Author Archive for dave-hoffman
posted by Dave Hoffman
On re-reading Discover Bank v. Superior Court (Cal. 2005) I found myself getting hung up on a conceptual problem you might be able to help me with. The Discover Bank court considered the validity of class action arbitration waivers. Holding such waivers unconscionable as a matter of law, the court halted (that is, until Concepcion) arbitration’s inexorable conquest of consumer litigation. The court reasoned was that such waivers presented issues of both procedural and substantive unconscionability. Procedural, the waivers were default-forcing “bill stuffers” and consequently not meaningfully chosen. Substantively, “they may operate effectively as exculpatory contract clauses . . . because . . . damages in consumer cases are often small . . and the class action is often the only effective way to halt and redress [wrongdoing.]“
The question I have is what distinguishes “exculpatory clauses” – typically thought to be against public policy – from ordinary “stipulated damages” clauses, which are subject to reasonableness review. I unaware of any scholarship that tries to define exactly what stipulated damages are (and are not). Consider two possibilities:
- To the extent that stipulated clauses are broadly defined, so as, for example, to include bespoke procedure, courts’ permissive treatment of stipulated damage clauses would seem to then imply vastly more private-party control over remedies than the traditionally-narrow scope that the term stipulated damage implies.
- But perhaps such clauses are narrowly defined – that is, the stipulation must relate only to damages flowing from the contract (i.e., a term that limited parties’ ability to seek specific performance would not count as a stipulated damages clause, nor would a waiver of damages for a tort). In that case the Discover Bank court’s categorical move is more defensible, but it’s not obvious that the line between damage and remedy makes sense analytically.
A third possibility is that stipulate damage reasonableness review is limited to scenarios where some remedies remain on the table, regardless of whether the remedy arises out of a claim related to the contract or not; the categorical public policy bar from Discover Bank applies when all remedies are precluded. Discover Bank is, again, a bad case for that claim, since not all contract remedies were precluded, only those which would deter future harms.
Anyway, it’s a puzzle. Thoughts?
posted by Dave Hoffman
Earlier this week, I argued that civil procedure empiricists are spending too much time on the Twiqbal problem. That’s not the same as saying that Twiqbal is an unimportant set of cases. It probably signals an important shift in federal pleading doctrine, and, arguably, some litigants we care about are being shut out of federal court. I mean to say merely this: the amount of attention paid to Twiqbal is exceeding its importance to litigants (over state and federal court). Our focus is being driven largely by data availability and law professor incentives. We can do better.
I’m starting to make a genre of these “people should be writing about X not Y” posts. Boy, that could get tiresome fast! Luckily, no one actually has to listen to me except for the poor 1Ls. In any event, it seemed useful to start a conversation about what topics are more worth writing about than Twiqbal. Use the comment thread below to generate a list and if there’s enough interest I’ll create a poll. To qualify, the topic has to be real-data-driven (i.e., not merely doctrinal analysis, not experimental, etc.); and there must be a way, in theory, to get the data. For example,
- Does law influence outcomes in small claims court?
- How well do choice of law clauses work in state court?
- When do attorneys matter?
- What are the determinants of summary judgment grant rates in state courts?
- Is there a way to get a handle on which cases are being “diverted” to arbitration or “carved-[back]-in“?
posted by Dave Hoffman
Where were we? I know: throwing stink-bombs at a civil procedure panel!
At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz. Florencia Marotta-Wurgler provided comments. The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are. The paper proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone. Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought. A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true? Here are some reasons to doubt it.
Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions. Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time. Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result. Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.” That is, is it possible to turn online T&Cs back into real contracts?
Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample. I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!” Which it is.
After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then, Ghazala Azmat and Rosa Ferrer presented Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care. What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available. Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.
The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives); and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado. I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.
Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan. There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days. I just wish there were more Twiqbal papers.
