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Full-Text Articles in Law
Preliminary Damages, Gideon Parchomovsky, Alex Stein
Preliminary Damages, Gideon Parchomovsky, Alex Stein
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Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either …
Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky
Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky
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The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of …
What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas
What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas
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Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
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Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …
Criminal (In)Justice And Democracy In America, Stephanos Bibas
Criminal (In)Justice And Democracy In America, Stephanos Bibas
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This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of …
Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler
Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler
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Should equality be viewed from a lifetime or “sublifetime” perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as “progressive” or “regressive,” should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a …