I develop a novel, rights-based conception of contract—the “democratic conception”—that can deliver a justification for granting a sphere of freedom to contracting parties while setting principled limits on that grant. It justifies doctrines—including the penalty doctrine, the doctrine of substantial performance, a robust doctrine of changed circumstances, and a robust doctrine of unconscionability—that an influential group of contract theorists argue set unprincipled limits on the parties’ equal procedural freedom. My account shows how these doctrines can be rendered compatible with a robust principle of freedom of contract that is grounded in the parties’ rights.
{"title":"Putting Freedom of Contract in its Place","authors":"Rebecca Stone","doi":"10.1093/jla/laae004","DOIUrl":"https://doi.org/10.1093/jla/laae004","url":null,"abstract":"I develop a novel, rights-based conception of contract—the “democratic conception”—that can deliver a justification for granting a sphere of freedom to contracting parties while setting principled limits on that grant. It justifies doctrines—including the penalty doctrine, the doctrine of substantial performance, a robust doctrine of changed circumstances, and a robust doctrine of unconscionability—that an influential group of contract theorists argue set unprincipled limits on the parties’ equal procedural freedom. My account shows how these doctrines can be rendered compatible with a robust principle of freedom of contract that is grounded in the parties’ rights.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141857793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Matthew Dahl, Varun Magesh, Mirac Suzgun, Daniel E Ho
Do large language models (LLMs) know the law? LLMs are increasingly being used to augment legal practice, education, and research, yet their revolutionary potential is threatened by the presence of “hallucinations”—textual output that is not consistent with legal facts. We present the first systematic evidence of these hallucinations in public-facing LLMs, documenting trends across jurisdictions, courts, time periods, and cases. Using OpenAI’s ChatGPT 4 and other public models, we show that LLMs hallucinate at least 58% of the time, struggle to predict their own hallucinations, and often uncritically accept users’ incorrect legal assumptions. We conclude by cautioning against the rapid and unsupervised integration of popular LLMs into legal tasks, and we develop a typology of legal hallucinations to guide future research in this area.
{"title":"Large Legal Fictions: Profiling Legal Hallucinations in Large Language Models","authors":"Matthew Dahl, Varun Magesh, Mirac Suzgun, Daniel E Ho","doi":"10.1093/jla/laae003","DOIUrl":"https://doi.org/10.1093/jla/laae003","url":null,"abstract":"Do large language models (LLMs) know the law? LLMs are increasingly being used to augment legal practice, education, and research, yet their revolutionary potential is threatened by the presence of “hallucinations”—textual output that is not consistent with legal facts. We present the first systematic evidence of these hallucinations in public-facing LLMs, documenting trends across jurisdictions, courts, time periods, and cases. Using OpenAI’s ChatGPT 4 and other public models, we show that LLMs hallucinate at least 58% of the time, struggle to predict their own hallucinations, and often uncritically accept users’ incorrect legal assumptions. We conclude by cautioning against the rapid and unsupervised integration of popular LLMs into legal tasks, and we develop a typology of legal hallucinations to guide future research in this area.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141461890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes. We offer an analytical framework to explain why. Contrary to heated political rhetoric, election policies have small effects on outcomes because they tend to target small shares of the electorate, have a small effect on turnout, and/or affect voters who are relatively balanced in their partisanship. After developing this framework, we address how the findings bear on minority voting rights. We then show that countermobilization from political parties cannot explain the small effects of election laws. We explain that even when a state passes multiple policies at the same time, the reforms will still only have a marginal effect on turnout and an ambiguous effect on who wins. Finally, we explain what policies should raise alarm about affecting outcomes.
