Legal Theory Blog

Legal Theory Calendar

Via Legal Scholarship Blog, downloadable paper (just one today) from today's workshops:

Chicago Law & Politics: Nathaniel Persily, Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements

Legal Theory Calendar

Downloadable papers from today’s workshops, via Legal Scholarship Blog:

Columbia Law & Economics: Vikrant Vig (London Business), Securitization and Screening: Evidence from Subprime Mortgage Back Securities:

Theories of financial intermediation suggest that securitization, the act of converting illiquid loans into liquid securities, could reduce the incentives of financial intermediaries to screen borrowers. We empirically examine this question using a unique dataset on securitized subprime mortgage loan contracts in the United States. We exploit a specific rule of thumb in the lending market to generate an instrument for ease of securitization and compare the composition and performance of lenders’ portfolios around the ad-hoc threshold. Conditional on being securitized, the portfolio that is more likely to be securitized defaults by around 20% more than a similar risk profile group with a lower probability of securitization.  Crucially, these two portfolios have similar observable risk characteristics and loan terms. We use variation across lenders (banks vs. independents), state foreclosure laws, and the timing of passage of anti-predatory laws to rule out alternative explanations.

University of Texas: David Harvey (CUNY Anthropology), From Capital Surplus to Accumulation by Dispossession:

We live in an era when ideals of human rights have moved center stage both politically and ethically. A lot of political energy is put into promoting, protecting and articulating their significance in the construction of a better world. For the most part the concepts circulating are individualistic and propertybased and, as such, do nothing to challenge hegemonic liberal and neoliberal market logics and neoliberal modes of legality and state action. We live in a world, after all, where the rights of private property and the profit rate trump all other notions of rights one can think of. But there are occasions when the ideal of human rights takes a collective turn, as when the rights of women, gays and minorities come to the fore (a legacy of the 1960s Civil Rights movement in the United States that was collective and had a global resonance). And those struggles for collective rights have, on occasion, yielded some results (such that a woman and a black become real contestants for the US Presidency). I here want to explore another kind of collective right, that to the city. This is important because there is a revival of interest in Henri Lefebvre’s ideas on the topic as these were articulated in relation to the movement of ’68 in France, at the same time as there are various social movements around the world that are now demanding the right to the city as their goal. So what might the right to the city mean?

UC Berkeley Bag Lunch: Elizabeth Chambliss (New York Law School), When Do Facts Persuade? Some Thoughts on the Market for ‘Empirical Legal Studies’:

For many years, LSA has been the leading brand of socio-legal scholarship, both in the United States and abroad. LSA has profoundly shaped two generations of socio-legal scholars. The LSA annual meeting in Berlin in 2007 was its largest ever, drawing 2,377 participants from 71 countries. But for all its success as an academic and professional association, LSA has had relatively little direct influence on U.S. policy, as Galanter laments, and relatively little status as a brand of scholarship within law schools. Instead, LSA has worked at the margins of legal and popular debate. Now, ELS has emerged as a powerful brand in the legal and popular markets. Theodore Eisenberg, a Cornell law professor and founding editor of JELS, notes that “in its first year of operation” JELS generated “much elite media interest,” including a front-page New York Times story about a conference on civil trials. JELS articles also have been cited or referenced in other “[h]igh-end media entities” such as The Wall Street Journal, The Atlantic Monthly, The Economist, The Financial Times, and the Congressional Quarterly. Such popularity is worth protecting, not by muting or abandoning criticism, but by recognizing the importance of brands in popular and political markets, and the importance of academic alliances in support of bold brands. Of course, no research is free from instrumental and partisan goals. Thanks in part to the Legal Realists, we are all partisans now. But that does not mean that all research is equally partisan—or rigorous and well-theorized. “Serious, policy-directed” researchers should seize the opening created by ELS and use the platform that it offers to promote high-quality policy research.

UCLA Mondays: Austen Parrish (Southwestern Law), Reclaiming International Law from Extraterritoriality:

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too.

This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.

