Social enforcement is becoming a key feature of regulatory policy. Increasingly, statutes rely on individuals to report misconduct, yet the incentives they provide to encourage such enforcement vary significantly. Despite the clear policy benefits that flow from understanding the factors that facilitates social enforcement, i.e., the act of individual reporting of illegal behavior, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2000 employees, this article compares the effect of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. By exploring the interplay between internal and external enforcement motivation, these experiments provide novel insights into the comparative advantages of legal mechanisms that incentivize compliance and social enforcement. At the policymaking level, the study offers important practical findings about the costs and benefits of different regulatory systems, including findings about inadvertent counterproductive effects of certain legal incentives. In particular, the findings indicate that in some cases offering monetary rewards to whistleblowers will lead to less, rather than more, reporting of illegality. At the more theoretical level, the findings contribute to several strands of inquiry, including motivational crowding-out effects, framing biases, the existence of a “holier-than-thou” effect, and gender differences among social enforcers. Together, these findings portray a psychological schema that offers invaluable guidance for policy and regulatory design.
{"title":"The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties and Protections for Reporting Illegality","authors":"Y. Feldman, Orly Lobel","doi":"10.2139/SSRN.1415663","DOIUrl":"https://doi.org/10.2139/SSRN.1415663","url":null,"abstract":"Social enforcement is becoming a key feature of regulatory policy. Increasingly, statutes rely on individuals to report misconduct, yet the incentives they provide to encourage such enforcement vary significantly. Despite the clear policy benefits that flow from understanding the factors that facilitates social enforcement, i.e., the act of individual reporting of illegal behavior, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2000 employees, this article compares the effect of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. By exploring the interplay between internal and external enforcement motivation, these experiments provide novel insights into the comparative advantages of legal mechanisms that incentivize compliance and social enforcement. At the policymaking level, the study offers important practical findings about the costs and benefits of different regulatory systems, including findings about inadvertent counterproductive effects of certain legal incentives. In particular, the findings indicate that in some cases offering monetary rewards to whistleblowers will lead to less, rather than more, reporting of illegality. At the more theoretical level, the findings contribute to several strands of inquiry, including motivational crowding-out effects, framing biases, the existence of a “holier-than-thou” effect, and gender differences among social enforcers. Together, these findings portray a psychological schema that offers invaluable guidance for policy and regulatory design.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"88 1","pages":"1151"},"PeriodicalIF":1.6,"publicationDate":"2009-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1415663","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68178103","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe and became seemingly required practice thereafter in Asia, Africa, and Latin America. The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts’ lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obvi- ously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other func- tions of constitutional courts — functions that potentially alter the status and effectiveness of the bodies.This Article is concerned with what we call the ancillary powers of constitutional courts — those powers that fall outside the prototypical constitutional-review function described above. Perhaps because of the prominence of constitutional courts and their function of reviewing legisla- tion and government action, constitution drafters have given new courts a wide range of other tasks ranging from impeachment to certifying states of emergency. Just as Martin Shapiro has argued that scholars of American law and courts have paid too much attention to judicial review, scholars of the new constitutional courts also risk an incomplete understanding of courts as political institutions if they ignore these other powers of constitutional courts, which often place the courts in the midst of politically charged controversies. This Article is a first attempt to call attention to these powers as a set. It de- scribes the powers, documents trends over time, and speculates as to the political consequences of assigning courts tasks beyond judicial review.We do not mean anything pejorative by labeling these powers ancillary. As a historical matter, the earliest constitutional power of courts was that of judicial review. The powers considered here arise later as a historical matter, and hence can be labeled ancillary in this sense. Furthermore, none of the powers considered here is seen as essential to the definition of a court as a constitutional adjudicator. The defining function of a constitutional court is constitutional review, and other powers may be bundled with that function, but need not be. As we will see, the ancillary powers vary in the extent to which they require the court to refer to a constitutional text, and some of them do not involve the constitution even nominally. But paradoxically, the involvement of courts in ancillary tasks has the potential to undermine their ability to conduct effective constitutional review, precisely because it