October 29, 2013 at 8:37 pm Posted in: Capital Punishment, Civil Procedure, Civil Rights, Conferences, Constitutional Law, Contract Law & Beyond, Courts, Economic Analysis of Law, Empirical Analysis of Law Print This Post No Comments
posted by Dave Hoffman
Barry Schwartz might’ve designed the choice set facing me at the opening of CELS. Should I go to Civil Procedure I (highlighted by a Dan Klerman paper discussing the limits of Priest-Klein selection), Contracts I (where Yuval Feldman et al. would present on the relationship between contract clause specificity and compliance), on Judicial Decisionmaking and Settlement (another amazing Kuo-Chang Huang paper). [I am aware, incidentally, that for some people this choice would be Morton's. But those people probably weren't the audience for this post, were they.] I bit the bullet and went to Civ Pro, on the theory that it’d be a highly contentious slugfest between heavyweights in the field, throwing around words like “naive” and “embarrassing.” Or, actually, I went hoping to learn something from Klerman, which I did. The slugfest happened after he finished.
In response to a new FJC paper on pleading practices, a discussant and a subsequent presenter criticized the FJC’s work on Twiqbal. The discussant argued that the FJC’s focus on the realities of lawyers’ practice was irrelevant to the Court’s power-grab in Twombly, and that pleading standards mattered infinitely more than pleading practice. The presenter argued that the FJC committed methodological error in their important 2011 survey, and that their result (little effect) was misleading. The ensuing commentary was not restrained. Indeed, it felt a great deal like the infamous CELS death penalty debate from 2008. One constructive thing did come out of the fire-fight: the FJC’s estimable Joe Cecil announced that he would be making the FJC’s Twombly dataset available to all researchers through Vandy’s Branstetter program. We’ll all then be able to replicate the work done, and compare it to competing coding enterprises. Way to go, Joe!
But still, it was a tense session. As it was wrapping up, an economically-trained empiricist in the room commented how fun he had found it & how he hoped to see more papers on the topic of Twombly in the future. I’d been silent to that point, but it was time to say something. Last year in this space I tried being nice: “My own view would go further: is Twiqbal’s effect as important a problem as the distribution of CELS papers would imply?” This year I was, perhaps impolitically, more direct.
I conceded that analyzing the effect of Twombly/Iqbal wasn’t a trivial problem. But if you had to make a list of the top five most important issues in civil procedure that data can shed light on, it wouldn’t rank.* I’m not sure it would crack the top ten. Why then have Twiqbal papers eaten market share at CELS and elsewhere since 2011? Some hypotheses (testable!) include: (1) civil procedure’s federal court bias; (2) giant-killing causes publication, and the colossi generally write normative articles praising transsubstantive procedure and consequently hate Twombly; (3) network effects; and (4) it’s where the data are. But these are bad reasons. Everyone knows that there is too much work on Twombly. We should stop spending so much energy on this question. It is quickly becoming a dead end.
So I said much of that and got several responses. One person seemed to suggest that a good defense of Twiqbal fixation was that it provided a focal point to organize our research and thus build an empirical community. Another suggested that even if law professors were Twiqbal focused, the larger empirical community was not (yet) aware of the importance of pleadings, so more attention was beneficent. And the rest of folks seemed to give me the kind of dirty look you give the person who blocks your view at a concert. Sit down! Don’t you see the show is just getting started?
Anyway, after that bit of theatre, I was off to a panel on Disclosure. I commented (PPT deck) on Sah/Lowenstein, Nothing to Declare: Mandatory and Voluntary Disclosure leads advisors to avoid conflicts of interest. This was a very, very good paper, in the line of disclosure papers I’ve previously blogged here. The innovation was that advisors were permitted to walk away from conflicts instead of being assigned to them immutably. This one small change cured disclosure’s perverse effect. Rather than being morally licensed by disclosure to lie, cheat and steal, advisors free to avoid conflicts were chastened by disclosure just as plain-vanilla Brandeisian theory would’ve predicted. In my comments, I encouraged Prof. Sah to think about what happened if advisors’ rewards in the COI were returned to a third party instead of to them personally, since I think that’s the more legally-relevant policy problem. Anyway, definitely worth your time to read the paper.
