Crafting Next Generation Eco-Label Policy

Eco-labels present a promising policy tool in the effort to achieve sustainable consumption. Many questions remain, however, about the extent to which eco-labels can contribute to sustainability efforts and how to maximize their effectiveness. This Article deploys research from evolutionary psychology, behavioral law and economics, and norm theory to offer specific insights for the design and implementation of eco-labels to enhance their influence on sustainable consumer choice. Notably, this research suggests possibilities for eco-labels to shape or expand consumer preferences for green goods, and thereby enhance eco-label influence on consumer behavior by extending it beyond eco-minded consumers. We suggest that public exposure of the label (so that people see it) and the exposure of the purchasing behavior (so that other people can see that you have bought the product) are key elements to the success of eco-labels--the social context around product purchasing may be as important as the eco-label itself. We recommend that behavioral insights be used to improve eco-labeling as traditionally understood by incorporating knowledge about behavioral tendencies into label design so as to allow for more accurate matching of consumers\u27 preexisting environmental preferences to eco-labeled goods, and develop next-generation eco-labeling policy with the potential to significantly expand the market for eco-labeled goods. Specifically, 1) Eco-labels could be purposefully designed and implemented to attract consumers motivated by social norms; 2) Eco-labels could appeal to a wider range of abstract norm alternate more broadly or locally accepted and strong abstract that are stronger and/or more broadly accepted or locally-salient; and 3) Eco-labels could highlight private, near and near-term benefits

Accessing Law: An Empirical Study Exploring the Influence of Legal Research Medium

The legal profession is presently engaged in an uncontrolled experiment. Attorneys now locate and access legal authorities primarily through electronic means. Although this shift to an electronic research medium radically changes how attorneys discover and encounter law, little empirical work investigates impacts from the shift to an electronic medium. This Article presents the results of one of the most robust empirical studies conducted to date comparing research processes using print and electronic sources. While the study presented in this Article was modest in scope, the extent and type of the differences that it reveals are notable. Some of the observed differences between print and electronic research processes confirm predictions offered, but never before confirmed, about how the research medium changes the research process. This Article strongly supports calls for the legal profession and legal academy to be more attentive to the implications of the shift to electronic research

Scientific Gerrymandering & Bifurcation

Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of the toxicity of chemicals and other products. The manner and extent to which scientific gerrymandering is explored and litigated within those suits is often driven by another typical feature of toxic tort litigation—the procedural device of bifurcation. Judges frequently bifurcate toxic tort suits into causation and negligence phases, with the causation phase heard first. Bifurcation in toxic tort suits involving issues of scientific gerrymandering requires judges to decide whether evidence of scientific gerrymandering is relevant to and may be presented during the causation phase of a toxic tort trial. And, typically, as Judge Vince Chhabria recently ruled in In re Roundup Products Liability Litigation (MDL No. 2741), judges hold that evidence of scientific gerrymandering cannot be presented or must be evidence of scientific gerrymandering cannot be presented or must be significantly limited during the causation phase because scientific gerrymandering is not relevant to causation. Rulings that prevent admitting evidence of scientific gerrymandering during the causation phase of bifurcated trials can, however, be critiqued on both doctrinal and normative grounds. First, from a doctrinal perspective, scientific gerrymandering—how a corporate defendant shaped scientific knowledge about a product’s risk—is often directly relevant to causation— whether the product causes the relevant harm. This is so because effective corporate scientific gerrymandering can define the current state of science about product risk, particularly when questions about the extent of risk caused by a product lie at the frontiers of scientific knowledge. Additionally, numerous tort doctrines support shifting or reducing causal burdens in the face of defendant misconduct, like scientific gerrymandering—which might be likened to obscuring evidence. Second, from a normative perspective, permitting consideration of scientific gerrymandering during causation can be justified even where the introduction of such evidence creates the risk that juries will erroneously find that a product causes harm. Condemnation of scientific gerrymandering is consistent with corrective justice because corporate scientific gerrymandering can occasion distinct and independent harm by creating a large group of exposed individuals who endure an extended period of fearful uncertainty until such time as the nature of that risk can be objectively resolved, even if that product is ultimately shown not to cause the suspected harm. Finally, from a policy perspective, allowing the introduction of evidence of corporate scientific gerrymandering during the causation phase of bifurcated toxic tort trials should discourage corporate actors from engaging in scientific gerrymandering, thereby improving the efficacy of regulation and bolstering public confidence