USC Law, Economics and Organization: Edward R. Morrison (Columbia Law), Creditor Control and Conflict in Chapter 11:

We analyze a sample of large privately and publicly held businesses that filed Chapter 11 bankruptcy petitions during 2001. We find that creditor control is pervasive. In contrast to the traditional view of Chapter 11, equityholders and managers exercise little or no leverage during the reorganization process. Eighty percent of CEOs are replaced before or soon after a bankruptcy filing, and very few reorganization plans (at most six percent) deviate from the absolute priority rule in order to distribute value to equityholders. In sharp contrast, creditors dictate the dynamics of the reorganization process. Senior lenders exercise significant control through stringent covenants contained in DIP loans, such as line‐item budgets. Unsecured creditors gain leverage through objections and other court motions. We also find that bargaining between secured and unsecured creditors can distort the reorganization process. A Chapter 11 case is significantly more likely to result in a sale if secured lenders are oversecured, consistent with a fire‐sale bias. It is much less likely when these lenders are undersecured or when the firm has no secured debt at all. Our results suggest that the advent of creditor control has not eliminated the fundamental inefficiency of the bankruptcy process: resource allocation questions (whether to sell or reorganize a firm) are ultimately confounded with distributional questions (how much each creditor will receive), due to conflict among creditor classes.

Legal Theory Calendar

Downloadable Papers from Today's Workshops:

University of Chicago, Law & Economics: Anup Malani, Accounting for Expectations About Law

A large number of empirical, law-related papers examine forward-looking behavior but estimate static or backward-looking regression models. Common among them are papers that examine the effect of a law, organizational form or other contracting behavior on sticky outcomes. Examples include papers that study the effect of employment or anti-discrimination law on hiring or the effect of corporate governance on firm value. In each case the outcome is a function of both current treatment and expectations of future treatment. Yet the vast majority of papers estimate treatment effects by regressing current behavior on, e.g., a current or lagged law. This approach suffers omitted variable bias because it omits future values of a law. Where the treatment variable is binary, e.g., whether a state has a particular law, the error attenuates estimates of permanent treatment effects because expectations lie between 0 and 1 whereas actual laws are typically coded as 0 or 1. This paper documents the failure to estimate forward looking models, describe the bias from this failure, offers a diagnostic test for forward looking behavior, and considers easily-implementable solutions to the problem. It applies these to data from Miles (2000) and finds that that paper overestimates the one-year effects of exceptions to the doctrine of employment-at-will on employment by more than one-half and under-estimates the permanent effects by more than one-third.

Georgetown: William Bratton, Shareholder Primacy’s Corporatists Origins: Adolf Berle and The Modern Corporation

Many corporate law discussants think of themselves as picking up where Adolf Berle and E. Merrick Dodd left off in a famous, precedent-setting debate in the 1930s. The generally accepted historical picture puts Berle in the position of the original ancestor of today’s shareholder primacy position while Dodd is cast as the original ancestor of today’s corporate social responsibility (CSR). This Article shows that both categorizations amount to mistaken readings of old material outside of its original context. The Article corrects the mistakes, offering new readings of some of corporate law’s fundamental texts, texts that recently reached their 75th anniversaries and include Berle’s famous book with Gardiner C. Means, The Modern Corporation and Private Property. Seventy-five years ago the normative issue of the day was the appropriate policy response to the crisis of the Great Depression. Both Berle and Dodd addressed the issue from a corporatist perspective which views the corporation as an entity that operates as an organ of the state and assumes social responsibilities. In so doing Berle took on the fundamental question “for whom is the corporation managed” at a time when the answer had crucial implications for social welfare. In answering the question, Berle articulated a political economy that integrated a theory of corporate law within a theory of social welfare maximization. It was a great accomplishment, but it was in a context very different from today’s debates about corporate management and responsibility. Accordingly, Berle was not advocating shareholder primacy as we understand it today. Nor is there a strong claim that Berle was a CSR advocate; he never did make the final jump of advocating reorganization of the legal firm as a social welfare maximizer. His unqualified statements on the subject all presupposed a strong regulatory state and a public consensus against a corporate profit maximand. Dodd does not present a clear picture either. Dodd’s Depression-era writing, once contextualized, offers only indirect support to today’s CSR advocates. He is most plausibly read as a managerialist, and social responsibility within management’s discretion is not what CSR tends to be about. The biggest lesson from this analysis is that the shareholder primacy school impairs its own position by making a claim on Berle.

And for more workshops, check out Legal Scholarship Blog.

Legal Theory Calendar

Downloadable papers from today's workshops:

Chicago Crime & Punishment Workshop, Tom Tyler, Legitimacy and cooperation: Why do people help the police fight crime in their communities?  Here is a taste:

Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one’s community. It uses a panel study design, and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise their authority. Finally, the study explores the influence of personal experience with the police on legitimacy and cooperation. Results suggest that experiencing procedural justice during a personal experience increases legitimacy, irrespective of the favorability of the outcome. These results suggest that, even when they are delivering negative outcomes, the police can enhance their legitimacy by using fair procedures.

