Showing papers in "University of Chicago Law Review in 2014"

Group to Individual (G2i) Inference in Scientific Expert Testimony

Abstract: A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably measure phenomena at the group level, trial courts typically need to resolve cases at the individual level. A basic challenge for trial courts that rely on scientific experts, therefore, concerns translating scientific knowledge derived from studying groups into information that can be helpful in the individual cases before them (what this article refers to as “G2i”). To aid in dealing with this challenge, this article proposes a distinction between two types of expert evidence: framework evidence that describes general scientific propositions and diagnostic evidence that applies the general propositions to individual cases. It then examines the evidentiary implications of that distinction. Most importantly, admissibility standards for expert testimony should differ depending on whether experts are proffering framework or diagnostic evidence. Judicial analysis of “fit,” expert qualifications, testability, error rates, peer review, general acceptance, helpfulness and other traditional admissibility criteria for expert evidence will often vary, sometimes significantly, based on this distinction. The article provides general guidelines about the best practices judges should follow in sorting through these considerations. These guidelines will permit courts to manage G2i inferences in a more informed and coherent way than they do currently.

The Perceived Intrusiveness of Searching Electronic Devices at the Border: An Empirical Study

Abstract: The Fourth Amendment protects the right of individuals to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."3 The recurring question in Fourth Amendment jurisprudence, then, is the reasonableness of a given search in a given context. This Comment analyzes the reasonableness of searches of electronic devices—smartphones, laptops, and tablets—in the context of a border crossing. When a traveler enters the country, whether at an airport or a land bor der, how much protection should the contents of his or her elec tronic gadgets be given? Historically, all of a traveler's posses sions could be thoroughly searched, even without cause, because Fourth Amendment protections are substantially relaxed at the border.4 But, given the sheer amount of personal information that can be recovered from a smartphone's text message log or a computer's e-mail archive, is it "reasonable" to give government

Habeas and the Roberts Court

Abstract: Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’ They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny. The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task. Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

Following the Script: Narratives of Suspicion in Terry Stops in Street Policing

Abstract: Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts in which police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the constitutionality of the stop-and-frisk policing regime in New York City. Under this regime, police state the bases of suspicion using a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion. Evidence from 4.4 million stops provides an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops. Analyses of this evidence reveal narratives of suspicion beyond the idiosyncrasies of the individual case that police use to justify their actions. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by four decades of post-Terry Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in case law governing Fourth Amendment stops.

Regulating Systemic Risk in Insurance

Abstract: As exemplified by the dramatic failure of AIG, insurance companies and their affiliates played a central role in the 2008 global financial crisis. It is therefore not surprising that the Dodd-Frank Act—the United States’ primary legislative response to the crisis—contained an entire title dedicated to insurance regulation, which has traditionally been the responsibility of individual states. The most important insurance-focused reforms in Dodd-Frank empower the Federal Reserve Bank to impose an additional layer of regulatory scrutiny on top of state insurance regulation for a small number of “systemically important” nonbank financial companies, such as AIG. This Article argues, however, that in focusing on the risk that an individual insurance-focused, nonbank financial company could become systemically significant, Dodd-Frank largely overlooked a second, and equally important, potential source of systemic risk in insurance: the prospect that correlations among individual insurance companies could contribute to or cause widespread financial instability. In fact, this Article argues that there are often substantial correlations among individual insurance companies with respect to both their interconnections with the larger financial system and their vulnerabilities to failure. As a result, the insurance industry as a whole can pose systemic risks that regulation should attempt to identify and manage. Traditional statebased insurance regulation, this Article contends, is poorly adapted to accomplishing this given the mismatch between state boundaries and systemic risks, as well as states’ limited oversight of noninsurance financial markets. As such, this Article suggests enhancing the power of the Federal Insurance Office—a federal entity primarily charged with monitoring the insurance industry—to supplement or preempt state law when states have failed to satisfactorily address gaps or deficiencies in insurance regulation that could contribute to systemic risk.

