Showing papers in "Duke Law Journal in 2009"

Judicial Evaluations and Information Forcing: Ranking State High Courts and Their Judges

Abstract: Judges and courts get evaluated and ranked in a variety of contexts. The President implicitly ranks lower-court judges when he picks some rather than others to be promoted within the federal judiciary. The ABA and other organizations evaluate and rank these same judges. For the state courts, governors and legislatures do similar rankings and evaluations, as do interest groups. The U.S. Chamber of Commerce, for example, produces an annual ranking of the state courts that is based on surveys of business lawyers. These various rankings and evaluations are often made on the basis of subjective information and opaque criteria. The secretive nature of these evaluations potentially allows organizations such as the Chamber of Commerce to use rankings to advance their own specific agenda. Our Article rests on the premise that these organizations that do their rankings based on opaque data and criteria need competition. Competition will force competing metrics to make transparent the underlying measures on which they are based and thereby foster the generation of higher quality metrics to rank judges. Using publicly available information and easy to reproduce measures, we construct an Copyright © 2009 by Stephen J. Choi, Mitu Gulati, and Eric A. Posner. t Murray and Kathleen Bring Professor of Law, New York University School of Law. tt Professor of Law, Duke University School of Law. ttt Kirkland and Ellis Professor of Law, University of Chicago School of Law. Thanks to David Achtenberg, Scott Baker, Scott Comparato, Jake Dear, Michael Gerhardt, Kim Krawiec, David Levi, William Marshall, Un Kyung Park, Mark Ramseyer, Laura Stith, and participants at the Measuring Judges and Justice conference for comments and conversations about the project. Thanks to Mirya Holman for assistance with research. HeinOnline -58 Duke L.J. 1313 2008-2009 1314 DUKE LAW JOURNAL [Vol. 58:1313 alternate set of rankings of the state courts that we then match up against the rankings from the Chamber of Commerce. Our measures are admittedly coarse. Nevertheless, to the extent they are credible, transparent, and significantly different from those of organizations like the Chamber of Commerce, the hope is that they will force those organizations to better explain the methods and information that underlie their rankings. TABLE OF CONTENTS Introduction 1314 I. T he M easures 1318 A . P roductivity 1320 B . O pinion Q uality 1321 C . Independence 1323 D . Com posite M easures 1325 II. Ranking the State High Courts 1326 A. The U.S. Chamber of Commerce Rankings 1326 B. Prior Academic Literature on Ranking State Courts 1328 C. R anking the Courts 1333 1. The Court System s 1333 2. Productivity 1335 3. C itations 1337 4. Independence 1342 D. Digging Deeper: Ranking Courts while Controlling for StateSpecific F actors 1351 E. The U.S. Chamber of Commerce Study: Som e O bservations 1354 III. Courts or Judges? 1358 C onclusion 1363 Appendix A: Common Law Areas Only 1364 Appendix B: Abnormal Score Rankings 1370 Appendix C: Judge Ranking Using Majority Opinion Productivity M easure 1378 Appendix D: Variable Definitions 1379

Are American CEOs Overpaid, and, If So, What If Anything Should Be Done about It?

Abstract: The genesis of this article is a lecture on executive overcompensation that I gave at the University of Pennsylvania in October 2006, and the article was substantially completed shortly after I gave another version of the talk in March 2007 at Stanford University?eighteen months before the beginning of the depression in which (I am convinced) the nation now finds itself.1 Even back then the question whether executive compensation in publicly owned American companies was in some sense excessive was much in the news.2 But now an affirmative answer is accepted not only by many

Probing the Effects of Judicial Specialization

Abstract: Americans typically think of judges as generalists. For some people, this quality is highly desirable or even inherent in the role of judge.1 But in reality, the judiciary includes a good deal of specialization, and the extent of that specialization has increased over time. People within and outside the courts have given considerable attention to some aspects of that development, but they have not sufficiently considered the implications of the extent and growth of judicial specialization. In their article, Jeffrey Rachlinski, Chris Guthrie, and Andrew Wistrich address one important implication?the impact of specialization on the behavior of judges.2 Specifically, they consider how the specialization of most administrative law judges affects the ways they make choices. In this Response, I consider more broadly how specialization can affect judges' behavior as well as the task of ascertaining its effects. I argue that specialization can have powerful effects on judicial decisions through immersion of judges in specific fields of legal policy and judicial expertise and through the enhanced influence of political and legal interests in those fields. At present, understanding of those effects is limited. Because of the potential importance of those effects, more concerted efforts by scholars to identify them would have great value.

