Oct 22, 2012 Daria RoithmayrJotwellJurisprudence
Yes, yes, I know this is the Journal of Things We Like. And I like, like, like Ian Haney Lopez’s essay, “Post Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama.” But to understand why I like it so much, I have to say a word about something I also liked, but not as much as I had wanted to.
A great deal of attention has been paid to Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The attention is well deserved; Alexander is a great writer with an eye for a compelling narrative. But truth be told, I was left feeling a bit dissatisfied when I finished reading. How does the New Jim Crow racism actually work, structurally speaking, when it comes to mass incarceration? Is subconscious bias (by police) and naked political gain (by the architects of the war on drugs) really the entire story? Isn’t there a deeper, more coherent structural story to tell here with regard to cause? Continue reading "Prisons, Poverty And Power"
Oct 19, 2012 Michael J. ZimmerJotwellWork Law
Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin,
Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2012).
Having a total of ten authors for one article would make this rather exceptional even without regard to the topic. That these authors participated together in a symposium on implicit bias is not a surprise. But what is unusual, if not exactly surprising, is that they together wrote this one article. This is not the typical scenario for the papers delivered at a conference. The ten include legal academics, scientists, researchers, and a sitting federal judge. Six are law professors, though two of them hold joint appointments. One is a research consultant for the National Center for State Courts, two are psychology professors and one is a federal district court judge. They all come to the study of implicit bias from their respective points of perspective but the article is a fully integrated article.
The question the article begins to answer is: What, if anything, should we do about implicit bias in the courtroom? The scientific literature on implicit bias and the role implicit bias might play has been the subject of considerable legal literature. Part I provides a clear, straightforward introduction to the science involved in understanding that implicit bias exists, what it is, and how it works. The article defines implicit attitudes and stereotypes as biases “not consciously accessible through introspection.” Accordingly, their impact on a person’s decision-making and behaviors does not depend on that person’s awareness of possessing these attitudes or stereotypes. Consequently, they can function automatically, including in ways that the person would not endorse as appropriate if he or she did have conscious awareness. If you remember, Ross Perot in the 1992 Presidential campaign gave a vivid example of implicit bias that gets disclosed unintentionally. While speaking at an NAACP meeting, Perot addressed his audience several times as “you people” or “your people.” Especially since the topic of the speech was crime and illegal drugs, many perceived Perot as expressing a stereotypical view of African Americans as being identified with crime and drugs. He had no incentive to be avowedly racist and there is no indication that he was conscious of the obvious inference listeners drew based on the language he used. Continue reading "Implicit Bias: Moving from Theory to the Courthouse"
Oct 17, 2012 Michael CarrollIntellectual Property LawJotwell
Michael Frakes & Melissa F. Wasserman
, Does Agency Funding Affect Decisionmaking?: An Empirical Assessment of the PTO’s Granting Patterns,
66
Vand. L. Rev. (forthcoming, 2013), available at
SSRN.
As patent law has grown in social and economic importance, a growing number of scholars have given attention to analyzing the structure of the patent system. The number of patents issued per year has increased significantly in the past few decades, and, in at least some fields, the breadth of products or activities on which these issued patent claims read has also increased. Scholars studying the system have given the design and functioning of the U.S. Patent and Trademark Office (PTO) increased scrutiny on a number of fronts. Among its many duties, central is the PTO’s power and obligation to decide whether the rights to control a putative invention belong to the patent applicant, to a different applicant, or to the public.
Although patent prosecution is an ex parte proceeding, the patent examiner stands between the applicant and the public in deciding who shall receive the entitlement to use, or exclude others from using, the invention. Due process norms usually require such decisionmakers to be unbiased and free from conflicts of interest. However, since 1991, the PTO has been paid to make this decision from fees paid by one of the parties to the decision: the applicants or patentees. Not surprisingly, senior PTO officials have on more than one occasion referred to applicants and patentees as the office’s “customers.” Might this financing arrangement affect the agency’s interpretation and application of the law? Most scholars have assumed that it does to some extent, but this extent and the operation of this assumed bias has been underexamined. Until now. Continue reading "Linking Financing To Decisionmaking In The U.S. Patent System"
Oct 16, 2012 Kathryn WattsAdministrative Law
Joshua D. Wright & Angela M. Diveley,
Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission (2012),
available at SSRN.
Proponents of administrative agencies have long touted the expertise that specialized agencies enjoy. Indeed, perceived agency expertise helps to explain Congress’s willingness to delegate to agencies the authority to set policy through rulemaking, to render adjudicatory decisions, and to conduct other activities. Yet, as Joshua D. Wright and Angela M. Diveley point out in a study posted this past January to SSRN, the so-called “expertise hypothesis”—which posits that expert agencies will consistently produce higher quality outputs than generalists—lacks empirical support. In their recent study, Wright and Diveley seek to fill the void by conducting an empirical study that examines whether the Federal Trade Commission (FTC) performs as well as generalist judges in its adjudicatory antitrust decision-making role.
