Showing papers in "California Law Review in 2000"

Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics

Abstract: As law and economics turns forty years old, its continued vitality is threatened by its unrealistic core behavioral assumption: that people subject to the law act rationally. Professors Korobkin and Ulen argue that law and economics can reinvigorate itself by replacing the rationality assumption with a more nuanced understanding of human behavior that draws on cognitive psychology, sociology, and other behavioral sciences, thus creating a new scholarly paradigm called "law and behavioral science." This article provides an early blueprint for research in this paradigm. The authors first explain the various ways the rationality assumption is used in legal scholarship and why it leads to unsatisfying policy prescriptions. They then systematically examine the empirical evidence inconsistent with the rationality assumption and, drawing on a wide range of substantive areas of law, explain how normative policy conclusions of law and economics will change and improve under the law-and-behavioral-science approach.

Television and the Public Interest

Abstract: Introduction ............................................................................................... 501 I. History, Puzzles, Problems ................................................................ 506 A. A Brief Historical Overview ....................................................... 506 B. Two Puzzles ................................................................................ 508 C. Identifying the Problem ............................................................... 509 II. Preferences and Audiences ................................................................ 511 A. Three Market Failures ................................................................. 514 1. Eyeballs as the Commodity................................................... 514 2. Informational Cascades and Broadcaster Homogeneity ......................................................................... 515 3. Externalities and Collective Action Problems ...................... 516 B. Problems on Nonmarket Criteria: Children, Deliberative Democracy, and Related Issues ................................................... 518 1. Children and the Hearing Impaired ....................................... 518 2. Balkanization ........................................................................ 519

Contest and Consent: A Legal History of Marital Rape

Abstract: Introduction ............................................................................................. 1375 I. The Marital Rape Exemption as it was Articulated, Understood, and Defended in the Nineteenth Century .................... 1382 A. Women's Legal Status in the Nineteenth Century .................... 1382 1. The Consensual Account of Nineteenth-Century Women's History ............................................................... 1382 2. The Law of Marriage in the Nineteenth Century ................ 1385 B. The Marital Rape Exemption in Nineteenth-Century Crim inal Law ............................................................................ 1392 C. The Marital Rape Exemption's Effect on the Lived Experience of Marriage in the Nineteenth Century .................. 1406 II. The First Organized Feminist Campaign Against a Husband's Conjugal Rights ......................................................... 1413 A. A Wife's Right to Her Person as the Predicate for Women's Equality .............................................................. 1417 B. Structural Consent and Marriage as Legalized Prostitution ...... 1427 C. The First Woman's Rights Campaign Against Marital Rape as a Distinctly Nineteenth-Century Movement ............... 1433

Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory

Abstract: The idea that cyberspace should be presumptively self-governing has resounded in thoughtful scholarship. It has also precipitated the recent, dramatic withdrawal of the United States government from significant portions of Internet administration and regulation. This Article critiques a central prong of the argument for cyberspace self-governance: the claim that a self-governing cyberspace would more fully realize liberal democratic ideals than does nation-state representative democracy. That \"cyberian\" claim, in turn, has two parallel components: first, that the Internet creates possibilities for \"bottom-up private ordering\" that are a superior form of liberal democracy, and second, that a truly liberal nation-state must grant considerable autonomy to cyberspace \"communities.\" These claims of liberal perfectionism and community autonomy pose an intriguing challenge to traditional democratic theory. But I believe that they ultimately fail. I argue, indeed, that an untrammeled cyberspace would prove inimical to the ideals of liberal democracy. It would free majorities to trample upon minorities and would serve as a breeding ground for invidious status discrimination, narrow casting and mainstreaming content selection, systematic invasions of privacy, and gross inequalities in the distribution of basic requisites for citizenship in the information age. Accordingly, I argue, that selective state regulation of cyberspace is warranted to protect and promote liberal ideals. I maintain as well that in the absence of regulation by a democratic state, cyberians would be forced to try to invent a quasi-state institution to legislate and enforce meta-norms governing critical aspects of cyberspace organization and operation. Even if cyberians were successfully to establish such an institution, it would, at best, suffer from much the same democratic deficit as, according to cyberians, characterizes nation-state representative democracy.

