Jun 21, 2023 Nora Freeman EngstromTorts
In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.
In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.
First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire. Continue reading "Tort Trials and Tribulations"
Jun 20, 2023 James GrimmelmannTechnology Law
Samuel R. Bowman,
Eight Things to Know About Large Language Models, available at
arXiv (Apr. 2, 2023).
Lenin did not actually say, “There are decades when nothing happens, and there are weeks when decades happen,” but if he had, he might have been talking about generative AI. Since November 30, 2022 when OpenAI released ChatGPT, decades have happened every week. It’s not just that generative AI models are now able to emit fluent text on almost any topic imaginable. It’s also that every day now brings news of new models, new uses, and new abuses. Legal scholars are scrambling to keep up, and to explain whether and how these AIs might infringe copyright, violate privacy, commit defamation and fraud, transform the legal profession, or overwhelm the legal system.
Samuel R. Bowman’s preprint Eight Things to Know About Large Language Models is an ideal field guide for the scholar looking to understand the remarkable capabilities and shocking limitations of ChatGPT and other large language models (LLMs). Bowman is a professor of linguistics, data science, and computer science at NYU, and a visiting researcher at the AI startup Anthropic. Eight Things is clear, information-dense, and filled with helpful citations to the recent research literature. It is technically grounded, but not technically focused. And if you are paying attention, it will grab you by the lapels and shake vigorously. Continue reading "Words of Wisdom"
Jun 19, 2023 Adam RosenzweigTax Law
Steven Dean,
Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was, Brooklyn L. Sch., Legal Stud. Paper No. 728, available at
SSRN (Mar. 28, 2023).
As has become almost cliché at this point, the international tax regime is facing a defining moment … spearheaded by the Base Erosion and Profit Shifting (BEPS) project of the Organization for Economic Cooperation and Development (OECD). While BEPS addresses a wide-ranging number of topics, one of its primary focuses is combating tax havens. BEPS is the successor to the 1998 OECD Harmful Tax Competition project which, unlike the wide ranging BEPS, focused almost exclusively on a “name-and-shame” campaign against tax havens. These anti-tax haven efforts can trace their history back to the enactment of “Subpart F” of the Internal Revenue Code which is typically considered the first concerted anti-tax haven effort. The intellectual force behind Subpart F was Assistant Secretary of Treasury for Tax Policy Stanley Surrey (while he was on leave from the faculty at Harvard Law). Surrey has been referred to as the greatest tax lawyer of his generation; his influence can be felt to this day throughout the tax laws of the United States and the world.
In the face of this towering presence, Steven Dean dares to ask the question “Was Surrey racist?” in his new article Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was. This question is not buried in a footnote or even in the final section but is the first three words of the abstract. The effect is palpable, in part because the reader is forced to consider the provocative question in a vacuum without the benefit of reading the article itself. As with all good use of rhetorical hyperbole, Dean effectively employs strong language to shake the reader’s assumptions and open space to consider a difficult topic in a deep and subtle way. Continue reading "Is There Implicit Bias Implicit in International Tax Law?"
Jun 16, 2023 P. T. BabieProperty
Timothy M. Mulvaney and Joseph William Singer,
Essential Property, 107
Minn. L Rev. 101 (2022).
Society is impossible without inequality.
–Napoleon Bonaparte, Emperor of the French
Is it personal choice or the society in which we live that creates unequal distributions of wealth? In Essential Property, Timothy M. Mulvaney and Joseph William Singer agree with the Emperor of the French: the source of inequality lies in the state, or, more precisely, its laws, including private property.
This observation confirms an intuitive sense that in its very essence, private property is both inequality and, that fact notwithstanding, it is not soon to disappear. Too much depends on it. And, frankly, not only is it deeply ingrained in our liberal world, but also very possibly in our DNA. While eliminating private property’s inequality might be impossible, Mulvaney and Singer argue that we can look for ways to reconfigure it so as to reduce its unequal distributions. Continue reading "What Property Makes Us"
Jun 15, 2023 Juliet StumpfLexImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam. Continue reading "America’s Secret Immigration Law"
Jun 14, 2023 Veronica Root MartinezLegal Profession
Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law
Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __
Harv. L. Rev. __, (forthcoming), available at
SSRN (Feb. 17, 2023).
Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.” Continue reading "A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring"
Jun 13, 2023 Pamela BookmanCourts Law
Justin Weinstein-Tull,
Traffic Courts, 112
Cal. L. Rev. __ (forthcoming, 2024), available at
SSRN (June 11, 2023).