Then it was off to the reception. Now, as our regular readers know, the cocktail party/poster session is a source of no small amount of stress. On the one hand, it’s a concern for the organizers. Will the food be as good as the legendary CELS@Yale? The answer, surprisingly, was “close to it”, headlined by some grapes at a cheese board which were the size of small apples and tasted great. Also, very little messy finger food, which is good because the room is full of the maladroit. But generally, poster sessions are terribly scary for those socially awkward introverts in the crowd. Which is to say, the crowd. In any event, I couldn’t socialize because I had to circle the crowd for you. Thanks for the excuse!
How about those posters? I’ll highlight two. The first was a product of Ryan Copus and Cait Unkovic of Bolt’s JSP program. They automated text processing of appellate opinions and find significant judge-level effects on whether the panel reverses the district court’s opinion, as well as strong effects for the decision to designate an opinion for publication in the first instance. That was neat. But what was neater was the set of judicial base cards, complete with bubble-gum and a judge-specific stat pack, that they handed out. My pack included Andrew Kleinfeld, a 9th circuit judge who inspired me to go to law school. The second was a poster on the state appellate courts by Thomas Cohen of the AO. The noteworthy findings were: (1) a very low appeal-to-merits rate; and (2) a higher reversal rates for plaintiff than defendant wins at trial. Overall, the only complaint I’d make about the posters was that they weren’t clearly organized in the room by topic area, which would have made it easier to know where to spend time. Also, the average age of poster presenters was younger than the average age of presenters of papers, while the average quality appeared as high or higher. What hypotheses might we formulate to explain that distribution?
That was all for Day 1. I’ll write about Day 2, which included a contracts, international law, and legal education sessions, in a second post.
*At some point, I’ll provide a top ten list. I’m taking nominations. If it has federal court in the title, you are going to have to convince me.
posted by Dave Hoffman
From Daniel McCarthy:
“As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.
But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.”
McCarthy doesn’t add the more cynical supposition that criticism of originalism on the right is a sure way off the greased (federalist) career path that the last thirty years has carved out. But the buried argument in this paragraph is worth excavating: the success of the counterrevolution has blinded those who came after to how adventurous – and wrong – the original Warren-court’s premises about judicial and national power and competency turned out to be. A version of this argument is now the CW, at least in some circles. And so I wonder…how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?
posted by Dave Hoffman
This weekend is CELS VIII, to be held at Penn Law. As our readers know, it’s my practice to provide a summary of the conference – or at least those bits I attend. (See here for CELS VII and links to 3-6). This year is no different. You can find the program and papers up on a very, very cool looking webpage here. I intend to go to everything, including the talk by Bill James. Who I hope will spend his time talking about my extensive writings on the interaction of sabermetrics and ELS. But who likely will talk about how the Red Sox are awesome and the Phillies are not.
posted by Dave Hoffman
In Landes and Posner’s famous, The Economics of the Baby Shortage, the authors consider the possibility that baby buyers are likely to self-selecting monsters. Not so, they argue, as
“Moreover, concern for child abuse should not be allowed to obscure the fact that abuse is not the normal motive for adopting a child. And once we put abuse aside, willingness to pay money for a baby would seem on the whole a reassuring factor from the standpoint of child welfare. Few people buy a car or television set to smash it. In general, the more costly a purchase, the more care the purchaser will lavish on it.”
I’ve always found these lines to be particularly bizarre (even in the context of an otherwise famously provocative, probably misleading, essay). In any event, they came to mind when a student in my L&E class forwarded on this chilling story.
“KIEL, Wisconsin, Sept 9 (Reuters) – Todd and Melissa Puchalla struggled more than two years to raise Quita, the troubled teenager they’d adopted from Liberia. When they decided to give up the 16-year-old, they found new parents to take her in less than two days – by posting an ad on the Internet…”
posted by Dave Hoffman
My university (Temple) has an interesting set of new IRB guidelines. Essentially, Temple’s IRB (for all subjects) is now requiring department head sign-off for all protocols:
“In addition to the PI, every individual listed on the approval route on an IRB submission is required to approve the submission before it can reach the IRB for review. The electronic approval takes the place of a hard copy signature. Department Heads and all research personnel are required to approval Initial Submissions. Individuals can also be manually added to the approval route. Everyone listed on the approval route must view and approve the submission in order for it to reach the IRB. Please see the instructions for Providing Approval in eRA on the IRB’s website.”
