Publicity, Pressure, and Environmental Legislation: The Untold Story of Availability Campaigns

The availability heuristic — a cognitive rule of thumb whereby events that are easily brought to mind are judged to be more likely — is employed by decision-makers on a daily basis. Availability campaigns occur when individuals and groups strategically exploit this cognitive tendency in order to generate publicity for a particular issue, creating pressure to effect legislative change. This paper is the first to argue that environmental availability campaigns are more beneficial than they are harmful. Because they result in pressure on Congress, these campaigns serve as a catalyst for the enactment of critical new legislative initiatives. Specifically, these campaigns streamline the legislative process by: (1) determining in a transparent and nonarbitrary manner which issues receive attention; (2) overcoming some of the undesirable barriers to the enactment of new initiatives; and (3) encouraging efficient, bipartisan cooperation to pass vital legislation and regulation. Availability campaigns have resulted in critically valuable directives such as the DDT ban, Superfund, and the Oil Pollution Act. Although the primary focus of this paper is environmental legislation, availability campaigns may have benefits in a wide variety of other areas of law and regulation

Cultural Understandings of Risk and the Tyranny of the Experts

Every year, law-makers and agency regulators, with the input of industry experts and scientists, make hundreds of decisions about how to regulate conduct and allocate resources to address various types of risks that threaten the well-being of American citizens. In fact, managing and minimizing risk is one of the most important tasks of today’s policy-makers. In spite of this fact, most actions are taken without systematic consideration of the preferences of the very people whose welfare is at stake. There are two reasons for this. First, the dominance of Traditional Risk Analysis, with its emphasis on statistics and cost-benefit analysis, has downplayed the role of values and subjectivity in risk management. The result has been that risk decisions have been based upon the erroneous assumption that empirical data and mathematical calculations alone are adequate bases for risk decisions. There has been virtually no acknowledgment that ex ante consideration of the convictions and passions of the public is valuable. In fact, a number of scholars have argued that because individuals become emotional about potential harms, scientific experts should make all risk decisions without any public involvement at all. Another consequence of the focus on traditional risk analysis is that no comprehensive model of public risk perception has been developed. Existing theoretical perspectives and methodologies have not offered a comprehensive model, and each has suffered from limitations of one kind or another. This Article argues that law makers cannot adequately manage risks without understanding how members of the public view and react to these risks. In an effort to provide specific guidance for future risk decisions, the Article synthesizes past risk perception research and theory in order to offer a comprehensive risk perception model. This model should serve as a tool for risk managers and policy-makers, and a catalyst for future normative risk management debate

Financing Elections and Appearance of Corruption : Citizen Attitudes and Behavior in 2012

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have disputed the majority’s conclusion with respect to corruption; the effect on the appearance of corruption has received far less attention. This Article focuses on this latter question, arguing that there is a growing appearance-of-corruption problem in American politics. The 2012 election cycle saw a modest growth in small donor giving and volunteerism, but voter turnout was down from the previous two presidential elections. Meanwhile, polls reveal that more than ever, Americans believe that money is corrupting the political process. This Article explains the connection between the Court’s recent campaign finance decisions and the current disillusionment of the American public. The Article also explains why data from the 2012 election likely underestimates the problem, and why the repercussions of our appearance-of-corruption problem are likely to grow if the law continues to permit unchecked political campaign spending

Financing Elections and \u27Appearance of Corruption\u27: Citizen Attitudes and Behavior in 2012

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have disputed the majority’s conclusion with respect to corruption; the effect on the appearance ofcorruption has received far less attention. This Article focuses on this latter question, arguing that there is a growing appearance-of-corruption problem in American politics. The 2012 election cycle saw a modest growth in small donor giving and volunteerism, but voter turn-out was down from the previous two presidential elections. Meanwhile, polls reveal that more than ever, Americans’ believe that money is corrupting the political process. This Article explains the connection between the Court’s recent campaign finance decisions and the current disillusionment of the American public. The Article also explains why data from the 2012 election likely underestimates the problem, and why the repercussions of our appearance-of-corruption problem are likely to grow if the law continues to permit unchecked political campaign spending

