One of most pervasive maxims of American jurisprudence is that law evolves. Applied metaphorically, it expresses the broad idea that law gradually adapts to its environment, unfolding in a linear and progressive manner through either human reason or social influence. Yet this belief has never been universal. Over a century ago, legendary jurist Oliver Wendell Holmes Jr. first argued that law does not evolve unilaterally and philosophically; it coevolves with everything in nature. Though Holmes’s obscure rebuttal was largely overlooked, it is particularly relevant today. In fact, his theory of legal coevolution is now confirmed by science. At the individual level, human beings possess a natural “legal” instinct that shapes their values, beliefs, and even their rationality. As people cooperate, this instinct foments prosocial impulses, social norm circles, and peer punishments. Because these proto-legal mechanisms are informal and localized, law emerges to coordinate, reconcile, and regulate them. Once entrenched, such interlocking “jurisystems” don’t remain stagnant but trigger a number of downward effects. Most immediately, they resolve human conflicts, relieve social stress, and reinforce social bonds. But they also shape our cultural memory, which eventually becomes embedded in our DNA. In this way, law is a bio-social component of a perpetual information exchange that constantly renews our sense of legality.
Our society faces major challenges in numerous areas, including climate change and healthcare. Addressing these problems with technological advances are of great importance. Increasingly, however, consumers are resisting or rejecting such technological interventions based on inappropriate assignment of risk. In other words, the consumer assessment of risk is not in line with evidence-based assessment of risk. This article focuses on two controversial areas, vaccines and genetically engineered food, as examples in which consumers assign a high risk despite an evidence-based assessment of low risk. This article describes how empirically tested decision-making theories explain why consumers inappropriately assign risk. While these prevailing theories and strategies are meritorious, this article suggests that changes in modern day society need to be considered as variables in how consumers assign risk. This is a tough problem to solve and current risk communication strategies appear insufficient. This leads to the central issue addressed in this article, which is that risk communication/policy implementation needs to address emergent variables in modern society, including (1) rise of hyper individualism, (2) role of the internet, and (3) economic interests. After discussing how these variables likely apply to consumer risk assessment, this article proposes an important new direction, both normatively and empirically, to highlight the problem and analyze consumer decision-making.
The traditional narrative of events following the ratification debates has connected the Bill of Rights with the Anti-Federalists and the Judiciary and Process Acts of 1789 with the Federalists. Although the scholarly consensus has turned against the Bill of Rights part of this story, most scholars continue to portray the first Congress’s implementation of Article III as a victory for the Federalists. In this article, I trace the development of the Anti-Federalists’ theory of federal/state power and its application to the judiciary in an effort to show why the second part of the above narrative also has it wrong. Here is the short version. Having adopted the same conception of federalism as an underappreciated faction of delegates at the Constitutional Convention, Anti-Federalist writers like “Brutus” argued that some mechanism was needed to prevent the states from being swallowed up by federal judicial overreach. Despite Alexander Hamilton’s attempts in Federalist Nos. 78-83 to downplay this danger and emphasize the necessity of a robust system of federal inferior courts with general “arising under” jurisdiction, it was the Anti-Federalists’ arguments that continued to resonate in the state ratifying conventions and beyond. Oliver Ellsworth, the Connecticut Federalist who was the primary draftsman of the Judiciary and Process Acts, had shown his sympathy with Brutus all along. And the bare bones, state-dependent inferior court structure he helped create is testimony to this sympathy. Like the Bill of Rights, then, the Anti-Federalists’ influence on the original federal judiciary was a vicarious one. But unlike the Bill of Rights, this victory tracked their theory of federalism and gave them a meaningful structural change that could protect the states against a national consolidation.