Audits as Signals

Abstract: A broad array of law enforcement strategies, from income tax to bank regulation, involve self-reporting by regulated agents and auditing of some fraction of the reports by the regulating bureau. Standard models of self-reporting strategies assume that although bureaus only have estimates of the of an agent’s type, agents know the ability of bureaus to detect their misreports. We relax this assumption, and posit that agents only have an estimate of the auditing capabilities of bureaus. Enriching the model to allow two-sided private information changes the behavior of bureaus. A bureau that is weak at auditing, may wish to mimic a bureau that is strong. Strong bureaus may be able to signal their capabilities, but at a cost. We explore the pooling, separating, and semi-separating equilibria that result, and the policy implications. Important possible outcomes are that a cap on penalties increases compliance, audit hit rates are not informative of the quality of bureau behavior, and by mimicking strong bureaus even weak bureaus can induce compliance.

Quadratic Voting as Efficient Corporate Governance

Abstract: Since Professors Adolf A. Berle and Gardiner C. Means's classic book of 1932,1 the agency costs of corporate governance have played a central role in discussions about corporate law. Berle and Means observed that in the modern publicly held cor poration, shareholders cannot realistically control managers, which means that managers can take a range of actions that transfer the corporation's wealth to themselves rather than to the shareholders.2 In modern terms, corporations are beset with agency problems. Large portions of corporate law can be under stood as an attempt to minimize agency costs. The central problem is that the managers of the corporation exercise control over its activities and have inside information about which activities are profitable and which are not. Large corporations have thousands or millions of shareholders because shareholders seek to diversify their holdings and so avoid buying all or nearly all of a firm's shares. But by the same token, shareholders lack information about the workings of a corpora tion and thus have trouble judging the managers' decisions. As a result, managers can take actions that fail to maximize the val ue of the corporation and instead transfer value to the managers themselves.3

Intellectual Property versus Prizes: Reframing the Debate

Abstract: The academic literature on the prize system describes prizes as a radical alternative to intellectual property. The debate over which system is preferable has existed for centuries and usually boils down to a single question: Can the government determine the appropriate reward for innovations without relying on intellectual property rights to reveal their value to consumers? If yes, scholars assume that prizes are superior because they avoid deadweight loss and provide equal or better incentives for innovation. This reflects a fundamental misunderstanding of the nature of intellectual property rights. It equates intellectual property with uniform monopoly pricing and monopoly profits, while depicting the prize system as the only effective strategy to achieve efficient consumer pricing and government control over rewards. In reality, intellectual property merely provides a right to exclude others from the market. Governments can and often do institute policies that resemble prize systems—in both their structure and objectives—alongside intellectual property systems. Governments use subsidies (and sometimes price controls) to push consumer prices closer to marginal cost and adjust the incentives for innovation. Given these other policy levers available within an intellectual property regime, the existing prize literature has exaggerated and misconceived the differences between the two systems. Under many circumstances, the prize system has no advantage over intellectual property in terms of avoiding deadweight loss. Moreover, intellectual property will frequently offer superior incentives to prizes—irrespective of whether it is used to measure an invention’s value to consumers—because it provides an ongoing check against expropriation, thereby permitting renegotiation of rewards over time to reflect changing estimations of an invention’s social value. Contrary to the long-standing framework used to compare the two systems, intellectual property may be superior to prizes even when the government can determine the appropriate reward for innovations.

