Category: Legal Theory


UCLA Law Review Volume 60 Symposium: Volume 60, Issue 6 (September 2013) and Discourse

UCLA Law Review, Volume 60 Symposium

Twenty-First Century Litigation: Pathologies and Possibilities

A Symposium in Honor of Stephen Yeazell


Volume 60, Issue 6 (September 2013)

Complexity, the Generation of Legal Knowledge, and the Future of Litigation Ronald J. Allen 1384
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability Tom Baker & Rick Swedloff 1412
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants Theodore Eisenberg, Talia Fisher, and Issi Rosen-Zvi 1452
Symmetry and Class Action Litigation Alexandra D. Lahav 1494
Atomism, Holism, and the Judicial Assessment of Evidence Jennifer L. Mnookin 1524
Altering Attention in Adjudication Jeffrey J. Rachlinski, Andrew J. Wistrich, and Chris Guthrie 1586
Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper) D. Michael Risinger 1620
Gateways and Pathways in Civil Procedure Joanna C. Schwartz 1652
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists A. Benjamin Spencer 1710
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark Clyde Spillenger 1740
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation Stephen C. Yeazell 1752



Volume 61, Discourse


Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again Nora Freeman Engstrom 110
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action Deborah R. Hensler 126
Procedure and Society: An Essay for Steve Yeazell William B. Rubenstein 136
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict David Alan Sklansky 150
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law Katherine V. W. Stone 164

LSA Retro-Recap Days 2-3: Leisure, Law & Econ, and Liberalism

Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read More


LSA Retro-Recap Day 1: Two Papers on Punishment Theory and Practice

I saw a lot of interesting presentations and met many interesting folks on Day 1. I note a spirited (and sparsely attended) panel on Corey Brettschneider’s When the State Speaks, What Should it Say? that, for some inexplicable reason, was held 8:15 am.

Here are two projects to keep an eye on. Both have extremely high VOSFOTWOAS. Read More


The Supreme Court’s Theory of Corporate Political Activity

In an earlier post, I outlined an argument that – despite having attracted a fair amount of criticism – the Supreme Court’s vision of corporate political activity may have substantial normative merit from a corporate governance perspective.  In this post, I’ll describe that vision in two related parts.  First, whose expressive rights are being vindicated when corporations engage in political activity?  And second, what internal governance structures should regulate how and when corporations speak?

The first question raises a tricky issue at the intersection of constitutional law and corporate theory.  Corporations are legal fictions, albeit exceedingly useful ones.  They are not self-aware, they have no conscience, and they cannot act or speak except through human beings. Yet, the law has long treated corporations as legal “persons” for most purposes, including eligibility for many (though not all) constitutional protections. This treatment poses a metaphysical question: just what sort of “person” is a corporation?  To answer this question, the Supreme Court has historically relied on several theories of the corporation: the grant (or concession) theory, the aggregation theory, and the real entity theory.  Briefly, the grant theory views the corporation as purely a creature of the state, having only the rights and protections provided by statute, and thus broadly vulnerable to government regulation. The aggregation theory looks past the corporate form to the individual members or shareholders exercising their freedom of associating for some legitimate business, and concludes that corporations must thus have whatever powers and privileges necessary to vindicate the rights of those underlying constituents. The real entity theory posits that corporations exist independently of their constituents or the statutes authorizing them, and are thus a distinct entity entitled to all (or at least most) of the rights of natural persons. The Supreme Court’s corporate jurisprudence has, infamously, cycled repeatedly and inconsistently through each of these theories, often employing multiple theories in the same case.

In contrast to this general indecisiveness, though, the Court’s corporate political speech cases fairly clearly adopt a version of the aggregate view.  I treat the language from the cases in more detail in this paper, but the core idea – which flows from the early cases concerning corporations’ right to lobby, through Bellotti and more recently Citizens United – is that First Amendment speech rights inure to human beings.  Thus, when corporations speak they do so on behalf of the human constituents acting collectively through the corporate form.  As Justice Scalia explains in his Citizens United concurrence: “[t]he authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association.”