Justice and Desert in Liberal Theory

Abstract: Contemporary liberal theory appears to attach relatively little importance to the concept of desert. John Rawls's A Theory of Justice is exemplary in this respect. Rawls explicitly argues that desert has only a derivative role to play in an adequate account of distributive justice, and he is frequently interpreted as advocating a purely institutional theory of desert, according to which people's deserts are in general to be identified with their legitimate institutional expectations. This threatens to deprive the concept of desert of its critical, normative force. Yet Rawls explicitly suggests that desert has a more substantial role to play in retributive than in distributive justice. Even in the case of distributive justice, moreover, he stops short of endorsing a purely institutional theory of desert. This Essay reexamines the idea that there is an asymmetry between distributive and retributive justice with respect to the role of desert. It calls attention to a neglected rationale for that idea and, in so doing, it suggests that egalitarian liberals like Rawls need not endorse the kind of wholesale skepticism about desert that has sometimes been attributed to them.

One Hundred Years of Solicitude: Intellectual Property Law, 1900-2000

Abstract: The elaboration of intellectual property law is closely intertwined with new technologies. This Review Essay draws on selected episodes from the past 100 years to illustrate the three typical stages by which the legal system accomodates new technologies: (1) disequilibrium; (2) adaptation and adjustment; and (3) legislative consolidation. The final section of the Article introduces a cautionary contemporary note. As a byproduct of the increasing value of intellectual property, there has recently been a rapid increase in legislative activity, and concomitant lobbying activity. This changing political economy is greatly compressing the traditional three-step process, and may bypass it entirely in some circumstances. As a counterbalance to overzealous legislation, courts may be forced to look to the constitutional foundations of intellectual property as a source of limiting principles.

Discrimination in the Eyes of the Law: How Color Blindness Discourse Disrupts and Rationalizes Social Stratification

Abstract: I am quite pleased to have this opportunity to comment on Robert Post's provocative Lecture, Prejudicial Appearances.' Post's effort to distinguish the \"dominant conception\" of antidiscrimination law from what he presents as a \"sociological\" account of the field intersects in striking ways with my own efforts to analyze status relations and their disestablishment from a sociohistorical vantage point. In this Response, I would like to identify some key points of similarity and difference in our accounts, with a view to furthering consideration of what we might learn from a sociological approach to the field. I have learned more than I can express from working with Robert Post over the years, yet I still find myself startled-sometimes with exasperation, most often with delight-at the ways our intuitions about things of this world diverge and converge. In the long tradition of our long arguments, this Response begins by emphasizing an important difference in our approaches to the question explored in his Lecture, and winds up identifying a deep ground of methodological agreement between us. As I explore in the first Part of this Response, my own efforts to model antidiscrimination law from a dynamic, or sociohistorical, vantage point take as central to the field the problem of social stratification, a concept missing from Post's sociological account. In the remainder of this Response, I argue that one needs a concept of social stratification-of status inequality among groups arising out of the interaction of social

Equality Trouble: Sameness and Difference in Twentieth-Century Race Law

Abstract: TABLE OF CONTENTS Introduction ............................................................................................. 1925 I. The First Reconstruction: Prelude to the Twentieth Century ......... 1930 A. The Legal Structure of the First Reconstruction ....................... 1931 B. Dismantling Reconstruction: The Southern Redemption ......... 1936 II. Race Law in the Age Of Difference ................................................. 1937 A. Civilization and Self-Determination: The Increasing Importance of Race .................................................................... 1938 B. Race Law and Nonwhite Subjects in the Age of D ifference .................................................................................. 1943 1. Plenary Power and Nonwhite Citizens: Beyond the Scope of Equality ................................................................ 1943 2. Equality in an Age of Difference: Nonwhite Citizens and the End of Emancipation .............................................. 1957 a. Turning Domination into Difference ............................ 1962 b. Nonstate Action as Race Law ....................................... 1966 C. Race Law and White Subjects in the Age of Difference: Maintaining the Quality of Whiteness ................... 1974 1. Whiteness and Nationalism: Americanizing Non-Anglo-Saxons ............................................................. 1974