Are Appointed Judges Strategic Too

Abstract: The conventional wisdom among many legal scholars is that judicial independence can best be achieved with an appointive judiciary; judicial elections turn judges into politicians, threatening judicial autonomy. Yet the original supporters of judicial elections successfully eliminated the appointive systems of many states by arguing that judges who owed their jobs to politicians could never be truly independent. Because the judiciary could function as a check and balance on the other governmental branches only if it truly were independent of them, the reformers reasoned that only popular elections could ensure a truly independent judiciary. Using a data set of virtually all state supreme court decisions from 1995-1998, this Article provides empirical support for the reformers' arguments; in many cases, judges seeking reappointment vote even more strategically than judges seeking reelection. My results suggest that, compared to other retention methods, judges facing gubernatorial or legislative reappointment are more likely to vote for litigants from the other government branches. Moreover, judges increasingly favor government litigants as their reappointments approach, which is consistent with the judges voting strategically to avoid reappointment denials from the other branches of government. In contrast, when these judges are in their last term before mandatory retirement, the effects disappear; without retention concerns, these judges are no more likely to vote for government litigants than other judges. My empirical evidence suggests that elective systems are not the only systems that produce bias; appointive systems also threaten judicial independence. Copyright ? 2009 by Joanna M. Shepherd. t Associate Professor of Law, Emory University School of Law. This content downloaded from 157.55.39.223 on Wed, 24 Aug 2016 05:47:51 UTC All use subject to http://about.jstor.org/terms 1590 DUKE LAW JOURNAL [Vol. 58:1589

Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking

Abstract: This Article surveys the state of empirical analysis of decisionmaking in the federal courts of appeals. We conclude that empirical studies predict very little, if anything, about the effects of extralegal factors on appellate decisionmaking. The hypothesis that judicial decisionmaking is influenced by the ideology of judges only implicates extralegal factors if and to the extent that any such ideological influence is extrinsic to law. However, as we note, empirical studies fail to discriminate between forms of moral/political reasoning intrinsic to law and those extrinsic to law — in part because the measure of "ideology" is very crude, and in part because the role of legal factors is not taken into account.

Money, Politics, and Impartial Justice

Abstract: A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States’ judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, especially in partisan elections, tend to decide cases in accord with standard Republican policy: they are more likely to vote for businesses over individuals, for employers in labor disputes, for doctors and hospitals in medical malpractice cases, for businesses in products liability cases and tort cases generally, and against criminals in criminal appeals. Judicial behavior is correspondingly liberal for judges facing reelection by Democrats. Moreover, I find evidence that judges change their rulings when the political preferences of the voters change.In addition, my analysis finds a strong relationship between campaign contributions and judges’ rulings. Contributions from probusiness groups, pro-labor groups, doctor groups, insurance companies, and lawyer groups increase the probability that judges will vote for the litigants favored by those interest groups. The results suggest that recent trends in judicial elections - elections becoming more contested, competitive, and expensive - may have upset the delicate balance between judicial independence and accountability. I discuss various policy solutions for reforming states’ systems.

Are Empiricists Asking the Right Questions About Judicial Decisionmaking

Abstract: This is a conference organized around the general topic of measuring judges and justice. The mandate for the conference raises a number of interesting and challenging questions, of both a positive and normative nature, about judicial decisionmaking. The main theme throughout the conference is how social scientists’ empirical studies of the courts help to answer these questions. Regarding questions of “measuring judges,” the relevant focus is on the ways social scientists conceptualize, operationalize, and then explain judicial decisionmaking. Regarding questions of “measuring justice,” the relevant focus is on how these same studies might help to assess to what extent judges satisfy the normative requirements of their jobs. This latter set of concerns may be seen as one important way of measuring the quality of judicial decisionmaking, that is, assessing how well judges do their jobs. At the outset, I think that it is important to note that underlying this conference is an assumption that I am quite comfortable making—that our positive explanations of judicial decisionmaking ought to significantly inform the normative assessments we make about the quality of this decisionmaking. In early conversations with some of my new colleagues at Duke, I found a recurring theme that evidenced some skepticism about the ability of social scientific studies of the courts to adequately inform debates about what judges do and how well they do it. The crux of the

Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression

Abstract: This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims - a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the governmental employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on - and defer to - government's claim to control its workers' expression to protect its own speech. More specifically, courts increasingly permit government to control its employees' expression while at work, characterizing such speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking "as employees" even when away from work, deferring to government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment. To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. More careful attention to what it is that government seeks to communicate - and whether that message is actually impaired by employee speech - can help us capture and accommodate government's expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government's expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government's legitimate speech.

