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":"114 17","pages":""},"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}
Oren Bar-Gill, Cass R Sunstein, Inbal Talgam-Cohen
Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to their situations, that fit with their particular tastes, and that have prices that fit their personal valuations. In many cases, the use of algorithms promises to increase efficiency and to promote social welfare; it might also promote fair distribution. But when consumers suffer from an absence of information or from behavioral biases, algorithms can cause serious harm. Companies might, for example, exploit such biases in order to lead people to purchase products that have little or no value for them or to pay too much for products that do have value for them. Algorithmic harm, understood as the exploitation of an absence of information or of behavioral biases, can disproportionately affect members of identifiable groups, including women and people of color. Since algorithms exacerbate the harm caused to imperfectly informed and imperfectly rational consumers, their increasing use provides fresh support for existing efforts to reduce information and rationality deficits, especially through optimally designed disclosure mandates. In addition, there is a more particular need for algorithm-centered policy responses. Specifically, algorithmic transparency—transparency about the nature, uses, and consequences of algorithms—is both crucial and challenging; novel methods designed to open the algorithmic “black box” and “interpret” the algorithm’s decision-making process should play a key role. In appropriate cases, regulators should also police the design and implementation of algorithms, with a particular emphasis on the exploitation of an absence of information or of behavioral biases.
{"title":"Algorithmic Harm in Consumer Markets","authors":"Oren Bar-Gill, Cass R Sunstein, Inbal Talgam-Cohen","doi":"10.1093/jla/laad003","DOIUrl":"https://doi.org/10.1093/jla/laad003","url":null,"abstract":"Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to their situations, that fit with their particular tastes, and that have prices that fit their personal valuations. In many cases, the use of algorithms promises to increase efficiency and to promote social welfare; it might also promote fair distribution. But when consumers suffer from an absence of information or from behavioral biases, algorithms can cause serious harm. Companies might, for example, exploit such biases in order to lead people to purchase products that have little or no value for them or to pay too much for products that do have value for them. Algorithmic harm, understood as the exploitation of an absence of information or of behavioral biases, can disproportionately affect members of identifiable groups, including women and people of color. Since algorithms exacerbate the harm caused to imperfectly informed and imperfectly rational consumers, their increasing use provides fresh support for existing efforts to reduce information and rationality deficits, especially through optimally designed disclosure mandates. In addition, there is a more particular need for algorithm-centered policy responses. Specifically, algorithmic transparency—transparency about the nature, uses, and consequences of algorithms—is both crucial and challenging; novel methods designed to open the algorithmic “black box” and “interpret” the algorithm’s decision-making process should play a key role. In appropriate cases, regulators should also police the design and implementation of algorithms, with a particular emphasis on the exploitation of an absence of information or of behavioral biases.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"114 18","pages":""},"PeriodicalIF":2.2,"publicationDate":"2023-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71507023","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}
Important types of contractual relationships—among them those between integrated product manufacturers and their suppliers—are neither fully transactional nor fully relational. The agreements that govern these relationships incorporate highly detailed written terms that focus not only on what is promised but also on the details of how it is to be achieved and how suppliers’ actions will be monitored and responded to over the life of the agreement. Together with the implicit relational contracts that support their operation, these provisions create an economic hybrid that lies between markets and hierarchies, a set of relatively standard institutional arrangements that give buyers the right (but not the obligation) to exercise a package of quasi-integration rights that enables them to obtain many of the most important benefits of vertical integration while simultaneously reaping most of the core benefits of outsourcing. The contract provisions used to govern these relationships are termed here “managerial provisions” because they employ the techniques of intra-firm hierarchy that managers use to organize relationships and increase productivity within firms. This article focuses on a subset of these provisions, namely those that are analogous to the eighteen management practices that the World Management Survey (WMS) reveals are closely associated with persistent performance differences across similarly situated enterprises. After documenting the convergence between these practices and the terms of procurement contracts, the article suggests that the contract governance regime these practices create is well designed to support the creation and maintenance of cooperative relationships, strengthen the force of network governance, and scaffold the emergence of the type of inter-firm process-based trust that is associated with better supplier performance. More generally, this article concludes that in the modern economy, where the value of so many types of contracts—from research and development alliances to business process outsourcing agreements and beyond—depends on employees of the contracting entities working together much as if they worked for a single firm, lawyers would be well advised to look to the broad array of managerial techniques successfully used within firms (not only those based on WMS practices) to develop new ways to better govern transactions between firms.
