The Power of Promises

Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming, 2016), available at SSRN.

Many questions about the meaning of the Constitution are disputed. But however we answer those questions, at some point most of us come to a different question: so what? Why do those words on a page have any moral grip on the three-dimensional world of human beings? In one of my favorite new articles of the summer, Promising the Constitution, Professor Richard Re takes on this question and its implications. The answer, he says, is the constitutional oath, which simultaneously commands much less and much more than many have assumed. (Full disclosure: Re is a friend and former classmate.)

Re’s article makes three major contributions. The first is to argue that the oath is what gives the Constitution normative force in our world. We should see the oath not as an empty political ritual, but as a solemn assertion of a promise, with all the moral force that a promise carries. Of course, many philosophers are skeptical about the moral force of promises; but Re surmounts their objections by turning to the democratic context of the oath. While immoral promises and coerced promises might lack moral weight, the constitutional oath today should be seen as neither. Continue reading "The Power of Promises"

 
 

Rationing Constitutional Justice

Aziz Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L. J. __ (forthcoming 2015), available at SSRN.

It is easy to forget sometimes that our hallowed federal courts are a collection of organizations and therefore subject to the mundane limitations that organizations face.The judges who compose those organizations must determine how to wade through hundreds of thousands of cases each year—a task that has become more challenging in the past few decades, as the ratio of cases to judges has increased. Judicial administration scholarship has long sought to understand how increases in caseload affect court procedure and practice. More recently, scholars have tried to assess how caseload can impact substantive law.

Against this background, Aziz Huq makes a significant contribution with his forthcoming article, Judicial Independence and the Rationing of Constitutional Remedies. Continue reading "Rationing Constitutional Justice"

 
 

Whistleblowers as Securities Fraud Detectors

Securities fraud presents one of the more vexing challenges for financial regulators and policymakers. Each new financial crises and catastrophic fraud frequently begets new tools to fight securities fraud. In a thoughtful recent article, Better Bounty Hunting: How the SEC’s New Whistleblower Program Changes the Securities Fraud Class Action Debate, Professor Amanda Rose examines the SEC’s new whistleblower program as a tool for securities fraud detection, and explores its potential impact on the old fraud detecting tool of class action lawsuits.   The motivating argument of the article is that the SEC’s new Whistleblower Bounty Program (WBP) created by Dodd-Frank can serve as a superior alternative to the traditional fraud-on-the-market (FOTM) class action lawsuits as a tool for securities fraud detection and deterrence.

Professor Rose articulates this argument in a logical, measured fashion. She begins by providing background information on the origins of FOTM class actions and the WBP, which is designed to pay large sums to eligible individuals who provide valuable, original information about frauds that result in $1 million or more of penalties. Building on that background, Professor Rose then contends that the WBP could reduce the relative benefits associated with FOTM lawsuits while increasing their relative costs thereby making them a less desirable tool to combat securities fraud. With cautious optimism, she believes that the generous bounty of the WBP and the steep costs often associated class action lawsuits could ultimately lead tipsters who are aware of securities fraud to pursue redress through the whistleblower route rather than the class action route. However, to the extent that the WBP does not function as a feasible replacement for FOTM suits, Professor Rose introduces the innovative idea of adding a qui tam provision in the current whistleblower program as a modest improvement over FOTM suits. Continue reading "Whistleblowers as Securities Fraud Detectors"

 
 

The Reasons for Failures and Delays in Confirming Nominees Are More Complicated than We Think

I thought I had a good general understanding of the confirmation process until I read Professor O’Connell‘s enlightening study. Some of the findings were about what I expected. Thus, for instance, both the rate at which nominees fail to be confirmed and the time required for confirmation have increased significantly between 1981 and 2014. The failure rate was 26.4% in the George W. Bush Administration and 28.0% in the Obama Administration, compared with an average failure rate of 4.4% to 10% during the period 1885 to 2008. The average confirmation time was 127.1 days in the Obama Administration, compared with an average confirmation time of 88.5 days over the 33-year period of the study. The results of the high rate of failure and the lengthening delays are disconcerting. At any point in time, between 15% and 25% of senior agency positions are vacant.

As I would have predicted, the failure rate was four times higher in the last year of an Administration than in the first year of an Administration. Also as predicted, the 2013 reduction in the number of Senate votes required to enable an up or down vote on a judicial nominee from 60 to 50, at a time when the President’s party had a majority in the Senate, reduced both the number of failed nominations for judgeships and the average time until a nominee for a judgeship was confirmed.

Many of Professor O’Connell’s findings differed significantly from my expectations, however. Continue reading "The Reasons for Failures and Delays in Confirming Nominees Are More Complicated than We Think"

 
 

The Truth is Not Enough to Set Us Free

Erik J. Girvan, On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, (2015), available at SSRN.

Legal scholars in a wide range of areas have used now well-settled developments in cognitive psychology to argue for doctrinal changes in the definition of actionable discrimination. Implicit biases have been shown to cause discrimination against minorities and women, yet the law has developed to penalize only fully self-conscious race and sex-based decisions. Legal scholars and many lawyers’ organizations have enthusiastically embraced the social science that demonstrates people act on biases when they do not always self-consciously realize it, and have engaged in massive educational efforts with the idea that education will change people’s views of what discrimination is and their behaviors that perpetuate it. But changes in legal doctrine have not followed.