{"title":"Ancillary Powers of Constitutional Courts","authors":"Tom Ginsburg, Zachary Elkins","doi":"10.26153/TSW/2245","DOIUrl":"https://doi.org/10.26153/TSW/2245","url":null,"abstract":"Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe and became seemingly required practice thereafter in Asia, Africa, and Latin America. The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts’ lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obvi- ously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other func- tions of constitutional courts — functions that potentially alter the status and effectiveness of the bodies.This Article is concerned with what we call the ancillary powers of constitutional courts — those powers that fall outside the prototypical constitutional-review function described above. Perhaps because of the prominence of constitutional courts and their function of reviewing legisla- tion and government action, constitution drafters have given new courts a wide range of other tasks ranging from impeachment to certifying states of emergency. Just as Martin Shapiro has argued that scholars of American law and courts have paid too much attention to judicial review, scholars of the new constitutional courts also risk an incomplete understanding of courts as political institutions if they ignore these other powers of constitutional courts, which often place the courts in the midst of politically charged controversies. This Article is a first attempt to call attention to these powers as a set. It de- scribes the powers, documents trends over time, and speculates as to the political consequences of assigning courts tasks beyond judicial review.We do not mean anything pejorative by labeling these powers ancillary. As a historical matter, the earliest constitutional power of courts was that of judicial review. The powers considered here arise later as a historical matter, and hence can be labeled ancillary in this sense. Furthermore, none of the powers considered here is seen as essential to the definition of a court as a constitutional adjudicator. The defining function of a constitutional court is constitutional review, and other powers may be bundled with that function, but need not be. As we will see, the ancillary powers vary in the extent to which they require the court to refer to a constitutional text, and some of them do not involve the constitution even nominally. But paradoxically, the involvement of courts in ancillary tasks has the potential to undermine their ability to conduct effective constitutional review, precisely because it","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"87 1","pages":"1431-1461"},"PeriodicalIF":1.6,"publicationDate":"2009-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69258403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When deciding whether baseball players are likely to get a hit, we look at their history of success at the plate. When deciding if a stock price is likely to rise or fall, we look at its past performance. But when police officers claim that they have probable cause to believe a certain location contains evidence, we do not look at whether they have been right or wrong when they have made the same claim in the past. Law enforcement search success rates vary widely, even when the same legal standard applies. Searches pursuant to warrants issued on a probable cause standard recover evidence at very high rates, usually exceeding 80%. By contrast, warrantless searches, even when officers allege they have probable cause, succeed at far lower rates, recovering evidence as infrequently as 12% of the time. Similarly, some officers are far better than others when they conduct probable cause searches. Some almost never succeed; some almost always find evidence. What role should these differential success rates play in the probable cause analysis? The current answer is none. Judges are not presented with the success rates of the law enforcement officers who appear before them. I argue that this is a mistake. Law enforcement should be forced to present success rate data to judges when making probable cause claims and judges should be allowed to consider the data when deciding whether to issue a warrant or whether to approve a previously conducted search. These success rates capture information not currently analyzed in the search process and their addition would improve the accuracy of search decisions. Most significantly, we would learn private information in the possession of law enforcement not currently presented to judges.
{"title":"Putting Probability Back into Probable Cause","authors":"Max J. Minzner","doi":"10.2139/SSRN.1157111","DOIUrl":"https://doi.org/10.2139/SSRN.1157111","url":null,"abstract":"When deciding whether baseball players are likely to get a hit, we look at their history of success at the plate. When deciding if a stock price is likely to rise or fall, we look at its past performance. But when police officers claim that they have probable cause to believe a certain location contains evidence, we do not look at whether they have been right or wrong when they have made the same claim in the past. Law enforcement search success rates vary widely, even when the same legal standard applies. Searches pursuant to warrants issued on a probable cause standard recover evidence at very high rates, usually exceeding 80%. By contrast, warrantless searches, even when officers allege they have probable cause, succeed at far lower rates, recovering evidence as infrequently as 12% of the time. Similarly, some officers are far better than others when they conduct probable cause searches. Some almost never succeed; some almost always find evidence. What role should these differential success rates play in the probable cause analysis? The current answer is none. Judges are not presented with the success rates of the law enforcement officers who appear before them. I argue that this is a mistake. Law enforcement should be forced to present success rate data to judges when making probable cause claims and judges should be allowed to consider the data when deciding whether to issue a warrant or whether to approve a previously conducted search. These success rates capture information not currently analyzed in the search process and their addition would improve the accuracy of search decisions. Most significantly, we would learn private information in the possession of law enforcement not currently presented to judges.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"87 1","pages":"913-962"},"PeriodicalIF":1.6,"publicationDate":"2008-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1157111","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68148516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, We are all realists now. Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, They were all realists then too. What was said about judging at the time - a full century ago - sounds exactly like what is said about judging today. The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that a group philosophy or program, a group credo of social welfare, these realists have not. They are not a group. Llewellyn also wrote that Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell. Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about. The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to The Bogus Tale About the Legal Formalists (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.