When I inquired as to why this regulation was required, I was told that department heads knew the financial health & needs of the institution, and would therefore be able to tell if particular projects’ execution was financially possible. Because department heads are best positioned to know if research is too expensive (and consequently that human subjects wouldn’t be cared for), IRB review will be denied if they refuse to sign the application. The IRB acknowledged that the regulation was not required by HHS regulations or the common rule, but was essentially a way to improve the quality of the University’s research.
To me this is a deeply problematic requirement. Academic freedom is a slogan which almost always signifies rent seeking. But here, there are significant risks that the IRB could be used as a way to cloak gamesmanship inside of departments. Imagine that you are on the outs from your boss. She or he can now simply refuse you the right to do research by stating that the department can’t support it. The IRB enforces that refusal, with its full array of punitive sanctions. What avenue of relief could you possibly have, apart from an incredibly cumbersome university grievance process, or a First Amendment lawsuit against the University?
Ultimately I dropped my objections to the regulation and got sign-off, in large part because I trust the powers that be. Also, who wants to poke the bear? But I thought I’d throw it out there to see whether any of you have seen similar regulations, and whether (or not) they’ve been challenged successfully.
posted by Dave Hoffman
[A brief note of apology: it's been a terrible blogging summer for me, though great on other fronts. I promise I'll do better in the coming academic year. In particular, I'd like to get back to my dark fantasy/law blogging series. If you've nominations for interviewees, email me.]
One of the major lessons of the cultural cognition project is that empirical arguments are a terrible way to resolve value conflicts. On issues as diverse as the relationship between gun ownership and homicide rates, the child-welfare effects of gay parenting, global warming, and consent in rape cases, participants in empirically-infused politics behave as if they are spectators at sporting events. New information is polarized through identity-protective lenses; we highlight those facts that are congenial to our way of life and discounts those that are not; we are subject to naive realism. It’s sort of dispiriting, really. Data can inflame our culture wars.
One example of this phenomenon is the empirical debate over minimum wage laws. As is well known, there is an evergreen debate in economics journals about the policy consequences which flow from a wage floor. Many (most) economists argue that the minimum wage retards growth and ironically hurts the very low-wage workers it is supposed to hurt. Others argue that the minimum wage has the opposite effect. What’s interesting about this debate -to me, anyway- is that it seems to bear such an orthogonal relationship to how the politics of the minimum wage play out, and the kinds of arguments that persuade partisans on one side or another. Or to put it differently, academic liberals in favor of the minimum wage have relied on regression analyses, but I don’t think they’ve persuaded many folks who weren’t otherwise disposed to agree with them. Academic critics of the minimum wage too have failed to move the needle on public opinion, which (generally) is supportive of a much higher level of minimum wage than is currently the law.
How to explain this puzzle? My colleague Brishen Rogers has a terrific draft article out on ssrn, Justice at Work: Minimum Wage Laws and Social Equality. The paper urges a new kind of defense of minimum wages, which elides the empirical debate about minimum wages’ effect on labor markets altogether. From the abstract:
“Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.”
I’m a huge fan of Brishen’s work, having been provoked and a bit convinced by his earlier work (here) on a productive way forward for the union movement. What seems valuable in this latest paper is that the minimum wage laws are explicitly defended with reference to a widely shared set of values (dignity, equality). Foregrounding such values I think would increase support for the minimum wage among members of the populace. The lack of such dignitary discussions in the academic debate to date has level the minimum wage’s liberal defenders without a satisfying and coherent ground on which to stand. Worth thinking about in the waning hours of Labor’s day.