Accommodating Every Body

Abstract: This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group-identity status. It proposes that, in principle, “accommodating every body” be achieved by extending Americans with Disabilities Act–type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to give them meaningful access. Doing so shifts the focus of accommodation disputes from the contentious identitybased contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity—people whose functional capacity does not comply with prevailing workforce design and organizational presumptions—and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because it is in everyone’s interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

Revelation and Suppression of Private Information in Settlement Bargaining Models

Abstract: We discuss the implications of various models of settlement negotiations for the revelation or suppression of private information held by the parties. This information may be relevant to multiple audiences, including those involved in the instant lawsuit; other potential litigants that may subsequently make use of the information in their own suits against one of the parties; and more distant observers and users of the legal process. We also examine how rules of evidence and rules of civil procedure can sometimes result in different degrees of purposeful or (arguably) unintended information suppression.

American Constitutional Exceptionalism Revisited

Abstract: The US Constitution is a global outlier. Its omission of positive rights, its brevity, and its remarkable duration and stability make it exceptional by global standards. The uniqueness of this venerable document has spurred a passionate debate over America’s constitutional exceptionalism. In this Article, we show that not all of American constitutionalism is nearly so distinctive. Over the past two centuries, Americans not only wrote the federal Constitution, but they have also written 149 state constitutions and approved thousands of amendments to those constitutions. Those state constitutions are also an essential part of the American constitutional tradition and yet are unexceptional by global standards. We draw on original data based on our own hand coding of all state constitutions ratified between 1776 and 2011 to provide the first systematic comparison of US state constitutions to the world’s national constitutions. Using these data, we highlight three features of state constitutions that should prompt reconsideration of America’s constitutional exceptionalism. First, like most of the world’s constitutions, state constitutions are rather long and elaborate documents that set out government policies in painstaking detail. Second, like most of the world’s constitutions, state constitutions are frequently amended or overhauled. Third, like most of the world’s constitutions, state constitutions contain positive rights relating to, for example, education, labor, social welfare, and the environment. Thus, at the state level, Americans have written their constitutions much like everyone else. Our findings invite reconsideration not only of America’s alleged constitutional exceptionalism but also of the nature of state constitutions. State constitutions are frequently derided for falling short of the example set by the federal Constitution and dismissed as statutory rather than constitutional in character. Our

From Helmets to Savings and Inheritance Taxes: Regulatory Intensity, Information Revelation, and Internalities

Abstract: It seems obvious that regulation requires the revelation of private information, because legal interventions can do harm when they are designed with insufficient information about individuals’ preferences and other variables. Nevertheless, academic observers and lawmakers often identify a market failure or constituent need and then proceed to favor a specific legal intervention as if its intensity were of little significance. The right intensity, or even a level that does more good than harm, can be difficult to determine. It is apparent that regulation is more likely to improve social welfare when its intensity reflects accurate information about the costs and benefits it generates. At the same time, if revelation imposes emotional or other costs, then welfare can be improved if law camouflages true preferences. One aim of this Article is to add self-revelation to the calculus surrounding government intervention. Consequently, the focus is on internalities—that is, the class of problems in which intervention might be sought to deal with problems of self-control, broadly defined. Internality-driven interventions expose the need for one kind of information revelation because the essence of the interventionist claim is that the present self seeks to constrain the future self. But how do we evaluate the costs imposed on the future self and how do we assess the benefits to either self? Aspiring nonsmokers, for example, might seek help in the form of taxes or bans on cigarettes, but how do we know how high or extensive those restrictions should be? Part I begins by comparing the revelation problems inherent in government spending on public goods with those attached to

Savage Tables and Tort Law: An Alternative to the Precaution Model

Abstract: The model of precaution has become a central tool of law and economics, beginning with Judge Learned Hand’s brilliant opinion in United States v Carroll Towing Co.1 In it he argues that a defendant should be found liable for harm if and only if the expected cost of additional care is less than the expected benefit.2 The model of precaution relies upon the economics of incentives, a subfield of game theory—the study of how individuals choose actions when these actions affect others.3 The landmark books of Professor William Landes and Judge Richard Posner, and Professor Steven Shavell illustrate how the precaution model illuminates a wide variety of legal rules.4 Professor Guido Calabresi and A. Douglas Melamed show how it can be used to

