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Adding Context and Constraint to Corpus Linguistics
Get PDFCorpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of additional informative data such as situational background, drafting history, and the purpose of the document under scrutiny but also an appreciation of the contexts in which corpus linguistics analysis is likely to be most helpful. While data-driven linguistics can be quite useful in some cases, it is largely irrelevant for cases in which the text itself is superficially clear but construction of the document and resolution of a dispute hinges on other jurisprudential factors. Even in cases where corpus linguistics and other forms of textual data analysis aid interpretation, correct construction of disputes terms will continue to require consideration of context and an appreciation of the limits of corpus linguistics analysis
Two Types of Empirical Textualism
Get PDFModern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver uncontroversial, objective solutions in legal interpretation. As a concrete illustration, the essay analyzes the main statutory question presented in Bostock v. Clayton County, Georgia (2020). Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. To help explain these differences, the essay proposes a distinction between two types of empirical textualism, which we call the “ordinary criteria” and “legal criteria” versions. The former conceptualizes ordinary meaning as closely connected to empirical facts about how ordinary people understand statutory language; in effect, it equates ordinary meaning with ordinary understanding. The latter conceptualizes ordinary meaning differently, combining the common understanding of statutory terms with both their previously-established legal meanings and their legal entailments. Bostock exemplifies the difference between these approaches, with Justices Alito and Kavanaugh relying on the former and Justice Gorsuch on the latter. The essay also presents a new experimental study of the key linguistic dispute in Bostock—public judgments about discrimination “because of” sex—that illustrates differences between these two approaches to empirical textualism
The Debate Over Disclosure in Third-Party Litigation Finance: Balancing the Need for Transparency with Efficiency
Get PDFThe market for third-party litigation financing (TPLF) in the United States is facing unprecedented growth and popularity. The ever-increasing complexity and cost of legal disputes, especially in the commercial context, has made third-party financing an invaluable resource for both litigants in need of capital and investors seeking to diversify their portfolios with nontraditional assets. However, as the market continues to boom, so does the risk that TPLF will be used unethically. Critics of the industry are calling on regulators at both the state and federal levels to implement comprehensive disclosure requirements for TPLF at the outset of all civil litigation as a means to prevent financiers from exerting control over the funded litigation and to expose conflicts of interest. To the contrary, members from within the TPLF community are adamantly opposed to over-broad disclosure requirements that would serve only to add a layer of unnecessary time and expense to funded parties in the midst of litigation. How can we ensure that TPLF is used ethically without burdening courts and parties with unwarranted disclosure? In recognition of the need for uniform regulations regarding the disclosure of TPLF information, yet in acknowledgement of the need for judicial economy and to preserve confidential financial information, this note proposes a solution that would strike a balance between transparency and efficiency. Instead of a mandatory disclosure requirement for TPLF agreements in full, the initial disclosure requirement should be limited merely to the identity and existence of third-party funding. Upon a showing of a particular need for additional disclosure of TPLF information, the court should conduct an in camera review prior to allowing adverse parties to access privileged information. In doing so, the court may independently determine whether or not additional discovery is necessary and can prevent unnecessary consumption of party resources
An Uneven Playing Field: Remedying the Professional Sports Wage Gap by Revising the Equal Pay Act
Get PDFDespite winning numerous World Cup championships and securing the title as the number one female soccer team in the world, the United States Women’s National Team (USWNT) has taken the silver medal to its male counterpart, the United States Men’s National Team (USMNT), in one specific area: compensation. In an effort to level the playing field, the USWNT recently filed a lawsuit under the Equal Pay Act (EPA) against its single common employer, United States Soccer Federation (USSF), which owns both the USWNT and the USMNT. At first blush, it might be hard to reconcile this phenomenon. However, upon closer analysis, it becomes apparent that the EPA—a doctrine embedded in our jurisprudence to promote the concept of “equal pay for equal work”—enables a perverse consequence within the professional sports industry. For single common employers of gendered professional sports teams, such as USSF, the EPA can effectively be