September 2, 2013 at 9:02 pm Posted in: Behavioral Law and Economics, Civil Rights, Consumer Protection Law, Contract Law & Beyond, Culture, Current Events, Empirical Analysis of Law, Employment Law Print This Post 2 Comments
posted by Dave Hoffman
On behalf of this year’s committee, I pass along the following:
Temple University James E. Beasley School of Law invites applications from both entry-level and lateral candidates for full-time, tenure-track faculty positions to commence in the Fall Semester 2014. We welcome applications from candidates with a wide variety of interests. Although areas of need are subject to change, priority areas are likely to include health law, business and commercial law, civil procedure, intellectual property, law and technology, trust and estates, torts, and employment law/employment discrimination.
Lateral candidates should contact Professor Gregory Mandel, Lateral Faculty Appointments Subcommittee (firstname.lastname@example.org). Entry level candidates should contact Professor Donald Harris, Faculty Appointments Subcommittee (email@example.com). Temple University is committed to a policy of equal opportunity for all in every aspect of its operations. The University has pledged not to discriminate on the basis of an individual’s age, color, disability, marital status, national or ethnic origin, race, religion, sex (including pregnancy), sexual orientation, gender identity, genetic information or veteran status.
posted by Dave Hoffman
Sorry to interrupt the symposium, but this is in the way of a breaking law-news update. I asked Jonathan Lipson (Temple), a former guest blogger here and all-around bankruptcy superstar, to offer our readers some thoughts on the recent decision out of the Detroit bankruptcy. Here are his views:
Detroit: Kicking the Federalism Question Down the Rhodes
Yesterday, Bankruptcy Judge Steven Rhodes stayed a state court suit to derail Detroit’s chapter 9 bankruptcy. While Judge Rhodes may ultimately dismiss the bankruptcy petition on his own, the decision forestalls one of the harder questions underlying the filing: To what extent may an Article I bankruptcy judge approve a bankruptcy plan that (may) conflict with state constitutional protections for municipal union members?
The answer will be difficult for several reasons, mostly having to do with the recursive interactions between federal and state law in this context. Bankruptcy Code § 943(b)(4) permits a bankruptcy judge to approve a “plan of adjustment” (as it is called) if the “debtor is not prohibited by law from taking any action necessary to carry out the plan.”
While chapter 9 case-law is sparse, one court has interpreted this to mean that it could not approve a plan that altered state-law priority-protections for bondholders. In re Sanitary & Improv. Dist. #7, 98 B.R. 970 (Bankr. D. Neb. 1989). Municipal union members may cite this, and then point to Michigan’s constitution, which provides: “The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.” Mich. Const. Article IX, § 24.
Because the plan proposed by Detroit’s emergency financial manager, Kevyn Orr, apparently reduces accrued benefits significantly, retirees would argue that the plan would diminish and impair their contractual rights.
But Orr may respond in three ways. First, he may cite the recent City of Stockton case, and argue that state law cannot prevent a municipal debtor from “adjusting” (i.e., reducing) debts, because federal law is supreme. See In re City of Stockton, 478 B.R. 8, 16 (Bank. E.D. Cal. 2012). Of course, if the federal law in question (the Bankruptcy Code) defers to conflicting state law, this argument doesn’t get him very far.
So, his second move may be to argue that a plan that diminished accrued contractual benefits would not violate the law, because it has long been accepted that the Bankruptcy Power is far greater with respect to contract rights than property rights.
As I (and others) have explained elsewhere, this distinction seems foundational. Michigan’s constitution may protect municipal union members’ contract rights, in other words, but that’s all they are: contract claims, subject to “adjustment” under federal bankruptcy law. If municipal retirees had really wanted solid protection, Michigan’s constitution should have characterized their accrued benefits as “property,” not “contract,” rights.
Third, and most instrumentally, the Michigan constitution does not appear to prevent Orr from exiting current agreements prospectively. Bankruptcy Code section 365 would give Detroit the power to reject such contracts if they are burdensome (there are actually a couple different rejection standards, but it seems likely he could meet them). Even if Orr’s hands are tied as to accrued obligations, the argument would go, he could terminate large numbers of current employees, some of whom he may rehire at lower wages. If municipal employees want their jobs back, they (or their unions) would have to compromise accrued benefits claims.