Stereotypes and the Shaping of Identity

Abstract: I have spent a good deal of time over the years thinking about how our racial identities should figure in our moral and political livesreflecting, that is, on the ethical significance of one dimension of difference.' I have thought about these questions as a moral philosopher and not as a legal theorist, and so I have not had to work within the constraints imposed by the law and the history of its interpretation. The advantage of this freedom is that one may reflect on how things should be, unconstrained by the necessity of deference to the confusions of the executive, legislative, and judicial branches of our government. The disadvantage is that one can find oneself proposing norms or practices that have no chance at all of being implemented, and giving advice that seems, in the justly derogatory sense, "merely theoretical." So it is cheering to find someone like Professor Post, who both recognizes an important moral truth about the ethical significance of difference and believes that it can be brought to bear in the practical business of interpreting actually existing American antidiscrimination law.

The common thread: diversion in juvenile justice

Abstract: A central objective of those who created the juvenile court was to protect young delinquents from the destructive punishments of the criminal justice system. This promotion of juvenile court as a diversion from criminal justice is distinct from more ambitious programs of "child saving" intervention because avoiding harm can be achieved even if no effective crime prevention treatments are available. This essay shows diversion has been an important motive in juvenile justice from the beginning, and became the dominant purpose of a separate juvenile court after In Re Gault in 1967. The past thirty years have been the juvenile court's finest hour as a diversion project; the rate of juvenile incarceration has been stable, while incarceration of young adults has soared.

Regulating Investors Not Issuers: A Market Based Proposal

Abstract: The present securities regulatory regime in the United States focuses on the protection investors. Investor protection, in turn, leads to a robust capital market. The federal government accomplishes its goal of investor protection through the registration and direct regulatory control of issuers, intermediaries, and self-regulatory organizations in the securities markets. The Article contends that this regulatory approach is ill advised. Rather, the Article argues that regulators should instead regulate investors. Al-though against current wisdom, a securities regime that regulated investors would allow regulators to take a more market-driven approach toward in-vestor protection, resulting in a less paternalistic regime. For those inves-tors with good information on issuers in the market, for example, no mandatory regulations are necessary. Rather investors will contract for desired protections; those market participants failing to provide valued protections will receive less for their securities or services. As a result, market participants will voluntarily provide desired protections. The pa-per, therefore, proposes to classify investors based on their informational resources. Such classification frees those investors able to protect them-selves to engage in a wide variety of investments while allowing regulators to focus their resources on investors less well equipped.

Insufficient Concern: A Unified Conception of Criminal Culpability

Abstract: Most criminal law theorists and the criminal codes on which they comment posit four distinct forms of criminal culpability: purpose, knowledge, recklessness, and negligence' Negligence as a form of criminal culpability is somewhat controversial,2 but the other three are not What controversy there is concerns how the lines between them should be drawn3 and whether there should be additional forms of criminal culpability besides these four4 My purpose in this Essay is to make the case for fewer, not more, forms of criminal culpability Indeed, I shall try to demonstrate that purpose and knowledge can be reduced to recklessness because, like recklessness, they exhibit the basic moral vice of insufficient concern for the interests of others I shall also argue that additional forms of criminal culpability are either unnecessary, because they too can be subsumed within recklessness as insufficient concern, or undesirable, because they punish a character trait or disposition rather than an occurrent mental state

Legal Information and the Search for Cognitive Authority

Abstract: In the 20th Century legal information presented a stable universe of cognitive authority. Law, divided into primary and secondary sources, was a well charted area. Certain sets of books were accepted as institutional authority in legal research, even though they were the products of commercial publishers. This system, which was built around print products, is collapsing. In the midst of this collapse new sources will be defined, but the process is complicated by an information generation gap. This essay will explore the old world of print sources, how they were used, how and why they are collapsing, and what comes next. It ends with a cry for help.