As to the second question, the Court gives a firm but vague response: shareholders, acting through the procedures of corporate democracy, decide whether and how their corporations should engage in public debate.  Yet, it’s not exactly clear what the Court means by “corporate democracy.”  As a matter of corporate law, that concept is not self-defining; the proper allocation of decision-making power between managers and shareholders is one of the central, unresolved debates in modern corporate law.  One can, however, glean three key principles from the Court’s decisions.  First, the decision-making process is necessarily majoritarian. Some shareholders may dissent from the decision, but their remedy (if any) lays elsewhere.  Second, the process must actually vindicate shareholders’ concerns.  The Court concluded that shareholders need no legal protections external to corporate law because any “abuse[s]” – referring to managerial decisions that do not accord with the majority’s desires – can be “corrected by shareholders” through this process.  Finally, the Court seems to contemplate something broader than merely the representative democracy of electing the board.  As Justice Powell notes in Bellotti, shareholders should be able to privately order their preferences as to corporate political activity by “insist[ing] on protective provisions” in the corporation’s constitutional documents, which would bind managerial authority ex ante.

Some claim that the combination of these criteria simply illustrates the Court’s misunderstanding of modern corporate law.  Shareholder control rights within public firms are largely illusory.  Even a majority of shareholders cannot insist on corporate action outside of certain limited circumstances, and the directorial election process usually leaves much to be desired in terms of disciplining management.

I argue, though, that there is a ready-made governance structure that conforms with this framework: allow shareholders to enact intra-corporate bylaws regulating corporate political activity, which (in most jurisdictions) they can do unilaterally by majority vote.  In the next post, I’ll explain the mechanics of this approach, describe potential limitations arising from current jurisprudence concerning the scope of the shareholder bylaw power, and discuss pragmatic benefits to this form of private ordering.


Theseus’s Paradox – Form and Substance in Evolving Capital Markets

Living in Beijing underscores the importance of change and adaptation.  There is a noticeable drop in the amount of processed sugar in foods, reflecting local (and healthier) tastes.  Virtually every restaurant delivers, including McDonald’s (which raises the ques­tion, if you’re going to order delivery, why McDonald’s?).  And, most parti­cularly, I recently joined the thousands of Chinese students and pensioners who weave in-and-around traffic on electric battery-powered mopeds.  It is a great way to get around the city (even if some of the pensioners have a tendency to cut you off).

The same focus on change arises in the capital markets.  A person who owns or sells a security is presumed to own or sell the financial risk of that security.  By selling shares, for example, the costs and bene­­­fits of those shares—the rise or fall in share price—are understood to run with the instru­­ments being sold.  Changes in the capital markets, how­­ever, have begun to call that pre­sump­tion into question.  Increasingly, market partici­pants can use new trading methods to sell instru­­­­­ments to one person, but transfer their financial risk to someone else.  The result is greater complexity and new chal­lenges to regulation and the regu­lators.

To what extent should the securities laws adjust to reflect those changes?  The answer largely turns on the question of “identity.”  Moving from modern-day Chinato to ancient Greece, the Greek historian Plutarch identified the question in his story of Theseus, the mythical king of Athens.  For many, Theseus is known for slaying the Mino­taur, a half-man, half-bull monster that devoured children sent to Cretein tribute to King Minos.  According to Plutarch, after Theseus returned to Greece, his boat remained in Athensharbor for centuries as a memo­­rial to his bravery.

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Defending Citizens United?

My thanks to Danielle and her co-bloggers for inviting me to share some of my thoughts.  This is my first foray into blogging, and I’m thrilled to join you for awhile.  I’d like to start by discussing a current project, which examines the internal governance of corporate political activity.  Comments, suggestions and critiques are most welcome.

Corporate political activity has long been an exceptionally contentious matter of public policy.  It also raises a hard and important question of corporate law:  assuming corporations can and will engage in political activity, who decides when they will speak and what they will say?  In several cases, the Supreme Court has provided a relatively clear, albeit under-developed, answer:  “[u]ltimately, shareholders may decide, through the procedures of corporate democracy, whether their corporation should engage in debate on public issues.”  (First Nat’l Bank of Boston v. Bellotti, cited with approval in Citizens United v. FEC).

This corporate law aspect of the decision has attracted substantial criticism alongside widespread calls for major reforms to corporate and securities laws.  Some argue that the Supreme Court misunderstands the reality of modern corporate law, insofar as shareholders have little practical ability to constrain managerial conduct.  Others question why political decisions should be made by either shareholders or managers, rather than some broader group of corporate stakeholders.  A third group claims that political activity is just another corporate decision protected by the business judgment rule.  Thus, empowering shareholders in this regard would improperly encroach on the board’s plenary decision-making authority.