{"title":"Understanding Legal Realism","authors":"B. Tamanaha","doi":"10.2139/SSRN.1127178","DOIUrl":"https://doi.org/10.2139/SSRN.1127178","url":null,"abstract":"Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, We are all realists now. Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, They were all realists then too. What was said about judging at the time - a full century ago - sounds exactly like what is said about judging today. The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that a group philosophy or program, a group credo of social welfare, these realists have not. They are not a group. Llewellyn also wrote that Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell. Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about. The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to The Bogus Tale About the Legal Formalists (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"87 1","pages":"731"},"PeriodicalIF":1.6,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-05-08DOI: 10.1017/CBO9780511802379.018
J. Robertson
With assisted reproduction and its many variations now firmly assimilated into medical and social practice, criticisms of that industry as unduly commercial and lacking regulation are rife. Harvard Business School Professor Debora Spar's The Baby Business (2006) takes such an approach. This essay shows that without a more focused assessment of the demand, supply, and competition factors comprising the "market for babies," such criticisms are insufficiently anchored to support sound policy initiatives. It discusses six areas of current controversy - legal infrastructure, the high rate of twinning, payment for gametes and gestation, genetic screening and selection of embryos, culture of life constraints, and centralized regulation - to show that the business and commercial side of assisted reproduction should not be of primary policy concern in resolving the many local issues that the field presents.
{"title":"Commerce and Regulation in the Assisted Reproduction Industry","authors":"J. Robertson","doi":"10.1017/CBO9780511802379.018","DOIUrl":"https://doi.org/10.1017/CBO9780511802379.018","url":null,"abstract":"With assisted reproduction and its many variations now firmly assimilated into medical and social practice, criticisms of that industry as unduly commercial and lacking regulation are rife. Harvard Business School Professor Debora Spar's The Baby Business (2006) takes such an approach. This essay shows that without a more focused assessment of the demand, supply, and competition factors comprising the \"market for babies,\" such criticisms are insufficiently anchored to support sound policy initiatives. It discusses six areas of current controversy - legal infrastructure, the high rate of twinning, payment for gametes and gestation, genetic screening and selection of embryos, culture of life constraints, and centralized regulation - to show that the business and commercial side of assisted reproduction should not be of primary policy concern in resolving the many local issues that the field presents.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"85 1","pages":"191-207"},"PeriodicalIF":1.6,"publicationDate":"2007-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511802379.018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57095660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead of a property rule. Notably, where injunctive relief cannot be confined to protecting the underlying right, the availability of such relief can give rise to a "holdup strategy," whereby a firm threatens or uses litigation to obtain a settlement significantly in excess of any harm it suffers. Such strategies, as the Article explains, arise in a variety of technology law contexts, including patent law, digital copyright cases, and spectrum regulation. Depending on the particulars of the context, either courts or agencies should superintend the relevant liability regime and, in some cases, the administrative challenges may undermine the case for a liability rule at all. Unfortunately, legal scholars have generally focused on the substantive debate as to the proper scope of property rights - often arguing for an all or nothing solution - at the expense of evaluating the institutional considerations as to whether and when courts or agencies can superintend a liability regime in lieu of a property right.
{"title":"Should Property or Liability Rules Govern Information","authors":"Mark A. Lemley, P. Weiser","doi":"10.31235/osf.io/vgf7p","DOIUrl":"https://doi.org/10.31235/osf.io/vgf7p","url":null,"abstract":"This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead of a property rule. Notably, where injunctive relief cannot be confined to protecting the underlying right, the availability of such relief can give rise to a \"holdup strategy,\" whereby a firm threatens or uses litigation to obtain a settlement significantly in excess of any harm it suffers. Such strategies, as the Article explains, arise in a variety of technology law contexts, including patent law, digital copyright cases, and spectrum regulation. Depending on the particulars of the context, either courts or agencies should superintend the relevant liability regime and, in some cases, the administrative challenges may undermine the case for a liability rule at all. Unfortunately, legal scholars have generally focused on the substantive debate as to the proper scope of property rights - often arguing for an all or nothing solution - at the expense of evaluating the institutional considerations as to whether and when courts or agencies can superintend a liability regime in lieu of a property right.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"85 1","pages":"783"},"PeriodicalIF":1.6,"publicationDate":"2007-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69653112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk-creation. Instead, I propose that an actor who creates a risk of causing death but who was unaware of that risk can fairly be subject to retributive punishment if he was either non-willfully ignorant or self-deceived, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one's beliefs.
