Volume 86, Number 3 (March, 2013)
Article: How Lawyers’ Intuitions Prolong Litigation
Article by Andrew J. Wistrich & Jeffrey J. Rachlinski
Most lawsuits settle, but some settle later than they should. Too many compromises occur only after protracted discovery and expensive motion practice. Sometimes the delay precludes settlement altogether. Why does this happen? Several possibilities—such as the alleged greed of lawyers paid on an hourly basis—have been suggested, but they are insufficient to explain why so many cases do not settle until the eve of trial. We offer a novel account of the phenomenon of settling on the courthouse ste...
Concepts of Law
Article by Mathew D. McCubbins & Mark Turner
All of law depends on vast concepts that stretch across time, space, causation, and agency. Far-reaching concepts make law possible from legislation and interpretation to enforcement and adjudication; from weighing evidence to establishing motive and intent; and from imposing fines or sentences to awarding compensation. But all of human thought and memory is just here and now. The vast dependencies of time, space, causation, and agency must exist in individual brains. How we manage to use here-a...
Cheap, Easy, or Connected: The Conditions for Creating Group Coordination
Article by Mathew D. McCubbins, Daniel Rodriguez & Nicholas Weller
In both legal and political settings there has been a push toward adopting institutions that encourage consensus. The key feature of these institutions is that they bring interested parties together to communicate with each other. Existing research about the success or failure of particular institutions is ambiguous. Therefore, we turn our attention to understanding the general conditions when consensus is achievable, and we test experimentally three crucial factors that affect a group’s ability...
Beyond Facts and Norms: How Psychological Transparency Threatens and Restores Deliberation’s Legitimating Potential
Article by Arthur Lupia, Yanna Krupnikov & Adam Seth Levine
In Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Jürgen Habermas describes a challenge to modern democracies and a procedure for adapting to this challenge. The challenge is that in the absence of natural law, or any other universally accepted moral or ethical code, no common framework informs people about what kinds of laws are, and are not, legitimate. Hence, if laws are to be accepted by, and hence binding on, the populations for whom they are intended to...
Can Legal Actors Play Equilibrium Strategies? Two Dubious Assumptions in the Game-Theoret
Article by Daniel Enemark
Strategic actors often require a great deal of informational and computational resources to calculate game-theoretic equilibria, and scholars need a precise accounting of incentives in order to model the decisions faced by these actors. Rarely are both of these conditions—player rationality and payoff quantifiability—met when scholars attempt to model the behavior of individual actors in the law (especially the behavior of lay people such as jurors, litigants, or criminals). Behavioral economist...
The Neurobiology of Opinions: Can Judges and Juries Be Impartial?
Article by Isabelle Brocas & Juan D. Carrillo
In this Article we build on neuroscience evidence to model belief formation and study decisionmaking by judges and juries. We show that physiological constraints generate posterior beliefs with properties that are qualitatively different from traditional Bayesian theory. In particular, decisionmakers will tend to reinforce their prior beliefs and to hold posteriors influenced by their preferences. We study the implications of the theory for decisions rendered by judges and juries. We show that e...
Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture
Note by Kristen L. Johns
Fish might be considered “brain food,” but there is nothing smart about the way the United States currently manages its seafood production. Although the U.S. government has long promoted the health benefits of products from the sea—even urging Americans to double their seafood intake—it has fallen far behind in developing a domestic source for this seafood. Currently, the United States relies on an almost primitive method for domestic seafood production: taking animals found naturally in the wil...
The Good, the Bad, and the Ugly: The Political Economy and Unintended Consequences of Perpetual Trusts
Note by Daniel J. Amato
President Obama’s 2012 and 2013 budget proposals contained similar provisions to tax perpetual trusts ninety years after their creation at the maximum Generation-Skipping Tax rate of 55 percent—a move consistent with arguments by law professors and the American Law Institute. These proposals went little noticed except by investment publications, which advised individuals to create perpetual trusts before they could be taxed. Despite the support of the legal academy, the president’s proposal stan...
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