Law Commons^™

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Sean Farhang

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

Greatness Thrust Upon Them - Class Biases In American Law, Robert E. Rodes Jr.

Robert Rodes

No abstract provided.

A Quantum Congress, Jorge R. Roig

Jorge R Roig

The New Bureaucracies Of Virtue: Introduction, Marie-Andree Jacob, Annelise Riles

Annelise Riles

No abstract provided.

International Arbitration Culture And Global Governance, Joshua Karton

Joshua Karton

Academics increasingly characterize international commercial arbitration (ICA) as a form of global governance. However, this literature rarely discusses why ICA should come to provide truly global governance, as opposed to being simply an atomized form of governance derivative of national court litigation — more neutral, more widely enforceable, perhaps faster and cheaper, but essentially the same adjudicative exercise in a different venue. For ICA to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

An Evaluation Of Cross-National Measures Of Judicial Independence, Julio Ríos-Figueroa, Jeffrey K. Staton

Julio Ríos-Figueroa

We provide a conceptual map of judicial independence and evaluate the con- tent, construct, and convergent validity of 13 cross-national measures. There is evidence suggesting the validity of extant de facto measures, though their proper use requires attention to correlated patterns of measurement error and missing data. The evidence for the validity of extant de jure measures is weaker. Among other findings, we do not observe a strong and direct link between the rules that allegedly promote judicial independence and independent behavior. The results suggest that while the measurement of both de jure and de facto judicial independence requires a …

You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan

Donald J. Kochan

With nonviolent revolution in particular, displaced governments leave a power and governance vacuum waiting to be filled. Such vacuums are particularly susceptible to what this Article will call “strategic ideological cooptation.” Following the regime disruption, peaceful chaos transitions into a period in which it is necessary to structure and order the emergent governance scheme. That period in which the new government scheme emerges is particularly fraught with danger when growing from peaceful chaos because nonviolent revolutions tend to be decentralized, unorganized, unsophisticated, and particularly vulnerable to cooptation. Any external power wishing to influence events in societies emerging out of peaceful …

Webs Of Faith As A Source Of Reasonable Disagreement, Gregory Brazeal

Gregory Brazeal

Contemporary political theorists and philosophers of epistemology and religion have often drawn attention to the problem of reasonable disagreement. The idea that deliberators may reasonably persist in a disagreement even under ideal deliberative conditions and even over the long term poses a challenge to the common assumption that rationality should lead to consensus. This essay proposes a previously unrecognized source of reasonable disagreement, based on the notion that an individual's beliefs are rationally related to one another in a fabric of sentences or web of beliefs. The essay argues that an individual's beliefs may not form a single, seamless web, …

A New Index Of Legislative Oversight, Riccardo Pelizzo

riccardo pelizzo

The purpose of this paper is to present a new index of legislative oversight. Building on the work by Stapenhurst (2011), who argued that a proper index of legislative oversight capacity should reflect not only legislatures’ internal oversight capacity but also the impact of contextual factors, we devise and propose a modified version of the Stapenhurst. The results of the empirical analyses presented in the paper sustain the claim that when properly operationalized and measured, legislative oversight capacity is a good predictor of legislative oversight effectiveness and other policy relevant results.

El Tribunal De Los Militantes: El Control Judicial De Los Conflictos Intrapartidistas En México, Javier Martín Reyes

Javier Martín Reyes

The Party Members’ Court: Judicial Control over Intraparty Disputes in Mexico.

This paper explains how the Electoral Court of the Federal Judicial Branch (TEPJF) of Mexico, without a supporting legislation, was able to establish a direct and far reaching control over intraparty disputes such as the election of party leaders, the selection of candidates, or the punishment of party members. Following a strategic behavior approach, I will provide empirical evidence to prove that there was a negative correlation between the level of judicial control over the parties’ internal life, on the one hand, and the vulnerability of the TEPJF from …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

Collective Choice, Justin Schwartz

Justin Schwartz

This short piece is a contribution to The Encylopedia of Global Justice (ed. D.K. Chatterjee) (forthcoming from Springer Verlag May 2011). It summarizes the state of reserach on the problem for collective choice discovered by Kenneth Arrow in his Impossibility Theorem. In 1951 Arrow proved that a set of four or five (depending on how one counts them) minimal constraints that seem constitutive of democratic decisionmaking, including nondictatorship and rational consistency, are mutually incompatible. This created the burgeoning field of Social Choice Theory. I explain the problem in nontechnical terms, explore its implications especially for global justice, and review the …

Bureaucracy And The U.S. Response To Mass Atrocity, Gregory Brazeal

Gregory Brazeal

The U.S. response to mass atrocity has followed a predictable pattern of disbelief, rationalization, evasion, and retrospective expressions of regret. The pattern is consistent enough that we should be skeptical of chalking up the United States’ failures solely to a shifting array of isolated historical contingencies, from post-Vietnam fatigue in the case of the Khmer Rouge to the Clinton administration’s recoil against humanitarian interventions after Somalia. It is implausible to suggest that the United States would have acted to mitigate or end mass atrocities but for the specific historical contingencies that happen to accompany each outbreak of violence. This essay …

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Gregory Brazeal

Justice Oliver Wendell Holmes, Jr. is often credited with creating the metaphor of “the marketplace of ideas,” though he did not use the exact phrase and his argument for free speech was not based on distinctively economic reasoning. Truly economic investigations of the marketplace of ideas have progressed in step with developments and trends in the law and economics literature. These investigations have tended to be one-sided, with writers focusing primarily either on the production of ideas (for example, Posner) or their consumption (for example, behavioral law and economics), without considering in depth how producers and consumers interact. This may …

Reseña De "Making Social Sciences More Scientific: The Need For Predictive Models", De Rein Taagepera, Javier Martín Reyes

Javier Martín Reyes

Review of Taagepera, Rein, "Making Social Sciences More Scientific: The Need for Predictive Models", Oxford University Press, New York, 2008, 254 pages.