Partition and Revelation

Abstract: Although property ownership is prototypically associated with a single owner, land is very often co-owned. When things go wrong among co-owners, the law has a built-in escape hatch: partition. Co-tenants 1 can partition the co-owned properties through voluntary agreement, or any co-tenant may petition a court for partitioning.2 All jurisdictions we know require unanimity for the former but design the latter petition right to be unilateral.3 Partition may be either in kind (the land is physically divided up), by sale, or through some combination of these methods.4 Regardless of the method chosen, the judicial partition process operates coercively as to at least some of the

Cost-Benefit Analysis and Agency Independence

Abstract: The presidential mandate that agency rule makings be subjected to costbenefit analysis and regulatory review is one of the most controversial developments in administrative law over the past several decades. There is a prevailing view that the role of cost-benefit analysis in the executive branch is to help facilitate control of agencies by the Office of Information and Regulatory Affairs (OIRA). This Article challenges that view, arguing that cost-benefit analysis in fact helps preserve agency autonomy in the face of oversight. This effect stems from the constraints imposed on reviewers by the regularization of cost-benefit-analysis methodology and the fact that agencies have played a major role in shaping that methodology. The autonomy-preserving effect of cost-benefit analysis has been largely ignored in debates over the institution of regulatory review. Ultimately, cost-benefit analysis has ambiguous effects on agency independence, simultaneously preserving, informing, and constraining agency power.

Irreconcilable Differences: Judicial Resolution of Business Deadlock

Abstract: In 1999, Ronald Mizrahi and Ezra Cohen, a dentist and an optometrist who were related by marriage, formed a limited liability company (LLC) to purchase and develop property in Brooklyn, New York.1 The mixed-use structure housed four residential units and seven commercial units.2 Mizrahi established his practice in a spacious unit on the second floor of the building while Cohen occupied a first-floor storefront unit.3 Because the LLC operating agreement required unanimous approval for business decisions, seemingly minor obstacles escalated into major problems.4 Conflicts arose over the monthly rents that Mizrahi and Cohen were paying to the LLC for use of their office space.5 When Cohen fell behind in his financial contributions, Mizrahi advanced sums of money to the LLC to avoid defaulting on its loans.6

The Use and Limits of Self-Valuation Systems

Abstract: Recent years have seen the growth of an extensive gametheoretical literature that has sought to harness a wide range of self-assessment mechanisms, especially in connection with real estate.1 The motivation for this literature is both simple and powerful: people ordinarily have an incentive to conceal their true valuations of their various properties in a number of public functions, most notably real estate taxation on the one hand and land condemnations on the other.2 This literature hopes to create a set of socially constructed incentives to induce property owners to make an honest estimation of their own reservation prices when governments wish to take or tax these properties. In some cases, the models are limited exclusively to interactions between the government and the property owner. In still other situations, typically with real estate taxation, these models allow any private person to acquire private property by bidding in at the self-assessment amount that property owners set for the property. One minimum feature of viable self-assessment models is that they must bite both ways. It is not sufficient, for example, for the model to punish private owners who undervalue their

FISA's Fuzzy Line between Domestic and International Terrorism

Abstract: The Foreign Intelligence Surveillance Act of 19781 (FISA) regulates, among other things, the government's acquisition of electronic surveillance within the United States for foreignintelligence purposes. FISA allows a federal officer to seek an order from a judge at a specially designated court \"approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information.\"2 As long as the requisite foreign nexus can be shown, FISA warrants are preferable to their possible substitutes because they are easier to obtain and allow for more secretive and penetrating investigations. 3 Consistent with FISA's foreign focus, the government may use the statute to investigate members of international terrorist groups within the United States. 4 However, the activities of purely domestic terrorist groups do not fall under FISA and must therefore be investigated using standard criminalinvestigative tools.5 Often, terrorists will easily be identified as international; members of designated \"foreign terrorist organizations\" operating within the United States are clearly international

