Black Metropolis Research Consortium
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The Performance of Africa\u27s International Courts: Using Litigation for Political, Legal, and Social Change
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New Empirical Tests for Classic Litigation Selection Models: Evidence from a Low Settlement Environment
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Qualified Immunity\u27s Boldest Lie
Get PDFQualified immunity shields government officials from damages liability—even if they have violated plaintiffs’ constitutional rights—so long as they have not violated “clearly established law.” The Supreme Court has explained that water-shed cases describing legal requirements—like Graham v. Connor and Tennessee v. Garner—are alone insufficient to clearly establish the law. Instead, the plaintiff must find prior cases applying Graham and Garner to cases with facts virtually identical to their own case, explaining that such factually analogous cases are necessary to put officers on notice of the illegality of their conduct. But do officers actually know about the facts and holdings of these cases, and rely on them when taking action? Courts and commentators have been skeptical of this assumption, but it has never been tested. This Article reports the findings of a study, the first of its kind, examining the role that circuit decisions applying Graham and Garner play in police officers’ policies, trainings, and briefings. Having viewed hundreds of police policies, training outlines, and other briefing materials provided to California law enforcement officers, I describe unequivocal proof that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes. Instead, officers are taught the general principles of Graham and Garner and then are trained to apply those principles in the widely varying circumstances that come their way. Moreover, even if law enforcement agencies made more of an effort to educate their officers about court decisions analyzing the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would be obviously unrealistic. There could never be sufficient time to train officers about all the court cases that might clearly establish the law. And even if officers were trained about the facts and holdings of some portion of these cases, there is no reason to believe that officers would analogize or distinguish situations rapidly un-folding before them to the court decisions they once studied. There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts. This Article reveals another reason to reconsider the doctrine and, especially, its requirement that plaintiffs find clearly established law
The Misunderstood Role of Reliance in American Pipe Tolling
Get PDFThe commencement of a class action tolls statutes of limitations for all members of the putative class. This rule, so simply stated by the Supreme Court in American Pipe & Construction Co. v. Utah, has proved complicated in practice. Since American Pipe, lower courts have disagreed about the circumstances under which the tolling rule applies. Though the Court has resolved many of these disagreements, some uncertainties remain. This Comment takes up two of those questions. First, does tolling benefit plaintiffs who sue while class certification is pending? Second, does tolling benefit plaintiffs who opt out of a certified class? My analysis takes advantage of two recent Supreme Court decisions that clarify the legal basis of a doctrine left untouched for over three decades. These decisions make clear that American Pipe is a creature of courts’ equitable powers. This fact limits when tolling can apply. Most importantly, the judicially crafted tolling rule must respect the statutory intent of the time bar to be tolled. I argue that class action tolling respects the statutory intent of time bars only when plaintiffs claiming tolling have plausibly relied on the class action proceedings. This general rule, applied to the questions considered in this Comment, yields different answers de- pending on the exact time bars faced by plaintiffs. In general, plaintiffs facing a statute of limitations should benefit from tolling only if they sue after the class is denied certification or otherwise terminates. But plaintiffs facing two time bars—a statute of limitations and a statute of repose—should, in some cases, benefit from tolling even when they file before the certification ruling
Contract Design When Relationship-Specific Investment Produces Asymmetric Information
No full textUnder conventional contract theory, contracts may be efficient by protecting relationship-specific investment from holdup in subsequent (re)negotiation over terms of trade. This paper demonstrates a different problem when specific investment also provides significant private information to the investing party. This is fairly common: for example, a manufacturer invests to learn about its buyer’s idiosyncratic needs or a collaborator invests to learn about a joint venture. We show how such private information can lead to subsequent bargaining failure and suboptimal ex ante relationship-specific investment. We also show that this inefficiency is worse if the parties enter into a binding and renegotiable contract to trade before the investment is made. This may explain why some preliminary agreements are expressly nonbinding. Finally, we demonstrate that parties may reduce inefficiency by agreeing to negotiate in good faith or other such knowledge-based provisions, especially when these promises are backed by expectation rather than reliance damages
Judicial Accountability and Racial Disparity in Criminal Appeals
No full textExisting research indicates that retention through election induces larger effects on judicial votes in criminal cases than retention through appointment. Yet such research has addressed neither case selection effects across retention institutions nor heterogeneous treatment effects by defendants’ and judges’ race. Leveraging the unique retention institutions governing New York State’s intermediate appellate judges, we report the first within-justice estimates of the effects of reelection and reappointment incentives on judicial votes in criminal appeals. We find that impending judicial reappointment induces a 49–52 percent within-justice decrease in prodefendant votes in appeals involving Black defendants heard by all-white panels but does not affect votes in other cases. We find no additional effects of impending reelection on appellate justices’ votes in criminal appeals. Our findings suggest the need for greater attention devoted both to potential selection effects and to heterogeneous effects by defendants’ and judges’ race in studies of judicial retention institutions