Yet, despite these concerns, there may be pragmatic and normative merit to the Supreme Court’s approach.  In a current paper – “Democratizing Corporate Political Activity” – I present a case for shareholder regulation of corporate political activity through their power to enact bylaws.  I’ll describe the argument in more detail in subsequent posts, but, briefly, I present three normative justifications for this governance structure.  First, it may mitigate the unusual and potentially substantial agency costs arising from manager-directed corporate political activity.  Second, it may increase social welfare by: (i) reducing deadweight losses and transaction costs associated with rent-seeking; and (ii) making corporations less vulnerable to political extortion.  Third, if corporate speech can shape our society’s distributional rules, corporate law should not interpose an additional representative filter in the democratic process.  That is, we should not assume that investors – merely by purchasing stock in a public company, often through an intermediary such as a mutual fund – grant managers the unilateral authority to engage in political activity on their behalf.

With that said, I should be clear upfront that there are important challenges and objections to each of these arguments.  I will describe the main concerns as I proceed.

The next post will lay out the Supreme Court’s vision of corporate political activity, and explain why the shareholder bylaw power best fits the Court’s description of shareholder democracy in this context.


Why We Need a Federal Criminal Law Response to Revenge Porn

As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while “revenge porn” is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is “non-consensual pornography,” so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.

I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A’s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one’s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.

Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.

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Jonathan Simon on Leslie Henry’s The Jurisprudence of Dignity

Over at Jotwell, Jonathan Simon has a spot-on review of my colleague Leslie Meltzer Henry’s brilliant article, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011).  Henry’s work on dignity is as illuminating as it is ambitious.  I urge you to read the piece.  Here is Simon’s review:

Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead.  Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights.  A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state.  Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.

Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state.  Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present.  Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine.

For much of the period between the Revolution and the middle of the 20thcentury, the meaning of dignity was confined largely to the first category, “institutional status as dignity.”  Dignity by status dates from the earliest Greek and Roman conceptions, when dignity was associated with those of high status and conceptualized as anchored in that status.  The United States by the time of the Constitution renounced the power to ennoble an aristocracy but shifted that hierarchical sense of dignity to the state itself and its officials. For much of the next century and a half, dignity is discussed mostly as a property of government, especially states and courts.  This began to change in the 20th century, and the change accelerated significantly after World War II. Read More


This is Water

It is both an honor and a great pleasure to participate in this discussion of Robin West’s brilliant book, NORMATIVE JURISPRUDENCE. There are so many ideas to laud in this work, many of which have been ably raised by other commentators within this conversation. But reflecting upon this work, I have been particularly struck (as I first was as a student) by Robin’s extraordinary capacity to illuminate aspects of our legal landscape that, while foundational and ubiquitous, remain invisible. Robin’s chalk-outline of a missing progressive normative jurisprudence calls to mind a parable told by the too-soon departed David Foster Wallace. In a commencement address at Kenyon College, Wallace told the story of two young fish out for a swim who happen upon an older fish. The older fish says: “Good morning boys. How’s the water?” After the older fish passes by them, one of the young fish turns to the other and says: “What the hell is water?”

In NORMATIVE JURISPRUDENCE, Robin offers us an opportunity to rethink the “water” of our analytic practices. Most significantly, she presents the possibility of a jurisprudence in which normative argument constitutes the “water” of our analytical practice. Normative argument, she argues, should occupy a central rather than marginalized role in our jurisprudence. Moreover, she observes that progressives’ absence from the normative table has relegated our jurisprudential conversations to an unduly narrow and adjudicatorally-obsessed preoccupation with explicating the law that we already have. This positivist analytic jurisprudence (or, in Robin’s helpful Benthamite parlance, “expository” jurisprudence) has consciously and perhaps even aggressively eschewed normative argument to the peril of the project of legal reform and the promotion of social justice. Robin’s point is not that the project of exposition should be set aside in favor of a project of developing normative/critical (or, again in Robin’s Bethamite vocabulary, “censorial”) jurisprudence, but rather that room should be made in the center stage of our jurisprudential tradition for normative/critical/censorial jurisprudence.

Yet within Robin’s rendering lies room for the hypothesis that the agnosticism that we take as a matter of course to be a basic precept of analytic jurisprudence is itself a tacit manifestation of a conception (or, more accurately, varying conceptions) of the good. Robin’s argument raises potential doubts about the capacity of our conventional analytic jurisprudence to maintain agnosticism about conceptions of the good. In this rendering, competing conceptions of the good are the “water” that our various jurisprudential projects are already immersed in. While we may have become acculturated to understanding and explaining the law in a way that is formally divorced from conceptions of the good (e.g. whether wise or not, our tort law is committed to a principle of corrective justice), is it nonetheless possible that we have, all the while, been swimming in it?

