Showing papers in "Journal of Legal Analysis in 2012"

What Is Law? A Coordination Model of the Characteristics of Legal Order

Abstract: Legal philosophers have long debated the question, what is law? But few in social science have attempted to explain the phenomenon of legal order. In this article, we build a rational choice model of legal order in an environment that relies exclusively on decentralized enforcement, such as we find in human societies prior to the emergence of the nation state and in many modern settings. We demonstrate that we can support an equilibrium in which wrongful behavior is effectively deterred by exclusively decentralized enforcement, specifically collective punishment. Equilibrium is achieved by an institution that supplies a common logic for classifying behavior as wrongful or not. We argue that several features ordinarily associated with legal order—such as generality, impersonality, open process, and stability—can be explained by the incentive and coordination problems facing collective punishment.

The Evolution of Contractual Terms in Sovereign Bonds

Abstract: In reaction to defaults on sovereign debt contracts, issuers and creditors have strengthened the terms in sovereign debt contracts that enable creditors to enforce their debts judicially and that enable sovereigns to restructure their debts. These apparently contradictory approaches reflect attempts to solve an incomplete contracting problem in which debtors need to be forced to repay debts in good states of the world; debtors need to be granted partial relief from debt payments in bad states; debtors may attempt to exploit divisions among creditors in order to opportunistically reduce their debt burden; debtors may engage in excessively risky activities using creditors’ money; and debtors and creditors may attempt to externalize costs on the taxpayers of other countries. We support this argument with a statistical study of the development of sovereign bond terms from 1960 to the present.

A Positive Theory And Empirical Analysis Of Strategic Word Choice In District Court Opinions

Abstract: Supported by numerous empirical studies on judicial hierarchies and panel effects, Positive Political Theory (PPT) suggests that judges engage in strategic use of opinion content—to further the policy outcomes preferred by the decision-making court In this study, we employ linguistic theory to study the strategic use of opinion content at a granular level—investigating whether the specific word choices judges make in their opinions is consistent with the competitive institutional story of PPT regarding judicial hierarchies In particular, we examine the judges’ pragmatic use of the linguistic operations known as “hedging”—language serving to enlarge the truth set for a particular proposition, rendering it less definite and therefore less assailable—and “intensifying”—language restricting the possible truth-value of a proposition and making a statement more susceptible to falsification Our principal hypothesis is that district court judges not ideologically aligned with the majority of the overseeing circuit judges use more hedging language in their legal reasoning in order to insulate these rulings from reversal We test the theory empirically by analyzing constitutional criminal procedure, racial and sexual discrimination, and environmental opinions in the federal district courts from 1998 to 2001 Our results demonstrate a statistically significant increase in the use of certain types of language as the ideological distance between a district court judge and the overseeing circuit court judges increases

Constitution-Making and Violence

Abstract: Contrary to a traditional view, constitutions are rarely written in calm and reflective moments. Rather, because they tend to bewritten in period of social unrest, constituent moments induce strong emotions and, frequently, violence. The paper examines two such cases: the Federal Convention of 1787 and the French Assemblee Constituante of 1789–1791. These involved state violence as well as popular violence. In the USA, the unequal political representation of the backcountry explains both the violent events leading to the Convention and its outcome. In France, the dismissal of the King’sMinister Necker explains the subsequent urban and rural violence, and ultimately the abolition of feudalism and the fall of the monarchy. L’anarchie est un passage effrayant, mais necessaire, et c’est le seul moment ou l’on peut arriver a un nouvel ordre des choses. Ce n’est pas dans des temps de calme qu’on prendrait des mesures uniformes. (“Anarchy is a frightening but necessary passage, and the only moment when one can establish a new order of things. It is not in calm times that one can adopt uniform measures”.) (Comte de Clermont-Tonnerre, AR 9, 461)

Standing the Test of Time: The Breadth of Majority Coalitions and the fate of U.S. Supreme Court Precedents

Abstract: Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding either ideological breadth or a new member to the majority coalition results in an opinion that is less likely to be overruled, criticized, or questioned by a later court. Our findings contradict the conventional wisdom regarding the coalition-building strategy of a rational and strategic opinion author, establishing that the author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition. And because of later interpreters’ negative reactions to narrow coalitions, the law ends up being less ideological than the Justices themselves.

The Political Risks of Fighting Market Failures: Subversion, Populism and the Government Sponsored Enterprises

Abstract: There are many possible ways of reforming the Government-Sponsored Enterprises that insure mortgages against default, including a purely public option, complete privatization or a hybrid model with private firms and public catastrophic insurance. If the government is sufficiently capable and benign, either public intervention can yield desirable outcomes; the key risks of any reform come from the political process. This article examines the political risks, related to corruption and populism, of differing approaches to the problems of monopoly, externalities, and market breakdowns in asset insurance. If there is a high probability that political leadership will be induced to pursue policies that maximize the profitability of private entities at the expense of taxpayers, then purely public options create lower social losses. If there is a high probability that leaders will pursue a populist agenda of lowering prices or borrowing costs, then catastrophic risk insurance can lead to lower social losses than either complete laissez-faire of a pure public option.

