Volume 16, Issue 2 -

Using 14 national censuses and a wide variety of first-hand accounts, I trace the creation of a largely fictive identity for Japan’s putative outcastes and the transformation of their nominal human rights organization into (on several crucial dimensions) a heavily criminal extortion machine. Scholars have long described the outcastes – the “burakumin” – as descended from a pre-modern leather-workers’ guild. Their members suffer discrimination because their ancestors handled carcasses, and ran afoul of a traditional Japanese obsession with ritual purity. In fact, most burakumin are descended not from leather-workers, but from poor farmers with distinctively dysfunctional norms. Others may or may not have shunned them out of concern for purity, but they certainly would have shunned many of them for their involvement in crime and their disintegrating family structures. The modern transformation of the buraku began in 1922, when self-described Bolsheviks lauched a buraku “liberation” organization. To fit the group within Marxist historical schema, they invented for it the fictive identity as a leather-workers’ guild that continues to this day. Bitter identity politics followed. Within a few years, criminal entrepreneurs hijacked the new organization, and pioneered a shakedown strategy that coupled violent accusations of bias with demands for massive amounts of money. Selective out-migration and spiraling levels of public subsidies ensued. The logic follows straightforwardly from the economic logic outlined by Becker and Hirschman: given ever-larger amounts of (expropriable) subsidies, burakumin with the lowest opportunity costs faced ever-larger incentives to stay in the buraku and invest in criminal careers; given the virulent public hostility that this strategy generated, those burakumin with the highest legitimate career options abandoned the community and merged into the general public instead.

Based on the premise that people are rational maximizers of their own utility, economic analysis has a fairly successful record in correctly predicting human behavior. This success is puzzling, given behavioral findings that show that people do not necessarily seek to maximize their own utility. Drawing on studies of motivated reasoning, self-serving biases, and behavioral ethics, this article offers a new behavioral foundation for the predictions of economic analysis. The behavioral studies reveal how automatic and mostly unconscious processes lead well-intentioned people to make self-serving decisions. Thus, the behavioral studies support many of the predictions of standard economic analysis, without committing to a simplistic portrayal of human motivation. The article reviews the psychological findings, explains how they provide a sounder, complementary foundation for economic analysis, and discusses their implications for legal policymaking.

Does the accuracy of verdicts improve or worsen if individual jurors on a panel are barred from deliberating prior to casting their votes? I study this question in a model where jurors can choose to exert costly effort to improve the accuracy of their individual decisions. I find that, provided the cost of effort is not too large, it is better to allow jurors to deliberate if jury size exceeds a threshold. For panels smaller than this threshold, it is more effective to instruct jurors to vote on the basis of their private information, without deliberations, and to use a simple majority rule to determine the collective decision (regardless of the voting rule used with deliberations). The smaller the cost of paying attention, the larger the threshold above which the switch to allowing deliberations becomes optimal. However, if the unanimity rule had to be maintained under the no-deliberations system, it would be better to allow deliberation. The results apply to binary decision making in any committee where the committee members incur some effort in reviewing the evidence. Examples are arbitration panels and tenure and promotion committees and some board of director meetings on issues such as whether to dismiss a CEO. As an extension I consider the case where jurors differ in their costs of effort.

We employ a counterfactual treatment effect analysis to evaluate whether U.S. Courts of Appeals judges have changed their propensity to vote against plaintiffs in public employment free speech disputes following the Supreme Court’s 2015 Lane v Franks decision. In order to ensure a like-for-like comparison of votes before and after the Lane decision we employ a variant of the “straddle” approach, which entails identifying cases caught in the crosshairs of the upper court’s ruling and then comparing the votes with those of cases already decided. Our results underscore the importance of paying close attention to selection effects when evaluating the impact of legal changes on judicial behavior.