{"title":"How Election Rules Affect Who Wins","authors":"Justin Grimmer, Eitan Hersh","doi":"10.1093/jla/laae001","DOIUrl":"https://doi.org/10.1093/jla/laae001","url":null,"abstract":"Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes. We offer an analytical framework to explain why. Contrary to heated political rhetoric, election policies have small effects on outcomes because they tend to target small shares of the electorate, have a small effect on turnout, and/or affect voters who are relatively balanced in their partisanship. After developing this framework, we address how the findings bear on minority voting rights. We then show that countermobilization from political parties cannot explain the small effects of election laws. We explain that even when a state passes multiple policies at the same time, the reforms will still only have a marginal effect on turnout and an ambiguous effect on who wins. Finally, we explain what policies should raise alarm about affecting outcomes.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2024-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140534117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Crime creates demand for insurance but supplying insurance may promote crime. We examine five case studies of insured crimes (auto theft, art theft, kidnap and hijack for ransom, ransomware, and payment card fraud) and find a co-evolutionary process through which insurers engage with insureds, governments, and legal and extralegal third parties to mitigate losses, particularly when criminal innovations destabilize the insurance market. “Insurance as crime governance” stimulates demand for security, shapes criminal incentives, engages with the state to combat crime, and tolerates some crime in the interest of profitability.
{"title":"How Crime Shapes Insurance and Insurance Shapes Crime","authors":"Tom Baker, Anja Shortland","doi":"10.1093/jla/laad002","DOIUrl":"https://doi.org/10.1093/jla/laad002","url":null,"abstract":"Crime creates demand for insurance but supplying insurance may promote crime. We examine five case studies of insured crimes (auto theft, art theft, kidnap and hijack for ransom, ransomware, and payment card fraud) and find a co-evolutionary process through which insurers engage with insureds, governments, and legal and extralegal third parties to mitigate losses, particularly when criminal innovations destabilize the insurance market. “Insurance as crime governance” stimulates demand for security, shapes criminal incentives, engages with the state to combat crime, and tolerates some crime in the interest of profitability.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The dramatic rise of remote work threatens the traditional source of urban growth—the unique ability of dense cities to provide a setting in which firms and employees share productive resources, match needs with skills, and transmit knowledge at low cost. These “agglomeration benefits” have induced cities to pursue clusters of related firms that have served as the basis for local economic development and technological innovation. Remote work reduces the necessity for related firms to co-locate, and its popularity has led commentators to predict significant decrease in city business activity, tax revenues, and services as traditional clusters dissipate. It remains unclear how cities will react to the remote work phenomenon. Prior episodes of cluster decline, however, reveal that cities have difficulty pivoting to new economic models when outmoded ones threaten local decay. Instead, cities tend to support existing clusters, notwithstanding that the impending decline is a function of external forces rather than of local policies. This article addresses the potential mismatch between cluster decline that may flow from remote work and city responses. The article theorizes that continued municipal efforts to support a declining cluster emerge from the ability of affected firms to coalesce, exercise political influence, and exploit fragmented municipal decision making to preserve the status quo, maintain or increase municipal subsidies for the cluster, and deter entry by competitors for city resources. Those strategies impede the city’s transition to a more productive economy in the face of looming cluster decline. The article then turns to the history of the garment industry in New York City to illustrate the theory. That history provides a cautionary tale about how cities should and should not respond to the threats they face from remote work.
{"title":"Remote Work and City Decline: Lessons From the Garment District","authors":"Clayton P Gillette","doi":"10.1093/jla/laad004","DOIUrl":"https://doi.org/10.1093/jla/laad004","url":null,"abstract":"The dramatic rise of remote work threatens the traditional source of urban growth—the unique ability of dense cities to provide a setting in which firms and employees share productive resources, match needs with skills, and transmit knowledge at low cost. These “agglomeration benefits” have induced cities to pursue clusters of related firms that have served as the basis for local economic development and technological innovation. Remote work reduces the necessity for related firms to co-locate, and its popularity has led commentators to predict significant decrease in city business activity, tax revenues, and services as traditional clusters dissipate. It remains unclear how cities will react to the remote work phenomenon. Prior episodes of cluster decline, however, reveal that cities have difficulty pivoting to new economic models when outmoded ones threaten local decay. Instead, cities tend to support existing clusters, notwithstanding that the impending decline is a function of external forces rather than of local policies. This article addresses the potential mismatch between cluster decline that may flow from remote work and city responses. The article theorizes that continued municipal efforts to support a declining cluster emerge from the ability of affected firms to coalesce, exercise political influence, and exploit fragmented municipal decision making to preserve the status quo, maintain or increase municipal subsidies for the cluster, and deter entry by competitors for city resources. Those strategies impede the city’s transition to a more productive economy in the face of looming cluster decline. The article then turns to the history of the garment industry in New York City to illustrate the theory. That history provides a cautionary tale about how cities should and should not respond to the threats they face from remote work.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507370","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.