Informational Regulation, the Environment, and the Public

Informational Regulation, the Environment, and the Public generates a typology to analyze how public disclosure functions in informational regulation. In the environmental context, informational regulation compels the public disclosure of environmental information without mandating substantive environmental outcomes in the expectation that disclosure itself will prompt beneficial change in the environmental context. Application of the Article\u27s typology reveals that the emperor has no clothes: Communication of environmental information to the public is considered central to policies employing informational regulation, but the information produced pursuant to these measures largely fails to reach or be understood by lay individuals. For example, empirical data shows that corporations required to publicly report releases under the Toxic Release Inventory (TRI) do change their conduct to reduce those releases despite being under no legal obligation to do so. Most people, however, are wholly unaware of the information disclosed under the TRI and, even if made aware of it, unable to comprehend its significance. This insight calls into question oft-cited normative bases for environmental information regulation, including that it supports individual autonomy (by informing choice about exposure to risk) and enriches civic perspective (by enhancing participation in administrative process and other civic behaviors). Critical examination of how informational regulation works and the effects it produces is timely and important. Environmental law increasingly embraces policies that employ informational regulation--it is, for example, central to current proposals to require greater disclosure of climate change risk under securities laws and constitutes a core element of many Environmental, Social, and Governance (ESG) protocols. Yet, close analysis suggests that the success of public disclosure at prompting upstream effects (changing the behavior of regulated entities) masks its general failure to speak to the lay public. Improving informational regulation requires a clear-eyed assessment of its limitations and a recognition that information cannot simply be pumped into the public domain and expected to enlighten individuals

Informational Regulation, the Environment, and the Public

Informational Regulation, the Environment, and the Public generates a typology to analyze how public disclosure functions in informational regulation. In the environmental context, informational regulation compels the public disclosure of environmental information without mandating substantive environmental outcomes in the expectation that disclosure itself will prompt beneficial change in the environmental context. Application of the Article\u27s typology reveals that the emperor has no clothes: Communication of environmental information to the public is considered central to policies employing informational regulation, but the information produced pursuant to these measures largely fails to reach or be understood by lay individuals. For example, empirical data shows that corporations required to publicly report releases under the Toxic Release Inventory (TRI) do change their conduct to reduce those releases despite being under no legal obligation to do so. Most people, however, are wholly unaware of the information disclosed under the TRI and, even if made aware of it, unable to comprehend its significance. This insight calls into question oft-cited normative bases for environmental information regulation, including that it supports individual autonomy (by informing choice about exposure to risk) and enriches civic perspective (by enhancing participation in administrative process and other civic behaviors). Critical examination of how informational regulation works and the effects it produces is timely and important. Environmental law increasingly embraces policies that employ informational regulation--it is, for example, central to current proposals to require greater disclosure of climate change risk under securities laws and constitutes a core element of many Environmental, Social, and Governance (ESG) protocols. Yet, close analysis suggests that the success of public disclosure at prompting upstream effects (changing the behavior of regulated entities) masks its general failure to speak to the lay public. Improving informational regulation requires a clear-eyed assessment of its limitations and a recognition that information cannot simply be pumped into the public domain and expected to enlighten individuals

Crafting Next Generation Eco-Label Policy

Eco-labels present a promising policy tool in the effort to achieve sustainable consumption. Many questions remain, however, about the extent to which eco-labels can contribute to sustainability efforts and how to maximize their effectiveness. This Article deploys research from evolutionary psychology, behavioral law and economics, and norm theory to offer specific insights for the design and implementation of eco-labels to enhance their influence on sustainable consumer choice. Notably, this research suggests possibilities for eco-labels to shape or expand consumer preferences for green goods, and thereby enhance eco-label influence on consumer behavior by extending it beyond eco-minded consumers. We suggest that public exposure of the label (so that people see it) and the exposure of the purchasing behavior (so that other people can see that you have bought the product) are key elements to the success of eco-labels--the social context around product purchasing may be as important as the eco-label itself. We recommend that behavioral insights be used to improve eco-labeling as traditionally understood by incorporating knowledge about behavioral tendencies into label design so as to allow for more accurate matching of consumers\u27 preexisting environmental preferences to eco-labeled goods, and develop next-generation eco-labeling policy with the potential to significantly expand the market for eco-labeled goods. Specifically, 1) Eco-labels could be purposefully designed and implemented to attract consumers motivated by social norms; 2) Eco-labels could appeal to a wider range of abstract norm alternate more broadly or locally accepted and strong abstract that are stronger and/or more broadly accepted or locally-salient; and 3) Eco-labels could highlight private, near and near-term benefits

