Emory Law Journal

Volume 60Issue 3

The Experiential Future of the Law

Adam J. Kolber | 60 Emory L.J. 585 (2010)

Pain, suffering, anxiety, and other experiences are fundamentally important to civil and criminal law. Despite their importance, we have limited ability to measure experiences, even though legal proceedings turn on such measurements every day. Fortunately, technological advances in neuroscience are improving our ability to measure experiences and will do so more dramatically in what I call “the experiential future.” In this Article, I describe how new technologies will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders. I argue that as new technologies emerge to better reveal people’s experiences, virtually every area of the law should do more to take these experiences into account.

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Biased Advice

Christopher Tarver Robertston | 60 Emory L.J. 653 (2010)

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 many are 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. 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.

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