In On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, Erik Girvan draws on jurisprudential and psychological insights to explain why that is so, and he pledges to offer a path towards future research that will more likely lead to doctrinal change. In short the efforts have failed because scholars use classical legalist jurisprudence instead of legal realism and because scholars are victims of naïve realism. The classical legalist jurisprudential model fails to recognize the force of extra-legal influence on judges’ decision-making as explained by legal realism. And naïve realism is a social psychological theory of how people behave when they learn others do not share their beliefs. Naïve realists assume that education alone will change the doctrine. Continue reading "The Truth is Not Enough to Set Us Free"

 
 

What’s Missing in New Zealand?

“What’s missing in New Zealand?” That’s the question David Enoch poses in his thought-provoking essay, Tort Liability and Taking Responsibility. As every tort scholar knows, New Zealand has abandoned tort law, at least for injuries caused by accidents. Instead of filing a tort suit, a person injured in an accident files a claim with the Accident Compensation Corporation, which quickly determines whether she suffered a qualifying injury and, if so, provides compensation for it. The money paid out is funded through levies on risk-generating activities. So the New Zealand scheme provides compensation and (at least some) deterrence. It also puts the costs of accidents on the people who risk causing them. And it does all that at a lower cost than maintaining a system of private lawsuits, like tort. That sounds pretty good to Enoch—so good, in fact, that he wonders what is to be said for tort law in face of the New Zealand alternative.

Perhaps there is nothing to be said on behalf of tort. That’s what Enoch wants us to ponder. But he offers a tentative suggestion about what’s missing in New Zealand, and a rather surprising one at that. “What’s missing in New Zealand,” he says, “is the tortfeasor taking responsibility for her actions.” (P. 252) Now, we should pause here to acknowledge how odd that sounds. Many tortfeasors never take responsibility for their actions; they contest liability to the bitter end. Tort cannot ensure that tortfeasors take responsibility. What it can do, and does do, is assign responsibility, whether or not tortfeasors wish to take it. Continue reading "What’s Missing in New Zealand?"

 
 

Exploring the Expressive Dimension of Inheritance Law

Deborah S. Gordon, Letters Non-Testamentary, 62 U. Kan. L. Rev. 585 (2014).

We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law & Social Inquiry 957 (2010), this article reminds us about the expressive dimension of inheritance law.

Gordon’s research focuses on language, emotion and gender in inheritance law. She began this work in her previous article, Reflecting on the Language of Death, 34 Seattle U. L. Rev. 379 (2011) and her new article continues this theme. It considers the connection between letters written in anticipation of death that are not valid testamentary instruments and their impact on inheritance law as a whole. Continue reading "Exploring the Expressive Dimension of Inheritance Law"

 
 

Equity and Efficiency in Rule Design

Great arguments aren’t always right, but they should be bold, persuasive, and force the scholarly community to respond by testing the arguments’ logic and limitations. In recent years, there are few arguments that have been more generative of thoughtful scholarship than Kaplow and Shavell’s claim that income redistribution should be done solely through the system of taxes and transfers and that legal rules should be chosen solely for their efficiency properties.1  This conclusion is instinctively repugnant to many scholars outside of the law and economics tradition, and surprising to many within it. Yet, first rank economists that they are, Kaplow and Shavell’s logic, at least under the assumptions of the model they use to make their argument, is unassailable.

But, what Kaplow and Shavell’s logic proves and what it has often been taken to prove are two very different things. Although many excellent scholars have offered incisive critiques of the Kaplow and Shavell result, Zach Liscow’s recent note in the Yale Law Journal does as fine a job as I’ve seen of both identifying the reason for this difference and arguing from within a welfarist framework that equitable considerations should apply to legal rules too. The note is admirable in its accessibility, clarity, and rigor. I would include it on the reading list for any law and economics or tax policy seminar that addressed the merits of redistribution through the tax and transfer system. Continue reading "Equity and Efficiency in Rule Design"

 
 

Questioning Compliance with Immigration Law

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers are criminal aliens who constitute the kind of crisis that require the combined forces of the immigration and criminal enforcement systems to regulate.

Yet without knowing what unlawfully present noncitizens actually think or believe, it’s hard to say whether those laws and policies have it right. In Less Enforcement, More Compliance, Emily Ryo has confronted this question of what unlawfully-present people think about their own presence in the U.S. by doing what seems both obvious and fraught with obstacles: she asked them. Continue reading "Questioning Compliance with Immigration Law"

 
 

Gay Lib Goes to Court: The Marriage of Liberation and Rights

Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN.

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.

Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work,2  prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage. Continue reading "Gay Lib Goes to Court: The Marriage of Liberation and Rights"

 
 

Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way

Andrew M. Perlman, Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015), available at SSRN.

We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with respect to the issue of lawyer regulation.

Professor Perlman’s article argues that the time has come to “reimagine” our lawyer-based regulatory framework. He asserts that instead of focusing on the “law of lawyering” – which is how people in our field often refer to what we study – we need to develop a broader “law of legal services” that would authorize, but appropriately regulate, the delivery of more legal and law-related assistance by people who do not have a J.D. degree. He argues that reimagining regulation in this fashion will spur innovation and expand access to justice. Continue reading "Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way"