Central And Eastern Europe: Europeanization And Westernization Through Accession Conditionality, Michael K. Marriott

Michael K Marriott

With 27 member states, the EU is not a body in and of itself, but rather is a central authority constituted of its member states. In order to create a reasonable level of coherence within the Union, the national politics of each member state must undergo a process of Europeanization so as to find a common ground for the members to work together. This leads to the logical question: ‘to what extent are national politics Europeanized?’ Although important to consider, this question is overly broad for the purposes of this paper. A more appropriate question, one that exists within the …

Collective Choice, Justin Schwartz

Justin Schwartz

This short nontechnical article reviews the Arrow Impossibility Theorem and its implications for rational democratic decisionmaking. In the 1950s, economist Kenneth J. Arrow proved that no method for producing a unique social choice involving at least three choices and three actors could satisfy four seemingly obvious constraints that are practically constitutive of democratic decisionmaking. Any such method must violate such a constraint and risks leading to disturbingly irrational results such and Condorcet cycling. I explain the theorem in plain, nonmathematical language, and discuss the history, range, and prospects of avoiding what seems like a fundamental theoretical challenge to the possibility …

Judging Women, Stephen J. Choi, G. Mitu Gulati, Mirya R. Holman, Eric A. Posner

Mirya R Holman

Judge Sonia Sotomayor’s assertion that female judges might be better than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. For many of our tests, we fail to find significant gender effects on judicial performance. Where we do find significant gender effects for …

Gender And Regime Politics In U.S. Cities, Mirya R. Holman

Mirya R Holman

The scholarship on urban politics often focuses on the political economy provided by regimes, or long-term coalitions between local politicians and private actors like the business community. Notably absent from the regime scholarship is any substantial investigation of the role that urban regimes play in the promotion of the interests of women living in urban areas. A comparison of the priorities of urban regimes with the interests of women in politics suggests substantial conflicts. The implications for women serving in urban governance are explored, as are the consequences for urban politics, women in politics, and democracy.

Evaluating Political And Environmental Behavior In The Face Of A Green Crisis: An Experimental Analysis, Mirya R. Holman, Travis G. Coan

Mirya R Holman

Incidents such as the Japanese Nuclear Meltdowns and the British Petroleum oil spill in the Gulf of Mexico remind us that environmental issues can be central to activating political activity and influencing political opinions. While the literature suggesting a relationship between environmental risk and action is extensive, few scholars directly examine the relationship between perceived environmental threat and political behavior, and even fewer adopt research designs appropriate for making causal inferences. Building on a growing literature in political psychology that examines the effects of crises and emotions on political opinions, we examine the relationship between environmental threat and political behavior …

Gender And Power In American Cities: Investigations Of The Effect Of Mayoral Gender On Deliberation, Representation, And Policymaking In U.S. Cities, Mirya R. Holman

Mirya R Holman

The representation of historically marginalized groups in the democratic policy process serves many purposes, including introducing new and differing perspectives to the policymaking process, opening the policymaking process up to disenfranchised groups, and changing the deliberative process of urban policymaking. In this paper, I investigate the effect of gender on policy priorities and policy outcomes of mayors in U.S. cities. Using a combination of interview data and coded city council minutes, I examine the effect of mayoral gender on the discussion of issues of importance to female constituents, the nature of deliberation in city councils, and the engagement of the …

Cancun Climate Negotiations, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

The United Nations Climate Change Conference, held from November 29 to December 11, 2010, in Cancún, Mexico, relaunched the United Nation's multilateral facilitation role.

“Hacer Fila En Bogotá" (To Do The Line In Bogotá), Andrés Henao Castro, Mauricio García Villegas

Andrés Fabián Henao-Castro

No abstract provided.

North American Futures: Canadian & U.S. Perspectives, Managing The Arctic, David Caron

David D. Caron

Presentation and discussion of issues relevant to balanced Arctic exploration, multilateral cooperation policy, growth and development and political-economic perspectives.

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical Malpractice Claims In Florida, Mirya R. Holman, Neil Vidmar

Mirya R Holman

The public image of medical malpractice cases is one of a courtroom, with an injured plaintiff, lawyers, and a judge. However, the reality of malpractice claims is very different. Approaching the study of alternative dispute resolution methods for medical malpractice claims with an eye towards identifying those contexts by which the claims are resolved, this article focuses on the institutional and informal processes of resolving disputes. These processes include both statutory procedural requirements and informal settlements, many of which occur prior to the filing of a lawsuit. A profile of medical malpractice claims in Florida from 1990 through 2008, indicates …

“Fraude Académico: Comparaciones Entre Dos Universidades Colombianas”, Andrés Henao Castro, Mauricio García Villegas, José Mejía, Claudia Ordóñez

Andrés Fabián Henao-Castro

No abstract provided.

The Effect Of Representational Gender On Policy Preferences In U.S. Municipalities, Mirya R. Holman

Mirya R Holman

The research presented here explores the effect of gender and gender consciousness on the policy preference of local elected officials. Remedying a gap in the scholarship on women in local office, I examine the attitudes of mayors and council members on a variety of urban policy issues. First positing a gender gap theory of representative attitudes, I find almost no differences in policy preferences between men and women serving in local office. As an alternative, I posit and test a gender consciousness theory of policy preferences. Using open-ended survey data, I find that possessing a gender consciousness has a significant …