{"title":"What's Wrong with Involuntary Manslaughter?","authors":"S. P. Garvey","doi":"10.2139/SSRN.834607","DOIUrl":"https://doi.org/10.2139/SSRN.834607","url":null,"abstract":"Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk-creation. Instead, I propose that an actor who creates a risk of causing death but who was unaware of that risk can fairly be subject to retributive punishment if he was either non-willfully ignorant or self-deceived, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one's beliefs.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"85 1","pages":"333"},"PeriodicalIF":1.6,"publicationDate":"2006-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67839035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation or votes to repeal antiquated crimes politically implausible. Thus criminal law is "one-way ratchet": it expands but does not contract. On this account, America's excessive criminal codes are products of structural failures in political process and democratic institutions. The overlooked story in American criminal law, however, is long and continuing history of legislative decriminalization. State legislatures have long records of repealing or narrowing criminal statutes. Even as criminal law has expanded greatly in some directions, it has contracted dramatically so in other spheres of activity. And democratic processes, especially legislatures, have been responsible for much of that contraction. Moreover, evidence of state legislative records suggests that contemporary legislatures decline to enact most bills proposing new or expanded criminal laws, including many that seem, on standard accounts, politically irresistible. The ratchet of crime legislation turns both ways. More than ninety percent of criminal law enforcement is state rather than federal, and state criminal justice systems on the whole more democratically responsive than the federal system. Many state legislatures recently have proven better at devising procedural frameworks to harness expertise in the reform of criminal law and punishment policy and to moderate risks of dysfunctional policymaking. Coupled with restraints from other branches, substantive overcriminalization, judged against a baseline of democratic preferences, is a negligible problem in the states. And data on charging, conviction and sentencing practices suggest that what overcriminalization exists has little effect on criminal justice's well recognized problems of excessive plea bargaining, racial disparities, and high incarceration rates.
{"title":"Democracy and Decriminalization","authors":"Darryl K. Brown","doi":"10.2139/SSRN.932667","DOIUrl":"https://doi.org/10.2139/SSRN.932667","url":null,"abstract":"The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation or votes to repeal antiquated crimes politically implausible. Thus criminal law is \"one-way ratchet\": it expands but does not contract. On this account, America's excessive criminal codes are products of structural failures in political process and democratic institutions. The overlooked story in American criminal law, however, is long and continuing history of legislative decriminalization. State legislatures have long records of repealing or narrowing criminal statutes. Even as criminal law has expanded greatly in some directions, it has contracted dramatically so in other spheres of activity. And democratic processes, especially legislatures, have been responsible for much of that contraction. Moreover, evidence of state legislative records suggests that contemporary legislatures decline to enact most bills proposing new or expanded criminal laws, including many that seem, on standard accounts, politically irresistible. The ratchet of crime legislation turns both ways. More than ninety percent of criminal law enforcement is state rather than federal, and state criminal justice systems on the whole more democratically responsive than the federal system. Many state legislatures recently have proven better at devising procedural frameworks to harness expertise in the reform of criminal law and punishment policy and to moderate risks of dysfunctional policymaking. Coupled with restraints from other branches, substantive overcriminalization, judged against a baseline of democratic preferences, is a negligible problem in the states. And data on charging, conviction and sentencing practices suggest that what overcriminalization exists has little effect on criminal justice's well recognized problems of excessive plea bargaining, racial disparities, and high incarceration rates.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"86 1","pages":"223"},"PeriodicalIF":1.6,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.932667","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67894550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the deep structure of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor simply desire-like states, though they bear affinities to both. The attitudes are obligata. Obligata breathe life into our moral and legal practices, and have a specific structure. They blend (i) agent-centered attitudes toward persons with (ii) attitudes toward shared standards for action as producing (iii) reasons that (iv) exclude some arising from personal interest. Obligata are (v) judgment-sensitive attitudes: reasons can be sensibly asked and offered for them. They incline us to (vi) react critically to deviations and perceive these reactions as warranted. Obligata nevertheless sensitize us to (vii) the standard excuses, thereby allowing us to mend our relationships after some seeming breaches. We express obligata in (viii) the special