If you (the elite readers of this blog) have ever represented yourself in court, it may have been in traffic court. You know this is a court, and you likely brought (or tried to bring) your lawyerly skills to bear. But in the process, you may or may not have been aware that almost 50% of all cases across the country are filed in traffic court and that this lowest level of justice also provides many people’s closest interaction with the state and the justice system. Yet few of us who study courts think much about traffic courts. Even the recent wave of excellent literature on state and local civil courts (such as contributions to this symposium jotted here, here, and here) often put these courts to the side.
Justin Weinstein-Tull ends this side-lining of traffic courts with a wonderful new article that uses a mixed-methods approach to present a vivid picture of the justice, and injustice, in traffic courts. Weinstein-Tull has conducted 50-state surveys, interviewed traffic court judges, and even sat through the three-day training necessary to become a traffic-court judge in Arizona. The result is an informative and thought-provoking exploration of the courts that many of us interact with, that oversee people’s most likely interactions with the police—at traffic stops—but about which we know so little. Continue reading "Traffic Courts and Civil(?) Justice"
Jun 12, 2023 Jedidiah KronckeLegal History
In the contemporary moment, discussions of international law are difficult to disengage from questions regarding the role of China. Some cast China as a new, revolutionary force set to upend or hasten the demise of the post-World War II order. Others cast China as a binding force for exactly the same order, especially in contrast to the noticeable retreat of its dominant architect, the United States. Moreover, the Chinese Communist Party actively brands its particular engagement with international law as a defining part of its own system of governance—often casting itself in equally contradictory terms as both stalwart and revolutionary.
Such diverse viewpoints draw upon their own versions of the history of international law, both in and outside of China. Ryan Mitchell’s Recentering the World lays out this history—and its relationship to many of these contemporary claims—with China center stage in the development of international law since the mid-19th century. Mitchell does so by synthesizing novel multilingual archival research with a global view of cutting-edge international legal scholarship. Continue reading "Is Chinese International Law Chinese?"
Jun 9, 2023 Thomas BustamanteJurisprudence
At the outset of The Proof, in a passage that grasps the spirit of the book, Frederick Schauer writes:
It would be nice if there were world peace and nonfat bacon, but wishing won’t make it so. … Leaving to others questions about how we or the government ought to act, this book is an attempt to provide some insight into how we do – and, yes, should – confront the factual questions and controversies that are all around us. (P. 4.)
Schauer’s intriguing book analyzes a vast range of subjects related to the practice of giving and evaluating evidence, covering topics such as probability analysis, burdens of proof, statistics, testimony, lie detection, expert evidence, and scientific evidence in criminal law. But only two of the topics covered in the book will occupy my attention now: his hybrid theory of evidence, and his concern about motivated reasoning.
Let us begin with the general account of evidence provided in chapters one and two. A central concern of the book is the need to distinguish between “empirical reality” and “what some or many people prefer or wish that empirical reality to be.” (P. 1.) Evidence matters only for those who want to make sense of this distinction, and who worry about getting the truth of some matter. Evidence is what provides “a justification, or warrant, as philosophers are prone to put it, for believing that something is true – or false.” (Pp. 4-5.) It is, therefore, the “prerequisite for judgments of truth (and falsity)” about anything. (P. 5.) Continue reading "On the Value of Distrusting Ourselves"
Jun 8, 2023 Sam F. HalabiInternational & Comparative Law
As the entire universe of speech, commerce, warfare, and living (Meta’s steep but so far unavailing investments notwithstanding) moves into cyberspace, tying together nearly every corner of the globe, the problem of governing the burgeoning world of virtual interactions and their real-life effects (or alleged effects) has become critical. In his careful and important essay, Section 230 and the International Law of Facebook, Anupam Chander elaborates the critical role of Section 230 of the 1996 Telecommunications Act, what Jeff Kosseff calls the 26 words that created the internet, as the cornerstone protection for a governance regime that prioritizes the flow of ideas and information over one that would “strengthen the hand of those around the world who seek to impose liability for either permitting speech or curbing speech.” (P. 396.)
Stated simply, Section 230 bars liability for those hosting (although they generally must not contribute to) content made available through the internet. Chander’s argument is nuanced. His primary thesis is objective in nature: Section 230’s legal effect is global and far-reaching, finding its way into bilateral and multilateral treaties and shaping adjudication over the responsibility of content hosts in both U.S. and foreign courts. Yet it is the normative elements of the essay that provide the most force, providing a stark—even nightmarish—scenario should Congress, as some members of the chamber have threatened, retreat from Section 230’s essential protections. Continue reading "The 26 Words Legislating Speech on the World Wide Web"
