Big Data and Bad Data: On the Sensitivity of Security Policy to Imperfect Information
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In this Essay, we examine some of the factors that make developing a “science of security” a significant research and policy challenge. We focus on how the empirical hurdles of missing data, inaccurate data, and invalid inferences can significantly impact—and sometimes impair—the security decisionmaking processes of individuals, firms, and policymakers. We offer practical examples of the sensitivity of policy modeling to those hurdles and highlight the relevance of these examples in the context of national security.
We would like to thank the workshop participants at University of Michigan Law School, Northwestern University Law School, Notre Dame Law School, University of Toronto Law School, Stanford Law School, and N.Y.U. School of Law; and conference participants at the 2024 American Law and Economics Association Meeting for many helpful comments and suggestions. We are most grateful to Jonathan Morad Artal (Stanford Class of 2025) and Andrea Lofquist (Michigan Class of 2024) for their valuable research assistance and comments on earlier drafts.
We would like to thank the workshop participants at University of Michigan Law School, Northwestern University Law School, Notre Dame Law School, University of Toronto Law School, Stanford Law School, and N.Y.U. School of Law; and conference participants at the 2024 American Law and Economics Association Meeting for many helpful comments and suggestions. We are most grateful to Jonathan Morad Artal (Stanford Class of 2025) and Andrea Lofquist (Michigan Class of 2024) for their valuable research assistance and comments on earlier drafts.
The flexibility to renegotiate can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve to enter into contracts earlier and realize the advantages of longer-term relationships. Otherwise, those parties might decline to contract or delay until those opportunities realize, thereby foregoing the benefits of long-term risk allocation or reliance investments. The parties decide not only whether, but also when, to make legally binding commitments to each other. Courts should be more lenient in enforcing contract modifications that, prompted by a shift in bargaining power, may have only a redistributive effect. Parties can design under-compensatory damages that would provide a credible threat of breach ex post to facilitate ex post modification. Requiring good faith in modification (along with damages) can constrain possible holdup and protect reliance investments and risk allocation.
For thoughtful comments, the authors thank Jennifer Arlen, Rick Brooks, Kevin Davis, Brian Galle, Jacob Goldin, and participants in workshops at Columbia Law School, Texas A&M University School of Law, and the American Law and Economics Association Annual Meeting. Ji Young Kim provided excellent research assistance.
For thoughtful comments, the authors thank Jennifer Arlen, Rick Brooks, Kevin Davis, Brian Galle, Jacob Goldin, and participants in workshops at Columbia Law School, Texas A&M University School of Law, and the American Law and Economics Association Annual Meeting. Ji Young Kim provided excellent research assistance.
For thoughtful comments, the authors thank Jennifer Arlen, Rick Brooks, Kevin Davis, Brian Galle, Jacob Goldin, and participants in workshops at Columbia Law School, Texas A&M University School of Law, and the American Law and Economics Association Annual Meeting. Ji Young Kim provided excellent research assistance.
The negative moral emotions of guilt and shame impose real social costs but also create opportunities for policymakers to engender compliance with legal rules in a cost-effective manner. This Essay presents a unified model of guilt and shame that demonstrates how legal policymakers can harness negative moral emotions to increase social welfare. The prospect of guilt and shame can deter individuals from violating moral norms and legal rules, thereby substituting for the expense of state enforcement. But when legal rules and law enforcement fail to induce total compliance, guilt and shame experienced by noncompliers can increase the law’s social costs. The Essay identifies specific circumstances in which rescinding a legal rule will improve social welfare because eliminating the rule reduces the moral costs of noncompliance with the law’s command. It also identifies other instances in which moral costs strengthen the case for enacting legal rules and investing additional resources in enforcement because deterrence reduces the negative emotions experienced by noncompliers.
Beware dark patterns. The name should be a warning, perhaps alluding to the dark web, the “Dark Lord” Sauron, or another archetypically villainous and dangerous entity. Rightfully included in this nefarious bunch, dark patterns are software interfaces that manipulate users into doing things they would not normally do. Because of these First Amendment complications, the constitutionality of dark pattern restrictions is an unsettled question. To begin constructing an answer, we must look at how dark patterns are regulated today, how companies have begun to challenge the constitutionality of such regulations, and where dark patterns fall in the grand scheme of free speech. Taken together, these steps inform an approach to regulation going forward.