Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 37

Full-Text Articles in Law

Rational Choice Attitudinalism? A Review Of Epstein, Landes And Posner's The Behavior Of Federal Judges: A Theoretical And Empirical Study Of Rational Choice, Charles M. Cameron, Lewis A. Kornhauser Sep 2015

Rational Choice Attitudinalism? A Review Of Epstein, Landes And Posner's The Behavior Of Federal Judges: A Theoretical And Empirical Study Of Rational Choice, Charles M. Cameron, Lewis A. Kornhauser

New York University Law and Economics Working Papers

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a ...


“Supreme” Courts And The Imagination Of The Real: An Essay In Honor Of Mirjan Damaška, Oscar G. Chase Jun 2015

“Supreme” Courts And The Imagination Of The Real: An Essay In Honor Of Mirjan Damaška, Oscar G. Chase

New York University Public Law and Legal Theory Working Papers

In Local Knowledge, Fact and Law in Comparative Perspective, Clifford Geertz brought his interpretive method of cultural analysis to bear on the relationship between local systems of law and the cultures in which they are situated. Geertz’ argument can be summed up by his aphorism: “Law is but part of a distinctive manner of imagining the real.” I explore this puzzling statement by examining the role of supreme courts in constructing and maintaining the “imagined real” of the society in which they function. Using the Supreme Court of the United States as my principal example I claim that these courts ...


Five To Four: Why Do Bare Majorities Rule On Courts, Jeremy J. Waldron Feb 2013

Five To Four: Why Do Bare Majorities Rule On Courts, Jeremy J. Waldron

New York University Public Law and Legal Theory Working Papers

Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems ...


Separation Of Powers Or Division Of Power?, Jeremy J. Waldron May 2012

Separation Of Powers Or Division Of Power?, Jeremy J. Waldron

New York University Public Law and Legal Theory Working Papers

The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. This paper however focuses resolutely on the functional sepaartion of powers in what MJC Vile called its "pure form". Rexeamining the theories of Locke, Montesquieu, and Madison, the paper seeks to recover (amidst all their tautologies and evasions) a genuine case in favor of this principle. The paper argues that the rationale of the separation of powers is closely related to that of the rule of law: it is ...


Bicameralism, Jeremy J. Waldron May 2012

Bicameralism, Jeremy J. Waldron

New York University Public Law and Legal Theory Working Papers

This paper considers the political-theory arguments for bicameralism, both in themselves and in their relation to the present debate in the United Kingdom. It explores Bentham's diatribe against bicameralism and it infers that a justification for bicameralism rests on the significance of the difference(s) between the second chamber and the first. If the second chamber is elected, those differences will be partly a matter of the electoral system, the organization of constituencies, and the rhythm of elections. But perhaps the most important difference lies in the way the second chamber is constituted in its relation to the executive ...


Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy J. Waldron Oct 2011

Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy J. Waldron

New York University Public Law and Legal Theory Working Papers

The relation between stare decisis and the rule of law was raised in the joint opinion in Planned Parenthood v. Casey. This paper explores, in a layered way, the various rule-of-law principles that affect the issue of precedent – particularly in the basic case that may be made for creating and following precedent. (This is not the only way we can think about stare decisis but it is an important way.) It looks at the rule-of-law constraints affecting the initial decision of the "precedent judge," the way in which a subsequent judge participates in upholding the generality of the precedent judge ...


Modeling Collegial Courts (3): Adjudication Equilibria, Charles M. Cameron, Lewis A. Kornhauser Jul 2009

Modeling Collegial Courts (3): Adjudication Equilibria, Charles M. Cameron, Lewis A. Kornhauser

New York University Public Law and Legal Theory Working Papers

We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes 'judicial' rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion’s location in 'policy' space; the case’s disposition; and the size and composition of the disposition, join, and concurrence - coalitions. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case ...


Modeling Collegial Courts (3): Adjudication Equilibria, Charles M. Cameron, Lewis A. Kornhauser Jul 2009

Modeling Collegial Courts (3): Adjudication Equilibria, Charles M. Cameron, Lewis A. Kornhauser

New York University Law and Economics Working Papers

We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes 'judicial' rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion’s location in 'policy' space; the case’s disposition; and the size and composition of the disposition, join, and concurrence - coalitions. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case ...


The Quasi-Class Action Method Of Managing Multidistrict Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller Mar 2009

The Quasi-Class Action Method Of Managing Multidistrict Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

New York University Law and Economics Working Papers

This article uses three recent multi-district litigations (MDLs) that produced massive settlements--Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)--to study the emerging quasi-class action approach to MDL management. The approach has four components: (1) judicial selection of lead attorneys; (2) judicial control of lead attorneys’ compensation; (3) forced fee transfers from non-lead lawyers to cover lead attorneys’ fees; and (4) judicial reduction of non-lead lawyers’ fees to save claimants money. These widely used procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges’ independence ...


Legislative Supremacy In The Us?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov Mar 2009

Legislative Supremacy In The Us?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov

Columbia Public Law & Legal Theory Working Papers

This Article revisits the “enrolled bill” doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the “enrolled bill” as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine’s main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress ...