The "Hidden Judiciary": An Empirical Examination of Executive Branch Justice

Abstract: Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

Chevron's Mistake

Abstract: Chevron U.S.A. Inc. v. Natural Resources Defense Council asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation - whether intentionalism, purposivism, or textualism - and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances - for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such delegating factors, it fails to sufficiently credit them. Even United States v. Mead Corp., which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.

How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court

Abstract: This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federalstate power cut across most other substantive legal issues, and this can provide a mechanism of splitting existing majorities in future cases. Dissenting Justices can ‘signal’ to future litigants when this potential exists, to transform a dissent into a majority in similar future cases. We undertake an empirical investigation of dissenting opinions where the dissenting Justice suggests that future cases ought to be framed in terms of federal-state powers. We show that when dissenting opinions signal a preference for transforming an issue into an argument about federal-state power, more subsequent cases in that area are decided on that basis. Moreover, the previous minority coalition is in the majority significantly more often, showing that these signals are systematically successful. Not only can federalism-based dissents transform the rhetoric of cases, it can systematically and significantly shift the outcome of cases in the direction of the dissenting Justices’ views. ∗ Associate Professor, Department of Political Science, University of Colorado-Boulder, vanessa.baird@colorado.edu; Professor of Law, Northwestern University School of Law, t-jacobi@law.northwestern.edu. Baird & Jacobi How the Dissent Becomes the Majority 2

Making Amends: Amending the ICSID Convention to Reconcile Competing Interests in International Investment Law

Abstract: Globalization has increased international investment activity, but no unified legal framework governs international investments. After several attempts to establish a multilateral investment framework, prospective parties remain unable to reach a consensus on a viable system to address investor and state rights. Developed, capital exporting states wish to protect their citizens' investments, whereas developing states simultaneously seek to attract investments and maintain regulatory autonomy. In the absence of a comprehensive agreement, bilateral investment treaties serve as the primary legal instruments setting forth the terms of cross-border investments. These treaties often grant private investors the right to file claims before the International Centre for the Settlement of Investment Disputes (ICSID). ICSID cases sometimes raise questions that mirror the competing interests of developed and developing states that surface during multilateral investment treaty negotiations. Amending the ICSID Convention to include a provision allowing tribunals to consider environmental, public health, and labor concerns would serve as a positive step toward establishing an investment regime that maximizes the interests of investors and host Copyright ? 2009 by Kate M. Supnik. f Duke University School of Law, J.D. and LL.M. in international and comparative law expected 2010; Wellesley College, B.A. 2005.1 would like to thank Professor Youngjin Jung for introducing me to international investment law and the editors of the Duke Law Journal for their hard work and astute suggestions. I dedicate this Note to my parents, who encouraged me to consider international perspectives in all my endeavors. This content downloaded from 207.46.13.161 on Fri, 16 Dec 2016 07:39:32 UTC All use subject to http://about.jstor.org/terms 344 DUKE LAW JOURNAL [Vol. 59:343 states alike. This scheme would better address state interests, enhance ICSID's legitimacy, and increase the likelihood of future, successful negotiations to establish a workable and comprehensive multilateral investment framework.

Political Control of Federal Prosecutions – Looking Back And Looking Forward

Abstract: This Essay explores the mechanisms of control over federal criminal enforcement that the administration and Congress used or failed to use during George W. Bush’s presidency. It gives particular attention to Congress, not because legislators played a dominant role, but because they generally chose to play such a subordinate role. My fear is that the media focus on management inadequacies or abuses within the Justice Department during the Bush administration might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting priorities and about the role Congress should play in this process.