Specifically, Wright and Diveley’s study tests the expertise hypothesis by comparing antitrust decisions before the FTC with those issued by Article III courts. They use “appeal” as their primary measure of quality performance—comparing the appeal rates of federal district court judges and FTC Commissioners. They explain that appeals are a “useful indicator for whether the initial court made an error” because “a higher appeal rate implies the decision-maker has issued more opinions that leave at least one party feeling strongly enough to invest in the opportunity for another decision-maker to decide that he has committed reversible error.” (P. 12) Nonetheless, because they acknowledge that reversal rates also can contain some information on the quality of the underlying decision, Wright and Diveley also report their results about the differences between the FTC and generalist judges using reversal rates. Continue reading "Testing the Expertise Hypothesis"
Oct 15, 2012 Kimberly FerzanCriminal Law
I grew up in Miami and spent many a Memorial Day weekend at Disney World in Orlando, Florida. One of my favorite rides was Mr. Toad’s Wild Ride, with its unexpected twists and turns and characters jumping out of nowhere. Reading Victor Tadros’ The Ends of Harm made me feel like that kid again. Here are three reasons why.
First of all, the thesis upends much of our thinking about the justification for punishment. Tadros first attacks retributivism, which is roughly the view that desert is at least a necessary, if not a sufficient, reason to punish. (There is, by the way, no definition of retributivism that is not somewhat contentious these days.) He then turns to an unusual defense of general deterrence. He believes that the justification for the criminal law should be that it prevents harm. However, he also takes seriously the deontological constraint that we cannot use people as “mere means.” This latter issue frequently gets deterrence (and other consequentialist) accounts of the criminal law into trouble, as retributivists argue that consequentialism theoretically permits the scapegoating of innocent persons. If you can prevent harm by scapegoating an innocent person, a general deterrence theorist simply lacks the theoretical resources to explain why this should not be done. Tadros agrees with retributivists that one cannot use people, and so he needs an account that does not rely on desert to explain why it is permissible to punish some people to discourage others from committing crimes. The answer he comes up with is that offenders have a duty to suffer in the name of general deterrence. Continue reading "Professor Tadros’ Wild Ride: Duty, Defense, Deterrence and the Criminal Law"
Oct 12, 2012 Phyllis SmithJotwellTrusts & Estates
Gerry W. Beyer,
Will Contests – Prediction and Prevention, 4
Estate Planning & Cmty. Prop. Law J. 1 (2011),
available at SSRN.
Gerry W. Beyer’s Will Contests-Prediction and Prevention starts with a discussion of reasons to anticipate a will contest. He points out society has come to accept nontraditional families as a societal norm and yet the likelihood of a will contest increases when a decedent makes bequests that pass outside of what we define as a traditional family. Thus, for example, from a planning standpoint the best option for a testator involved in a same-sex relationship is to create a will because the intestacy laws will not make provision for the surviving partner. The article points out that even when the testator plans in advance, the likelihood of this will being challenged by a blood relative is much higher than when bequests are made to traditional family members.
Professor Beyer points out that historically, no-contest clauses have been used as a weapon to deal with the potential threat of a will contest. Even so, Professor Beyer points out that no-contest clauses are becoming less reliable as a deterrent because enforceability may be called into question. With that in mind, Professor Beyer offers an alternative solution — an incentive not to contest the will: In exchange for not challenging the will for a period of 2 years after the date of death, the beneficiary would receive a gift. Such a provision may be especially valuable for states where no-contest clauses are not enforceable. Continue reading "The Anatomy of a Will Contest"
Oct 9, 2012 JotwellJotwell
Today we inaugurate a new Jotwell section on Torts, edited by Gregory Keating, William T. Dalessi Professor of Law and Philosophy at the USC Gould School of Law and Catherine Sharkey, Crystal Eastman Professor at New York University School of Law. Together they have recruited a stellar team of Contributing Editors.
The first posting in the Torts section is Insurance as Safety Regulator by Catherine Sharkey.
We intend to continue to add other new sections in the coming months — Health Law is next, with more to come. Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Oct 9, 2012 Catherine SharkeyTorts
Omri Ben-Shahar & Kyle D. Logue,
Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111
Mich. L. Rev. (forthcoming 2012)
available at SSRN.
In Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar and Kyle Logue make a pitch for the underappreciated role of insurance as manager and minimizer of safety risks.
The study of tort law in the modern administrative state increasingly entails a comparative institutional account of private common law versus public agency control in terms of satisfying the goals of compensation and regulation of safety risks. I would go so far as to say that the future of tort law and scholarship belongs to those who tackle complex health and safety issues by integrating concepts and doctrines drawn from public administrative law and private tort law. Ben-Shahar and Logue make a major contribution by adding the third dimension of insurance: “Choosing the ideal regulatory role of these two institutions—agencies versus courts—depends on how well insurance arrangements support the regulatory function of tort and agency law.” (P.20) Continue reading "Insurance as Safety Regulator"
Oct 8, 2012 JotwellJotwellTorts
Torts Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Gregory Keating
William T. Dalessi Professor of Law and Philosophy
USC Gould School of Law
Professor Catherine Sharkey
Crystal Eastman Professor of Law
New York University School of Law Continue reading "Meet the Editors"
Oct 8, 2012 JotwellTorts
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
Although gentle critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. Continue reading "Call For Papers"