Of course this is not Robin’s principal point. Whether or not our existing analytic jurisprudence is capable of the moral agnosticism it formally espouses, Robin would have us draw our foundational moral conceptions (whatever their source or origin) out into the light where they could serve more prospective and ambitious (rather than merely descriptive and thereby modestly – in the service of continuity to past practice – prescriptive) ends. Nonetheless, the question of whether our analytic jurisprudential practices necessarily depend upon a conception (or conceptions) of the good seems to me to be an important one in light of Robin’s thesis. Not only does the question seem to be intimately tied to her overall picture of progressives’ commitment to neutrality that figures centrally in her argument, but if this hypothesis bears out, it strikes me that it has potential to significantly undermine potential pragmatic objections to Robin’s thesis. It is, therefore, a question that I think merits some attention. Read More


Take that Constitution and…

…forget about it.  I understand that some folks must continue to fight Constitutional battles, inside and outside the courtroom, even if just to try to hold the line against Supreme Court precedents and federal legislation that encroach on the most basic interests and freedoms people need. Note that I can mention these without reference to rights.  Rights – another term that legal academics of all stripes tend to obsess about to the point of distraction from considering the very goods that recognized rights foster and protect.  The goods are not the rights.  Rights shelter goods and interests.  If they are the only form of cover your adversaries will acknowledge, then you better pitch a rights tent.  If representing the good or interest as covered by a right does not help further the good or interest, then don’t use the representation.  Rights and “rights” are neither objectively problematic nor objectively wonderful.  What’s important is which interests and goods we decide to foster collectively,  how we decide this, and whether law is a suitable social method for fostering any given worthwhile interest or good.  If law is an appropriate mechanism for the task, then there are interesting empirical questions about whether the law should be strongly interventionist, requiring very specific conduct to facilitate and foster these goods or interests, or whether it should be more subtle, creating background institutions and norms which increase the chance that these goods and interests will flourish.

Now, consider areas of law that start not from rights but from duties, areas like tort (publicly created duties, originating in common law or in legislation) or contracts (privately created duties, originating at the nexus of individual agreements and legal endorsement of certains types of agreement but not others – some agreements are endorsed or disqualified by courts, some by legislatures).  Not coincidentally, torts, contract, and restitution have historically been grouped together as the law of obligations, in both Anglo and Continental traditions.  And not coincidentally, these bodies of law presuppose interconnectedness and relationships. The foundational or mythic state of nature that animates contracts, torts, and restitution is one that assumes that people are always and inevitably embarking on relationships, sometimes on purpose sometimes accidentally.  But whether they mean to get involved with each other or not, whether they set out to affect other people or not, people connect.  Connection is basic.  Then the question becomes, which sort of connections engender which sorts of obligations?

Obviously, one can argue for thinner and thicker versions of legal obligation and sometimes such arguments rely on philosophical theories like liberalism (neo or otherwise) or conservativism (neo or otherwise).  But it is interesting to note that reflective legal scholars and lawyers engaged (knowingly or not) in normative jurisprudence regarding the law of obligations actually tend not to invoke the usual political philosophies that undergird and drive so much of the discourse about the Constitution.  A hypothesis about what why that’s so: if our starting point for thinking about and creating law is connection – the inevitable ties that will arise among social creatures – our starting point is already complicated and textured in ways that cry out for more particularistic arguments than those generated by wholesale political theories of any stripe.  Political theories that start from the individual rather than the connectedness of individuals can be more general and less nuanced because it is easier to oversimplify the individual than it is to oversimplify connection.  Likewise, areas of legal discourse and practice that answer to broad political theories tend to obscure particularities that matter tremendously in the course of actual lived experiences.

Mary Anne Franks’s discussion of creepshots and outing anonymous bloggers reveals the significance of starting from assumptions of connection rather than assumptions of individuality.  In our culture, the rhetoric of free speech and consent is premised on a particular Constitutional background.  The minute somebody invokes the phrase “free speech” they will be heard as invoking the First Amendment and the entire kit and caboodle of the Constitution.  This then spills over to and colors how “consent” and “privacy” get discussed – they are understood as subordinate matters, less important than and bounded by the explicitly Constitutionally acknowledged good of free speech.  It is ironic that these are the terms of the debate about an episode in an environment so often characterized as thoroughgoingly social – the web and websites where people go to interact.  If we all forgot about the Constitution, very different first questions might come to mind when thinking about creepshots. Namely, who is affected by the site and how?  What sort of connections does it foster or stunt?  Are these connections we collectively should concern ourselves with? Should we use law to structure the connections that inevitably arise from activity on the web?  If so, what do the parties (intended or unintended)  in  these connections owe to one another, morally, ethically, and legally?