Economic Trends and Judicial Outcomes: A Macrotheory of the Court

Abstract: We investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively minor economic downturns—recessions—as attributable to the failures of elected officials, but will consider long-term and extreme economic contractions—depressions—as the result of exogenous shocks largely beyond the control of the government. Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court: (1) in typical times, when the economy cycles through both recessionary and prosperous periods, the Justices will punish the Copyright © 2009 by Thomas Brennan, Lee Epstein, and Nancy Staudt. † Assistant Professor of Law, Northwestern University School of Law. †† Henry Wade Rogers Professor, Northwestern University School of Law. ††† Class of 1940 Professor of Law, Northwestern University School of Law. We are grateful to the National Science Foundation and Northwestern University School of Law for research support, to Casey Mulligan, participants at the Northwestern University School of Law Faculty Workshop and participants at the October 2008 meeting of the Midwest Law and Economics Association for valuable insights, and to Jonathan Hillel for research assistance. This essay, prepared for the Duke Law Journal Symposium on Measuring Judges and Justice on February 6, 2009, is part of a longer book project entitled: A MacroTheory of the Court: How National and Local Trends Affect Judicial Decision-Making, which is under contract with the University of Chicago Press. The project’s website houses a full replication archive, available at http://epstein.law.northwestern.edu/research/EconomicTrends. html. BES IN FINAL.DOC 5/5/2009 4:01:11 PM 1192 DUKE LAW JOURNAL [Vol. 58:1191 elected branches of government when the economy contracts by voting less frequently for the government; and (2) in atypical times, when the economy moves into a period of deep depression, the Justices will work with the other branches of government by voting more frequently for the government. We test our hypotheses through statistical analysis of taxation opinions rendered by the Supreme Court during the period from 1913 to 1929 (a relatively normal period) and the period from 1930 to 1940 (the Great Depression). We find broad support for our hypothesis in the data we analyze, and we verify that our results are robust to a change in the measure of the economic condition as well as to a change in the specification of the regression model. We conclude that U.S. Supreme Court Justices exhibit voting patterns similar to voters in political elections when it comes to the economy. TABLE OF CONTENTS Introduction 1192 I. A Macrotheory of the Court 1197 A. The Economy as a Signal 1197 B. Judicial Behavior: Voting with the Masses to Achieve Elite Goals? 1201 C. Differences between the Macrotheory of the Court and the Legal and Political Models of Decisionmaking 1204 II. Assessing a Macrotheory of the Court 1208 A. The Basic Plan 1208 B. Implementing the Plan 1209 C. Statistical Models and Predictions 1214 D. Unobservable and Immeasurable Variables 1216 III. Empirical Results 1219 Conclusion 1226 Appendix 1226

The NCAA's Lost Cause and the Legal Ease of Redefining Amateurism

Abstract: The recent resolution of the Andrew Oliver case may mark the death throes of the NCAA’s “no agent rule,” prohibiting college athletes from retaining agents in professional contract negotiations, and perhaps the traditional paradigm of amateurism in sport. In light of the ruling, as well as continuing calls for the revocation of the NCAA’s tax-exempt status, the time is ripe for a reexamination of amateurism and the law.The article argues that the NCAA has developed a complicated web of largely unenforceable rules and regulations that are unnecessary for maintaining exempt status in light of the regulatory environment. The paper examines the antitrust, labor and tax consequences of changing definitions of amateurism. Focusing on the Internal Revenue Service interpretations of amateurism, the Article concludes that a less restrictive amateurism regime would still achieve many of the legal benefits sought by the NCAA. This analysis has broader implications for tax policy and the culture of sport.Calling for a shift to a “new amateurism,” the article contributes a novel redefinition of amateurism that reflects the current environment of intercollegiate sport. Modern amateurism should recognize the profit motive of the student-athlete. Under a less restrictive NCAA rule-making regime, the remaining rules are enforceable and fair. In substituting protections for student-athletes in place of the current paternalism, the NCAA will reduce the likelihood that future rules will be overturned by court challenges.

When Insiders Become Outsiders: Parental Objections to Public School Sex Education Programs

Abstract: This Note argues that parents' fundamental right to direct their children's moral and educational upbringing includes the right to exempt their children from objectionable sex education programs in public schools. Schools usurp parents' fundamental rights when they unilaterally introduce children to topics of human sexuality without parental notice or permission. Alleged violations of these rights merit strict scrutiny review from courts. When parents' objections are confined to discrete, tangible events, parents are constitutionally entitled to exempt their children from objectionable activities. The efficacy of this constitutional relief is more limited, however, when parental objections are pervasive and unassociated with a particular aspect of the school's program or curriculum.

Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age

Abstract: Cases are won and lost in discovery, yet discovery draws surprisingly little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes – which, unlike trials, occur in most cases. Today, much evidence is “e-discovery” – imprudent emails or stilllingering “deleted” files – making costly discovery battles increasingly salient. But the e-discovery rules are not truly new, just a strengthening of old cost/benefit “proportionality” limits on discovery enacted when the spread of photocopiers similarly increased the amount of discovery. Proportionality limits are topic of broad consensus among civil procedure scholars as well as economists concerned that discovery excess yields extortionate settlements and results from parties ignoring costs they impose on others. Contrary to the consensus, this Article deems proportionality rules impossible to apply effectively. By both failing to curb discovery excess and disallowing discovery that meritorious cases need, ineffective proportionality limits let bad cases predominate over good cases, just as the bad can drive out the good in product markets. This Article acknowledges proportionality’s flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons: how can courts compare discovery cost to evidentiary value before the parties gather the evidence? Like other arguments that procedural rulings are never truly separate from case merits, this Article explains how discovery has more probative value in close cases than in the strongest and weakest cases. Yet case merits remain uncertain in discovery, when courts are not yet able to examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts act as if all cases warrant similar discovery. In this “pooling equilibrium,” ruling the same on all cases in the “pool,” regardless of merit, is courts’ best strategy but a sub-optimal one, yielding too much discovery in low-merit cases, too little in higher-merit cases. Thus, the quest for better discovery has disappointed not because of bad rules or cases, but because courts and parties are stuck in a pooling equilibrium. This is an information-timing circularity: optimal evidence-gathering requires merits analysis, which requires more evidence-gathering. One answer is to defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning a pooling equilibrium into a “separating equilibrium.” Summary judgment can be this separating point: cases going to trial after summary judgment likely have 50/50 odds – better than most cases. Costly evidence has more value in a 50/50 case, where the jury will struggle to reach a verdict, than a very weak (or very strong) case. Nobody yet has proposed solving the costly discovery dilemma with post-summary judgment discovery (summary judgment typically follows discovery), but high-cost evidence can be an exception: cases surviving summary judgment are the close calls warranting more fact-gathering, so some costly discovery commonly denied now should be allowed later, after summary judgment. While imperfect, this solution could improve the status quo, and imperfection is inevitable given the fundamental information timing problem that prevents accurate proportionality decisions. Thus, the prevailing debate too narrowly focuses on discovery quantity and could benefit from focusing more on discovery timing. Interestingly, existing rules give courts the discretion to use this proposal, but a new rule could minimize the risk of courts misusing the proposal to deny more discovery. This Article concludes by noting how economic analysis of litigation must do more than prescribe costbenefit comparisons; it must also consider the details and information timing of the litigation process. LITIGATION DISCOVERY CANNOT BE OPTIMAL BUT COULD BE BETTER: THE ECONOMICS OF IMPROVING DISCOVERY TIMING IN A DIGITAL AGE

Rescuing the Hero: The Ramifications of Expanding the Duty to Rescue on Society and the Law

Abstract: The ongoing debate about the legal duty to rescue another person in peril is fraught with a familiar tension. On one side stands the traditional and distinctly American determination that freedom from such a duty is essential, that the technical rules of tort law and self preservation instincts disdain such a requirement, and that the postulates of religion and morality are sure to fill in any legal gaps. On the other, a more recent humanitarian perspective?seen in revisions to the Restatement, case law, and some state statutes? advocates for requiring easy rescue, positing that religiously inspired morality and public good-doing are unlikely, and citing highly publicized incidents in which bystanders remained callously, though

Reasonableness Meets Requirements: Regulating Security and Privacy in Software

Abstract: Software security and privacy issues regularly grab headlines amid fears of identity theft, data breaches, and threats to security. Policymakers have responded with a variety of approaches to combat such risk. Suggested measures include promulgation of strict rules, enactment of open-ended standards, and, at times, abstention in favor of allowing market forces to intervene. This Note lays out the basis for understanding how both policymakers and engineers should proceed in an increasingly software-dependent society. After explaining what distinguishes software-based systems from other objects of regulation, this Note argues that policymakers should pursue standards-based approaches to regulating software security and privacy. Although engineers may be more comfortable dealing with strict rules, this Note explains why both policymakers and engineers benefit from pursuing standards over rules. The nature of software development prevents engineers from ever guaranteeing security and privacy, but with an effective regulatory standards framework complemented by engineers' technical expertise, heightened security, and privacy protections can benefit society.