Reconciling Theory and Doctrine in First Amendment Jurisprudence

Abstract: Author(s): Post, Robert | Abstract: The twentieth century has seen the birth and the development of the doctrine of the First Amendment's free speech clause. In its current state, free speech jurisprudence is hampered by coexisting but conflicting First Amendment theories and doctrines. In this Essay, Professor Post examines these conflicts. He traces the development of two primary First Amendment theories: the theory of the marketplace of ideas, exemplified by Justices Holmes' dissenting opinion in Abrams v. United States; and the theory of democratic speech, articulated most notably by Alexander Meiklejohn. After discussing the doctrinal implications of these theories and noting that courts have not followed either theory consistently, Professor Post suggests that First amendment jurisprudence could be rendered more coherent if First Amendment theories were to be ordered according to a "lexical priority" that will illuminate what is at stake in the conflict between theories and how such conflicts may be settled.

The Common Law in the Twentieth Century: Some Unfinished Business

Abstract: I. T ort ................................................................................................... 1821 A. Civil Law and Common Law .................................................... 1822 B. The Forms of Action and Legally Protected Interests ............... 1827 C. Intent, Negligence and Strict Liability ....................................... 1836 D. Rethinking Tort Law ................................................................. 1846 II. Contract ............................................................................................ 1847 El. Property ............................................................................................ 1859 A. Ownership .................................................................................. 1860 B. Practical Differences ................................................................. 1865 1. Future Interests .................................................................... 1865 2. Leases .................................................................................. 1867 3. Easements and Covenants ................................................... 1868 4. Rethinking the Law of Property .......................................... 1868 IV. Restitution ........................................................................................ 1869 Conclusion .............................................................................................. 1875

The Licensing of Our Personal Information: Is It a Solution to Internet Privacy

Abstract: The increase in the private sector's collection and use of individuals' personal information raises a new threat to privacy in the electronic marketplace. Each day, businesses are collecting sensitive information about consumers' buying habits, occupations, income, families and product preferences. This information is used to create customized advertising campaigns, make decisions about which customers to market products to and predict consumers'future purchases. Current solutions to online privacy fail to give consumers control over how their information is used or compensation for the data they share. This comment will propose that an online licensing system based on the Uniform Computer Information Transaction Act (UCITA) can achieve these objectives. Individuals will contract with businesses for the right to use their personal information. The licensing terms they negotiate will set limits on how their data is used, how long it is used and what type of benefit it is exchanged for.

Flat Tax, Consumption Tax, Consumption-Type Income Tax Proposals in the United States: A Tax Policy Discussion of Fundamental Tax Reform

Abstract: Introduction to Income Taxation in the U.S ...................................... 2098 I. An Overview of Different Systems of Taxation ................................. 2103 A . The Flat Tax ................................................................................ 2103 B. Consumption Tax ........................................................................ 2108 C. Retail Sales Tax and VAT .......................................................... 2112 D. The Hybrid Income Tax: The Current U.S. System .................. 2115 E. Current Proposals ........................................................................ 2117 F. Implications of Proposed Changes to Consumption Taxation .... 2125 1. Economic Burden and Transition Issues ............................... 2126 2. Tax Rates and Revenue Neutrality ........................................ 2129 3. Progressivity and Redistribution of the Tax Burden ............. 2129 4. Corporate Taxation Issues ..................................................... 2130 5. Other Particular Problems ..................................................... 2132 6. Effect on Saving .................................................................... 2133 7. Sim plicity .............................................................................. 2139 8. Administration and Enforcement Problems .......................... 2142 I. The Question of Fairness ................................................................... 2144 A. The Fairness Arguments ........................................................... 2144

