury sentencing, behavioral law and economics, lesser included offenses, death penalty

Abstract:
In this article, we discuss current legal restrictions governing the use of race in medical research; in particular, we focus on the whether the use of race in various types of research is presently permitted under federal law and the federal constitution. We also discuss whether federal restrictions on the use of race in research ought to be expanded, and whether federal policies that encourage the use of race ought to be abandoned.

We conclude that information about ancestry and social and environmental influences should always be preferred to race in research and that information about ancestry and social and environmental influences should be collected instead of race whenever possible. Race may be nonetheless tolerated as a proxy for ancestry or social and environmental factors when racial data is all that is available (as is often the case in epidemiological studies) and social causes are the primary variable of interest. We would not bar race-based research, though, except in clinical trials, where we believe that current law already bars the use of race.

Government authorization and funding raises significantly different concerns, though, than government simply prohibiting the research in question, and we would bar both government authorization of race-based clinical trials and government funding of studies in which race is the variable of interest, except when a compelling interest can be identified (such as testing for alleles for diseases known to occur disparately in different races) and researchers can show why they need to use race instead of using genetic markers.

Race, Medcial Research, Genetics, Clinical Trials