What Can Brown Do for You?: Neutral Principles and the Struggle over the Equal Protection Clause

Abstract: This is a story about two of the most influential texts in American constitutional law. The first, the Supreme Court’s decision in Brown v. Board of Education striking down de jure segregation of public schools, has become the most revered opinion in the Court’s history—the most “super-duper,” to use Senator Arlen Specter’s phrase, of all the Court’s precedents. The second, Professor Herbert Wechsler’s Harvard Law Review article, Toward Neutral Principles of Constitutional Law, has become the second-most-cited law review article in American history. The final pages of Neutral Principles are

The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

Abstract: This article, which is part of the Duke Law Journal Administrative Law Symposium on the administrative law of the Bush Administration, examines both the recent and longer-term history of the National Labor Relations Board (NLRB) from the perspective of contemporary debates about administrative law. The NLRB during the Bush Administration made a number of significant and controversial policy changes, both in substantive law and in its enforcement process. This Article addresses those changes with the goal of increasing the coherence and legitimacy (legal and political) of NLRB policymaking. After examining how unresolved tensions between the Wagner Act and the Taft-Hartley Act are implicated in controversial decisions of the Bush Board and the structural obstacles the Board faces in attempting to make policy through adjudication, we argue that the policy conundrums cannot be resolved without recourse to the administrative law tools - including the use of social science expertise - the agency lacks. The Article concludes with suggestions for reform that do not depend on new legislation, including that (1) the NLRB be more holistic in its regulatory approach and rely on social science expertise and Department of Labor data in both adjudication and rulemaking; (2) the executive consider across-the-board reform of agencies that rely on adjudication; (3) Congress enhance its own policy analysis in the labor field; and (4) courts of appeals and the Supreme Court assimilate review of NLRB action into the way they review all agency action and be more coherent and consistent in deferring to agency action and in drawing the line between law, fact, and policy.

The Fiduciary Duty in Mutual Fund Excessive Fee Cases: Ripe for Reexamination

Abstract: Congress imposed a fiduciary duty regarding compensation on investment advisors by adding Section 36(b) to the Investment Company Act of 1940. Legislators intended this fiduciary duty to protect mutual fund investors from excessive management fees. It has failed. Mutual fund investors continue to pay significantly higher fees than institutional investors for the same money management services. In Jones v. Harris Associates, decided in 2008, the Seventh Circuit broke with the widely followed, thirty-year-old precedent of Gartenberg v. Merrill Lynch Asset Management. Chief Judge Easterbrook authored the majority opinion and Judge Posner wrote vigorously in dissent. This disagreement between two titans of the law and economics community highlighted the uncertainty surrounding the appropriate fiduciary duty standard for mutual fund excessive fee cases. To address that uncertainty, the Supreme Court will hear Harris Associates in November 2009. This Note argues that neither the traditional Gartenberg standard nor the market-based Harris Associates standard adequately protects investors. To further Congress's goal, the Court should modify, but maintain, the Gartenberg standard. This Note's proposed modification?allowing comparisons to institutional investors' fees and eliminating profitability penalties?incorporates market forces into the fiduciary duty standard by introducing a proxy for fairness and encouraging efficiency, but rejects Harris Associates' total reliance on the market. Copyright ? 2009 by Emily D. Johnson. t Duke University School of Law, J.D. expected 2010; University of North Carolina at Chapel Hill, B.A. 2005.1 thank Professor James D. Cox for his guidance, Professors Ernest A. Young and Martin E. Lybecker for their comments, and the editors of the Duke Law Journal for their efforts. My family encouraged me and Matt challenged me. This content downloaded from 157.55.39.215 on Tue, 30 Aug 2016 05:17:49 UTC All use subject to http://about.jstor.org/terms 146 DUKE LAW JOURNAL [Vol. 59:145