Positivism and the Notion of an Offense

Abstract: While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the \"positivistic\" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under the positivistic orthodoxy, the scope of these doctrines is left to state legislatures to determine. The presumption of innocence and the ban on double jeopardy thus suggest the needfor a substantive conception of the notion of 'an offense. This Article attempts to provide a jurisprudential framework for developing such a conception. It proceeds from the idea that we have a presumption against the use of the criminal sanction, stemming from the commitment to a background right to liberty our constitutional jurisprudence contains. The use of the criminal sanction is justified only if the infringement of liberty it imposes is sufficient to overcome that presumption. This requirement of justification in turn suggests boundaries on the notion of an offense: The definition of an offense must be constructed in a way that makes the infringement of liberty justified in light of the harm the prohibited conduct inflicts.

A Century of Change in Personal Injury Law

Abstract: The 20th century witnessed enormous change in American personal injury law. Over the past 100 years, torts has emerged out of a largely ineffective backwater of the law. Today, tort doctrine has coalesced around a robust law of negligence, anchored not only in contemporary concerns about fairness, but also in considerations of loss spreading and safety promotion. Over the course of the 20th century, cultural change, change in the legal and other professions, changes in civil procedure and evidence law, the development of liability insurance, and more have made it both much easier and far more natural for accident victims to sue in tort. Work, home, and leisure activities have also altered dramatically between 1900 and 2000, thereby sharply changing the nature of the accidents that Americans now suffer, as compared with the past. During this same era, some important categories of injuries were fully or partly removed from personal injury law, and tort failed to take hold in certain other areas which instead have come to be handled by other parts of our legal system. The 20th century has also seen the development of both broad public and private insurance schemes (social security and group health insurance) and modern regulatory agencies (like the FDA) that have also altered the role of personal injury law. The upshot is that the size and nature of the personal injury law system in the year 2000 differs enormously both from the system in place in the year 1900 and from what it might have been in the year 2000. Vital areas of tort law's realm today, like auto, medical malpractice and product liability cases, are essentially 20th century developments; yet important 20th century concerns about discrimination and the environment are little impacted by tort law. Nevertheless, many of the shortcomings of personal injury law in 1900 that led to worker's compensation as a replacement for tort in the case of occupational injuries still plague tort law's operation in 2000. However, the dramatic rise in the availability and amount of damages plaintiffs can obtain for pain and suffering, as well as the dramatic rise in the political and economic power of plaintiffs' lawyers, make future reform of tort law quite uncertain. As a result, tort law in the 21st century may be as exciting a field in which to teach, write and practice as it has been for much of the 20th.

One Hundred Years of Evidence Law Reform: Thayer's Triumph

Abstract: Introduction ............................................................................................. 2439 I. A Preliminary Discussion of the Meaning of \"Judicial Discretion\" to Admit or Exclude Evidence ...................................... 2441 A. Defining Discretion in the Decision to Admit or Exclude Evidence ...................................................................... 2442 B. Categorical Decisions: The Different Approach of Bright-Line Rules ...................................................................... 2445 C. The Benefits and Costs of Discretion ........................................ 2446 II. The Beginning of Reform: Thayer's Definition of the \"Law of Evidence\" .................................................................................... 2447 A. Narrowing the Range of Cases that Constitute the \"Law of Evidence\". ............................................................................. 2448 B. Understanding Evidence Law as the Child of the Jury System ................................................................................ 2449 C. Focusing on the General Principles of Exclusion ..................... 2451 Ill. Thayer's View of Judicial Discretion: The Cure for the General Ills of Evidence Law .......................................................... 2452 IV. The Model Code of Evidence: Morgan v. Wigmore ....................... 2455 A. Two Different Approaches to Reform ....................................... 2455 B. A Catalogue, a Creed, or a Code? ........................... . . .. . .. . . . .. . . .. .. 2457 C. Judicial Discretion as Adopted by the Code .............................. 2459 V. Thayer's Modem Incarnation: Judicial Discretion in the Federal Rules of Evidence ............................................................... 2461 A. The Use of Discretion Erodes Categorical Constraints in the Admission of Hearsay ..................................................... 2464