Behavioral Decision Theory and Implications for the Supreme Court’s Campaign Finance Jurisprudence

America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as “speech” and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or the appearance of corruption. However, behavioral decision research and theory provide strong support for the notion that expenditures do corrupt the political process, because there is a nexus between campaign spending, strategic manipulation, and sub-optimal voting decisions. This Article applies behavioral research and theory to advance a new definition of “corruption,” arguing that there is a vital governmental interest in regulating campaign expenditures in order to limit manipulative campaign tactics and to reduce the existing inequities in access to channels of communication and persuasion

The Expansion of Criminal Registries and the Illusion of Control

The American public consistently ranks crime prevention as the single most important objective for the criminal justice system, putting this goal ahead of punishment, enforcement, and rehabilitation. One popular but controversial method recently employed to prevent recidivism is the use of offender registries. The most common type of registry currently in use is the sex-offender registry. Responding to the public\u27s perception that sex offenders pose a particular risk to society, federal legislators--as well as legislators in all 50 states and the District of Columbia-- have enacted legislation creating mandatory sex-offender registries. The primary rationale for tracking and notification requirements was that giving the public access to information would allow citizens to protect themselves and other vulnerable members of society. A wealth of evidence suggests that sex-offender registries have not accomplished the goal of making citizens safer. Nevertheless, lawmakers in a number of states have proposed new crime registries for offenses ranging from crimes against children, to the manufacture of methamphetamine, to murder. Moreover, poll data has revealed that the American public supports expanding registries to include crimes other than sex offenses. The rising popularity of public crime registries in spite of evidence of their inefficacy is perplexing, until one considers the social science research revealing individuals\u27 need to perceive control over anxiety-provoking threats. The illusion of control and attribution literature provides a rich body of work suggesting that the implementation of such registries, rather than providing any real instrumental advantage, serves to bolster feelings of self-efficacy and minimize public anxiety

Too Much of a Good Thing: Campaign Speech after Citizens United

In January 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce and the portion of McConnell v. Federal Election Commission that restricted independent corporate expenditures, as codified in section 203 of the Bipartisan Campaign Reform Act. Specifically, Citizens United invalidated laws forbidding corporations and unions from using general treasury funds for “electioneering communication,” political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election. The effect of Citizens United was to protect the right of corporations, no less than individual American citizens, to fund and distribute political advocacy. The Citizens United holding is controversial for many reasons, not the least of which is that it takes a hard-line approach that unapologetically privileges speech, even while tacitly acknowledging the potential for negative effects. This Article challenges the Citizens United decision on several grounds. First, I dispute the majority’s claim that corporate spending does not result in “corruption.” Second, I assert that the potential for corruption poses a real and serious threat to democratic elections and that preventing this corruption is therefore a vital governmental interest justifying restraints on “speech.” Finally, I adopt the majority’s free speech priority and propose that even if the First Amendment is the only legitimate consideration, corporate spending is harmful because it chills speech in a manner not contemplated by the Court

Legal and Psychological Considerations in Adolescents\u27 End-of-Life Choices

In this essay, Professor Wilson reflects on the manner in which the law treats adolescents who are faced with end-of-life decisions. She begins by surveying the legal framework underlying end-of-life choices at the state and federal levels. She then discusses two decisionmakers - adolescents and adults - and the behavioral traits and biases that animate each when end-of-life decisions arise. In doing so, Wilson draws upon a rich body of empirical work on human decisionmaking. Wilson concludes that placing end-of-life decisions solely in the hands of adolescents or adults can result in suboptimal choices. She proposes the use of a bioethical mediator to counteract biases, reduce disagreement, and assist all parties in reaching the best possible outcome