Digital Commons Network^™

Jury Simulation Goals, Jonathan J. Koehler, John B. Meixner Jr.

Scholarly Works

What are the goals that researchers who conduct jury simulations have or should have? Drawing on Pennington and Hastie (1981), we identify three primary goals: (1) develop theory, (2) describe how juries perform, and (3) improve the jury process. Where basic theory matters most, studies should be designed in ways that stress internal validity. Where describing the behaviors of real juries or persuading policy makers about changes that should be made, studies should focus on external and ecological validity as well. We urge researchers who are interested in describing jury behavior and improving the jury process to conduct ecologically valid …

Lender Discrimination, Black Churches, And Bankruptcy, Pamela Foohey

Scholarly Works

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …

Calling On The Cfpb For Help: Telling Stories And Consumer Protection, Pamela Foohey

Scholarly Works

Since it began operating in 2011, the Consumer Financial Protection Bureau (CFPB) has handled more than a million complaints regarding consumer financial product and services. Beginning in June 2015, the CFPB began publishing consumers’ narratives submitted with their complaints. This Article analyses a random sample of 5,000 of these narratives to assess how people engage with the complaint mechanism in light of the CFPB’s role in processing complaints. I find that people predominately use the complaint function for two distinct purposes: to express their anger and frustration about companies’ practices, or to express sadness and fear about how companies’ practices …

'No Money Down' Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Scholarly Works

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer …

In Pursuit Of Good & Gold: Data Observations Of Employee Ownership & Impact Investment, Christopher Greczy, Jessica S. Jeffers, David K. Musto, Anne M. Tucker

Scholarly Works

A startup’s path to self-sustaining profitability is risky and hard, and most do not make it. Venture capital (VC) investors try to improve these odds with contractual terms that focus and sharpen employees’ incentives to pursue gold. If the employees and investors expect the startup to balance the goal of profitability with another goal—the goal of good—the risks are likely to both grow and multiply. They grow to the extent that profits are threatened, and they multiply to the extent that balancing competing goals adds a dimension to the incentive problem. In this Article, we explore contracting terms specific to …

Industry Lobbying And "Interest Blind" Access Norms At International Organizations, Melissa J. Durkee

Scholarly Works

The standard approach of many international organizations (IOs) to non-governmental associations makes no formal distinctions between nonprofit private sector groups, known as trade or industry associations, and public interest groups. Thus, most IOs offer accreditation and access to both kinds of group on equal terms, without differentiating between them. I call this approach “interest blind” and use this short essay to examine its origins and consequences. Specifically, the approach has resulted in robust participation in international governance by industry and trade lobbying groups, which can affect the quality of deliberation at IOs and of the information that international officials and …

Teaching The Law Of American Health Care, Elizabeth Weeks, Nicole Huberfeld, Kevin Outterson

Scholarly Works

In writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook's overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential for the new generation of health lawyers. …

Freedom Of Speech And The Criminal Law, Dan T. Coenen

Scholarly Works

Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this article claims that the Court has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles. The first …

Free Markets, State Involvement, And The Wto: Chinese State Owned Enterprises (Soes) In The Ring, Petros C. Mavroidis, Merit E. Jano

Faculty Scholarship

The WTO has struggled with the treatment of nonmarket economies (NMEs). What was a nonissue in the original GATT (because of the homogeneity of participants) became quite an issue with the accession of formally centrally planned economies, which were not transformed to market economies, at least not in the eyes of the incumbents. Contracting this issue has proved to be so far always wanting, and leaving it to adjudicators has not produced good results either. With respect to Chinese SOEs this risks continuing to be an issue, since the contractually agreed deadline (2016) after which China should not be treated …

Judging Immigration Equity: Deportation And Proportionality In The Supreme Court, Jason A. Cade

Scholarly Works

Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. …

Tribute To Sam Davis: A Georgia Perspective, Ronald L. Carlson

Scholarly Works

Sam Davis had a twenty-seven year history at Georgia, commencing in 1970. After a distinguished record as a student at the University of Mississippi School of Law, he joined the Georgia law faculty. Sam moved through the academic ranks, ultimately becoming Allen Post Professor of Law. Along the way he served, at various times, as Assistant Dean, as Associate Dean, and he was for a time the University's Associate Vice President for Academic Affairs. In 1997 he took over as Dean at the University of Mississippi School of Law. This article comments on his life and professional career, with some …

Judicial Federalism In The European Union, Michael Wells

Scholarly Works

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …

How The Supreme Court Derailed Formal Rulemaking, Kent H. Barnett

Scholarly Works

Based on archival research, this Essay explores the untold story of how the Supreme Court in the 1970s largely ended “formal” trial-like rulemaking by federal agencies in two railway cases. In the first, nearly forgotten decision, United States v. Allegheny-Ludlum Steel Corp., the Court held sua sponte that an agency was not required to use formal rulemaking, despite its significant historical provenance. That unpersuasive decision all but decided the second, better-known decision, United States v. Florida East Coast Railway, the following term. In response to both decisions, agencies abandoned formal rulemaking—one of only four broad categories of agency action—and policymakers …

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Scholarly Works

When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of …

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

Scholarly Works

The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …

Proportionality Lost? The Rise Of Enforcement-Based Equity In The Deportation System And Its Limitations, Jason A. Cade

Scholarly Works

This article briefly explains and critiques the legal framework that has made enforcement discretion the primary means of injecting proportionality and fairness into the modern deportation system. The article provides an overview of shifting approaches to this enforcement discretion under the Obama and Trump administrations, and describes some of the key Supreme Court jurisprudence interpreting this framework.

