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The American administrative state has become a cost-benefit state, at least in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. Some people celebrate this development; others abhor it. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, pure expressivism, political preferences, or interest-group power. Seen most sympathetically, the focus on costs and benefits is a neo-Benthamite effort to attend to the real-world consequences of regulations, and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. The focus on costs and benefits is also a valuable effort to go beyond coarse arguments, from both the right and the left, that tend to ask this unhelpful question: “Which side are you on?” In the future, however, there will be much better ways, which we might consider neo-Millian, to identify those consequences: (1) by relying less on unreliable ex ante projections and more on actual evaluations; (2) by focusing directly on welfare and not relying on imperfect proxies; and (3) by attending closely to distributional considerations – on who is helped and who is hurt.

Summary. Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony.

Summary. Modern corporate bankruptcy law has been shaped, and some of it written, by special interests. Even so, the law is rooted in American ideals of renewal, and of viewing failure in the marketplace as a sign of effort and gumption, not moral collapse. It’s a powerful idea - shedding the past to begin anew. But for decades, Chapter 11 of the U.S. Bankruptcy Code has also been used strategically - to destroy union contracts, edge out competitors, and limit product liability lawsuits.

Summary. In a recent symposium article (Expert Mining and Required Disclosure, 81 U Chi. L. Rev. 131 (2014)), Professor Jonah Gelbach discusses the problem that a litigant in the American adversarial system can consult multiple expert witnesses on a given question but only disclose the single most favorable opinion to the fact finder (a jury, judge, or arbitrator). He calls this the problem of “expert mining.” In particular, Gelbach considers whether a policy that requires litigants to disclose to the fact finder the number of experts that they consulted might be a satisfactory solution to the problem. Alternatively, Gelbach considers whether an even more radical change to the American litigation system — the exclusion of all expert opinions rendered after the first one — might be necessary. In doing so, Gelbach extensively discusses my own work on this problem and the third solution I developed in a 2010 article, Blind Expertise, 85 NYU L. Rev. 174 (2010). There, I show that expert mining is one part of a broader problem of expert bias, and I propose a conditional-disclosure rule as the solution. This Essay provides some analysis of Gelbach’s framing of the problem, reviews the blinding proposal, and identifies the limits of Gelbach’s analyses.

Summary. Describes legal limits on illegal promotional speech by drug company representatives.

Summary. Education today is a high-stake sector and increasingly vulnerable to corruption. Yet, despite all efforts there is still no certainty on how to best protect it from “harm”. The problem is partially due to a lack of consensus on what constitutes malpractice in education. The article argues in favor of mobilizing new insights from education research and anti-corruption policy for the development of sector standards of integral behavior. It discusses a systemic, service based approach around which this could be done and the responsibility of education practitioners and policy makers in the endeavor. It also suggests that measures to prevent corruption in education should be more sector-specific and target not only criminal offenses, but also “softer”, yet equally harmful forms of malpractice.

Summary. This working paper explores the concept of “institutional corruption,” and shows how the concept may illuminate the systemic ethical implications of public-private partnerships involving the food and soda industries.

Summary. “Blind expertise” has been proposed as an institutional solution to the problem of bias in expert witness testimony in litigation, as a way to improve litigation outcomes. At the request of a litigant, an intermediary selects a qualified expert and pays the expert to review a case without knowing which side requested the opinion. This paper reports an experiment that tests the hypothesis that, compared to traditional experts, such “blinded experts” will be more persuasive to jurors. A national sample of mock jurors (N = 275) watched an online video of a staged medical malpractice trial, including testimony from two medical experts, one of which (or neither, in the control condition) was randomly assigned to be a blind expert. We also manipulated whether the judge provided a special jury instruction explaining the blinding concept.

Summary. This article begins with a simple empirical claim – that professionals (doctors, lawyers, and psychologists, among others) may either facilitate or prevent human rights violations. They possess this power by virtue of their expertise, access and social status. Building on this claim, I argue that states are dependent upon the assistance of professionals in order to comply with their international human rights obligations. Compliance with these obligations is an essential condition of the legitimacy of states; non-compliance is a matter of global concern and, if systemic, renders the state liable to interference from external agents in the international community. It follows that states are, in this fundamental respect, dependent upon professionals. But professionals are also dependent upon states; their ability to perform their professional functions in full is contingent upon privileges and protections accorded to them by the state. Given this mutual dependence, I advance a contractarian account of the relationship between professionals and the state – one that gives rise to a duty on the part of professionals to assist the state with the performance of its human rights obligations. The content of that duty varies across professions and among professionals, since it depends upon the nature of the professional’s expertise, and the degree of access and social status she possesses. This account offers both theoretical and practical benefits. First, it avoids human rights foundationalism because it ties the ethical obligations of professionals to international legal norms, rather than to human rights conceived as ethical claims. Second, the account offers a further approach for bridging the gap that scholars and advocates have identified between human rights commitments and compliance. The incorporation of human rights norms into domestic law, political institutions and corporate governance may all contribute to this. But the essential role professionals can play in the acculturation of and compliance with human rights has been neglected. The account advanced here has a number of important practical implications – not least, the need for more (and better) human rights education and mentorship for professionals.

Summary. The modern capitalist society, characterized by decentralized decision making and increasingly sophisticated products and services, turns on relationships of epistemic reliance, where laypersons depend upon advisors to guide their most important decisions. Yet many of those advisors lack real expertise and may be biased by conflicting interests. In such situations, laypersons are likely to make suboptimal decisions that sometimes aggregate into systematic failures, from soaring health care costs to market crashes. Regulators can attempt to manage the symptoms and worst abuses, but the fundamental problem of biased advice will remain. There are many potential policy solutions, from outright bans on conflicting interests to disclosure mandates, yet their comparative effectiveness is poorly understood. By constructing a decision task for human subjects and providing advice in various scenarios, this Article reports new experiments testing alternative policy mechanisms. Prior research has shown that disclosure mandates can be deleterious if they make advisors more biased, but this paper contextualizes those findings. It turns out that disclosures may be valuable in settings where relative expertise is low, but deleterious where relative expertise is high. By also disaggregating the data, one finds that disclosures of conflicting interests may hurt laypersons in the majority of situations where the conflicted advice is not actually biased. Thus, the evidence suggests that, if they are to be at all effective, disclosure mandates should be narrowly tailored. Most importantly, the evidence shows that a disclosure mandate improves layperson performance when unbiased advisors are also available. Yet laypersons appear to be poor judges of their need for unbiased advice, so market mechanisms may be ineffective for provisioning unbiased advice. In the end, the presence of an unbiased advisor is the strongest determinant of layperson performance, and thus policymakers must develop ways of aligning the interests of advisors and laypersons. Pay-for-performance, blinding of experts, and mandatory or subsidized second-opinion policies are likely to be helpful in aligning these interests.

Summary. The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction in the American adversarial system.