USC, Pamela Karlan, Stanford, “The Law of Small Numbers: Carhart v. Gonzales, Parents Involved in Community Schools, and Some Themes from the First Term of the Roberts Court.”  Here is a taste:

During October Term 2006, the Supreme Court of the United States decided fewer cases than during any Term since the end of the Civil War.1 A full third of the cases were decided by a 5-4 vote, the highest proportion in more than a decade.2 And in all those 5-4 decisions, Justice Anthony Kennedy was in the majority.3

One version of the law of small numbers tells us to be wary of attempts to generalize about a sequence from the first few items. Thus, it would be risky to predict where the Roberts Court will go on the basis of only a Term and a half’s worth of decisions.

But although there have not yet been a lot of decisions from the Roberts Court, the decisions we do have suggest an eagerness to revisit doctrines across the legal spectrum.

Willamette, Elizabeth Glazer, Hofstra, When Obscenity Discriminates.  Here is the abstract:

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine's infliction of first generation, or status discrimination against sexual minorities by conflating “sex” - and the prurient representation of sex that constitutes obscenity - and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or “cover” traits constitutive of their group identities. However, some groups, particularly those in civil rights law's “second wave” - sexual minorities, women, the elderly, and the disabled - continue to suffer first generation discrimination harms. This Article bridges first amendment and anti-discrimination literatures, which until now have not come together to address a harm that falls within their individual, and collective, jurisdictions. Moreover, and perhaps more importantly, the Article addresses a pervasive harm that courts will likely not have the opportunity to resolve. Because their representation is classified as obscenity, and therefore unprotected speech for first amendment purposes, sexual minorities are effectively barred by obscenity doctrine from bringing suit to assert their first amendment rights.

Virginia, Jim Gibson, Richmond, Unreasonable Care.  Here is the abstract:

This paper examines “doctrinal feedback” in negligence law, and specifically in medical malpractice. Doctrinal feedback is an organic, reiterative process that causes inadvertent and inadvisable changes in both law and practice. It occurs when: (1) the ambiguity of the applicable legal standard prompts those it governs to behave overcautiously, so as to avoid the gray areas of liability; (2) the legal standard incorporates that increased level of caution as the new norm, and (3) the cycle starts again, with a new iteration of overcompliance based on the new, heightened standard.

I argue that this feedback effect is present in medical malpractice. First, physicians living in the shadow of negligence law’s “reasonable care” standard routinely provide more care than the standard demands. Next, as that extra level of care becomes customary, it also becomes part of the reasonable care standard. Finally, overcautious physicians then provide even more care, so as to steer clear of the new standard. The bulk of the paper explores the evidence for this phenomenon, and then I briefly examine the potential for similar feedback in other fields of law.

Texas, Laura Gomez, New Mexico, Manifest Destiny’s Legacy: Race in America at the Turn of the 20th Century.  Here is a taste:

This chapter elaborates on the three central themes of this book as they relate to the national scene: (1) the centrality of colonialism in constituting Mexican Americans as a racial group; (2) the important links between the experience of Mexican Americans and the broader patterns of racial formation and racial ideology in the United States; and (3) the crucial role of law in the social construction of race.

Legal Theory Calendar

Via the Legal Scholarship Blog, here are downloadable papers from today's workshops:

NYU Legal History, Peter Hoffer (Georgia History), The Treason Trials of Aaron Burr: A Law Story from the Early Republic.  Here is a taste:

There is something almost seductively attractive about Aaron Burr. Slight and short, with a high brow and piercing eyes, no one who met him ever forgot this founding father. A trusted and admired friend to some, a feared and reviled adversary to others, no founding father provoked such strongly divided opinions in his time--or in ours.

Nor did any of the revolutionaries experience such dramatic swings in their fortunes as he. Accused variously of a hair-brained plot to “revolutionize” the West and detach it from the rest of the nation, of an invasion of Spanish Mexico that would leave him its king, and of a variety of more mundane canal, land development, and banking schemes, he seemed to combine in his life all the virtues of honor and excesses of ambition common to his contemporaries.

