Abstracts on Enforcement

The Pretend Solution: An Empirical Study of Bankruptcy Outcomes

Working Law: Courts, Corporations and Symbolic Civil Rights

Experimental analysis of the effect of standards on compliance and performance

Small behavioral science–informed changes can produce large policy-relevant effects

Revisiting Implementation Failures: Policy Regime Perspectives

Law, Moral Attitudes, and Behavioral Change

Procedural Justice and Legal Compliance

Experimental analysis of the effect of standards on compliance and performance

Legal Design for the 'Good Man'

Please reload

The Pretend Solution: An Empirical Study of Bankruptcy Outcomes
Katherine Porter, University of California, Irvine School of Law

When enacted in 1978, the Bankruptcy Code was heralded as a consumer protection victory. It gave families in financial trouble a complex array of legal options, including the ability to repay their debts over a number of years in chapter 13 bankruptcy. That new option was lauded by experts and became popular across the nation. Today over 1 million families are currently in chapter 13 bankruptcy; it remains the first line of defense for families facing foreclosure. For more than thirty years, research has shown that two in three families drop out of chapter 13 before completing their repayment plans and do not receive a discharge of debts. To rebut this statistic, defenders of chapter 13 argued that success was possible without case completion, for example, by curing a default on a mortgage loan early in a case or by regaining financial footing after a period of living on a strict court-imposed budget. With no data on debtors’ circumstances when their cases ended, chapter 13 endured as key component of America’s policy to address household financial distress. This article exposes the real outcomes of chapter 13 bankruptcy for the first time. It provides evidence of what problems families tried to solve in bankruptcy and what problems they did solve in bankruptcy. The data come from a new nationwide empirical study of chapter 13 cases did not end as the law intended - with completion of a repayment plan and a discharge of debt. The findings show that most families receive a temporary reprieve from chapter 13: the halt of collection activity and reduction in stress. However, these benefits evaporate just a few weeks after bankruptcy. More than half of homeowners are already in foreclosure, and families are dealing with renewed dunning calls and struggles in making ends meet. Chapter 13 is a “pretend solution,” a term that I coin to describe a social program that does not work but has escaped critique or reform because its outcomes are hidden. This paper’s data are a clarion call to stop pushing families in financial trouble into chapter 13 and to redesign the consumer bankruptcy system. The data are also a cautionary tale about what happens when well-intention policymakers offer up a generous program but fail to monitor outcomes. A pretend solution can flourish, inoculating policymakers from revisiting the social problem. The paper concludes with a framework for pretend solutions that can be applied in other contexts and a discussion of how policymakers can avoid pretend solutions by focusing sharply on outcomes, not intentions.

 
Working Law: Courts, Corporations and Symbolic Civil Rights
Lauren Edelman, University of California, Berkeley School of Law

Since the passage of the Civil Rights Act, virtually all companies have antidiscrimination policies in place. Although these policies represent some progress, women and minorities remain underrepresented within the workplace as a whole and even more so when you look at high-level positions. They also tend to be less well paid. How is it that discrimination remains so prevalent in the American workplace despite the widespread adoption of policies designed to prevent it?

 
Experimental analysis of the effect of standards on compliance and performance
Constantine Boussalis, Trinity College Dublin

Laws can be written along a spectrum of specificity, ranging from vague standards to more detailed rules with particular examples. Behavioral and legal scholarship each present conflicting views about the optimal degree of specificity with which laws should be designed. From a behavioral standpoint, specificity is important to help people understand their goals and use their cognitive resources in a focused manner. At the same time, ambiguity in the law can even encourage good people to engage in creative interpretations of legal requirements, allowing them to justify unethical behavior, with limited awareness of the meaning of that behavior. By contrast, theories of crowding out, trust, and cooperation suggest that specificity can create resentment and lead to under-compliance and under-performance. These conflicting views about the effects of specificity serve as the background for this experimental project. This paper studies the effects of specificity on behavior in response to a directive that shares important features with the law. First, we examine the effect of specificity on compliance (following a directive) versus performance (beyond a minimum threshold). Second, we compare the controlling, limiting effects of specificity with its instructive, informative effects by comparing the interaction between specificity and monitoring with the interaction between specificity and good faith. We hypothesized that the combination of specificity and monitoring enhances the effect of specificity on compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people’s sense of commitment. The study employs an experimental design in which subjects edit a document after being exposed to detailed (vague) instructions, with (without) a reference to good faith, and with (without) monitoring (through sanctioning). The assignments were designed in such a way that people could engage in various levels of editing (both required and not required, reasonable and more than reasonable), allowing us to measure distinctly both compliance and performance. Our results suggest that when participants require information and guidance, as in the case of editing a document, specificity increases performance even beyond what is required relative to a vague standard condition.

 
Small behavioral science–informed changes can produce large policy-relevant effects
Robert Cialdini, Arizona State University

Policymakers traditionally have relied upon education, economic incentives, and legal sanctions to influence behavior and effect change for the public good. But recent research in the behavioral sciences points to an exciting new approach that is highly effective and cost-efficient. By leveraging one or more of three simple yet powerful human motivations, small changes in reframing motivational context can lead to significant and policy-relevant changes in behaviors.