This would in effect pit current employees against former ones (retirees). Like those who have successfully reorganized mass-tort, Orr may be able to use this tension to extract concessions from the unions. Or, the unions may be able to use this same tension to get a better deal than the one that’s on the table.
Either way, setting up these sorts of bargains is, in my view, one of the most important federal interests here. I have argued in the context of the Catholic Church bankruptcies, for example, that that should be the system’s overarching goal, especially in normatively difficult cases.
Yet, further confounding the analysis are the mixed signals the Supreme Court has sent on the interaction between Congress’ Article I powers (especially bankruptcy court power, in cases such as Stern v. Marshall) and “states’ rights.” On one hand, cases such as Seminole Tribe and Alden (and, indirectly, Stern) suggest that the Court takes state sovereignty seriously: the federal government has limited powers to intrude into states’ affairs, which may include interpreting their constitutions (okay, let’s ignore Bush v. Gore). On the other hand, cases such as Hood and Katz suggest that the Court will make an exception for bankruptcy, discharging state claims and permitting suits against states to recover preferential transfers, respectively (okay, let’s ignore Stern). Perhaps Judge Rhodes will have a relatively free hand here.
How this will unwind in Detroit is difficult to predict, but seems likely to matter to the outcome. In the meantime, we will have to wait for Judge Rhodes to decide whether to permit Detroit’s case to go forward at all. Bankruptcy Code section 921(c) provides that the bankruptcy “order for relief” cannot be entered until resolving objections to the petition. This can include an objection that the filing “does not meet the requirements of this title.”
The unions are likely to argue that Detroit’s bankruptcy petition flunks because Orr’s plan would violate the state constitution, as “incorporated” by Bankruptcy Code section 943(b)(4). Orr would respond by arguing the supremacy of federal bankruptcy law, perhaps along the lines noted above . . . . And so on.
Given these complexities, it would be understandable if Judge Rhodes wanted to kick the federalism question further down the road, in the hope that all major stakeholders—e.g., bondholders and employees—can avoid the costs of litigating these questions, and settle them in a plan they agree on.
posted by Dave Hoffman
Recently the ABA announced that it will no longer collect expenditures data from law schools: Leiter and Merritt offer thoughts on how that decision will influence the USWR rankings. Both posts are interesting, though somewhat impressionistic. Leiter thinks that state schools will benefit and Yale will lose it’s #1 spot; Merritt believes that USWR should reconfigure its method. [Update: Bodie adds his two cents.]
It’s well known that the influence of particular categories of data on the ranking can’t be determined simply by reading the charts that the magazine provides. Paul Caron notes that the rankings depend on on inputs that aren’t displayed (like expenditures). But it gets worse: (1) the point accumulation of each school influences that of every other school; (2) USWR changes the raw data through manipulations that are not well explained (placement discounts for law school funded positions) or are simply obscure (CoL adjustments for expenditures); (3) many schools don’t report information and USWR doesn’t advertise their missing-data imputation method; etc. etc. Bottom line: the rankings are very, very fragile. (Many would say they are meaningless except at 10,000 feet.) Luckily, Ted Seto’s work enables everyone to give their best shot to approximating each year’s ranking. Seto argues that variance within a category turns out to influence the final scores as much as the purported weight that USWR assigns to it.
As thought experiment, I decided to estimate what would happen if each school’s expenditure data was set to average school’s expenditure. I then used Seto’s method on 2011-2012 historic data to estimate the rankings in the absence of expenditure variance. This basically eliminates the influence of expenditure as a category. (A perhaps better, but more time consuming, approach would be to eliminate the expenditure categories altogether and re-jigger the equation accordingly). My back-of-the-napkin approach produces some wacky results, particular at the lower end of the ranking scale. To keep it simple, after the jump I’ll focus on the top ten winners and losers from the elimination of expenditure variance in the 2013 t100 and then offer some thoughts.