{"title":"Finding Facts in Medieval English Law","authors":"Elizabeth Papp Kamali","doi":"10.1093/jla/laad009","DOIUrl":"https://doi.org/10.1093/jla/laad009","url":null,"abstract":"Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Corporate governance is on the verge of entering a new stage. After the managerialism that dominated the view of the corporation into the 1970s and the shareholderism that supplanted it, we are witnessing the emergence of a new paradigm: corporate governance welfarism. Welfarism rejects the faith that market forces will promote general welfare and lacks confidence in the government’s ability to set proper boundary constraints. By looking to corporations to internalize externalities directly, welfarism thus offers an alternative way to deal with social problems that the political system has failed to address. Welfarism comes in three strands—portfolio welfarism, shareholder welfarism, and direct social welfarism—two of which are consistent with shareholder primacy. The important distinction between welfarism and shareholderism, rather, is that welfarism, by embracing goals that are much broader than shareholder value as a means to promote overall welfare, reflects a departure from the classical liberal economic theory that underpins shareholderism. Welfarism, in turn, departs from managerialism in looking beyond the single firm, in relying on shareholder and stakeholder pressure rather than on managerial discretion to balance firm value maximization and broader objectives, and in embracing a wider set of potential stakeholders. Welfarism is on the rise ideologically. While it is unclear how much welfarism has already affected operations at individual firms, the underlying drivers of welfarism are likely to remain or grow. There are, therefore, good reasons to believe that the push towards welfarism will take hold, grow, and, over time, generate a welfarist turn in corporate governance. Welfarism, however, is subject to two inherent limitations. First, welfarism has its greatest traction for publicly traded companies with dispersed shareholders. By contrast, for companies with a single shareholder, a controlling shareholder, or a small group of shareholders, the welfarist prescriptions will have only a limited impact. Second, the very lack of consensus that impedes political solutions reemerges under and constrains welfarism by generating disagreements among shareholders, impugning its legitimacy, and imposing political barriers to its implementation.
{"title":"Corporate Governance Welfarism","authors":"Marcel Kahan, Edward Rock","doi":"10.1093/jla/laad007","DOIUrl":"https://doi.org/10.1093/jla/laad007","url":null,"abstract":"Corporate governance is on the verge of entering a new stage. After the managerialism that dominated the view of the corporation into the 1970s and the shareholderism that supplanted it, we are witnessing the emergence of a new paradigm: corporate governance welfarism. Welfarism rejects the faith that market forces will promote general welfare and lacks confidence in the government’s ability to set proper boundary constraints. By looking to corporations to internalize externalities directly, welfarism thus offers an alternative way to deal with social problems that the political system has failed to address. Welfarism comes in three strands—portfolio welfarism, shareholder welfarism, and direct social welfarism—two of which are consistent with shareholder primacy. The important distinction between welfarism and shareholderism, rather, is that welfarism, by embracing goals that are much broader than shareholder value as a means to promote overall welfare, reflects a departure from the classical liberal economic theory that underpins shareholderism. Welfarism, in turn, departs from managerialism in looking beyond the single firm, in relying on shareholder and stakeholder pressure rather than on managerial discretion to balance firm value maximization and broader objectives, and in embracing a wider set of potential stakeholders. Welfarism is on the rise ideologically. While it is unclear how much welfarism has already affected operations at individual firms, the underlying drivers of welfarism are likely to remain or grow. There are, therefore, good reasons to believe that the push towards welfarism will take hold, grow, and, over time, generate a welfarist turn in corporate governance. Welfarism, however, is subject to two inherent limitations. First, welfarism has its greatest traction for publicly traded companies with dispersed shareholders. By contrast, for companies with a single shareholder, a controlling shareholder, or a small group of shareholders, the welfarist prescriptions will have only a limited impact. Second, the very lack of consensus that impedes political solutions reemerges under and constrains welfarism by generating disagreements among shareholders, impugning its legitimacy, and imposing political barriers to its implementation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Litigants settle in the shadow of the law, but they behave in the shadow of the settlement outcome. Disparities in bargaining power drive a wedge between the shadow of the settlement and the shadow of the law. Broad literature has recognized various problems that stem from this discrepancy, from suboptimal deterrence to distributive concerns. We offer a new perspective to address these concerns—regulating the settlement process, through a judge-induced bargaining protocol. We develop this argument through a bargaining protocol that assigns a take-it-or-leave-it offer to one of the parties and discuss the policy goals that such protocol could advance.
