Law Commons^™

Judges As Rulemakers, Emily Sherwin

Emily L Sherwin

In Do Cases Make Bad Law?, Frederick Schauer raises some serious questions about the process of judicial lawmaking. Schauer takes issue with the widely held assumption that judge-made law benefits from the court's focus on a particular real-world dispute. Writing with characteristic eloquence, Schauer argues that the need to resolve a concrete dispute does not enhance the ability of judges to craft sound rules, but instead generates cognitive biases that distort judicial development of legal rules. Schauer's observations about the risks of rulemaking in an adjudicatory setting are very persuasive. Yet his overall assessment of the common law process may …

A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin

Emily L Sherwin

In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars. The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …

Demystifying Legal Reasoning: Part Ii, Larry Alexander, Emily Sherwin

Emily L Sherwin

"Demystifying Legal Reasoning" defends the proposition that there are no special forms of reasoning peculiar to law. Legal decisionmakers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. Part II (abstracted here) addresses common law reasoning, when prior judicial decisions determine the law. Part III addresses interpretation of texts. We conclude that, in both areas, the popular view that legal decisionmakers practice special forms of reasoning are false. In Chapter 2, we propose that there are two plausible models of common law reasoning, …

Love, Money, And Justice: Restitution Between Cohabitants, Emily Sherwin

Emily L Sherwin

The principle of unjust enrichment is susceptible to varying interpretations, which reflect importantly different conceptions of how courts should decide cases and develop law. The consequences of different possible interpretations of the unjust enrichment principle are nicely illustrated by a group of cases involving restitution claims between former cohabitants. Claims of this kind are endorsed by the new Restatement (Third) of Restitution and Unjust Enrichment (now in preparation). In recognizing these claims, the Restatement adopts an “equitable” interpretation of unjust enrichment for this category of cases, one that licenses courts to disregard rules and engage in particularistic decision-making. This is …

The Deceptive Nature Of Rules, Larry Alexander, Emily Sherwin

Emily L Sherwin

No abstract provided.

Property Rules As Remedies, Emily Sherwin

Emily L Sherwin

No abstract provided.

Designing Judicial Review: A Comment On Schauer, Emily Sherwin

Emily L Sherwin

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.

Deception In Morality And Law, Larry Alexander, Emily Sherwin

Emily L Sherwin

No abstract provided.

Why Is Corrective Justice Just?, Emily Sherwin

Emily L Sherwin

No abstract provided.

Mandatory Arbitration For Customers But Not For Peers: A Study Of Arbitration Clauses In Consumer And Non-Consumer Contracts, Theodore Eisenberg, Geoffrey Miller, Emily Sherwin

Emily L Sherwin

We conducted a study of contractual practices by well-known firms marketing consumer products, comparing the firms' consumer contracts with contracts the same firms negotiated with business peers. The frequency of arbitration clauses in consumer contracts has been studied before, as has the frequency of arbitration clauses in non-consumer contracts. Our study is the first to compare the use of arbitration clauses within firms, in different contractual contexts.

The results are striking: in our sample, mandatory arbitration clauses appeared in more than three-quarters of consumer contracts and less than one tenth of non-consumer contracts (excluding employment contracts) negotiated by the same …

Ducking Dred Scott: A Response To Alexander And Schauer, Emily Sherwin

Emily L Sherwin

No abstract provided.

Reparations And Unjust Enrichment, Emily Sherwin

Emily L Sherwin

Despite an initial appearance of superior doctrinal fit, restitution is not an appropriate vehicle for reparations claims based on slavery and similar large-scale historical injustices. The justifying principle behind restitution—prevention of unjust enrichment—lacks the moral force necessary to resolve a controversial public dispute about moral rights and obligations among segments of society. At its core, a claim to restitution is an attempt to right a wrong not by alleviating the adverse consequences to oneself, but by diminishing the position of others. In other words, the notion of unjust enrichment is a comparative idea that draws on resentment and the desire …

Arbitration's Summer Soldiers: An Empirical Study Of Arbitration Clauses In Consumer And Nonconsumer Contracts, Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin

Emily L Sherwin

We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% of the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. …

Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, Emily Sherwin

Emily L Sherwin

Buried in the details of legal doctrine governing misrepresentation is a remedial anomaly that raises some interesting questions about how law should deal with moral wrongs such as fraud. We tend to think of deliberate deception--fraud--as a grave moral wrong. At least, we think of deception as gravely wrong when the deceiver's objective is not to avert harm or spare feelings, but to obtain someone's money or goods. Deception denies the autonomy of the person deceived and undermines the foundation of trust in human interaction. The law, however, does not penalize every instance of fraud. Moreover, the standards governing when …

The Jurisprudence Of Pleading: Rights, Rules, And Conley V. Gibson, Emily Sherwin

Emily L Sherwin

In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading. This article, prepared for a symposium on Conley, reviews the debate over pleading requirements that preceded the case. Unlike modern discussions of pleading, which focus on the level of factual specificity required in complaints, the pre-Conley debate was about the legal content of complaints - an question largely forgotten in the years following Conley.

The early twentieth century debate over …

Why We Write: Reflections On Legal Scholarship, Emily Sherwin

Emily L Sherwin

No abstract provided.

Two- And Three-Dimensional Property Rights, Emily Sherwin

Emily L Sherwin

No abstract provided.

The Limits Of Feminism, Emily Sherwin

Emily L Sherwin

No abstract provided.

Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild

Emily L Sherwin

No abstract provided.

An Essay On Private Remedies, Emily Sherwin

Emily L Sherwin

No abstract provided.

Property, Rules, And Property Rules, Emily Sherwin

Emily L Sherwin

This essay examines two aspects of “property rules” in the sense defined by Judge Guido Calabresi and Douglas Melamed. In each case, the form in which property rules are cast is critically important. The first question addressed is the capacity of property rules to affect behavior prior to and outside litigation. Most economic analysis of property rules and liability rules assumes that the choice between them will guide decisionmaking at the time of a contemplated rights violation, and possibly prior to that time. To have this effect, property rules (and liability rules) must be established by determinate legal rules that …

The Bubble Concept In Water Pollution Control, Emily Sherwin

Emily L Sherwin

No abstract provided.

Clear And Convincing Evidence Of Testamentary Intent: The Search For A Compromise Between Formality And Adjudicative Justice, Emily Sherwin

Emily L Sherwin

No abstract provided.

Why In Re Omegas Group Was Right: An Essay On The Legal Status Of Equitable Rights, Emily Sherwin

Emily L Sherwin

No abstract provided.

Epstein's Property, Emily Sherwin

Emily L Sherwin

In an era of skepticism about common law traditions and sensitivity to claims of distributive injustice, Richard Epstein has been an unflinching defender of private property rights. He has insisted that property rights are intelligible, and reminded us of their importance to social and economic welfare. In this paper, I shall offer what I believe is a friendly interpretation of Epstein's writings on property, and then pose some internal questions about the approach he has outlined. I begin with a quick summary of his description of property rights in an ideal legal regime.

Constructive Trusts In Bankruptcy, Emily Sherwin

Emily L Sherwin

No abstract provided.

Rules And Judicial Review, Emily Sherwin

Emily L Sherwin

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest …

Compensation And Revenge, Emily Sherwin

Emily L Sherwin

No abstract provided.

Unjust Enrichment And Creditors, Emily Sherwin

Emily L Sherwin

The constructive trust remedy plays an important role in bankruptcy because it places restitution claimants in a position of priority over creditors. According to traditional rules governing constructive trusts, restitution claimants who can identify particular assets in the debtor's hands as products of an unjust enrichment recover in full, to the exclusion of other unsecured creditors. The draft Restatement (Third) of Restitution and Unjust Enrichment endorses this outcome with only minor qualifications. The supposed basis for a constructive trust is unjust enrichment: courts grant the remedy to prevent the defendant from profiting at the claimant's expense. In bankruptcy, the parties …

A Comment On Cass Sunstein's Equality, Emily Sherwin

Emily L Sherwin

No abstract provided.