Environmental Law at the Turn of the Century: A Reportorial Fragment of Contemporary History

Abstract: Introduction ... 2377 I. The Strategy for Preserving the Endangered Species Act 2380 II. Key Legal Issues Encountered in Enforcing the Endangered Species Act 2382 III. Case Studies 2386 A. The Snake River ......... 2386 B. The Rio Grande and the Silvery Minnow ..... 2390 C. The Platte River 2394 Conclusion ........ 2401

The Moral Metaphysics of Causation and Results

Abstract: Causation matters in criminal law only because results do. My colleague and friend, Michael Moore, firmly believes that wrongdoing-by which he means the amount of harm an agent actually causes by intentional conduct-independently contributes to an offender's moral desert, but actual harm is not necessary to desert.' Wrongdoing is "something of [a] poor relation" to culpability, as Michael puts it, but it nonetheless contributes independently to desert and thus it is crucial to identify which wrongs a defendant caused.2 In The Metaphysics of Causal Intervention, Michael questions "whether the intervening-cause notions of the law can be based on a prelegal notion of causation, one that provides a solid grounding for the sharp breaks in causal chains so marked by the law."3 Michael's analysis addresses causal doctrine in both tort and criminal law, but I shall focus solely on criminal law because virtually all criminal law theorists agree that moral fault is at least a necessary condition of blame and punishment, whereas torts theorists famously disagree about whether blame has any place in a scheme of tort liability. I shall also draw freely from Michael's earlier work on causation, which his present Essay extends, because it is impossible to understand Michael's current quest without referring to earlier parts of the journey.

Diversity and its Discontents: The End of Affirmative Action at Boalt Hall

Abstract: In 1995, the Regents of the University of California abolished the use of racial, ethnic, and gender preferences in admissions. The following year, the state's voters cemented the Regents' decision by constitutionalizing the ban on preferences. In response, Boalt Hall did away with its affirmative action program. The impact was immediate and dramatic. In 1997, the entering class included only one Black student and fourteen Latino students. Although these numbers increased somewhat in succeeding admissions cycles, the representation of Black and Latino students remains substantially below what it was when affirmative action was permissible. In Regents of the University of California v. Bakke, Justice Lewis Powell justified affirmative action programs on the basis of the pedagogical benefits that a diverse student body brings. The sudden shift in Boalt's admissions policy provided an unprecedented opportunity to guage the impact of diversity on legal education. In the spring of 1998, fifty-nine Boalt students participated in hour-long interviews that explored their reasons for coming to law school, their classroom experience, their relations with faculty, their participation in study groups and extracurricular activities, their friendships, and their views on admissions policy. The results reveal that even with affirmative action, hierarchical instruction and competition for grades and other credentials have made it difficult to realize Powell's vision of a diverse pedagogy, at least in the first year of law school. When students draw on their identity and perspective, they sometimes are limited to the margins of the educational process, for example, in student-sponsored organizations and activities. Racial and ethnic organizations have been blamed for balkanizing the student body. As affirmative action draws to a close, however, students recognize that Black students in particular may become tokenized and that Whites and Asian Americans may form separate cliques. As a result, Boalt will not necessarily reap the benefits of colorblindness that the end of affirmative action was supposed to achieve.

The Nature and Function of Criminal Theory

Abstract: The practice of teaching and writing in the field of criminal law has changed dramatically in the last half-century. In the United States and England, and to a lesser extent in other English-speaking countries, we have witnessed a turn toward theoretical inquires of a greater depth and variety than had existed previously in the history of Anglo-American law. The subjects of this new literature include the nature and rationale of punishment;' the theory of justification and of excuse, that is, of wrongdoing and responsibility;2 the relevance of consequences to the gravity of offenses (the problem of moral luck);3 and the proper structuring of specific fields of law, notably the law of homicide, particularly at the beginning and the end of life,4 of rape,5 and of victimless offenses that result in