Criminal Law As Family Law, Andrea L. Dennis

Scholarly Works

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life. This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families. Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice. This Article explores the gap in literature in two respects. First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families. Second, the Article examines the depth of criminal justice interference in …

Green Home Standards: Information And Incentives, James Smith

Scholarly Works

The “green building” movement began in the United States during the 1990s. In its early stages, reformers focused on minimizing adverse environmental impacts from major public, institutional, and commercial buildings. Private-sector organizations developed voluntary standards to promote green building practices, the most prominent being LEED (Leadership in Energy and Environmental Design). More recently, widespread interest in residential green building has developed. Several organizations having developed voluntary green home standards. A standard promulgated by the federal government, the Energy Star Certified Home, has achieved substantial market success during the past decade. This article describes and assesses the Energy Star Home and …

Chevron In The Circuit Courts, Kent H. Barnett, Christopher J. Walker

Scholarly Works

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference—the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among …

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Scholarly Works

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly …

Adjudicating Religious Sincerity, Nathan Chapman

Scholarly Works

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew I. Hall

Scholarly Works

Three pending lawsuits challenge President Trump's practice of accepting payments and other benefits from foreign governments through his businesses as violative of the Foreign Emoluments Clause. They also allege that the President's practice of accepting payments and benefits from state or federal governmental units violates the Domestic Emoluments Clause. These actions raise interesting questions about the meaning of two little-discussed provisions of the Constitution. But before reaching the merits the courts will first have to grapple with issues of justiciability - in particular, with the question whether plaintiffs have "standing" to bring their claims in federal court. This article explains …

Reforming The Tax Incentives For Higher Education, Camilla E. Watson

Scholarly Works

Federal spending on higher education has long been controversial, primarily because it has grown exponentially since the 1950s but it has produced a system which many regard as too expensive and grossly inefficient. The soaring costs are placing higher education beyond the reach of many Americans, and of those who enter college, less than half complete their degrees. Particular criticism has been directed toward the education tax incentives, enacted mostly in the late 1990s, which shifted federalfunding for higher education from direct benefits to students in the form of grants, loans and work-study programs to indirect benefits through the tax …

Writing Truth To Power: Remarks In Celebration Of Intlawgrrls’ Tenth Birthday, Diane Marie Amann

Scholarly Works

These remarks begin with a brief history of the founding and development of IntLawGrrls blog, in order both to open the blog's tenth-anniversary conference and to introduce other conference presentations, three of which appear in this same edition of the Georgia Journal of International & Comparative Law. Noting the blog's tradition of honoring departed women as foremothers, the remarks nominates yet another: Sophie Scholl, a German student executed for her part in the White Rose movement that acted in resistance to the Nazi regime.

The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters

Scholarly Works

Many scholars have commented that the state action doctrine forecloses use of the First Amendment to constrain the policies and practices of online service providers. But few have comprehensively studied this issue, and the seminal article exploring “[c]yberspace and the [s]tate [a]ction [d]ebate” is fifteen years old, published before the U.S. Supreme Court reformulated the federal approach to state action. It is important to give the state action doctrine regular scholarly attention, not least because it is increasingly clear that “the private sector has a shared responsibility to help safeguard free expression.” It is critical to understand whether the First …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2016, the United States Court of Appeals for the Eleventh Circuit addressed, for the second time, whether the Army Corps of Engineers (Corps) acted arbitrarily when it issued Nationwide Permit 21 (NWP 21), which authorizes dredge and fill activities by surface mining operations and applies differing standards to grandfathered operations and new operations. The court held that the Corps did not, and it upheld the permit. Also, the Eleventh Circuit held that the National Park Service did not act improperly under the Wilderness Act when it reduced the number of acres it considered to be eligible for designation as …

Reasonable Certainty & Corpus Linguistics: Judging Definiteness After Nautilus & Teva, Joseph S. Miller

Scholarly Works

In Nautilus (2014), the Supreme Court held “that a patent is invalid for indefiniteness if its claims...fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” We don’t require perfect clarity because, as Festo (2002) highlights, patentees can’t achieve it. We don’t launch a post hoc judicial salvage operation to rescue slipshod text because, as the functional-claiming cases from the 1930s and 1940s highlight, others can’t adequately plan around it. Reasonably certain notice, then, is just right: § 112 “require[s] that a patent’s claims, viewed in light of the specification and prosecution history, …

Which Supreme Court Cases Influenced Recent Supreme Court Ip Decisions? A Citation Study, Joseph S. Miller

Scholarly Works

The U.S. Supreme Court has decided an increasing number of intellectual property cases — especially patent cases — over the last several terms. Which prior cases influence the stated reasoning in these recent Supreme Court IP cases? A handful of citation studies of supreme courts in the U.S., both state and federal, conducted over the last 40 years suggest that the Court would most often cite its own prior cases; that it would cite its more recent cases more often than its older cases; and that a small number of its prior cases would receive a large share of the …

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest.

Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have …

The Fragility Of The Free American Press, Ronnell Anderson Jones, Sonja R. West

Scholarly Works

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly fragile edifice on …