Tenancy In “Anticommons”? A Theoretical and Empirical Analysis of Co-Ownership

Abstract: This article argues that a resource held in tenancy in common is likely to be underused and underinvested, and is thus better characterized as anticommons. Nevertheless, tenancy in common does not necessarily create tragedy, as under most legal regimes each co-tenant has a right to petition for partition at any time, and after partition, new owners are likely to utilize the resource more efficiently. Using data from Taiwan, this article finds that cooperation among co-tenants does not fail as often as the literature has suggested. In 2005–2010, at least 82.5 percent of the co-ownership partitions were conducted through voluntary agreements, while only about 7.5 percent of the partitions were ordered by the court. In addition, using multinomial logistic regression models, this article finds that the court tends to order, and the plaintiffs tend to petition for, partition by sale when partitioning in kind or partial partition would create excessively small plots. (JEL code: K11)

The Law's Delay: A Test of the Mechanisms of Judicial Peer Effects

Abstract: The presence of “peer effects”—that an ideologically homogenous panel decides a case in a more characteristically partisan way than an ideologically diverse panel—is a standard finding in studies of appellate decision-making, but the mechanisms that generate peer effects are not well understood. This article examines a previously overlooked implication that the leading theories of peer effects hold for the speed of judicial decision-making. One set of theories asserts that peer effects result from preference-revealing interactions among judges, such as deliberation or negotiation. These interactions are potentially time-consuming. Other theories, such as whistleblowing and dissent aversion, claim that peer effects result from a judge’s response to existing knowledge of her colleagues’ preferences. These responses are potentially instantaneous. A simple prediction is that if bargaining or deliberation, rather than whistleblowing or dissent aversion, causes peer effects, ideologically mixed panels should be slower to render decisions than ideologically homogenous panels. The article tests this prediction against a sample of administrative law decisions that have previously been shown to exhibit strong peer effects. The article’s main estimates show that the ideological diversity of a panel does not correlate with the speed of decision-making. This finding suggests that preference-revealing interactions do not cause judicial peer effects. But, the results show that law, specifically deference standards, influence the speed of decision-making. A court is substantially quicker when validating rather than invalidating an agency decision, regardless of the panel’s affinity for the substance of the agency decision.

The political risks (if any) of breaking the law

Abstract: Is breaking the law a politically risky act for politicians and other public officials? The question is especially important in the context of legislators and high executive officials who, for reasons of immunity or otherwise, are not subject to formal legal sanctions when they break the law. In such contexts, we might think that various other repercussions would serve in the place of formal legal sanctions, such that violating the Constitution or the law would entail tangible political, reputational, and social risks. Yet a raft of examples suggests, albeit not definitively, that violating the law qua law is not ordinarily subject to nonlegal sanctions. The electorate, the media, and most other potential sources of social and political sanctions reward good policy choices and sanction bad ones, but the very fact of illegality, except possibly by increasing the sanctions for bad policy choices that are also illegal, appears to play at most a small role in constraining the choices of a large group of the most influential and visible American public officials.

A Dynamic Model of Doctrinal Choice

Abstract: This article develops a repeated game model of the choice of doctrinal form by a higher court. Doctrine can take any point along a continuum from more determinate, rule-like legal commands to more flexible, standard-like directives. In deciding a case, the Supreme Court not only decides on a substantive outcome, but also chooses where on this continuum to set the doctrine. The lower court then applies the legal command to future cases. In doing so, it may wish to take into account new information, but the cost of doing so varies with the form of the legal doctrine. The model shows that in equilibrium doctrine ocsillates over time between more rule-like commands and more standard-like commands. What triggers the shift in doctrinal form are the lower court’s “mistakes” when trying to implement the standard in the way the Supreme Court prefers. The mistakes induce the Supreme Court to cabin the lower court’s discretion by issuing more rule-like legal commands for a certain number of periods. Too much constraint, however, produces error costs when the lower court cannot adjust the law appropriately to new circumstances, leading to a shift back to more standard-like doctrine. We derive comparative statics showing how the length of the constraint phase responds to the degree of preference conflict between the courts. Finally, we illustrate the features of the model with the evolution of doctrine regarding the Sixth Amendment’s Confrontation Clause.

