Black Metropolis Research Consortium
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Weak-Willed Legislatures and Statutory Interpretation
Full text linkNot all statutes are created equal. Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Like an individual resolving to stop eating meat, yet finding themself unable to resist, Congress can be weak willed when it violates such statutes, and this weak-willed action jeopardizes the advantages of enacting such statutes in the first place. I then propose that courts may apply familiar canons of statutory interpretation—the presumption against implied repeal, appropriations canon, and Charming Betsy canon—to hold Congress accountable to its commitments. This account also provides a new normative justification for each of these canons of statutory interpretatio
Against Associational Standing
No full textAssociational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members’ causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.
The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered institutional harm to assert its members’ rights concerning their relationship with the organization itself. The Court has since extended associational standing to allow an uninjured group to pursue any of its members’ claims relating to the group’s purpose, including claims completely unconnected to their membership in the group. The Court has likewise allowed associational standing to be invoked by both zero-member groups and compulsory groups whose members are not free to quit.
This anomalous exception to Article III’s injury-in-fact requirement stands in tension with the fabric of U.S. law in ways that have been generally overlooked. Statutes, procedural rules, and most judge-created requirements were not crafted with associational standing in mind, repeatedly creating unnecessary quandaries throughout the litigation process. Associational standing allows plaintiff groups to circumvent Federal Rule of Civil Procedure 23 by enabling them to effectively craft their own classes without judicial approval or satisfying the Rule’s requirements. The doctrine also violates Rule 17(a)’s real-party-in-interest requirement, triggers disputes over potential asymmetric claim preclusion, and offers a backdoor method for courts to inappropriately issue nationwide defendant-oriented injunctions. Moreover, it undermines public policy goals by impacting how statutes such as the Equal Access to Justice Act apply to a rightsholder’s claims, and violates traditional equitable principles. While courts may adopt ad hoc solutions to address each of these difficulties individually, such patches underscore the poor fit between associational standing and the structure of litigation in the United States.
This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective litigation, but rather ensure that such cases proceed through the proper channels (i.e., Rule 23) while preventing a range of unnecessary procedural, preclusive, remedial, and other complications
Multidistrict Litigation & Choice of Federal Law
Full text linkMultidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own district? This Comment argues that the MDL court should apply the federal law of the original, transferor court because such a rule would protect plaintiff autonomy and limit inconsistencies once cases are remanded back to their original district for trial
The Illusion of Public Space: Enforcement of Anti-Camping Ordinances Against Individuals Experiencing Homelessness
Full text linkIn response to the growing homelessness problem, many state and local governments have developed anti-camping ordinances that criminalize the act of sleeping on public property. Anti-camping laws can devastate individuals experiencing homelessness, especially when alternative resources, such as shelters, are not easily accessible. This Comment addresses the extent to which municipalities may enforce anti-camping ordinances against individuals experiencing homelessness who have no alternative to sleeping in public without violating the Eighth Amendment. As municipal regulation and judicial interpretation narrow the scope of permissible use of publicly owned areas, this raises the question of to what extent, and to whom, public space is actually accessible. To best safeguard public spaces, protect individuals experiencing homelessness, and avoid the risks that a narrow interpretation may create, this Comment argues that courts should interpret Ninth Circuit precedent surrounding homelessness broadly and take into account individual complexities on a case-by-case basis
Fines versus Damages: Experimental Evidence on Investments in Care
No full textThis paper studies the differential effects of fines and damages on people’s investment in accident prevention. We report results from a series of experiments in which the level of monetary transfers after an accident is maintained across the two policy instruments such that standard theory predicts the behavioral irrelevance of the choice of instrument. However, we find that fines induce lower investments in care than damages when revenue from fines is used for pro-social ends. We discuss possible behavioral channels that may explain our findings
Corporate Creditors Protection Rights Worldwide: Towards a Convergence of Strategies
Full text linkCompanies rely on creditors for funding to operate, making it crucial to have legislative and procedural frameworks that protect the interests of these creditors. This article engages in a comparative analysis of corporate creditors’ protection rights on a global scale, emphasizing the Ethiopian case. The study contends that while countries may adopt distinct approaches to safeguard corporate creditors, and variations may exist in the strictness of rules across different strategies, nations have a universal commitment to implement strategies to ensure adequate protection for creditors’ interests. Notably, the study underlines that, amid the surge in globalization and cross-border commerce, strategies for corporate creditor protection are progressively aligning and converging worldwide, signaling a positive trend in global business dynamics, and the Ethiopian case is not an exception. This convergence reflects a harmonized effort across nations to establish a consistent and practical framework for protecting corporate creditors’ interests in the contemporary globalized economic landscape
Forum Shopping and Legal Labor Markets: Evidence from the Court Competition Era
No full textFocusing on Chapter 11 bankruptcy reorganizations of publicly listed firms during the court competition era (1991–96), we document local legal employment effects of forum shopping, a stipulation of the law that allows firms to file for bankruptcy far from their headquarters. Bankruptcy shocks increase legal-sector employment in the bankrupt firm’s locale, but forum shopping nullifies this effect. Employment gains of received forum-shopped cases are concentrated in Delaware, with no effect in other receiving forums. Quantification shows that Delaware handled these forum-shopped bankruptcies with just one-fifth of the additional legal workforce that would have been needed if the cases were handled in the firms’ locales. This increase in productivity also coincides with substantial missed potential employment gains in communities where bankruptcies were diverted through forum shopping. The analysis uncovers meaningful effects of forum shopping on local legal labor markets, so far overlooked in the policy debate
Legitimizing Agencies
Full text linkThe project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously called for changes designed to insulate technocrats from political influence, involve interested members of the public, and subject agencies to greater political control. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy.
This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy.
The results support the century-old idea that empowering politically insulated, expert decision-makers legitimizes agencies. With the insulation of civil servants from appointees and the independent-agency form under strain, this finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies’ perceived legitimacy. By contrast, the theory—influential on the Supreme Court—that greater presidential involvement enhances legitimacy receives no support
Lost Time: Paying for Delays Associated with Labor Strikes and Traffic Jams (chapter in a coming book: Research Handbook on Law and Time)
Full text linkWaiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they not only suffer costs, but they also impose costs on third parties who had little opportunity to shorten the delay. It is these costs that are examined in this Chapter, along with an idea for lowering these third-party costs. When this can be done, the costs of delay to the bargaining parties are also likely to be decreased. They might be happy to have a legal rule that appears to tax them but that often encourages quicker agreement and lower delay costs