Duke Journal of Constitutional Law & Public Policy, 2016
In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Su... more In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Supreme Court’s prior command in Atkins v. Virginia that unless the imposition of the death penalty “measurably contributes to one or both of [the legitimate penological goals of deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Justice Breyer’s opinion illuminates the central role that empirical studies have played in death penalty litigation since Furman v. Georgia on issues ranging from the lack of deterrence associated with the death penalty; to racial and ethnic bias in its administration; to the extensive delays, cost, errors, and arbitrary implementation; and to the failure to limit capital punishment to the worst of the worst offenders. Two months after Glossip, the battle over the empirical evaluation of capital punishment played out in the contentious 4-3 decision in Sta...
There has been a profound shift in the legal landscape concerning firearms over the last forty ye... more There has been a profound shift in the legal landscape concerning firearms over the last forty years. Before then, substantial state restrictions—even complete prohibitions—on gun carrying were quite common, and they enjoyed considerable support among Republican voters and politicians. Today, the large majority of states confer the “right-to-carry” (RTC) with little or no restriction. After unwisely granting cert and proceeding with oral argument in New York State Rifle and Pistol Association v. City of New York, in which the U.S. Supreme Court was asked to create an individual right under the Second Amendment to carry guns outside the home, the Court chose to leave this question for another day.1 One argument frequently used to justify this expansion of the Second Amendment is that good guys with guns can quickly thwart mass shootings. Yet since the end of the federal assault weapons ban in 2004, deaths from mass shootings have been rising sharply even as lawful gun toting has incr...
for useful discussions and comments. The views expressed herein are those of the author(s) and do... more for useful discussions and comments. The views expressed herein are those of the author(s) and do not necessarily reflect the views of the National Bureau of Economic Research.
Deirdre McCloskey is discontented with the practice of economists. She dislikes that they follow ... more Deirdre McCloskey is discontented with the practice of economists. She dislikes that they follow Paul Samuelson instead of Adam Smith. In her opinion, it is a mistake-a mistake she, too, once committed. She once believed that the only character needed for understanding markets is "Mr. Maximum Utility, the monster of Prudence who has no place in his character for Love-or any passion beyond Prudence Only" (McCloskey 2006, 135). She, too, wrote articles populated by the "Max U-er obsessed with prudence" (2006, 375), "Max U, that unlovely maximizer of Utility, Homo prudens" (2010, 274). But she changed her mind and she invites others to follow her lead: Max U-a character fettered by the ends-means logic of Prudence Only (2006, 111) does not work, not even scientifically, she claims (135). Here I do not want to assess the working of Max U as an explanatory device. I focus on McCloskey's identification of Mr. Maximum Utility with prudence, an identification that permeates her work. 2 I do not think that works, either. The strategy I pursue is to contrast Max U with the man of prudence in Smith's The Theory of Moral Sentiments (1759; hereafter TMS). The reason for singling Discuss this article at Journaltalk: http://journaltalk.net/articles/5784
for useful discussions and comments. The views expressed herein are those of the author(s) and do... more for useful discussions and comments. The views expressed herein are those of the author(s) and do not necessarily reflect the views of the National Bureau of Economic Research.
This paper reviews the econometric issues in efforts to estimate the impact of the death penalty ... more This paper reviews the econometric issues in efforts to estimate the impact of the death penalty on murder, focusing on six recent studies published since 2003. We highlight the large number of choices that must be made when specifying the various panel data models that have been used to address this question. There is little clarity about the knowledge potential murderers have concerning the risk of execution: are they influenced by the passage of a death penalty statute, the number of executions in a state, the proportion of murders in a state that leads to an execution, and details about the limited types of murders that are potentially susceptible to a sentence of death? If an execution rate is a viable proxy, should it be calculated using the ratio of last year's executions to last year's murders, last year's executions to the murders a number of years earlier, or some other values? We illustrate how sensitive various estimates are to these choices. Importantly, the most up-to-date OLS panel data studies generate no evidence of a deterrent effect, while three 2SLS studies purport to find such evidence. The 2SLS studies, none of which shows results that are robust to clustering their standard errors, are unconvincing because they all use a problematic structure based on poorly measured and theoretically inappropriate pseudo-probabilities that are The authors gratefully acknowledge the helpful comments received from David Bjerk,
Duke Journal of Constitutional Law & Public Policy, 2016
In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Su... more In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Supreme Court’s prior command in Atkins v. Virginia that unless the imposition of the death penalty “measurably contributes to one or both of [the legitimate penological goals of deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Justice Breyer’s opinion illuminates the central role that empirical studies have played in death penalty litigation since Furman v. Georgia on issues ranging from the lack of deterrence associated with the death penalty; to racial and ethnic bias in its administration; to the extensive delays, cost, errors, and arbitrary implementation; and to the failure to limit capital punishment to the worst of the worst offenders. Two months after Glossip, the battle over the empirical evaluation of capital punishment played out in the contentious 4-3 decision in Sta...