Facial And As-Applied Challenges Under The Roberts Court, Gillian Metzger Feb 2009

Facial And As-Applied Challenges Under The Roberts Court, Gillian Metzger

Columbia Public Law & Legal Theory Working Papers

One recurring theme of the early Roberts Court’s jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available. Equally or more important, the Court has made little effort to ...


American Hegemony And The Foreign Affairs Constitution, Robert H. Knowles Jan 2009

American Hegemony And The Foreign Affairs Constitution, Robert H. Knowles

New York University Public Law and Legal Theory Working Papers

This Article uses insights from international relations theory to challenge the received wisdom that U.S. courts are incompetent to decide foreign affairs issues. Since September 11 in particular, proponents of broad executive power have argued that the Judiciary lacks the Executive’s expertise, speed, flexibility, uniformity, and political savvy necessary in foreign affairs. For these reasons, legal doctrine has long called for especially strong foreign affairs deference to the Executive.

This Article argues that special deference is grounded in an outmoded version of the popular theory of international relations known as realism. Realism views the world as anarchic, nations ...


A Witness To Justice, Jessica M. Silbey Jan 2009

A Witness To Justice, Jessica M. Silbey

Suffolk University Law School Faculty Publications

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the "right" kind of witness ...


The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William Simon Jan 2009

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William Simon

Columbia Public Law & Legal Theory Working Papers

Morton Horwitz’s Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz’s Warren Court book is largely an appreciation of the Court’s doctrine that accepts at face value its underlying premises and the judges’ claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative ...


The Story Of El–Masri V. Tenet: Human Rights And Humanitarian Law In The ‘‘War On Terror’’, Margaret L. Satterthwaite Dec 2008

The Story Of El–Masri V. Tenet: Human Rights And Humanitarian Law In The ‘‘War On Terror’’, Margaret L. Satterthwaite

New York University Public Law and Legal Theory Working Papers

Among the most notorious anti-terror techniques used by the U.S. government in the "War on Terror" are two shrouded in secrecy: extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States ...


The Wisdom Of Soft Judicial Power: Mr. Justice Powell Concurring, Samuel Estreicher, Tristan Pelham-Webb Dec 2008

The Wisdom Of Soft Judicial Power: Mr. Justice Powell Concurring, Samuel Estreicher, Tristan Pelham-Webb

New York University Public Law and Legal Theory Working Papers

No abstract provided.


Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser Dec 2008

Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser

New York University Public Law and Legal Theory Working Papers

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of ...


Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser Dec 2008

Modeling Collegial Courts (3): Judicial Objectives, Opinion Content, Voting And Adjudication Equilibria, Charles Cameron, Lewis Kornhauser

New York University Law and Economics Working Papers

We present a formal game theoretic model of adjudication by a collegial court. Distinctively, the model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes judicial rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion's location in policy space; the case's disposition; and the size and composition of the disposition-coalition, the join-coalition, and the concurrence-coalition. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of ...


"The Story Of United States V. United States District Court (Keith): The Surveillance Power", Trevor W. Morrison Nov 2008

"The Story Of United States V. United States District Court (Keith): The Surveillance Power", Trevor W. Morrison

Columbia Public Law & Legal Theory Working Papers

This chapter, prepared for Presidential Power Stories (edited by Christopher Schroeder and Curtis Bradley), tells the story of United States v. United States District Court for the Eastern District of Michigan, better known as the Keith case. Keith is the Supreme Court's first and still most important statement on the extent to which the President, acting in the interests of national security, may authorize the warrantless wiretapping or other electronic surveillance of persons within the United States. The case began as a criminal prosecution of members of the radical "White Panther Party" for the bombing of a CIA office ...


The Supreme Court Engages In Judicial Activism In Interpreting The Patent Law In Ebay ,Inc. V. Mercexchange, L.L.C., Andrew Beckerman Rodau Jan 2008

The Supreme Court Engages In Judicial Activism In Interpreting The Patent Law In Ebay ,Inc. V. Mercexchange, L.L.C., Andrew Beckerman Rodau

Suffolk University Law School Faculty Publications

Almost a century ago the United States Supreme Court held that a patent owner is generally entitled to permanent injunctive relief to prevent ongoing infringement. Lower courts, such as the United States Court of Appeals for the Federal Circuit, consistently applied this rule. Nevertheless, in eBay, Inc. v. MercExchange, L.L.C., the Court overruled this general rule. Justice Thomas, writing for a unanimous Court, unequivocally repudiated almost a century of precedent in a cursory opinion devoid of any explanation or justification for its action. Precedent – a fundamental tenet of our judicial system that facilitates predictable judicial decisions – is undermined ...


Measuring The Value Of Class And Collective Action Employment Settlements: A Preliminary Assessment, Samuel Estreicher, Kristina Yost Dec 2007

Measuring The Value Of Class And Collective Action Employment Settlements: A Preliminary Assessment, Samuel Estreicher, Kristina Yost

New York University Law and Economics Working Papers

This paper represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue them on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are slated to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of ...