used as both a sword and a shield in justifying disparate compensation. Specifically, although the EPA prohibits wage discrimination for equal work based on sex, it allows for differences in wages so long as such differences are based on any other factor other than sex. Otherwise known as the “factor other than sex” defense, this affirmative defense provides single common employers in professional sports with a unique and unwavering power. In its most rigid reading under a nationally recognized circuit split, the factor other than sex defense can be fulfilled by an employer’s demonstration of a legitimate business justification for its disparate wages. In traditional industries, legitimate business justifications for compensation structures are often found in experience, training and/or educational degrees. Yet, in professional sports, the compensation of each team is often determined by game revenue, advertisements/sponsorships and market success—a wholly different analysis than that of a traditional labor industry. Not only does this provide for inaccurate comparisons, but single common employers of gendered professional sports teams functionally control each team’s game schedule, collective advertising, team sponsorships, ticket sales, and game amenities. This control allows an employer to differentiate wages based on its own predetermined business justifications and wholly evade EPA liability through the factor other than sex defense. Not only does the factor other than sex defense provide an escape route for single common employers in professional sports, but the EPA’s three-step burden shifting mechanism does not take into account the unique intricacies of the professional sports industry, providing plaintiffs with a nearly insurmountable burden when presenting claims. In order to remedy this pervasive problem, a three-step solution is suggested. As a first step, courts should follow the more rigid reading of the factor other than sex defense that accepts only legitimate business justifications. Although not a complete solution alone, remedying this circuit split would be important for uniformity in our nation and plaintiffs bringing EPA claims. Second, the EPA should revise its burden shifting scheme to resemble that of antitrust law. While the substance of the doctrine may be unrelated to the EPA, antitrust law has been able to account for the nature and structure of the professional sports industry. It uses a distinct burden shifting mechanism, while also allowing plaintiffs to present alternative, less restrictive paths for the defendant. In doing so, this would lessen the burden on plaintiffs and prevent an employer from hiding behind its own, potentially skewed business justifications. Finally, similar to antitrust doctrine, the EPA should provide for a final balancing by the courts between the prejudicial effect of the wage discrepancies on the plaintiff and the benefits the employer might receive from the compensation structure. This three-tiered approach would provide an easier pathway to equality for professional sports plaintiffs while also ensuring that a single common employer in professional sports uses its control for the benefit, rather than to the detriment, of its gendered teams
Left/Right: Managing the Coming Clash between Congressional Rights Enforcement and Judicial Doctrine
Get PDFThe Case for an International Solution to the Restitution of Cultural Property: Morality, Legality and Righting Western Wrongs
Get PDFIn 2020, the conversation surrounding the return of cultural property acquired during the colonial era was given new life after the world watched as Black Lives Matter activists exposed systemic racial injustice in the United States. Thousands of objects currently sit in western museums under the guise of sharing these cultures and civilizations with the world, but this brings little comfort to communities suffering the genocidal consequences of colonialism. As formerly colonized nations battle the western world for the return of their cultural property, success is often dictated by a combination of power, money, and the ability to turn the tide of public opinion. This Note explores different methods used for the restitution of cultural property and the rise of alternative dispute resolution as a powerful tool for developing nations as they acquire a foothold in the global economy and compares these methods with governmental efforts to return Nazi-looted artworks to victims of the Holocaust. This Note also advocates for a uniform international approach to cultural property restitution as an alternative to piecemeal international and domestic efforts
AI in Adjudication And Administration