posted by Dave Hoffman
Justice Scalia isn’t often justly lauded for his humility. Today’s opinion in Molecular Pathology v. Myriad (the gene patenting case) provides an opportunity. His concurrence reads, in its entirety:
“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am un-able to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”
There’s something heart-warming about this short opinion — a bit like Justice Steven’s ode to jalopies and country roads in Scott. It’s also a useful model of rhetorical humility in the face of pretty complex science. Justice Scalia is ordinarily celebrated for his caustic wit & slashing attacks: we should be happy when he takes a different approach.
posted by Dave Hoffman
Like many, I’ve been watching the BBC’s Sherlock, a modern re-telling of Arthur Conan Doyle’s detective series. I’m only mostly finished the first series, but thus far it has been striking how little role law (and its constraints) play in the narrative. Basically, although Sherlock is a “consulting detective” (and under US rules, certainly an agent of the State), he routinely behaves in unlawful ways. He often breaks into dwellings (and cellphones, and cars) to get information; he is resistant to writing up his methods (and consequently, a defense attorney would not be able to effectively examine them); he browbeats suspects and witnesses; etc. In the States, quite obviously, all of the confessions produced by his methods would be thrown out as poisoned fruit.
There’s nothing earth-shaking here – and it’s not the only time that law is devalued by storytellers – but I wondered whether and to what extent a series based primarily in the UK can avoid barnacled procedural discussions in a way that a series based in the US obviously can not. That would then suggest that Elementary, a CBS show that apparently apes Sherlock in many ways, would spend more time talking about law (and the rules of criminal procedure) than Sherlock does. I haven’t seen the former show, so I’d love to be disabused of my fear that Elementary’s Sherlock spends most of his time filling out paperwork and discoursing on the complicated rules of electronic surveillance.
posted by Dave Hoffman
I’m pleased to introduce Stephen Galoob as a guest for the month of June.
Stephen is (as of June 1) an assistant professor at the University of Tulsa College of Law. He is a graduate of UVA law school and is finishing his Ph.D. at U.C. Berkeley’s Jurisprudence and Social Policy program.
Stephen’s scholarly work examines fundamental questions in criminal law, torts, contracts, and professional responsibility. (Although let’s be honest- does anyone ever claim that his work examines peripheral questions?)
Stephen’s dissertation, A Liberal Theory of Reparation, examines the significance of wrongs and injustices, as well as proposing an account of the justification for reparation based on the contractualist liberalism of John Rawls and T.M. Scanlon.
Stephen also writes in the field of legal ethics. His work in this area examines how professional roles in general (and the lawyer’s role in particular) have normative significance—that is, how they change what their occupants are permitted, forbidden, or required to do. Stephen examines these questions using tools from both philosophy and empirical social science. For example, his article Are Legal Ethics Ethical? (co-authored with Su Li, and forthcoming in the Georgetown Journal of Legal Ethics) uses a survey-experiment to examine the connection between legal ethics rules and lay moral judgments.
posted by Dave Hoffman
Katie joined the Rutgers Camden law faculty as an Assistant Professor in June 2012. Her work, which takes multidisciplinary approaches to questions of contemporary anti-discrimination law, has appeared or is forthcoming in journals such as the University of Pennsylvania Law Review, the Minnesota Law Review and the Yale Law & Policy Review. Her most recent work-in-progress, titled “Constitutional Colorblindness and the Family,” was recently awarded Honorable Mention in the 2013 AALS Scholarly Papers Competition, where it was described by the selection committee as “saying something new and compelling about constitutional colorblindness.”
Prior to coming to Rutgers, Katie was a Research Scholar and Lecturer at the University of Pennsylvania, where she conducted research in conjunction with the Alice Paul Center for Research on Women, Gender and Sexuality and taught Disability Law. Katie also litigated civil rights cases prior to entering academia full time, and secured a number of precedents in the Third Circuit expanding the legal rights of LGBT and disabled employees, including Prowel v. Wise Business Forms, 579 F.3d 285 (3d Cir. 2009) and Miller v. American Airlines, 632 F.3d 837 (3d Cir. 2011).
