New Article: Jim Hawkins, Using Advertisements to Diagnose Behavioral Market Failure, Wake Forest L. Rev. forthcoming. SSRN 2015. Abstract below:
In imperfect markets where consumers have malleable preferences and bounded rationality, advertising has the potential to increase demand for products through persuasion and through information that exploits systematic mistakes that consumers make. Scholarship on advertising has criticized it on these grounds, but the legal and economic literature has missed advertising’s enormous potential to reveal consumers’ behavioral biases in specific markets. This Article argues that researchers and policymakers should use advertising to detect and diagnose behavioral market failure.
As a case study of my strategy, I offer the first comprehensive empirical study of advertisements for payday and title loans. These are short-term, small-dollar, high-cost loans, and the majority of consumers using them are lower-income Americans. I report on research I conducted that coded information on advertisements at 189 payday and title lending storefronts and 27 websites. Using the advertisements to diagnose behavioral market failure, I find evidence that firms use advertising to exploit the ways in which payday and title lending customers deviate from the rational actor model. Finally, I offer policy suggestions aimed at fixing this market failure.
New Article: Robert A. Garda Jr., Searching for Equity Amid a System of Schools: The View from New Orleans, 42 Fordham Urban Law Journal 613 (2015). Abstract below:
Today, New Orleans education stands at a crossroads in deciding how to achieve equity for its vulnerable student populations. One route relies on centralizing services, planning, and oversight to ensure that every school provides an appropriate education to any type of student that walks through the schoolhouse door. This path embraces the version of inclusion equality set forth in Brown v. Board of Education: “separate educational facilities are inherently unequal.” The other route relies on the market driven reform underlying the charter movement to create specialized schools to fill the unmet demands of vulnerable populations. This route embraces an emerging view of equality- where separate can be equal, possibly even superior, if parents are empowered to maximize their child’s academic outcomes in specialized settings. This Article argues that New Orleans is headed down this latter route and identifies the lessons that can be learned from its evolution to a system of schools.
New Article: Todd J. Zywicki, The Law and Economics of Consumer Debt Collection and Its Regulation, SSRN 2015. Abstract below:
This article reviews the law and economics of consumer debt collection and its regulation, a topic that has taken on added urgency in light of the announcement by the Consumer Financial Protection Bureau that it is considering new regulations on the subject. Although stricter regulation of permissible debt collection practices can benefit those consumers who are in default and increase demand for credit by consumers, overly-restrictive regulation will result in higher interest rates and less access to credit for consumers, especially higher-risk consumers. Regulation of particular practices may also have the unintended consequence of providing incentives for creditors to more rapidly escalate their efforts to more aggressive collection practices, including litigation. Finally, the CFPB should take care to avoid imposing disproportionate regulatory burdens on small firms that would reduce competition and promote further consolidation of the industry. Therefore, before enacting any new regulations, the CFPB should be careful to ensure that the marginal benefits to consumers and the economy of new regulations exceed any costs arising from unintended consequences.
Photo Copyright Ezra Rosser
New Article: Alexandria Mayfield, Generous, Not Just: What Feeds the River of Tribal Despair and Poverty, 50 Tulsa L. Rev. 829 (2015).
New Article: Stephen Wizner, Book Review, Poverty Law, Policy, and Practice, 22 Georgetown J. Poverty L. & Pol’y 441 (2015).
I have been unable to find a copy of the review except through paid services, but I am happy to email a copy to anyone who requests one. It is of course a huge honor for all of us–Juliet Brodie, Clare Pastore, Ezra Rosser, and Jeffrey Selbin–that both Peter Edelman and Stephen Wizner both took the time to review the book. It is also of course a relief that the reviews were favorable! =)
New Article: Peter A. Joy, Unequal Assistance of Counsel, Kansas J. L. & Pub. Pol’y 2015. Abstract below:
There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.
The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population. This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.
The Sixth Amendment promises the effective assistance of counsel to every person accused of a crime where incarceration is a possible punishment. This guarantee suggests that everyone, rich and poor, is equal before the law. But the reality of the criminal justice system is much different for the majority of those charged with crimes. If one does not have the financial means to hire effective counsel, or is poor and not lucky enough to have a well-funded, effective public defender or appointed counsel, the defendant’s right to counsel is unequal. This disparity is driven largely by the wealth of the accused and falls most harshly on people of color, who are twice as likely as whites to live in poverty and are accused of crimes at rates much higher than their proportion of the population. As a result, class and race are largely determinative of the lawyer, and often the amount of justice one receives.
This article explores how unequal assistance of counsel contributes to unequal justice. The article begins with a brief overview of racial disparities in the ways laws are enforced. The initial step in the criminal justice system, whether the police stop someone, can lead to arrest, charges, and the need for a lawyer. Next, it analyzes the systemic barriers to effective assistance of counsel at the state level, which is driven largely by excessive caseloads and an ineffective assistance of counsel standard that tolerates bad lawyering. It concludes with strategies for achieving more effective assistance of counsel, which emphasize the ethical imperative to provide meaningful assistance of counsel, the importance of data collection by public defender systems, and systemic litigation that positions assistance of counsel claims prior to trials.
New Article: Jaime Alison Lee, Rights at Risk in Privatized Public Housing, 50 Tulsa L. Rev. 759 (2015).