{"title":"The Promise of Bargaining Protocols","authors":"Shay Lavie, Avraham Tabbach","doi":"10.1093/jla/laad006","DOIUrl":"https://doi.org/10.1093/jla/laad006","url":null,"abstract":"Litigants settle in the shadow of the law, but they behave in the shadow of the settlement outcome. Disparities in bargaining power drive a wedge between the shadow of the settlement and the shadow of the law. Broad literature has recognized various problems that stem from this discrepancy, from suboptimal deterrence to distributive concerns. We offer a new perspective to address these concerns—regulating the settlement process, through a judge-induced bargaining protocol. We develop this argument through a bargaining protocol that assigns a take-it-or-leave-it offer to one of the parties and discuss the policy goals that such protocol could advance.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507025","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Regulatory and sociological resistance to new market-driven technologies, particularly to those that rely on collection and analysis of personal data, is prevalent even in cases where the technology creates large social value and saves lives. This article is a case study of such tragic technology resistance, focusing on tracking devices in cars which allow auto insurers to monitor how policyholders drive and adjust the premiums accordingly. Growing empirical work reveals that such “usage-based insurance” induces safer driving, reducing fatal accidents by almost one third, and resulting in more affordable and fair premiums. Yet, California prohibits this technology and other states limit its effectiveness, largely in the interest of privacy protection. The article evaluates the justifications fueling the restrictive regulation vis-à-vis the loss of lives resulting from this regulation. It concludes that the social benefits of the tracking technology dramatically outweigh the privacy and related costs.
{"title":"Privacy Protection, At What Cost? Exploring the Regulatory Resistance to Data Technology in Auto Insurance","authors":"Omri Ben-Shahar","doi":"10.1093/jla/laad008","DOIUrl":"https://doi.org/10.1093/jla/laad008","url":null,"abstract":"Regulatory and sociological resistance to new market-driven technologies, particularly to those that rely on collection and analysis of personal data, is prevalent even in cases where the technology creates large social value and saves lives. This article is a case study of such tragic technology resistance, focusing on tracking devices in cars which allow auto insurers to monitor how policyholders drive and adjust the premiums accordingly. Growing empirical work reveals that such “usage-based insurance” induces safer driving, reducing fatal accidents by almost one third, and resulting in more affordable and fair premiums. Yet, California prohibits this technology and other states limit its effectiveness, largely in the interest of privacy protection. The article evaluates the justifications fueling the restrictive regulation vis-à-vis the loss of lives resulting from this regulation. It concludes that the social benefits of the tracking technology dramatically outweigh the privacy and related costs.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women disproportionally occupy interim and non-tenure track positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.
{"title":"Women in U.S. Law Schools, 1948–2021","authors":"Elizabeth D Katz, Kyle Rozema, Sarath Sanga","doi":"10.1093/jla/laad005","DOIUrl":"https://doi.org/10.1093/jla/laad005","url":null,"abstract":"We study the progress of women’s representation and achievement in law schools. To do this, we assemble a new dataset on the number of women and men students, faculty, and deans at all ABA-approved U.S. law schools from 1948 to the present. These data enable us to study many unexplored features of women’s progress in law schools for the first time, including the process by which women initially gained access to each law school, the variance in women’s experiences across law schools, the relationship between women’s representation and student achievement, and the extent to which women disproportionally occupy interim and non-tenure track positions. We contextualize our findings by situating them within the vast qualitative literature on women’s experiences in law schools and the legal profession.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":null,"pages":null},"PeriodicalIF":2.2,"publicationDate":"2023-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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