Scientific Gerrymandering & Bifurcation

Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of the toxicity of chemicals and other products. The manner and extent to which scientific gerrymandering is explored and litigated within those suits is often driven by another typical feature of toxic tort litigation—the procedural device of bifurcation. Judges frequently bifurcate toxic tort suits into causation and negligence phases, with the causation phase heard first. Bifurcation in toxic tort suits involving issues of scientific gerrymandering requires judges to decide whether evidence of scientific gerrymandering is relevant to and may be presented during the causation phase of a toxic tort trial. And, typically, as Judge Vince Chhabria recently ruled in In re Roundup Products Liability Litigation (MDL No. 2741), judges hold that evidence of scientific gerrymandering cannot be presented or must be evidence of scientific gerrymandering cannot be presented or must be significantly limited during the causation phase because scientific gerrymandering is not relevant to causation. Rulings that prevent admitting evidence of scientific gerrymandering during the causation phase of bifurcated trials can, however, be critiqued on both doctrinal and normative grounds. First, from a doctrinal perspective, scientific gerrymandering—how a corporate defendant shaped scientific knowledge about a product’s risk—is often directly relevant to causation— whether the product causes the relevant harm. This is so because effective corporate scientific gerrymandering can define the current state of science about product risk, particularly when questions about the extent of risk caused by a product lie at the frontiers of scientific knowledge. Additionally, numerous tort doctrines support shifting or reducing causal burdens in the face of defendant misconduct, like scientific gerrymandering—which might be likened to obscuring evidence. Second, from a normative perspective, permitting consideration of scientific gerrymandering during causation can be justified even where the introduction of such evidence creates the risk that juries will erroneously find that a product causes harm. Condemnation of scientific gerrymandering is consistent with corrective justice because corporate scientific gerrymandering can occasion distinct and independent harm by creating a large group of exposed individuals who endure an extended period of fearful uncertainty until such time as the nature of that risk can be objectively resolved, even if that product is ultimately shown not to cause the suspected harm. Finally, from a policy perspective, allowing the introduction of evidence of corporate scientific gerrymandering during the causation phase of bifurcated toxic tort trials should discourage corporate actors from engaging in scientific gerrymandering, thereby improving the efficacy of regulation and bolstering public confidence

Disparities in self-rated health across generations and through the life course

Extensive evidence leads us to expect that health disparities by race and socioeconomic status found in one generation might be reproduced in the next. To the extent that this occurs it is important to assess life course processes responsible for the reproduction. Prospective evidence concerning such life course processes is hard to come by as it requires long-term follow-up of individuals from childhood through adult life. We present data from the Child Health and Development Disparities study that provides evidence relevant to this issue with respect to self-rated health. Mothers and offspring recruited in California's Bay Area between 1959 and 1967 were assessed during pregnancy with follow-up exams of offspring along with in-person interviews with mothers (at offspring ages 5, 9–11, 15–17) and offspring (at ages 15–17, ~50). Available data allow us to assess the importance of three potential life course pathways in the reproduction of inequalities in self-rated health – socioeconomic pathways, cognitive pathways and pathways involving emerging health itself. As expected we found that race and SES disparities in SRH are reproduced across generations. They are evident in mothers, not strong or significant in offspring at 15–17, but present once again in offspring at age ~50. Concerning potential pathways, we found that indicators of child health were related to adult SRH and played some role in accounting for race but not SES disparities in adult SRH. Cognitive abilities were unrelated to adult SRH with childhood SES controlled. Childhood SES was associated with adult SRH independent of other childhood factors and is reduced to non-significance only when offspring college attainment is controlled. Race and SES disparities in self-reported health in one generation are re-expressed in the next with strongest support for SES pathways in this transmission