Measuring The Value Of Class And Collective Action Employment Settlements: A Preliminary Assessment, Samuel Estreicher, Kristina Yost Dec 2007

Measuring The Value Of Class And Collective Action Employment Settlements: A Preliminary Assessment, Samuel Estreicher, Kristina Yost

New York University Public Law and Legal Theory Working Papers

This paper represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue them on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are slated to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of ...


Pulling Punches: Congressional Constraints On The Supreme Court’S Constitutional Rulings, 1987–2000, Anna Harvey, Barry Friedman Jul 2007

Pulling Punches: Congressional Constraints On The Supreme Court’S Constitutional Rulings, 1987–2000, Anna Harvey, Barry Friedman

New York University Public Law and Legal Theory Working Papers

To date, no study has found evidence that the U.S. Supreme Court is constrained by Congress in its constitutional decisions. We addressed the selection bias inherent in previous studies with a statute-centered, rather than a case-centered, analysis, following all congressional laws enacted between 1987 and 2000. We uncovered considerable congressional constraint in the Court's constitutional rulings. In particular, we found that the probability that the Rehnquist Court would strike a liberal congressional law rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.


Pulling Punches: Congressional Constraints On The Supreme Court’S Constitutional Rulings, 1987–2000, Anna Harvey, Barry Friedman Jul 2007

Pulling Punches: Congressional Constraints On The Supreme Court’S Constitutional Rulings, 1987–2000, Anna Harvey, Barry Friedman

New York University Law and Economics Working Papers

To date, no study has found evidence that the U.S. Supreme Court is constrained by Congress in its constitutional decisions. We addressed the selection bias inherent in previous studies with a statute-centered, rather than a case-centered, analysis, following all congressional laws enacted between 1987 and 2000. We uncovered considerable congressional constraint in the Court's constitutional rulings. In particular, we found that the probability that the Rehnquist Court would strike a liberal congressional law rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.


A Theory Of Adjudication: Law As Magic, Jessie Allen Mar 2007

A Theory Of Adjudication: Law As Magic, Jessie Allen

New York University Public Law and Legal Theory Working Papers

This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as “magic solving words” and “word ritual.” Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of ...


Do Juries Add Value?: Evidence From An Empirical Study Of Jury Trial Waiver Clauses In Large Corporate Contracts, Theodore Eisenberg, Geoffrey P. Miller Nov 2006

Do Juries Add Value?: Evidence From An Empirical Study Of Jury Trial Waiver Clauses In Large Corporate Contracts, Theodore Eisenberg, Geoffrey P. Miller

New York University Law and Economics Working Papers

We study jury trial waivers in a data set of 2,816 contracts contained as exhibits in Form 8-K filings by reporting corporations during 2002. Because these contracts are associated with events deemed material to the financial condition of SEC-reporting firms, they likely are carefully negotiated by sophisticated, well-informed parties and thus provide presumptive evidence about the value associated with the availability of jury trials. Only a small minority of contracts, about 20 percent, waived jury trials. An additional nine percent of contracts had arbitration clauses that effectively preclude jury trials though the reason for arbitration clauses need not specifically ...


Bargaining And Opinion Assignment On The U.S. Supreme Court, Jeffrey R. Lax, Charles M. Cameron Oct 2006

Bargaining And Opinion Assignment On The U.S. Supreme Court, Jeffrey R. Lax, Charles M. Cameron

New York University Public Law and Legal Theory Working Papers

We formulate a new game-theoretic model of bargaining on the U.S. Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an “open rule” for the other justices. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship—its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit to move an opinion from the median without provoking a winning counter-offer. We use this ...


Bargaining And Opinion Assignment On The U.S. Supreme Court, Jeffrey R. Lax, Charles M. Cameron Oct 2006

Bargaining And Opinion Assignment On The U.S. Supreme Court, Jeffrey R. Lax, Charles M. Cameron

New York University Law and Economics Working Papers

We formulate a new game-theoretic model of bargaining on the U.S. Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an “open rule” for the other justices. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship—its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit to move an opinion from the median without provoking a winning counter-offer. We use this ...


The Future Of Voting Rights Policy: From Anti-Discrimination To The Right To Vote, Richard H. Pildes Jul 2006

The Future Of Voting Rights Policy: From Anti-Discrimination To The Right To Vote, Richard H. Pildes

New York University Public Law and Legal Theory Working Papers

Congress is now considering whether to renew the Voting Rights Act. This essay suggests that Congress will seek to avoid any of the difficult issues inevitably presented concerning how federal law should regulate voting rights in today's context. Though critical issues concerning American democracy are at stake, and the renewal process is the moment at which the nation should focus on voting rights, there is no constituency, inside Congress or outside, to raise the serious policy issues that should be addressed. Instead, Congress appears to prefer to renew the relevant provisions largely in their current form, as quietly as ...


Mixed Signals And Subtle Cues: Jury Independence And Judicial Appointment Of The Jury Foreperson, Andrew Horwitz Aug 2005

Mixed Signals And Subtle Cues: Jury Independence And Judicial Appointment Of The Jury Foreperson, Andrew Horwitz

Roger Williams University School of Law Faculty Papers

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who ...