Legal Studies Commons^™

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Japan's New Clinical Programs: A Study Of Light And Shadow, Peter A. Joy, Shigeo Miyagawa, Takao Suami, Charles D. Weisselberg

Scholarship@WashULaw

Japan instituted a new system of graduate professional law school education when sixty-eight new law schools opened their doors on April 1, 2004. The new law schools are an integral component of far-reaching reforms that seek to improve the administration of justice in Japan by increasing the number of lawyers, especially in grossly underserved rural areas, and better preparing attorneys for the practice of law domestically and internationally. Japan modeled the new graduate professional law schools after schools in the United States. A large number of the schools adopted clinical legal education programs -- also substantially influenced by law school …

Prosser's Privacy Law: A Mixed Legacy, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy …

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Scholarship@WashULaw

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I …

Regulating Polygamy: Intimacy, Default Rules, And Bargaining For Equality, Adrienne D. Davis

Women, Gender & Sexuality Studies Faculty Research

Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as "intimacy liberty," particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social …

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Peter A. Joy

Scholarship@WashULaw

The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such …

The Real Student-Loan Scandal: Undue Hardship Discharge Litigation, Rafael I. Pardo, Michelle R. Lacey

Scholarship@WashULaw

For a debtor to obtain a discharge of educational debt in bankruptcy, an adversary proceeding between the debtor and the creditor must be initiated, and the debtor must establish that repayment of the debt would impose an undue hardship. This empirical study documents and analyzes trial-level outcomes of such proceedings. An original data set has been compiled of all terminated undue hardship discharge proceedings in the U.S. Bankruptcy Court for the Western District of Washington that were commenced during the five-year period beginning on January 1, 2002 and ending on December 31, 2006. The study seeks to provide an account …

An Empirical Examination Of Access To Chapter 7 Relief By Pro Se Debtors, Rafael I. Pardo

Scholarship@WashULaw

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) represents the most significant overhaul of federal bankruptcy law since the Bankruptcy Code’s enactment in 1978. The legislation expanded the grounds on which a debtor’s Chapter 7 case may be dismissed. Moreover, it increased the administrative requirements imposed upon debtors who file for bankruptcy (e.g., increased financial disclosures), which in turn has had the effect of increasing the direct costs of filing for bankruptcy (e.g., filing fees and attorneys’ fees). With this increased complexity in accessing Chapter 7 relief, the question arises whether BAPCPA has had a disproportionate impact …

Setting The Record Straight: A Sur-Reply To Professors Lawless Et Al, Rafael I. Pardo

Scholarship@WashULaw

I have recently engaged in a scholarly exchange with Professors Robert M. Lawless, Angela K. Littwin, Katherine M. Porter, John A. E. Pottow, Deborah K. Thorne, and Elizabeth Warren that debates the conclusions they have drawn in their first report from the 2007 Consumer Bankruptcy Project (the First Report). Unfortunately, the reply of Professors Lawless et al. to my critique mischaracterizes, misinterprets, and does not fully engage with the constructive commentary that I suggested. This sur-reply clarifies the misperceptions and mischaracterizations of my commentary by Professors Lawless et al. and demonstrates that my arguments not only are grounded in a …

Failing To Answer Whether Bankruptcy Reform Failed: A Critique Of The First Report From The 2007 Consumer Bankruptcy Project, Rafael I. Pardo

Scholarship@WashULaw

Over the past quarter century, our knowledge of individuals who seek relief through the consumer bankruptcy system has been derived largely from the information that has been collected and analyzed by the Consumer Bankruptcy Project. The most recent iteration of the Consumer Bankruptcy Project, the 2007 Consumer Bankruptcy Project (the 2007 CBP), extends well beyond prior iterations by drawing a nationwide random sample of bankruptcy filings. The first report published in connection with the 2007 CBP (the First Report or Report) seeks to evaluate the success of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) in sorting …

Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim

Scholarship@WashULaw

Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit …

How Should We Study District Judge Decision-Making?, Pauline Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

Scholarship@WashULaw

Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district …

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Scholarship@WashULaw

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts …

The C.A.P. Effect: Racial Profiling In The Ice Criminal Alien Program, Trevor George Gardner, Aarti Kohli

Scholarship@WashULaw

The goal of the Criminal Alien Program (CAP) is to improve safety by promoting federal-local partnerships to target serious criminal offenders for deportation. Indeed, the U.S. Congress has made clear that Immigration and Customs Enforcement (ICE) “should have no greater immigration enforcement priority than to remove deportable aliens with serious criminal histories from the United States…” The Warren Institute’s analysis of arrest data pursuant to an ICE-local partnership in Irving, Texas demonstrates that ICE is not following Congress’ mandate to focus resources on the deportation of immigrants with serious criminal histories.

This study also shows that immediately after Irving, Texas …

Judging The Judges, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati’s scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati.

We hope to advance the theoretical and empirical evaluation by incorporating different scales for …

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

The Sec In A Time Of Discontinuity., Joel Seligman

Scholarship@WashULaw

In Jack Coffee and Hillary Sale’s article, Redesigning the SEC: Does the Treasury Have a Better Idea?, the authors address the dominant reality today—that “[t]he natural superiority of the U.S. model for securities regulation is no longer an article of faith” and analyze whether the Department of the Treasury Blueprint provides a wiser structure of financial regulation.