The Parliament of the Experts

Abstract: In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions of fact, causation, or prediction. Nose counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agency’s own judgment is to the contrary, unless the agency can give an epistemically valid second-order reason for rejecting the panel majority’s view. TABLE OF CONTENTS Introduction 2232 I. Assumptions and the Law 2235 A. Preliminaries 2235 B. How the Law Stands 2239 II. When Agencies May Count Noses 2241 A. An Example: Black Lung Benefits 2241 Copyright © 2009 by Adrian Vermeule. † John H. Watson Professor of Law, Harvard Law School. Presented at the Duke Law Journal’s 2009 Administrative Law Symposium. Thanks to Lisa Bressman, Glenn Cohen, Richard Fallon, Lisa Heinzerling, Matthew Stephenson, Jonathan Weiner, and the conference participants for helpful comments, and to Colleen Roh for excellent research assistance. VERMEULE IN FINAL.DOC 6/24/2009 8:56:48 AM 2232 DUKE LAW JOURNAL [Vol. 58:2231 B. Why Count Noses? 2241 C. Alternatives 2241 D. Nose Counting in Regulatory Rulemaking 2241 III. When Nose Counting Is Inadequate 2241 A. Endogenous Panels and Strategic Behavior 2241 B. Judgment Falsification and Groupthink 2241 C. The Conditions for Expert Groupthink 2241 D. Conclusion 2241 IV. When Agencies Must Count Noses 2241 A. An Example: Fine Particulate Matter 2241 B. Expert Disagreement and First-Order Reasons 2241 C. Ex Ante Incentives 2241 D. Disaggregating Agencies 2241 E. Facts, Policymaking, and Statutory Authority 2241 F. An Interpretive Default Rule 2241 G. Fact-Finding and Second-Order Reasons 2241 H. Track Records 2241 I. Comparative Qualifications 2241 J. Bias 2241 K. Groupthink and Judgment Falsification 2241 L. The Unanimity Dilemma 2241 M. An Undemanding Presumption 2241 Conclusion 2241

Predicting Court Outcomes through Political Preferences: The Japanese Supreme Court and the Chaos of 1993

Abstract: Empiricists routinely explain politically sensitive decisions of the U.S. federal courts through the party of the executive or legislature appointing the judge. That they can do so reflects the fundamental independence of the courts. After all, appointment politics will predict judicial outcomes only when judges are independent of sitting politicians. Because Japanese Supreme Court justices enjoy an independence similar to that of U.S. federal judges, I use judicial outcomes to ask whether Japanese premiers from different parties have appointed justices with different political preferences. Although the Liberal Democratic Party (LDP) governed Japan for most of the postwar period, it temporarily lost power in the mid1990s. Elsewhere, Professor Eric Rasmusen and I asked whether the administration of the lower courts changed during this non-LDP hiatus. Here, I explore whether the supreme court changed. More specifically, I ask whether the non-LDP premiers appointed supreme court justices with different policy preferences. I find that they did not.

Constitutional Limits on Private Policing and the State’s Allocation of Force

Abstract: This Note argues that a variety of "private police" forces, such as university patrols and residential security guards, should be held to the constitutional limitations found in the Bill of Rights. These private police act as arms of the state by supplying force in response to a public demand for order and security. The state, as sovereign, retains responsibility to allocate force, in the form of either public or private police, in response to public demand. This state responsibility?a facet of its police power?is evidenced throughout English and American history. When this force responds to a public demand for order and security, existing state action doctrine case law places both public and private force under constitutional scrutiny.