Katie clerked for the Hon. Guido Calabresi in 2004-2005, and was a Skadden Fellow at Equality Advocates Pennsylvania from 2005-2007. She was a litigator with the private firm of Salmanson Goldshaw, PC until April 2012.
Her recent work includes:
Constitutional Colorbindness and the Family, 162 U. Pa. L. Rev. __ (2013) (forthcoming, selected as Honorable Mention in the 2013 AALS Scholarly Papers Competition).
Essay, Marriage This Term: On Liberty and the “New Equal Protection”, 60 UCLA L. Rev. Disc. 2 (2012).
That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012) (reviewed here by Charles Sullivan on JOTWELL).
posted by Dave Hoffman
There’s a fantastic symposium issue out of NYU this month, devoted to evolution and innovation in contract terms. There are articles by the ridiculously productive trinity of Choi/Gulati/Posner, a wild piece by Kevin Davis on Contracts as Technology, and a very cool empirical paper by Marotta-Wurgler and Taylor on evolving terms in standard form contracting online. I’m obviously biased toward empirical work on this exact topic, so I’m a sucker for this stuff. But I do think that this kind of empirical and theoretical work is where contract scholarship should be heading in the next 10-20 years. Check it out.
posted by Dave Hoffman
A student’s final law school GPA predicts bar passage better than other independent variables. But the relationship isn’t causal: raising the mean GPA of all students does not promote bar passage. Indeed, some investigators have suggested that the inverse is more likely to be true. When GPA rises for all students, individuals at the bottom of the class aren’t sufficiently signaled that their grades are really and truly bad, and consequently such badly-warned students don’t approach bar study with the requisite degree of seriousness. That is, if a school has a mean of a 3.3 at graduation, the bottom 20% of the class probably has GPA of around a B-. B- students may well say to themselves “sure, I’m at the bottom of the class, but I’m not a C student! I’m not in danger of failing the bar!” But they are. In this perverse way, raising the mean increases the rate at which weaker students fail the bar, even as overall, grades are positively correlated with passing!
The puzzle deepens. Students often argue that employers focus on mean GPA to the exclusion of class rank. Given that students are competing with other schools (nationally and regionally), there are race-to-the-bottom pressures on each law school’s curve generated by employment markets. A school that produces students at the 50th percentile with a 3.5 mean will obtain better employment outcomes than one that produces students at the 50th percentile with a 3.0 mean. All else equal, schools should reduce barriers to employment. (Of course this result depends on employers indeed acting in the irrational manner described – ignoring or downplaying class rank and focusing on absolute GPA. This would be very, very difficult to test empirically, though I imagine someone could give it a shot using nifty studies.)
You see the tension, right? A higher mean simultaneously could boost employment in the middle and higher end of the class while also depressing bar passage at the lower end of the class. These contrasting outcome effects turn on psychological biases resulting from overemphasizing raw grades over percentile rank, but simply providing class rank instead of grades would cause employers to balk. The tension may lead administrators and faculty to an uncomfortable question: when the two conflict, should we privilege bar passage over employment? What is the appropriate calculus? Could we live with one additional student failing the bar if two got a job?
My own view is that the price for bar failure is so high that the number of jobs won in this calculus would have to be unrealistically high. Consequently lower means are to be preferred to higher ones at some schools. What do you think?
posted by Dave Hoffman
Inspired by this 2007 Taxprof post, I decided to compare the 2013 US News undergrad ranking to the 2013 overall law school rank. This project was a bit more complicated than it was six years ago, due both to scandal & to the proliferation of regionally rankings. But, ignoring schools that aren’t present on both lists, the results are illuminating. For figures, follow me after the jump.
posted by Dave Hoffman
While academics angst, law journal editors toil to manage the fire hose of submissions, real and fake expedites, and the uncertainty that comes with a new job. Many journal editors now seem to have the goal of “improving their ranking“. Seven years ago (!) I wrote some advice on that topic. It seems mostly right as far as it goes, but I want to revise and extend those comments below, in letter form.