Harvard Law and Policy Review 

Abstract: Economists often analyze questions of law and policy by reference to the criterion of private willingness to pay (WTP), with the belief that people's WTP for a good is an accurate proxy for the welfare that they would obtain from that good. For two reasons, the proxy is crude. The first problem is that people may not pay for all of the benefits they receive, and in such cases, use of WTP may lead in unfortunate directions, even or especially if welfare is our lodestar. Inefficient results may nonetheless increase welfare. The second and more fundamental problem is that people may be willing to pay for goods whose acquisition does not improve their welfare. People typically choose on the basis of their affective forecasting, and their affective forecasts can lead them to make bad blunders. Sometimes people overestimate the welfare effects of both losses and gains. These points have many implications for law and policy. In particular, juries are probably offering greatly inflated dollar awards for hedonic damages, and the outcome of cost-benefit analyses, based on WTP, may not capture welfare, suitably defined. The absence of a connection between increases in Gross Domestic Product and self-reported happiness is highly suggestive here.

Abstract: At UC Berkeley, we are informing political debates surrounding online privacy through empirical study of website behaviors. In 2009 and 2011, we surveyed top websites to determine how they were tracking consumers. We found that advertisers were using persistent tracking technologies that were relatively unknown to consumers. Two years later, we found that the number of tracking cookies expanded dramatically and that advertisers had developed new, previously unobserved tracking mechanisms that users cannot avoid even with the strongest privacy settings. These empirical observations are valuable for the political debate surrounding online privacy because they inform the framing and assumptions surrounding the merits of privacy law. Our work demonstrates that advertisers use new, relatively unknown technologies to track people, specifically because consumers have not heard of these techniques. Furthermore, these technologies obviate choice mechanisms that consumers exercise. In the political debate, “paternalism” is a frequently invoked objection to privacy rules. Our work inverts the assumption that privacy interventions are paternalistic while market approaches promote freedom. We empirically demonstrate that advertisers are making it impossible to avoid online tracking. Advertisers are so invested in the idea of a personalized web that they do not think consumers are competent to decide to reject it. We argue that policymakers should fully appreciate the idea that consumer privacy inter-

Abstract: Consider the following cases: 1. Jones, who is wealthy, is willing to pay $1,000 and no more for a new television set. Jones would enjoy a new television set, but he already has a good television set, and he would not, in fact, gain a great deal from a new one. But because he is so wealthy, he would be better off with the television set than with $1,000. 2. Smith, who is poor, is willing to pay $75 and no more for a new television set. Smith would greatly enjoy a new television set; he does not now have one. He would be better off with the television set than with $75. But because he is poor, he would be worse off with the television set at a price in excess of $75. 3. Jenkins, who is poor and disabled, is willing to pay $20 and no more for a workplace accommodation that will enable her to work. The cost of the accommodation to her employer is $150. If the accommodation is made, Jenkins will gain far more in terms of welfare than the employer (and its customers) will lose. 4. Wilson, who is a very wealthy New Yorker, would be willing to pay $1,000,000 for a summer home in Aspen, Colorado. It turns out that if Wilson bought that summer home, she would not much enjoy it, and in the long run she would not use it. She would miss her friends and her life in New York. In the end, she would be better off with $1,000,000 than with the summer home in Aspen. 5. Andrews, who is poor, is not willing to pay $600 for a health insurance plan. It turns out that if Andrews bought that health insurance plan, her life would be much better; she would be far healthier and her chronic back problem would be greatly improved. For her, the loss of $600 would be much smaller than the gain, in terms of welfare, from purchase of the health insurance plan. In all of these tales, there seems to be a disjunction between how much people are willing to pay for a certain good and how much welfare they would obtain from receiving that good. This disjunction might well seem odd, because economically oriented law professors (and many policymakers) often work with the idea of “willingness to pay” (WTP). Their goal

Abstract: Even in the immediate wake of the Supreme Court’s June 2013 decision in Fisher v. University of Texas,1 the future of race-conscious affirmative action remains uncertain. The Fisher decision did not deliver the muchfeared death blow to affirmative action in college admissions. Indeed, the majority reaffirmed the principle that diversity in higher education is a compelling state interest. At the same time, however, the Court emphatically cautioned that race-conscious affirmative action could only be used if no race-neutral approach could achieve the diversity essential to educational goals.2 And many commentators have predicted that the decision will lead to an increase in litigation over college admissions policies.3 Anticipating this possibility, colleges and universities will continue to explore what admissions policies will best yield a diverse mix of students. This article suggests an admissions strategy that accounts for socioeconomic disadvantage, and presents the results of a study from the University of Colorado that demonstrates that class-based affirmative action efforts are not only valuable for

Abstract: In recent years, scholars of antidiscrimination law have increasingly focused on the problem of “implicit” or “unconscious” bias. They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias based on race, gender, and other legally protected characteristics, evidence that raises troubling questions about the effects of such bias on legally relevant behaviors. For example, research using such tools as the Implicit Association Test (IAT)—“which assesses bias by measuring the speed with which an individual associates a categorical status (such as black or white) with a given characteristic or description (such as good or bad)”—has found that “[w]hite Americans, on average, show strong implicit preference for their own group and relative bias against African Americans.” Studies show that whites have similar biases against “other ethnic minority groups such as Latinos, Jews, Asians, and non-Americans,” as well as “the elderly, and women.” Interestingly, the studies also show that minorities and women often harbor the same implicit biases about their own groups that whites and men harbor against them. Legal scholars have used that psychological evidence to support a number of doctrinal proposals. For example, Linda Krieger and Susan Fiske have