The People’s Perspective on Libertarian-Paternalistic Policies

AYALA ARAD, ARIEL RUBINSTEIN

THE JOURNAL OF LAW AND ECONOMICS, Volume 61, Number 2

Abstract: We examine the views toward libertarian-paternalistic (soft) governmental interventions in a series of online experiments conducted in three countries. We use both standard and new methods to elicit attitudes toward soft interventions in various hypothetical scenarios. The majority of the participants accept these types of interventions by the government. However, a substantial proportion opposes them and would prefer that the government simply provide information to help the public make the right choice rather than use a more effective choice architecture intervention. Some even refuse to make the choice that the government promotes, although they would have done so in the absence of the intervention. The opposition to soft interventions appears to be driven by concerns about manipulation and the fear of a slippery slope to nonconsensual interventions. Opposition to soft interventions is reduced when they are implemented by employers rather than the government.

Correctional Autonomy and Authority in the Rise of Mass Incarceration

KERAMET REITER, KELSIE CHESNUT

ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE

Abstract: Much of the literature explaining both mass incarceration and increasingly harsh punishment policies has been dominated by a focus on factors external to prisons, such as macrolevel explanations that point to political factors (like a popular rhetoric of governing through crime) or social structures (like the presence or absence of a strong welfare state). Where scholarship has focused on factors internal to prisons, explanations have often focused less on individual actors or correctional influence and more on processes, such as routinization, legalization, and risk management. This article argues for the importance of an additional explanatory factor in understanding the phenomenon of mass incarceration: the internal and relatively individualized influence of correctional officials, especially mid-level bureaucrats, who exercise autonomy and authority not only over prisoners and prison policy implementation but over policy initiation.

Arbitration in classical Athens

BRYAN C. MCCANNON

CONSTITUTIONAL POLITICAL ECONOMY

Abstract: The Classical Athenians developed two formal arbitration procedures. They assigned low stakes disputes to a panel of arbitrators, while high stakes cases were handled by a single arbitrator. Given the information aggregation benefit of collective decision making, one would have expected more individuals to be assigned to more important cases. I develop a theoretical model to provide an explanation for their design. Recognizing that arbitrator competence is endogenous, effort put into making a good decision takes time and effort. In larger groups free riding is a concern. Consequently, there exists environments where the free-riding loss is magnified in higher stakes disputes to the point where the socially optimal panel size is inversely related to the stakes involved.

Racial Bias in Bail Decisions

DAVID ARNOLD, WILL DOBBIE, CRYSTAL S. YANG

THE QUARTERLY JOURNAL OF ECONOMICS

Abstract: This article develops a new test for identifying racial bias in the context of bail decisions—a high-stakes setting with large disparities between white and black defendants. We motivate our analysis using Becker’s model of racial bias, which predicts that rates of pretrial misconduct will be identical for marginal white and marginal black defendants if bail judges are racially unbiased. In contrast, marginal white defendants will have higher rates of misconduct than marginal black defendants if bail judges are racially biased, whether that bias is driven by racial animus, inaccurate racial stereotypes, or any other form of bias. To test the model, we use the release tendencies of quasi-randomly assigned bail judges to identify the relevant race-specific misconduct rates. Estimates from Miami and Philadelphia show that bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We find suggestive evidence that this racial bias is driven by bail judges relying on inaccurate stereotypes that exaggerate the relative danger of releasing black defendants.

Gordon Tullock’s Legacy

PETER BOETTKE AND ROSOLINO CANDELA, RICHARD WAGNER, WILLIAM SHUGHART, AND RANDALL HOLCOMBE
Abstract: Trained as a lawyer and practiced in the arts of war and diplomacy, Gordon Tullock opened economists’ eyes to new ways of viewing constitutional construction, the challenges of bureaucracy, the nature of government regulations, the problem of rent seeking, and the limits of voting. The four papers in this symposium explore the legacy of Gordon Tullock. The paper by Peter Boettke and Rosolino Candela as well as the paper by Richard Wagner attempt to highlight the important features of Tullock’s approach. The papers by William Shughart and Randall Holcombe explore two of Tullock’s relatively understudied contributions to political economy: his critique of the common law and his work on the political economy of redistribution

Two Rights of Free Speech

ANDREI MARMOR

RATIO JURIS

Abstract: My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.

Grotius on Property and the Right of Necessity

DENNIS KLIMCHUK

JOURNAL OF THE HISTORY OF PHILOSOPHY

Abstract: It is widely held that in situations of peril, it is permissible to use another’s property without her permission if that is the only way to save oneself from serious harm, but that if one damages or consumes that property, one ought to compensate its owner. However, this idea—that there is what is commonly called ‘the right of necessity’—has proven surprisingly difficult to justify. According to Grotius, the right of necessity issues from a constraint imposed by natural law on the positive law of private property. I defend an interpretation of Grotius’s account of property and the right of necessity against some recent sympathetic readers, and show how he escapes a seemingly telling criticism from Pufendorf.