Retribution\u27s Role

Two main types of principle, retributive and consequentialist, have long been identified as the main approaches to justifying criminal punishment. Retributivists deem punishment justified by the wrongdoing of the offender, whereas utilitarians deem it justified by its good consequences such as deterring future crime. Over the past fifty years, each has spent decades as the dominant theory, and many hybrid theories have also been advanced. But few, if any, of the hybrid approaches have valued heavily both retributive and consequentialist considerations while locating the particular justificatory role each category plays. This Article points in that direction by reframing the central question of punishment justification as two questions: Why does the state have a right to punish, and why does it choose to exercise that right? The first question is answered most naturally by retributive considerations, whereas the second identifies the most natural space for utilitarian values. This framing device, it is hoped, resolves some of the disputes between retributivists and utilitarians while sharpening the focus on those that remain

Against Summary Judgment

Summary judgment today is what settlement was twenty-five years ago: an increasingly popular and important form of dispute resolution, widely lauded for its efficiency, that has just begun to capture the full attention of civil procedure scholarship. Despite strong evidence that summary judgment violates the right to jury trial in civil cases guaranteed by the Seventh Amendment, most people assume this mechanism is necessary for our system to function at reasonable cost. This Article calls that assumption into question, suggesting that summary judgment actually costs us more than it saves and that our civil justice system would be both fairer and more efficient without it. Most cases that now go to summary judgment would settle early rather than go to trial if those were the only two options. By discouraging early settlement, summary judgment imposes large costs because the lion\u27s share of litigation takes place before trial. Moreover, summary judgment creates a systemic pro-defendant bias due to the pressure on judges to move their dockets along by terminating cases rather than letting them proceed to trial

Well-Being Analysis vs. Cost-Benefit Analysis

Cost-benefit analysis (CBA) is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates significant systemic errors. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from studies in the field of hedonic psychology that track people\u27s actual experience of life-data that have consistently been found reliable and valid-WBA is able to provide the same policy guidance as CBA without CBA\u27s distortionary reliance upon predictions and dollar figures. We show how WBA can be implemented, and we catalog its advantages over CBA. In light of this comparison, we conclude that WBA should assume CBA\u27s role as the decisionmaking tool of choice for administrative regulation

The Class Action Rule

The class action has many uses. The most compelling occurs when someone inflicts a small harm on each member of a large group of people. In such a case, anyone victim would have to spend more money to hire a lawyer than he could recover by winning the lawsuit, so he would not sue. The class action enables the claims of all the individual victims to be aggregated, thereby spreading the lawsuit\u27s costs among all class members and creating a potential recovery that is large enough to make the suit economically viable. Although each individual who is harmed wins only a small amount, the public benefit is substantial. The costs of the large public harm are borne by the person or firm responsible for it, and incentives to commit future transgressions are removed

Happiness and Punishment

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings\u27 ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by even short periods of incarceration. These twin phenomena significantly disrupt efforts to attain proportionality between crime and punishment and to achieve effective marginal deterrence. Hedonic psychology thus threatens to upend conventional conceptions of punishment and requires retributivists and utilitarians to find novel methods of calibrating traditional punitive sanctions if they are to maintain the foundations upon which punishment theory rests