Renegotiation Design by Contract

Abstract: Professor Ronald Coase famously asked why, if markets are an efficient method of allocating resources, does so much eco nomic activity take place within firms.1 Coase proposed that there are costs to using the price mechanism: transaction costs. What Coase had in mind was traditional, ex post haggling: argu ing over price and quantity and committing the agreement to paper. As the literature on the boundary of the firm developed over the past three-quarters of a century, a more challenging transaction cost was identified: the so-called "hold-up problem."2 If one party to a contract makes a relationship-specific invest ment, the second party can use the threat not to perform to ex tract part of the difference between the value of the investment to the relationship and the value in its next best use. This risk of renegotiation will reduce incentives to invest and thus the value of market transactions relative to within-firm transactions.3 The

The Efficiency of Bargaining under Divided Entitlements

Abstract: Ever since Professor Guido Calabresi and A. Douglas Melamed published their seminal article Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,1 the question of how to best define property rights has been a central question in the legal literature.2 Calabresi and Melamed highlighted the fact that, if bargaining is impossible, a liability rule (in which an individual can take another’s entitlement by paying damages) can make the allocation of the entitlement depend on the taker’s privately-known valuation.3 Thus, they argued, while simple property rights are preferable when bargaining is possible, liability rules can serve a market-mimicking role in cases in which it is not.4 Indeed, by setting damages equal to the plaintiff’s expected value for the entitlement, the defendant would be induced to take precisely when his valuation was greater than this expectation, thus enhancing efficiency over what could be achieved with a simple property right held by the plaintiff.5

Too Small to Fail: A New Perspective on Environmental Penalties for Small Businesses

Abstract: In order for the US Environmental Protection Agency (EPA) to go about its business of regulating pollution, it needs a hammer to bring down on violators of environmental laws and regulations. The most important hammer it has is civil penalties, and the EPA has discretion over penalty amounts. Still, the environmental statutes that delegate enforcement authority to the EPA enumerate a number of factors that the EPA must consider in assessing civil penalties. These factors allude to the purposes of civil penalty authority: removing the economic benefits of pollution, approximating the environmental damage caused by pollution, and accounting for the polluter’s unique circumstances.1 The subject of this Comment is a more mysterious penalty factor: ability to pay. Almost all the major environmental statutes mandate that the EPA consider the violator’s ability to pay when calculating penalties. The EPA implements this policy using financial models to predict polluters’ profitability, which it then compares to penalty amounts, often leading to substantial penalty discounts. Other governmental actors—primarily judges—use their gut (rather than their computer) to assess penalties. Professor Colin Diver, one of the first scholars to describe ability to pay, was skeptical of the provision. He stated, “[T]he concept of ‘ability to pay’ is pregnant with a degree of ambiguity that invites arbitrary and capricious application. A set of administrative penalty standards that fails to resolve that ambiguity thus leaves a dangerous gap.”2