{"title":"Managerial Contracting: A Preliminary Study","authors":"Lisa Bernstein, Brad Peterson","doi":"10.1093/jla/laac007","DOIUrl":"https://doi.org/10.1093/jla/laac007","url":null,"abstract":"Important types of contractual relationships—among them those between integrated product manufacturers and their suppliers—are neither fully transactional nor fully relational. The agreements that govern these relationships incorporate highly detailed written terms that focus not only on what is promised but also on the details of how it is to be achieved and how suppliers’ actions will be monitored and responded to over the life of the agreement. Together with the implicit relational contracts that support their operation, these provisions create an economic hybrid that lies between markets and hierarchies, a set of relatively standard institutional arrangements that give buyers the right (but not the obligation) to exercise a package of quasi-integration rights that enables them to obtain many of the most important benefits of vertical integration while simultaneously reaping most of the core benefits of outsourcing. The contract provisions used to govern these relationships are termed here “managerial provisions” because they employ the techniques of intra-firm hierarchy that managers use to organize relationships and increase productivity within firms. This article focuses on a subset of these provisions, namely those that are analogous to the eighteen management practices that the World Management Survey (WMS) reveals are closely associated with persistent performance differences across similarly situated enterprises. After documenting the convergence between these practices and the terms of procurement contracts, the article suggests that the contract governance regime these practices create is well designed to support the creation and maintenance of cooperative relationships, strengthen the force of network governance, and scaffold the emergence of the type of inter-firm process-based trust that is associated with better supplier performance. More generally, this article concludes that in the modern economy, where the value of so many types of contracts—from research and development alliances to business process outsourcing agreements and beyond—depends on employees of the contracting entities working together much as if they worked for a single firm, lawyers would be well advised to look to the broad array of managerial techniques successfully used within firms (not only those based on WMS practices) to develop new ways to better govern transactions between firms.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"49 2","pages":""},"PeriodicalIF":2.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520819","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}
Holger Spamann, Lars Klöhn, Christophe Jamin, Vikramaditya Khanna, John Zhuang Liu, Pavan Mamidi, Alexander Morell, Ivan Reidel
In the originally published version of this manuscript, there were several errors which have been corrected online.
在本手稿最初发表的版本中，有几个错误已在网上更正。
{"title":"Erratum to: Judges in the Lab: No Precedent Effects, No Common/Civil Law Differences","authors":"Holger Spamann, Lars Klöhn, Christophe Jamin, Vikramaditya Khanna, John Zhuang Liu, Pavan Mamidi, Alexander Morell, Ivan Reidel","doi":"10.1093/jla/laab006","DOIUrl":"https://doi.org/10.1093/jla/laab006","url":null,"abstract":"<span>In the originally published version of this manuscript, there were several errors which have been corrected online.</span>","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"23 3","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520809","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}
A chief reason that the President is insufficiently constrained when exercising statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha.
据称，总统在行使法定授权时没有受到充分约束的一个主要原因是，最高法院在其对INS v. Chadha的裁决中不允许立法否决，这一说法在特朗普政府期间得到了加强。本文对这一说法提出了挑战，认为在查达案之前，立法否决权的可用性对国会与行政部门的关系并不像法律学者通常认为的那么重要，而且，从某种程度上说，立法否决权对于检查某些法定授权的行使是(或将会成为)重要的，国会在查达案之后的几年里制定了一系列有效的变通办法。
{"title":"Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds","authors":"Curtis A Bradley","doi":"10.1093/jla/laab008","DOIUrl":"https://doi.org/10.1093/jla/laab008","url":null,"abstract":"A chief reason that the President is insufficiently constrained when exercising statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"29 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520817","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 Wisconsin Supreme Court allows machine advice in the courtroom only if accompanied by a series of warnings. We test 878 US lay participants with jury experience on fifty past cases where we know ground truth. The warnings affect their estimates of the likelihood of recidivism and their confidence, but not their decision whether to grant bail. Participants do not get better at identifying defendants who recidivated during the next two years. Results are essentially the same if participants are warned in easily accessible language, and if they are additionally informed about the low accuracy of machine predictions. The decision to grant bail is also unaffected by the warnings mandated by the Supreme Court if participants do not first decide without knowing the machine prediction. Oversampling cases where defendants committed violent crime does not change results either, whether coupled with machine predictions for general or for violent crime. Giving participants feedback and incentivizing them for finding ground truth has a small, weakly significant effect. The effect becomes significant at conventional levels when additionally using strong graphical warnings. Then participants are less likely to follow the advice. But the effect is counterproductive: they follow the advice less if it actually is closer to ground truth.