Get PDFThe use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this Article, we canvass the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication or administration, governmental entities at all levels are taking steps that could lead to the implementation of automated, machine-learning decision tools in the relatively near future. Within the federal and state court systems, for example, machine-learning tools have yet to be deployed, but other efforts have put in place digital building blocks toward such use. These efforts include the increased digitization of court records that algorithms will need to draw upon for data, the growth of online dispute resolution inside and outside of the courts, and the incorporation of non-learning risk assessment tools as inputs into bail, sentencing, and parole decisions. Administrative agencies have proven much more willing than courts to use machine-learning algorithms, deploying such algorithmic tools to help in the delivery of public services, management of government programs, and targeting of enforcement resources. We discuss already emerging concerns about the deployment of artificial intelligence and related digital tools to support judicial and administrative decision-making. If artificial intelligence is managed responsibly to address such concerns, the use of algorithmic tools by governmental entities throughout the United States would appear to show much future promise. This article’s canvass of current uses of algorithmic tools can serve as a benchmark against which to gauge future growth in the use of artificial intelligence in the public sector
Copying Copyright: Adopting a Fair Use Defense in Patent Law in Times of Public Health Crisis
Get PDFEpidemics have devastated humankind for centuries. Given the simultaneous rise of advanced disease prevention and treatment and the great potential for mass public uptake, it is unsurprising that the U.S. pharmaceutical industry has grown to $775 billion in annual sales revenue. It is clear that the commercialization of important public health measures is not without controversy. Of particular debate is that vaccine and other drug manufacturers monopolize their products and control them through patent laws. Yet there is a strong dichotomy between the importance of patents and the need for public access to innovations. This is not to say that patents do not have a place in public health, but patents have the potential to bar necessary access to life-saving therapies. And existing patent infringement defenses are not sufficient to account for infringements for the public good. Copyright law offers a unique solution to the problems faced with existing patent infringement defenses during public health crises. The fair use defense in copyright law is an attractive starting point for public health applications of patent law. This note argues for the imposition of a limited statutory fair use defense, coupled with reasonable compensation, for patented public health measures during times of public health crisis. A narrow fair use defense grounded in statute would have lasting impacts on public health, paving a pathway for necessary and timely distribution of patented public health measures
PROXY ADVISORS AS ISSUE SPOTTERS
Get PDFWhen institutional investors hire proxy advisors to prepare reports on matters up for vote at public company shareholder meetings, are they interested primarily in acquiring a bottom-line recommendation on how to vote, on which they can then blindly rely? Or in acquiring information that will help them make their own voting decisions? Supporters of controversial reforms introduced by the Securities and Exchange Commission (SEC) in 2019 and 2020 gravitate toward the former position, arguing that reform is needed to discourage undue reliance on proxy advisor recommendations. Opponents gravitate toward the latter position, arguing that additional regulation generally is unnecessary given that institutional investors already review their proxy advisors’ work product and make their own voting decisions. This article argues that neither of these positions presents a full picture of proxy advisors’ role in shareholder voting, and puts forward a more nuanced account that better reflects existing empirical evidence: institutional investors tend to use proxy advisors first and foremost as issue spotters, helping them distinguish (i) controversial matters that require a review of the proxy advisor’s analysis and potentially other information sources from(ii) non-controversial matters where they can vote in line with the proxy advisor’s recommendation without undertaking further review. On this account, proxy advisors do influence shareholder voting, but this influence derives primarily from their ability to direct institutional investors’ attention away from some proposals and toward others, rather than from institutional investors’ following their recommendations in lockstep. This account casts one common criticism of proxy advisors’ standards—that they reflect a one-size-fits-all approach to corporate governance that results in recommendations that do not reflect each public company’s unique circumstances—in a new light that exposes potential problems unaddressed by the SEC’s reforms. At the same time, it casts doubt on the usefulness of many of the reforms introduced by the SEC, which appear to be predicated on the flawed assumption that blind reliance on proxy advisor recommendations is a serious problem
INTRODUCTORY REMARKS: The Roberts Court and the First Amendment: An Introduction
Get PDFOn April 9, 2021, Geoffrey R. Stone delivered the following introductory remarks at The Roberts Court and Free Speech Symposium at Brooklyn Law School. An adaptation of Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century Lead Article (2008), Dean Stone detailed the history of the pre-Roberts Court First Amendment jurisprudence and laid the foundation for the symposium’s scholarly discourse