 
Revisiting Implementation Failures: Policy Regime Perspectives
Peter J. May, University of Washington

The cataloging of failures when putting policies in place has been the hallmark of implementation studies since the 1970s. The numerous lessons from this research can be distilled into guidance about improving policy design to enhance implementation prospects and other suggestions for overcoming administrative obstacles. This contribution extends these lessons by addressing how the governing arrangements for addressing policy problems—the policy regimes that are put in place—either work to reinforce or undermine political commitments enshrined within policies. Regimes mediate feedback effects of policies in affecting policy legitimacy, coherence, and durability. These notions about policy regimes are contrasted with traditional perspectives about implementation failures. The value of a regime perspective in studying policy implementation and governing is illustrated for the case of the Affordable Care Act in the United States of America (USA).

 
Law, Moral Attitudes, and Behavioral Change
Janice Nadler, Northwestern University

Classically, the ambition of legal regulation is to change behaviors. Laws might aim to increase or decrease various activities, such as owning a gun, or taking a work leave to care for a sick family member, or polluting, or hiring a minority job candidate. They might aim to get people or institutions to substitute one activity for another, such as buying diet soda instead of sugared, or using chewing tobacco instead of smoking, or using solar energy instead of conventional sources. Legal regulation can accomplish its goals directly, through fear of sanctions or desire for rewards. But it can also do so indirectly, by changing attitudes about the regulated behaviors. Ironically, this indirect path can be the most efficient one, particularly if the regulation changes attitudes about the underlying morality of the behaviors. This is because if laws change moral attitudes, we reduce—maybe drastically—the need for the state to act on or even monitor regulated players

 
Procedural Justice and Legal Compliance
Daniel Nagin, Carnegie Mellon University Heinz College

This article reviews the evidence on whether procedurally just treatment of citizens by agents of the criminal justice system, usually the police, has the effect of increasing the citizen’s compliance with the law. In brief, we find that perception-based studies consistently show that citizen perceptions of procedurally just treatment are closely tied to perceptions of police legitimacy, and that with only a few exceptions perceptions of legitimacy are strongly associated with legal compliance. However, what has not been established is whether these associations reflect a causal connection whereby changes in policies that are effective in changing actual procedurally just treatment of citizens by police and others lead to changes in legal compliance and perceived legitimacy. Three priority areas for future research are identified: (a) devising and testing a theory of the cumulative effects of experience and community and situational context on perceptions of procedurally just treatment and perceptions of legitimacy, (b) filling out and testing a theory of the circumstances in which improved perceptions of legitimacy translate into greater legal compliance, and (c) designing and evaluating policies and training protocols that are effective in translating the constituent components of procedurally just treatment into improved legal compliance.

 
Experimental analysis of the effect of standards on compliance and performance
Henry E. Smith, Harvard University

Laws can be written along a spectrum of specificity, ranging from vague standards to more detailed rules with particular examples. Behavioral and legal scholarship each present conflicting views about the optimal degree of specificity with which laws should be designed. From a behavioral standpoint, specificity is important to help people understand their goals and use their cognitive resources in a focused manner. At the same time, ambiguity in the law can even encourage good people to engage in creative interpretations of legal requirements, allowing them to justify unethical behavior, with limited awareness of the meaning of that behavior. By contrast, theories of crowding out, trust, and cooperation suggest that specificity can create resentment and lead to under-compliance and under-performance. These conflicting views about the effects of specificity serve as the background for this experimental project. This paper studies the effects of specificity on behavior in response to a directive that shares important features with the law. First, we examine the effect of specificity on compliance (following a directive) versus performance (beyond a minimum threshold). Second, we compare the controlling, limiting effects of specificity with its instructive, informative effects by comparing the interaction between specificity and monitoring with the interaction between specificity and good faith. We hypothesized that the combination of specificity and monitoring enhances the effect of specificity on compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people’s sense of commitment. The study employs an experimental design in which subjects edit a document after being exposed to detailed (vague) instructions, with (without) a reference to good faith, and with (without) monitoring (through sanctioning). The assignments were designed in such a way that people could engage in various levels of editing (both required and not required, reasonable and more than reasonable), allowing us to measure distinctly both compliance and performance. Our results suggest that when participants require information and guidance, as in the case of editing a document, specificity increases performance even beyond what is required relative to a vague standard condition.

 
Legal Design for the 'Good Man'
Rebecca Stone, University of California, Los Angeles School of Law

Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise. At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored. But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for various different kinds of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law. A lawmaker ought to design legal rules in a way that attends to this variety if her aim is to design socially optimal rules. This Article systematically analyzes the problem of legal design in the face of the diversity of motivational types that exist in the population of legal subjects. Part I develops a typology of good persons by exploring the causes and consequences of legal norm internalization—the ways in which a person’s preferences are transformed such that he comes to value complying with legal rules for the sake of the rules. Part II argues that a good person’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms and the ways in which he responds to the various kinds of uncertainty to which the legal system exposes him. Part III derives normative implications of my analysis for consequentialist lawmakers, while also addressing the converse worry that good man analysis of law is too complex to be tractable. The overall aim is to systematically examine the ways in which a diversity of motivations in the population complicates the problem of legal design for legislators, judges, and administrative officials, and to develop an organizing framework that can be used to think about the problem rigorously, which I illustrate by exploring some examples.