{"title":"Machine Advice with a Warning about Machine Limitations: Experimentally Testing the Solution Mandated by the Wisconsin Supreme Court","authors":"C. Engel, Nina Grgic-Hlaca","doi":"10.1093/jla/laab001","DOIUrl":"https://doi.org/10.1093/jla/laab001","url":null,"abstract":"\u0000 The Wisconsin Supreme Court allows machine advice in the courtroom only if accompanied by a series of warnings. We test 878 US lay participants with jury experience on fifty past cases where we know ground truth. The warnings affect their estimates of the likelihood of recidivism and their confidence, but not their decision whether to grant bail. Participants do not get better at identifying defendants who recidivated during the next two years. Results are essentially the same if participants are warned in easily accessible language, and if they are additionally informed about the low accuracy of machine predictions. The decision to grant bail is also unaffected by the warnings mandated by the Supreme Court if participants do not first decide without knowing the machine prediction. Oversampling cases where defendants committed violent crime does not change results either, whether coupled with machine predictions for general or for violent crime. Giving participants feedback and incentivizing them for finding ground truth has a small, weakly significant effect. The effect becomes significant at conventional levels when additionally using strong graphical warnings. Then participants are less likely to follow the advice. But the effect is counterproductive: they follow the advice less if it actually is closer to ground truth.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"17 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88479494","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}
Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild dark patterns were more than twice as likely to sign up for a dubious service as those assigned to the control group, and users in the aggressive dark pattern condition were almost four times as likely to subscribe. Moreover, whereas aggressive dark patterns generated a powerful backlash among consumers, mild dark patterns did not. Less educated subjects were significantly more susceptible to mild dark patterns than their well-educated counterparts. The second study identified the dark patterns that seem most likely to nudge consumers into making decisions that they are likely to regret or misunderstand. Hidden information, trick question, and obstruction strategies were particularly likely to manipulate consumers successfully. Other strategies employing loaded language or generating bandwagon effects worked moderately well, while still others such as “must act now” messages did not make consumers more likely to purchase a costly service. Our second study also replicated a striking result in the first experiment, which is that where dark patterns were employed the cost of the service offered to consumers became immaterial. Decision architecture, not price, drove consumer purchasing decisions. The article concludes by examining legal frameworks for addressing dark patterns. Many dark patterns appear to violate federal and state laws restricting the use of unfair and deceptive practices in trade. Moreover, in those instances where consumers enter into contracts after being exposed to dark patterns, their consent could be deemed voidable under contract law principles. The article also proposes that dark pattern audits become part of the Federal Trade Commission (FTC)’s consent decree process. Dark patterns are presumably proliferating because firms’ proprietary A-B testing has revealed them to be profit maximizing. We show how similar A-B testing can be used to identify those dark patterns that are so manipulative that they ought to be deemed unlawful.
{"title":"Shining a Light on Dark Patterns","authors":"Jamie Luguri, Lior Jacob Strahilevitz","doi":"10.1093/jla/laaa006","DOIUrl":"https://doi.org/10.1093/jla/laaa006","url":null,"abstract":"Dark patterns are user interfaces whose designers knowingly confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions. They typically exploit cognitive biases and prompt online consumers to purchase goods and services that they do not want or to reveal personal information they would prefer not to disclose. This article provides the first public evidence of the power of dark patterns. It discusses the results of the authors’ two large-scale experiments in which representative samples of American consumers were exposed to dark patterns. In the first study, users exposed to mild dark patterns were more than twice as likely to sign up for a dubious service as those assigned to the control group, and users in the aggressive dark pattern condition were almost four times as likely to subscribe. Moreover, whereas aggressive dark patterns generated a powerful backlash among consumers, mild dark patterns did not. Less educated subjects were significantly more susceptible to mild dark patterns than their well-educated counterparts. The second study identified the dark patterns that seem most likely to nudge consumers into making decisions that they are likely to regret or misunderstand. Hidden information, trick question, and obstruction strategies were particularly likely to manipulate consumers successfully. Other strategies employing loaded language or generating bandwagon effects worked moderately well, while still others such as “must act now” messages did not make consumers more likely to purchase a costly service. Our second study also replicated a striking result in the first experiment, which is that where dark patterns were employed the cost of the service offered to consumers became immaterial. Decision architecture, not price, drove consumer purchasing decisions. The article concludes by examining legal frameworks for addressing dark patterns. Many dark patterns appear to violate federal and state laws restricting the use of unfair and deceptive practices in trade. Moreover, in those instances where consumers enter into contracts after being exposed to dark patterns, their consent could be deemed voidable under contract law principles. The article also proposes that dark pattern audits become part of the Federal Trade Commission (FTC)’s consent decree process. Dark patterns are presumably proliferating because firms’ proprietary A-B testing has revealed them to be profit maximizing. We show how similar A-B testing can be used to identify those dark patterns that are so manipulative that they ought to be deemed unlawful.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"14 6","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520811","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 burgeoning literature on corporate governance, both in economics and in law, has focused heavily on the agency costs of delegated management. It is therefore striking to encounter a large number of well-established and highly successful companies that have long been under the complete control of a self-appointing board of directors whose compensation is divorced from the profitability of the company and who cannot be removed or replaced by anyone except themselves.
{"title":"The Governance of Foundation-Owned Firms","authors":"Henry Hansmann, Steen Thomsen","doi":"10.1093/jla/laaa005","DOIUrl":"https://doi.org/10.1093/jla/laaa005","url":null,"abstract":"The burgeoning literature on corporate governance, both in economics and in law, has focused heavily on the agency costs of delegated management. It is therefore striking to encounter a large number of well-established and highly successful companies that have long been under the complete control of a self-appointing board of directors whose compensation is divorced from the profitability of the company and who cannot be removed or replaced by anyone except themselves.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"55 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2021-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138520855","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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