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Articles 1 - 7 of 7
Full-Text Articles in Law
Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois
Pearson, Iqbal, And Procedural Judicial Activism, Goutam U. Jois
Goutam U Jois
In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. …
Stare Decisis Is Cognitive Error, Goutam U. Jois
Stare Decisis Is Cognitive Error, Goutam U. Jois
Goutam U Jois
For hundreds of years, the practice of stare decisis -- a court’s adherence to prior decisions in similar cases -- has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society’s “true preferences” with regard to law and policy, may reflect -- and exacerbate -- our cognitive biases. The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others’ decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up …
The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois
The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois
Goutam U Jois
Class action litigation presents a common problem that has received little discussion in the academic literature. In almost every case, the plaintiff class’s recovery is not fully distributed. For example, all possible plaintiffs may not come forward with their claims, the plaintiffs may not be ascertainable, or claims may not be timely submitted. Administrators are regularly posed with the problem of what to do with these residual funds. Currently, courts are free to do virtually anything with such funds. The system is ad hoc, unpredictable, and unguided by any normative principle. In these cases, I propose that the funds should …
Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois
Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois
Goutam U Jois
Over the past several decades, America’s inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less. In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.
Looking Back And Looking Forward: Sarbanes-Oxley And The Future Of Corporate Governance, Scott Harshbarger, Goutam U. Jois
Looking Back And Looking Forward: Sarbanes-Oxley And The Future Of Corporate Governance, Scott Harshbarger, Goutam U. Jois
Goutam U Jois
Corporate governance has received significant media attention over the past few years. From the spectacular bankruptcies of Enron and WorldCom to the white-collar criminal trials of Kenneth Lay, Martha Stewart, and Bernie Ebbers, Americans watched Corporate America hit one of its lowest points. Fraud, self-dealing and deception, among other “worst practices,” seem to have become widespread. The Sarbanes-Oxley Act was passed in 2002 in reaction to those corporate scandals, but its future is now uncertain. All debates hinge on two fundamental assumptions: that business leaders and regulators are natural enemies and that one of those groups must be “right” and …
Can't Touch This! Private Property, Takings, And The Merit Goods Argument, Goutam U. Jois
Can't Touch This! Private Property, Takings, And The Merit Goods Argument, Goutam U. Jois
Goutam U Jois
Over the past several decades, economic theory has gained increasing influence in legal thinking, political theory, and public policy. This article argues that the popular characterization of economics as “value-neutral” obscures the fact that there are fundamental value judgments in any framework influenced by economics. Acknowledging this fact will shift the terms of the debate: instead of a “neutral” policy and one that “imposes values,” we see that both policies in fact entail value imposition to some extent. The public discourse is thus rendered more intellectually honest. The article progresses in three parts. First, I describe the concept of “merit …
Marital Status As Property: Toward A New Jurisprudence For Gay Rights, Goutam U. Jois
Marital Status As Property: Toward A New Jurisprudence For Gay Rights, Goutam U. Jois
Goutam U Jois
The issue of same-sex marriage has received much attention over the past few years, with significant focus on the role of the judiciary. For example, the first legal gay marriages in the country took place after a court decision in Massachusetts, and no state has sanctioned same-sex marriage through the legislative process. Proponents of same-sex marriages generally justify their creation on civil rights grounds, relying in particular on equal protection and due process arguments. However, the preservation of same-sex marriage can be defended on other grounds as well. I examine one such alternative theory, that of property rights. In this …