normative terminology that morality and law share, including (ix) in contexts of discussion and dispute that can become incredibly charged. In these interactions, obligata allow us to (x) meaningfully disagree, and sometimes thereby reach consensus, even when our resolutions are not traceable to any particular reasons we antecedently accepted. This talk thus engages (xi) underlying psychosocial mechanisms that can - in the appropriate social and political circumstances - help us maintain sufficient agreement over what we owe to one another to live well together. Obligata thereby allow us to enjoy our lives together. Finally, it is possible that our moral and legal judgments (xii) supervene on natural facts because there are natural facts - about what moral and legal rules would conduce to all our objective individual interests in the right way - that partly explain the shape that morality and law take in our lives.The structure of obligata is the deep structure of morality and law. This suggests that much of the legal literature - including familiar descriptive and normative accounts from law and economics scholars - have been presupposing a psychological picture that is deeply at odds with how we naturally think about obligation. Morality and law do not arise from, and could not be sustained only by, separable beliefs about the world and preferences for states of affairs. The challenge raised here runs deeper, however, than recent empirical work showing we deviate from instrumental rationality in numerous, systematic ways. Our capacities to reason instrumentally may not fi
{"title":"The Deep Structure of Law and Morality","authors":"R. Kar","doi":"10.2139/SSRN.676914","DOIUrl":"https://doi.org/10.2139/SSRN.676914","url":null,"abstract":"Morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the deep structure of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor simply desire-like states, though they bear affinities to both. The attitudes are obligata. Obligata breathe life into our moral and legal practices, and have a specific structure. They blend (i) agent-centered attitudes toward persons with (ii) attitudes toward shared standards for action as producing (iii) reasons that (iv) exclude some arising from personal interest. Obligata are (v) judgment-sensitive attitudes: reasons can be sensibly asked and offered for them. They incline us to (vi) react critically to deviations and perceive these reactions as warranted. Obligata nevertheless sensitize us to (vii) the standard excuses, thereby allowing us to mend our relationships after some seeming breaches. We express obligata in (viii) the special normative terminology that morality and law share, including (ix) in contexts of discussion and dispute that can become incredibly charged. In these interactions, obligata allow us to (x) meaningfully disagree, and sometimes thereby reach consensus, even when our resolutions are not traceable to any particular reasons we antecedently accepted. This talk thus engages (xi) underlying psychosocial mechanisms that can - in the appropriate social and political circumstances - help us maintain sufficient agreement over what we owe to one another to live well together. Obligata thereby allow us to enjoy our lives together. Finally, it is possible that our moral and legal judgments (xii) supervene on natural facts because there are natural facts - about what moral and legal rules would conduce to all our objective individual interests in the right way - that partly explain the shape that morality and law take in our lives.The structure of obligata is the deep structure of morality and law. This suggests that much of the legal literature - including familiar descriptive and normative accounts from law and economics scholars - have been presupposing a psychological picture that is deeply at odds with how we naturally think about obligation. Morality and law do not arise from, and could not be sustained only by, separable beliefs about the world and preferences for states of affairs. The challenge raised here runs deeper, however, than recent empirical work showing we deviate from instrumental rationality in numerous, systematic ways. Our capacities to reason instrumentally may not fi","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"84 1","pages":"877-941"},"PeriodicalIF":1.6,"publicationDate":"2006-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67794742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Discusses the claims made by H.L.A. Hart that his book "The Concept of Law" might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Interpretation and limit of Hart's claims; Relationship between Hart's idea on the connection of legal theory with both analytical jurisprudence and descriptive sociology; Analysis of several case studies within special jurisprudence.
{"title":"Analytical jurisprudence versus descriptive sociology revisited","authors":"N. Lacey","doi":"10.4324/9781315091891-5","DOIUrl":"https://doi.org/10.4324/9781315091891-5","url":null,"abstract":"Discusses the claims made by H.L.A. Hart that his book \"The Concept of Law\" might be regarded as a contribution not only to analytical jurisprudence but also to descriptive sociology. Interpretation and limit of Hart's claims; Relationship between Hart's idea on the connection of legal theory with both analytical jurisprudence and descriptive sociology; Analysis of several case studies within special jurisprudence.","PeriodicalId":47670,"journal":{"name":"Texas Law Review","volume":"84 1","pages":"111-148"},"PeriodicalIF":1.6,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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