Remaking the United States Supreme Court in the Courts' of Appeals Image

Abstract: We argue that Congress should remake the United States Supreme Court in the U.S. courts’ of appeals image by increasing the size of the Court’s membership, authorizing panel decisionmaking, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court’s capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court’s decisionmaking capacity but also improve the Court’s composition, competence, and functioning. TABLE OF CONTENTS Introduction 1440 I. The Case for Capacity 1445 A. Clarity 1447 B. Consistency 1448 C. Checks and Balances 1451 D. Summary 1452 II. Proposal to Expand Court Capacity 1453 A. Expand the Court 1454 Copyright © 2009 by Tracey E. George and Chris Guthrie. † Professor of Law and Political Science at Vanderbilt University. †† Professor of Law at Vanderbilt University. We thank Chief Judge Anthony Scirica, Judge Michael Boudin, Scott Baker, Larry Baum, Jim Brudney, Erwin Chemerinsky, Mitu Gulati, Lawrence Zelenak, and other participants in this Symposium as well as participants in a workshop at the University of Texas School of Law for helpful comments. G&G IN FINAL.DOC 5/5/2009 4:06:04 PM 1440 DUKE LAW JOURNAL [Vol. 58:1439 1. Size 1455 2. Implementation 1458 B. Embrace Panel Decisionmaking 1458 C. Retain Limited En Banc Review 1465 III. Proposal Pros and Cons 1468 A. Potential Benefits 1469 1. Credible Threat of Review 1469 2. Entry and Exit 1469 3. Court Composition 1470 4. Court Cohesion 1470 5. Judicial Education 1471 B. Potential Costs 1472 1. Legitimacy 1472 2. Decision Quality 1472 3. Induced Certiorari 1474 Conclusion 1475

The Limits of Advocacy

Abstract: Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that the parties have overlooked or ignored—on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised by the parties, and nearly every term the Supreme Court adds to the questions presented or assigns an amicus to argue an issue that the parties have no interest in discussing. These practices operate mostly under the academic radar, and thus there have been few attempts to theorize deviations from the norm of party presentation. This Article defends judicial issue creation as a necessary corollary to the federal judiciary’s constitutional obligation to articulate the meaning of contested questions of law. Federal courts do not simply resolve disputes between parties; they are also responsible for making pronouncements of law that are binding on all who come after. When the parties fail to raise relevant legal claims and arguments—whether by error or through conscious choice—judges must do so themselves to avoid issuing inaccurate or incomplete statements of law. Although Copyright © 2009 by Amanda Frost. † Associate Professor of Law, American University Washington College of Law. I received valuable comments from Amy Coney Barrett, Mary Clark, Lynda Dodd, Vicki Jackson, Alexandra Lahav, Amanda Leiter, Alan Morrison, Scott Moss, Jack Preis, David Sklansky, Justin Smith, David Stras, Jay Tidmarsh, Melissa Waters, Russell Wheeler, David Zaring, and the participants at the faculty workshops at the University of Georgia Law School, Notre Dame Law School, and Texas Law School. Special thanks to Hortense Moulonguet Doleris for her valuable research assistance and to American University Washington College of Law for providing the research grant to support the writing of this Article. FROST IN FINAL 11/12/2009 10:58:50 PM 448 DUKE LAW JOURNAL [Vol. 59:447 issue creation is often criticized as judicial overreaching, courts can use this authority to limit the scope of their decisions, narrowing the broad propositions of law relied on by the parties. Furthermore, judicial power to raise issues sua sponte is compatible with adversary theory as long as judges are careful to avoid slipping into the role of advocate, and make sure to preserve an opportunity for a dialectical exchange between the parties on new questions raised by the court.

Does the Supreme Court Follow the Economic Returns? A Response to A Macrotheory of the Court

Abstract: Finley Peter Dunne’s fictional political sage, Mr. Dooley, famously said that the Supreme Court “follows th’ iliction returns.” In their contribution to this Symposium, Thomas Brennan, Lee Epstein, and Nancy Staudt argue instead that Supreme Court decisions track macroeconomic indicators. Drawing on evidence that voters tend to vote for the government in a strong economy or during economic crises but vote against the government during more moderate economic slumps, Professors Brennan, Epstein, and Staudt hypothesize that judges do the same. Our interlocutors have tested this hypothesis by analyzing the national government’s fortunes in tax cases decided between 1912 and 1929, a period of “ordinary” economic upswings and downturns, and between 1930 and 1940,

On Doctors and Judges

Abstract: In convening the Conference on Measuring Judges and Justice and assembling this impressive Symposium, Dean David Levi and Professor Mitu Gulati urged the participating judges, political scientists, and law professors to "live in fragments no longer."1 Within that same spirit of cross-fertilization?aiming to forge dialogue across disciplines and seeking lessons from unfamiliar professions?I introduce in this Response some lessons from studying the medical profession. Relying on economics and sociology more than political science,2 I suggest that there is much to learn about judges from thinking about doctors. A superficial comparison between doctors and judges suggests that their social roles have much in common. Both wear austere