Lessons from the Automobile Reorganizations

Abstract: In both Chrysler and General Motors, the government was, among other things, a large creditor exercising control over its debtor and pushing for a speedy sale of the assets. Together the two cases capture the issues central to large Chapter 11 cases today. The debate over speedy sales of businesses in Chapter 11 is over. Sales are now the norm in large reorganizations. Instead of asking whether there should be sales in bankruptcy, we need to ask how to police various forms of abuse. Three years after the fact, we can begin to draw some conclusions about the reorganizations of Chrysler and General Motors. The government’s use of the bankruptcy laws to inject tens of billions into two of the country’s largest automobile companies had its intended effect. At the start of 2009, General Motors and Chrysler were bleeding to death. 2 Maintaining either business as a going concern required a massive infusion of capital no one in the private market was willing to provide. As a result of the government’s intervention, the basic structure of the American automobile industry was preserved.

Precautionary principles in constitutional law

Abstract: This article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a “mature position” that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation.

Who Hangs Whom for What? The Death Penalty in Japan

Abstract: Japanese judges are least likely to hang a defendant for murder if they graduated from a high-status university, passed the bar-exam-equivalent quickly, or enjoy a fast-track career within the courts. “Panel composition effects” and other measures of collegiality seem unrelated to sentencing patterns. To explore the effect of judicial panel composition beyond the more-often-studied world of politically prominent cases, I examine its impact on criminal sentencing. More specifically, I examine the possible determinants of the propensity of Japanese judges to sentence guilty defendants to death. Toward this end, I collect all opinions published since 1980 in murder cases—about 200 cases. Because each case involves a three-judge panel but some judges write multiple opinions, these cases involve about 440 judges. Within this group, the most elite judges are least likely to impose the death penalty. Measures of possible collegiality—how long judges have served on a court together, graduation from a common university, closeness in age—have no observable impact. The presence of potential “whistle-blower” judges also appears not to matter.

Scholars' Briefs and the Vocation of a Law Professor

Abstract: This article examines the increasingly common phenomenon of “scholars’ briefs” in which collections of law professors appear as amici curiae in litigation before a court. Arguing that many professors compromise their integrity by joining such briefs too promiscuously, the article proposes standards that professors should insist upon before signing amicus briefs that they do not write. The article’s methodology involves comparisons among various roles that law professors sometimes play and the distinctive moral and ethical standards appropriate to each. Besides a thorough discussion of scholars’ briefs, the article includes broader analysis of law professors’ role-based ethical obligations. At least within the loosely defined domain of public law, requests to sign “scholars’ briefs”—in which collections of professors appear as amici curiae to support a party in litigation before a court—inundate law school faculty members with ever-increasing regularity. During the 2010 Term, in which the Supreme Court decided 82 cases (Harvard Law Review 2011), it received 57

Introduction: political risk and public law

Abstract: On December 15-16, 2011, Harvard Law School convened a conference on “Political Risk and Public Law.” A special issue of the Journal of Legal Analysis will be devoted to publishing papers on this topic by Jon Elster, Edward Glaeser, Eric Posner, Fred Schauer, Mark Tushnet, and myself. The overall aim is to introduce a new set of questions about public law and a new analytical framework for thinking about those questions. The premise of the enterprise is that constitutions and other instruments of public law may fruitfully be viewed as devices for regulating political risks. Large literatures in law, economics, political science and policy studies examine first-order risks that arise from technology, the market, or nature. By contrast, constitutions and foundational statutes, such as the Administrative Procedure Act, may be understood as devices for regulating second-order risks. These are risks that arise from the design of institutions, the allocation of legal and political power among given institutions, and the selection of officials to staff those institutions. This perspective employs the framework of risk analysis elaborated by many disciplines across the social and policy sciences. The framework promises new insights for public law. Constitutional actors have often spoken the prose of risk regulation without knowing it, offering arguments about constitutional and institutional design that implicitly posit second-order risks and offer institutional prescriptions for managing those risks. By bringing the analytic structure of those arguments to the surface, political risk analysis promises to allow a more intelligent description and evaluation of the major problems of public law.

The First Amendment and Political Risk

Abstract: First Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. First Amendment risk varies along several dimensions, including distribution of risk, its magnitude, and the magnitude of social benefit. After describing several cases in which the Supreme Court’s assessment risk or harm seems mistaken, I describe the tendency over time for courts to replace doctrine articulated as standards with doctrine articulated as rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules. 1. I NTRODUCTION Speech can directly inflict harm, and can increase the risk that harm will occur. False statements about a person’s life can injure that person’s reputation, to the point where the person might lose a job. Speech vigorously criticizing a government policy can increase the risk that some people will take unlawful actions that interfere with the government’s ability to implement that policy. Such speech can increase the likelihood that the government will abandon the policy, and adopt one that promotes social welfare to a lesser extent. First Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. Like all risks, First Amendment risk varies along several dimensions, of which I will focus on three. 2 Risk can be distributed broadly or in a more focused way: criticisms of government policy increase the risk that large numbers of people