Jim Cox in Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC similarly begins, “data bear witness to the fact that government agencies come and go,” but highlights the complexities of creating an international approach to accounting standards.

Judge Easterbrook begins …

Working Group On Chapter 4 Of The Proposed Restatement Of Employment Law: The Tort Of Wrongful Discipline In Violation Of Public Policy, Pauline Kim, Joseph R. Grodin, Paul M. Secunda, Richard A. Bales, Catherine Fisk, Roberto L. Corrada

Scholarship@WashULaw

The purpose of this commentary on Chapter 4 of the Proposed ALI Restatement of Employment Law, concerning the tort of wrongful discipline in violation of public policy, is to closely evaluate the current draft in light of the appropriate purposes for a Restatement. Although some value exists in merely stating the consensus respecting these rules, the mission of the ALI extends beyond that, to better adapt the law to social needs and secure the better administration of justice. Our principal problem with the current Restatement draft is that it does not adequately recognize the dynamic nature of this area of …

Privacy And The Limits Of History, Neil M. Richards

Scholarship@WashULaw

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …

The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …

No Future Without (Personal) Forgiveness: Reexamining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Scholarship@WashULaw

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other law-finding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges. The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization. This Paper adds a new dimension by presenting results from an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides certain …

Illness And Inability To Repay: The Role Of Debtor Health In The Discharge Of Educational Debt, Rafael I. Pardo

Scholarship@WashULaw

For a debtor to obtain a discharge of student loans in bankruptcy, the debtor must establish that their repayment would impose an undue hardship. This Article presents the results of an empirical study of bankruptcy court doctrine over a ten-year period that involved undue hardship discharge proceedings where the court reported information on the debtor's health status, monthly household income, and monthly household expenses. The data show that a medical condition increased a debtor's odds of being granted a discharge by 140% but that household income and expense levels did not have a statistically significant association with legal outcome. These …

The Paradox Of Financial Services Regulation: Preserving Client Expectations Of Loyalty In An Industry Rife With Conflicts Of Interest, Andrew F. Tuch

Scholarship@WashULaw

This paper considers the implications of Australian Securities and Investments Commission v. Citigroup [2007] FCA 963, a landmark decision of the Federal Court of Australia. The case highlights an apparent paradox in financial services regulation: at the same time as allowing, or even fostering, the development of financial services conglomerates, regulation in multiple jurisdictions preserves potentially incompatible general law obligations that arise from client expectations of loyalty. The paradox is most evident in the context of the modern investment bank.

The paper discusses the dynamic nature of investment banks, their organizational structure, the types of conflicts they typically face and …

Intellectual Privacy, Neil M. Richards

Scholarship@WashULaw

This Article is about intellectual privacy–the protection of records of our intellectual activities–and how legal protection of these records is essential to the First Amendment values of free thought and expression. We often think of privacy rules being in tension with the First Amendment, but protection of intellectual privacy is different. Intellectual privacy is vital to a robust culture of free expression, as it safeguards the integrity of our intellectual activities by shielding them from the unwanted gaze or interference of others. If we want to have something interesting to say in public, we need to pay attention to the …

Beyond Discretion: Prosecution, The Logic Of Sovereignty, And The Limits Of Law, Conor Clarke, Austin Sarat

Scholarship@WashULaw

Today it is widely recognized in both academic literature and the main-stream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality. By drawing on Carl Schmitt and …

A Closer Look At Veil Piercing In Federal District Courts, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

In this project, we utilize six years of original federal district court data to identify the first representative sample of corporate veil piercing litigation. This study will provide a more nuanced understanding of the process of litigation of piercing claims than previous studies, which have been modeled on Robert Thompson's (1991) groundbreaking work on this topic. Our method first identifies veil piercing litigation through Westlaw's trial pleadings database, and proceeds to code each case through detailed examination of PACER records.

We identify and model the differing types of success plaintiffs achieve when they seek to pierce the veil, including those …

Measuring Deviations From Expected Voting Patterns On Collegial Courts, Stefanie A. Lindquist, Paul H. Edelman, David E. Klein

Scholarship@WashULaw

Even where idiosyncratic factors such as ideology play large and consistent roles in judges' decision-making, there are always cases where the patterns of judges' votes confound our expectations. In some ways, these are among the most interesting cases for scholars, raising important questions about judicial behavior and institutions. In the first part of this paper, we introduce a quantitative measure of deviations from expected voting patterns intended to allow scholars to systematically study unexpected votes and the questions they raise. In the second part, we illustrate the use of this new measure by developing a preliminary model to predict departures …

Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters

Scholarship@WashULaw

This brief essay sketches out a, "militant moderate," take on the role of foreign and international law in constitutional interpretation. The essay examines and critiques the key arguments and assumptions of both internationalists (like Justice Breyer) and nationalists (like Justice Scalia). It urges scholars and policymakers to shift from the Crossfire-style debate that has dominated in recent years, toward a more nuanced approach that strikes a balance between the legitimate concerns of nationalists and the legitimate aspirations of internationalists. A militant moderate approach situates the debate over foreign authority in its broader context: American judges' growing participation in transnational judicial …