The Legal Salience of Taxation

Abstract: The enforcement of tax laws affects the distribution of tax burdens. Many tax enforcement regimes incorporate taxpayer-initiated administrative procedures for adjusting tax liabilities. For these procedures, individual decisions to seek administrative relief are the first causal link in the chain of actions leading to tax adjustments, decisions that can be driven by factors that are arbitrary from the perspective of the tax law and vary across individuals, effectively resulting in heterogeneous enforcement. This effect can undermine the fairness and efficiency of the tax system, but has been largely ignored. Using a novel dataset, I study the property tax appeals process and find that the salience of the property tax has a large effect on the probability of appealing. Although tax scholars have studied market and political responses to tax salience, I report the first evidence of how salience affects individuals’ use of the legal system and introduce the concept of “legal salience.” I find that legal salience heterogeneity, unwittingly induced by government policy and private actors, effectively shifts the property tax burden in New York City toward certain mortgagors, who are more likely to be racial minorities, foreign-born, and working families with children. I argue that because enforcement effects can cause the actual assignment of tax liabilities to differ from the assignment stipulated under the law, tax laws should be evaluated in light of the pattern of enforcement that can reasonably be expected to arise rather than under an assumption of perfect enforcement. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! * Research Fellow, Furman Center for Real Estate and Urban Policy, New York University School of Law. Thanks to David Agrawal, Vicki Been, Sewin Chan, Bob Cooter, Sam Dastrup, Ingrid Ellen, Yuliya Epifantseva, David Gamage, Chris Griffin, John Infranca, Shu-Yi Oei, Jason Oh, Deborah Schenk, Amy Ellen Schwartz, Mark Skidmore, Eric Talley, Mark Willis and participants at the American Real Estate and Urban Economics Association 2012 Mid-Year Meetings and the Furman Center Fellows Workshop for helpful comments. 139 MacDougal Street, 2nd Floor, New York, NY 10012 Tel: (212) 998 6713 Fax: (212) 995 4313 www.furmancenter.org 2 HAYASHI [August 13, 2012 DRAFT

Payments to Not Parent? Noncustodial Parents as the Recipients of Child Support

Abstract: Like many marriages, Jon and Sarah Cryer’s ended in divorce. Jon and Sarah are both actors, but their careers are remarkably divergent. Jon, a star of the sitcom Two and a Half Men, makes hundreds of thousands of dollars a month; Sarah has not worked since 2005. For the first five years after their divorce in 2004, Jon and Sarah’s family arrangement was rather traditional—the higher-income, noncustodial parent paid monthly support to the lower-income, custodial parent. Sarah had custody of their son approximately 65 percent of the time, and Jon had custody the remainder. Jon paid $10,000 each month in child support. After a 2009 dependency action brought by the Los Angeles County Department of Children and Family Services,1 Jon was awarded nearly complete custody— approximately 96 percent of the time with their son. Jon then sought to reduce his monthly child-support obligation to zero.2 Mara Rubin and Anthony Della Salla were never married, but, over the course of their nine-year relationship, they had one son. After separating, they jointly provided for their son’s custody and support informally. Eventually, however, they sought and received a judicial determination of their son’s custody and support. Anthony was awarded primary physical custody, receiving 56 percent of the overnights, and the two parents were awarded parallel legal custody. Mara, unemployed, petitioned the court for an order requiring Anthony, a millionaire, to pay her child support pursuant to the substantial amount of parenting

Game Theory and the Structure of Administrative Law

Abstract: How should administrative agencies choose among the different policymaking instruments at their disposal? Although the administrative law literature has explored this question with respect to the instruments of adjudication and rule making, it has failed to appreciate two other powerful instruments at agencies’ disposal: advance ruling and licensing. Taking these four policy-making instruments into consideration, this Article provides a general theory to guide agencies in selecting the most suitable policy-making instrument in different policy environments. To do so, the Article utilizes a new game-theoretic framework, focusing on two central dimensions of policy-making instruments in particular: timing and breadth. This framework provides two valuable implications. First, it highlights two key administrative challenges that are underappreciated by the academic literature: the holdup and leniency problems. And second, the framework shows that administrative agencies are underutilizing two powerful policy-making instruments, namely, licensing and advanced rulings. I argue that these two instruments are valuable across areas of law.

