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Articles 1 - 21 of 21
Full-Text Articles in Law
Misreading Like A Lawyer: Cognitive Bias In Statutory Interpretation, Jill Anderson
Misreading Like A Lawyer: Cognitive Bias In Statutory Interpretation, Jill Anderson
Faculty Articles and Papers
Statutory interpretation dilemmas arise in all areas of law, where we often script them as scenes of conflict between a statute's literal text and its animating purpose. This Article argues that, for an important class of disputes, this supposed discord between text and purpose is an illusion. In fact, lawyers are overlooking ambiguities of literal meaning that align well with statutory purpose. The form of ambiguity in question inheres not in individual words, but at the level of the sentence. What triggers a split in readings are verbs that linguists classify as "opaque," which are perfectly common in legal texts: …
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang
Faculty Articles and Papers
Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981-2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to …
Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher
Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher
Faculty Articles and Papers
The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …
Incentives And Ideology, James Kwak
Incentives And Ideology, James Kwak
Faculty Articles and Papers
This is a response to Adam Levitin's article, The Politics of Financial Regulation and the Regulation of Financial Politics: A Review Essay, 127 Harv. L. Rev. 1991 (2014). Levitin discusses various reasons for regulatory capture and highlights several potential solutions that aim to change the political governance of financial regulation. In this response, I highlight the importance of ideology (in this case, the ideology of free financial markets) in producing regulatory outcomes that are good for industry, and therefore the need for solutions that mitigate ideological capture.
Corporate Law Constraints On Political Spending, James Kwak
Corporate Law Constraints On Political Spending, James Kwak
Faculty Articles and Papers
Corporations currently can participate in electoral politics in the United States through various means: affiliated PACs, super PACs, 501(c)(6) organizations like the Chamber of Commerce, 501(c)(4) social welfare organizations, and traditional 501(c)(3) charitable organizations. Corporate law, as generally interpreted by the courts, places few constraints on the ability of corporate insiders to engage in politics as they choose. I argue that existing statutes and case law could be interpreted to impose greater constraints on corporate political activity. Political contributions should be reviewed as potential violations of the duty of loyalty whenever they could provide personal benefits to board members and …
Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane
Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane
Faculty Articles and Papers
No abstract provided.
An Introduction To Climate Change Liability Litigation And A View To The Future, Joseph Macdougald
An Introduction To Climate Change Liability Litigation And A View To The Future, Joseph Macdougald
Faculty Articles and Papers
No abstract provided.
Rethinking The Character And Fitness Inquiry, Leslie Levin
Rethinking The Character And Fitness Inquiry, Leslie Levin
Faculty Articles and Papers
The bar’s character and fitness inquiry seeks to protect the public. As part of this inquiry, bar applicants are required to produce detailed information about their past histories. The rationale for this inquiry is that this information can be used to identify who will subsequently become a problematic lawyer. Bar applicants bear the burden of providing their “good” character even though there is little evidence that past conduct predicts who will become a problematic lawyer. This article looks at psychological and other research that attempt to identify factors that might predict future misconduct in the work place. It also reports …
League Of Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick
League Of Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick
Faculty Articles and Papers
No abstract provided.
Liability Insurance And Gun Violence, Peter Kochenburger
Liability Insurance And Gun Violence, Peter Kochenburger
Faculty Articles and Papers
No abstract provided.
Multiple Nationality And Refugees, Jon Bauer
Multiple Nationality And Refugees, Jon Bauer
Faculty Articles and Papers
Persons with more than one nationality (“multiple nationals”) who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention’s approach. This Article challenges …
The Jury And Participatory Democracy, Alexandra Lahav
The Jury And Participatory Democracy, Alexandra Lahav
Faculty Articles and Papers
Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Faculty Articles and Papers
In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect — that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing …
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen
Faculty Articles and Papers
This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call …
Review Of Colin Calloway, Pen And Ink Witchcraft: Treaties And Treaty Making In American Indian History, Bethany Berger
Review Of Colin Calloway, Pen And Ink Witchcraft: Treaties And Treaty Making In American Indian History, Bethany Berger
Faculty Articles and Papers
No abstract provided.
The Folly Of Expecting Evil: Reconsidering The Bar's Character And Fitness Requirements, Leslie Levin
The Folly Of Expecting Evil: Reconsidering The Bar's Character And Fitness Requirements, Leslie Levin
Faculty Articles and Papers
The bar's character and fitness requirement is based on the largely untested premise that an applicant's past history helps predict whether that individual possesses the moral character needed to be a trustworthy lawyer. The primary purpose of the character inquiry is to protect the public and the judicial system from potentially problematic lawyers.The inquiry may also signal to the public that lawyers possess "good character" and deserve to be trusted with their important legal matters, thereby facilitating client representation and the administration of justice. An alternative-and more critical characterization of this purpose is that it is designed to protect the …
The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Douglas M. Spencer, Christopher S. Elmendorf
The Geography Of Racial Stereotyping: Evidence And Implications For Vra Preclearance After Shelby County, Douglas M. Spencer, Christopher S. Elmendorf
Faculty Articles and Papers
The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that …
Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas M. Spencer, Abby K. Wood
Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas M. Spencer, Abby K. Wood
Faculty Articles and Papers
No abstract provided.
The Influences Of Strategic Management On Antitrust Discourse, Hillary Greene, Dennis A. Yao
The Influences Of Strategic Management On Antitrust Discourse, Hillary Greene, Dennis A. Yao
Faculty Articles and Papers
This article examines how antitrust law and policy can benefit from ideas developed in the academic strategy field. Because accurate assessment and prediction of the effects of firm conduct depend in part on understanding individual firm capabilities, knowledge from the strategy field and other business fields complements the contributions from industrial organization economics (10). These business fields also offer theoretical and empirical challenges to the 10 paradigm, which dominates antitrust analysis. The article begins with a comparison between strategy and 10 and then illustrates how the strategy field can contribute to antitrust merger analysis. The article then assesses the influence …
Transparency And Taxation, Stephen Utz
Transparency And Taxation, Stephen Utz
Faculty Articles and Papers
An unexpectedly partisan political debate over redistributive tax measures has recently come to focus on fiscal transparency. In this debate, fiscal transparency and tax neutrality are often spoken of interchangeably. They are, however, distinct. Tax legislation is neutral if it does not influence economic choices. It is transparent if the public can understand how tax burdens are allocated and the reasons for their allocation. Neutrality and transparency differ therefore not only in their primary focus but also in the types of evidence that may support assertions concerning them. A feature of a tax system can only be said to be …
Statutes And Democratic Self-Authorship, Kiel Brennan-Marquez, Paul W. Kahn
Statutes And Democratic Self-Authorship, Kiel Brennan-Marquez, Paul W. Kahn
Faculty Articles and Papers
In this Article, we argue that both sides of the usual debate over statutory interpretation-text versus purpose-rest on a common, but flawed, premise. Judges and scholars have assumed that legislative bodies are the authors of statutes. We disagree; instead, we argue that the people are the authors of statutes. Legislative bodies play an indispensable role in the process: they draft statutes. And courts play a similarly indispensable role: they interpret statutes. But ultimately, it is the polity-we, the people-that is responsible, as authors, for the content of the law.
This shift yields dramatic consequences. To date, no theory of statutory …