There has been a profound shift in the legal landscape concerning firearms over the last forty ye... more There has been a profound shift in the legal landscape concerning firearms over the last forty years. Before then, substantial state restrictions—even complete prohibitions—on gun carrying were quite common, and they enjoyed considerable support among Republican voters and politicians. Today, the large majority of states confer the “right-to-carry” (RTC) with little or no restriction. After unwisely granting cert and proceeding with oral argument in New York State Rifle and Pistol Association v. City of New York, in which the U.S. Supreme Court was asked to create an individual right under the Second Amendment to carry guns outside the home, the Court chose to leave this question for another day.1 One argument frequently used to justify this expansion of the Second Amendment is that good guys with guns can quickly thwart mass shootings. Yet since the end of the federal assault weapons ban in 2004, deaths from mass shootings have been rising sharply even as lawful gun toting has incr...
for useful discussions and comments. The views expressed herein are those of the author(s) and do... more for useful discussions and comments. The views expressed herein are those of the author(s) and do not necessarily reflect the views of the National Bureau of Economic Research.
Deirdre McCloskey is discontented with the practice of economists. She dislikes that they follow ... more Deirdre McCloskey is discontented with the practice of economists. She dislikes that they follow Paul Samuelson instead of Adam Smith. In her opinion, it is a mistake-a mistake she, too, once committed. She once believed that the only character needed for understanding markets is "Mr. Maximum Utility, the monster of Prudence who has no place in his character for Love-or any passion beyond Prudence Only" (McCloskey 2006, 135). She, too, wrote articles populated by the "Max U-er obsessed with prudence" (2006, 375), "Max U, that unlovely maximizer of Utility, Homo prudens" (2010, 274). But she changed her mind and she invites others to follow her lead: Max U-a character fettered by the ends-means logic of Prudence Only (2006, 111) does not work, not even scientifically, she claims (135). Here I do not want to assess the working of Max U as an explanatory device. I focus on McCloskey's identification of Mr. Maximum Utility with prudence, an identification that permeates her work. 2 I do not think that works, either. The strategy I pursue is to contrast Max U with the man of prudence in Smith's The Theory of Moral Sentiments (1759; hereafter TMS). The reason for singling Discuss this article at Journaltalk: http://journaltalk.net/articles/5784
for useful discussions and comments. The views expressed herein are those of the author(s) and do... more for useful discussions and comments. The views expressed herein are those of the author(s) and do not necessarily reflect the views of the National Bureau of Economic Research.
This paper reviews the econometric issues in efforts to estimate the impact of the death penalty ... more This paper reviews the econometric issues in efforts to estimate the impact of the death penalty on murder, focusing on six recent studies published since 2003. We highlight the large number of choices that must be made when specifying the various panel data models that have been used to address this question. There is little clarity about the knowledge potential murderers have concerning the risk of execution: are they influenced by the passage of a death penalty statute, the number of executions in a state, the proportion of murders in a state that leads to an execution, and details about the limited types of murders that are potentially susceptible to a sentence of death? If an execution rate is a viable proxy, should it be calculated using the ratio of last year's executions to last year's murders, last year's executions to the murders a number of years earlier, or some other values? We illustrate how sensitive various estimates are to these choices. Importantly, the most up-to-date OLS panel data studies generate no evidence of a deterrent effect, while three 2SLS studies purport to find such evidence. The 2SLS studies, none of which shows results that are robust to clustering their standard errors, are unconvincing because they all use a problematic structure based on poorly measured and theoretically inappropriate pseudo-probabilities that are The authors gratefully acknowledge the helpful comments received from David Bjerk,
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