Understanding Equal Sovereignty

Abstract: The Supreme Court recently invoked the principle of “equal sovereignty” in a decision striking down § 4 of the Voting Rights Act of 19653 (VRA), which required federal preclearance of changes to voting laws in states and counties with a history of voting discrimination.4 In that case—Shelby County v Holder— an Alabama county sought a declaratory judgment that §§ 4(b) and 5 of the VRA were facially unconstitutional and a permanent injunction against their enforcement.5 Finding for Shelby County, the Court cited little case law supporting the principle on which it rested its decision: namely, that the federal government may not single out states for differential treatment. Writing for the majority, Chief Justice John Roberts stated that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage

Expert Mining and Required Disclosure

Abstract: In the social sciences, "data mining" sometimes refers pejo ratively to the repetitive use of classical statistical methods to find "evidence" that results from only random variation.1 Vari ous aspects of evidence and civil-procedure law disincentivize data mining by expert witnesses in federal civil litigation. But as many authors have noted through the years, resourceful attor neys can do data mining's dirty work by hiring multiple experts, asking each to provide an expert report on the same issue, and then put on the stand only the one who provides the most favor able report.2 This practice is often referred to as "expert shop ping" or "witness shopping."3 To emphasize its analogousness to data mining, though, I will use the term "expert mining." Nothing in the Federal Rules of Evidence or the Federal Rules of Civil Procedure (jointly, "the Rules") prevents expert

Following Lower-Court Precedent

Abstract: This Article examines the role of lower-court precedent in the U.S. Supreme Court’s decisionmaking. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, the Article analyzes and evaluates a variety of potential reasons to give weight to lower-court precedent, including reasons related to stability, constraint, and the wisdom of crowds. To address the descriptive question, the Article examines the current Justices’ voting behavior and reasoning, over a period of several recent years, in cases in which the Court resolves splits in the lower courts. The conclusions shed light on broader debates over interpretive methodology and the Supreme Court’s role as the manager of a large judicial system.

Let's Be Reasonable: Controlling Self-Help Discovery in False Claims Act Suits

Abstract: The modern employee is surrounded by information. In a given day, an employee might read or write a report, receive dozens of e-mails, review business plans or records, or look over sales invoices. When the employee is done reviewing these documents, he likely saves them on a company server where they can be accessed anytime. On this server, the employee can access thousands of other documents that have been prepared, submitted, and saved by fellow employees. For the most part, these documents reveal nothing more than the day-to-day operations of the company. But what if somewhere in this vast trove of information lurks evidence that the company is steadily defrauding the US government? And what if the employee could receive a substantial sum of money for bringing those documents to light? Should the law allow the employee to take the documents without permission? This Comment addresses the legal problems that arise when employees choose to take confidential corporate documents that might reveal fraud against the government and then use those documents to file suit under the False Claims Act1 (FCA). The FCA is a federal statute that creates a civil cause of action against any person who defrauds the federal government.2 Actions under the FCA may be brought by either the US attorney general or by private parties suing on behalf of the United States.3 FCA suits brought by private parties are described using a set of special legal terms. The actions themselves are referred to as “qui tam” suits, and the private plaintiffs are termed “relators.”4

The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar's Unwritten Constitution (reviewing America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar)

Abstract: Professor Akhil Amar has it all wrong this time: The thesis of America’s Unwritten Constitution – that America has an “unwritten constitution” that shadows, supplements, and sometimes even supplants the written Constitution – is fundamentally flawed. America has no “unwritten constitution.” Ours is a system of exclusive, written constitutionalism. There are only sound – or unsound – interpretations of and inferences from the meaning of an authoritative written text. There may be ambiguities in that text. Some provisions may bear a range of meanings that admit of interpretive choices. There may be uncertainties as to the correct answer to certain constitutional questions. There may be room for legitimate interpretive disagreements. But none of these things in any way warrants the extravagant conclusion that there is such a thing as “America’s Unwritten Constitution.” Some of Amar’s supposed proof-illustrations do not support the claim of unwritten constitutionalism at all, but are better recast as instances of sophisticated textual interpretation or straightforward textual inference. Other of Amar’s conclusions do indeed depend upon invention or extrapolation of an unwritten constitution, but these conclusions are simply unsound – and some of them rather outrageously so. They do not support unwritten constitutionalism but rather tend to expose and refute it as fundamentally unfaithful to the written constitution and capable of yielding almost any result the unwritten constitution’s interpreter desires.