Historians and biographers still debate whether he was a misunderstood patriot or a scheming traitor. Had he only been less secretive about his intentions! Nevertheless, his trials for treason and high misdemeanor are worth a fresh look. The trials attracted more attention than any other in the first four decades of the new nation. They caused the first media frenzy in the nineteenth century, bringing correspondents from newspapers to Richmond from all over the country. They also brought together Burr, Chief Justice John Marshall, and agents of President Thomas Jefferson, who watched the course of the trials from afar. Hovering over them, like the ghost of Banquo at MacBeth’s coronation feast, was the rival Burr killed in a duel, Alexander Hamilton.

University of Washington, Balakrishnan Rajagopal (MIT Human Rights), Pro-Human Rights but Anti-Poor? Rethinking the Indian Supreme Court through a Social Movement Analysis.  Here is the abstract:

Judicial activism is a contested phenomenon, with the liberals and even the conservatives championing it while denouncing its particular manifestations. In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon. To explain why this is happening, the article introduces two ideas: first, the emergence of the judiciary as an organ of governance and its attendant problems, and second, the internally biased nature of the rights discourse which tends to reproduce binary arguments for either increasing State capacity or for increasing choice of goods in the marketplace. The article concludes by exploring lessons from the jurisprudence of other countries and international law and urges the Indian Supreme Court to reinvent a jurisprudence informed more by the social movements of the poor.

Legal Theory Calendar

Via Legal Scholarship Blog, downloadable papers from today's workshops:

Chicago Law & Politics, Jeff Rachlinski (Cornell Law), Does Unconscious Bias Affect Trial Judges?.  Here is a taste:

The continued presence of implicit biases among judges should at least sound a cautionary note for all judges. In fact, we found that these associations have the potential to influence judgment, particular in judges who are busy or unwary. But the news here is not all grim. Judges in our study mostly managed to avoid the influence of bias when we explicitly identified the race or gender of the legal actors. We assume that the judges were motivated to avoid the appearance of bias and managed to do so in these cases. We conclude that judges should use these same skills in the courtroom. The influence of unconscious bias can be avoided with three simple steps. First, judges must be motivated to avoid bias. Second, judges must aware of the potential for unconscious bias to affect their judgment. And finally, and they should be sure that they take enough time with their decision making that they suppress quick judgments that are apt to be subject to the influence of unconscious bias.

Georgetown, Lawrence Mitchell (George Washington Law), The Speculation Economy: How Finance Triumphed Over Industry.

"Semantic Originalism" at the University of Michigan Political Science Department

It's 10:00 a.m. in Ann Arbor, Michigan, and I'm about to start a workshop in the Department of Political Science on "Semantic Originalism," a systematic development on my current take on the originalism debate.  My thanks in advance to Michigan graduate student Alex Jakle for his comments.

Celebration of Mike Seidman's Silence and Freedom

Sandy Levinson and I will be providing comments today at Georgetown at Noon on Louis Michael Seidman's new book, Silence and Freedom.  It's a deeply interesting and learned commentary on the Constitution and silence, with rich discussions of the Fifth Amendment privilege against self-incrimination, torture, apologies, and suicide.

Peterson on Persons as Containers for Well Being

Martin Peterson (Cambridge) is delivering 'Are Persons Mere Containers for Wellbeing?' at Oxford's Moral Theory Seminar today.  Here is a taste:

It is widely believed that consequentialists are committed to the view that persons are mere containers for wellbeing. I challenge this view by proposing a new version of consequentialism, according to which the identities of persons matter in themsleves. It is shown that the new theory, two-dimensional prioritarianism, is a natural extension of traditional prioritarianism. In resemblance with the latter, the two-dimensional view holds that wellbeing matters more for persons who are at a low absolute level than for persons who are better off. However, two-dimensional prioritarianism also holds that it is worse to be deprived of a given number of units than it is to gain the same number of units, even if the new distribution is a permutation of the original one. Hence, while a fixed amount of wellbeing is transferred from one person to another and then transferred back again, rendering the initial distribution of wellbeing, the two acts performed in this manoeuvre would be morally wrong, because two-dimensional prioritarianism implies that it would have been better to preserve the status quo.

Ackerman First Holmes Lecture Today

Bruce Ackerman will deliver the first of his three part Holmes Lecture today at Harvard Law School.  Here at the details:

Tuesday, October 3, 5 p.m. Austin Hall West The Living Constitution, part 1: Are We a Nation?

And here is the website for the lectures.