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The Non-Consequentialist Uses of Economic Analysis: A Comment on Dagan and Kreitner, Economic Analysis in Law
No full textDagan and Kreitner have offered a rich and elegantly written discussion of the normative uses of economic analysis of law. For Dagan and Kreitner, a scholar uses economic analysis normatively either when she evaluates a legal rule or institution or when she makes policy recommendations. These two normative uses of economic analysis are closely related but distinct. Evaluation often starts from some ideal theory while policy design is clearly non-ideal. Moreover, in policy design, questions of institutional competence and capacity play a central role that they do not have in straightforward evaluation. I do not, however, pursue these distinctions here.Evaluative approaches divide into two classes: consequentialist and non-consequentialist. Dagan and Kreitner discuss the role of economic analysis in both classes. The role of economic analysis in consequentialist evaluation and design flows naturally from economic methodology. Any consequentialist evaluation or policy design requires a theory of how individuals, both private citizens and public officials, behave in response to legal rules. Economic analysis of law offers the most clearly elaborated and developed theory of such behavior. In addition, the structure of the theory provides a natural way to make welfarist evaluations as the theory explains behavior in terms of the preferences of the agents
Economic Analysis in Law
No full textThis Essay explores the relationship between normative law and economics and legal theory. We claim that legal theory must account for law’s coerciveness, normativity, and institutional structure. Economic analyses that engage these features are an integral part of legal theory, rather than external observations about law from an economic perspective. These analyses, or economic analysis in law, play a crucial role in understanding the law and in developing legal policy arguments. After establishing economic analysis in law’s terminology, this Essay maps out three contributions of economic analysis in law: prescriptive recommendations in areas amenable to preference satisfaction as a normative criterion, analyzing efficiency as one aspect of a broader normative inquiry, and exposing feasibility constraints. Finally, this Essay turns to an exploration of possibilities for extending economic analysis in law beyond its comfort zone. It suggests that economic analysis might expand into areas where values other than preference satisfaction are or ought to be dominant considerations
The Racial Architecture of Criminal Justice
No full textOne of the pleasures of contributing to symposia-especially symposia where each contribution is brief-is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively-Lawrence Lessig's definition of architecture as "the physical world as we find it" comes to mind-then it becomes clear that race is also imbricated in the very architecture of the Fourth Amendment. All of this raises an interesting question: If the very architecture of the Fourth Amendment is the problem-not just its interpretation but its very design-what are we to do
The Principled Leadership of Middle Management: Stephen F. Williams’s Liberal Critique of Marks
No full textMost law students spend their first year—or sometimes much longer—struggling to discern legal rules from judicial opinions. That is true even for relatively straightforward opinions. When they encounter splintered opinions—especially cases where no opinion commands a majority—the exercise becomes more difficult even for the most seasoned lawyer. The U.S. Supreme Court, in an effort to add coherence to these not-infrequent instances of judicial disarray, created a rule to guide this process. The so-called Marks rule instructs courts, including the Supreme Court itself, to honor horizontal and vertical stare decisis even in the face of splintered decisions by discerning what proposition, if appropriately narrowed, would have commanded a majority. It is a hypothetical exercise and a controversial one. Legal scholar Richard Re has recently recommended that we cast it aside entirely, a position I embrace below
Democratizing the Law of Social Distancing
No full textPublic health emergency statutes should give executive-branch officials clear authority to respond swiftly in a crisis while setting forth principles to guide executive discretion. Statutes already provide specific authorizations and statutory guardrails for individually targeted measures like isolation and quarantine. New legislation is needed to provide similarly specific authorizations and guardrails for compulsory social distancing and face mask orders. Reforms should facilitate democratic accountability for executive-branch decisions in addition to protecting individual rights. This article offers five key principles to guide legislation. First, statutes should mandate transparency, which is critical to secure the public’s trust. To ensure compulsory orders are conditioned on a demonstrated threat of significant risk and a suitable fit between the means and clearly stated ends, mandated disclosures should include statements of the strategic purpose orders are intended to serve, the scientific understanding on which they are based, and the criteria for when they can be lifted. Second, statutes should provide officials with a graded range of alternatives to ensure a sustainable emergency response that can be tailored to evolving conditions and understanding. To facilitate a scaled response that balances the risk of contributing to community transmission against other public priorities, classifications of services, businesses, and activities as essential or high-priority should be developed in advance. Third, statutes should provide substantive standards to ensure orders are neutral laws of general applicability that do not discriminate on the basis of religion. Fourth, to enable widespread voluntary compliance and minimize unjust distribution of the benefits and burdens of public health intervention, statutes should mandate that restrictions must be accompanied by financial and other material supports, legal protections, and accommodations for safer alternatives to restricted activities to the greatest extent possible within available resources. Finally, statutes should authorize criminal enforcement against individuals who violate social distancing orders only if executive-branch officials establish that it is the least restrictive alternative available to achieve the government’s purpose. These principles should also guide executive officials as they exercise the discretion granted to them under existing statutes
From Law Book to Legal Book: The Origin of a Species
No full textThis article responds to the question posed in the title of the 18 June 2020 workshop of the Max Planck Institute for European Legal History: »What is a Legal Book? Crossing Perspectives between Legal History and Book History«. Bridging the gap between legal history and book history requires a broader conception of legal literature, one that the term »legal book« captures more
accurately than the narrower »law book«. The field of legal history has begun to take greater interest in legal books as social and cultural phenomena, as objects of commerce and as artifacts. The article develops a definition of »legal book« using illustrations of law books that are taken from the books themselves, including allegorical images, author portraits, and depictions of lawyers at work. These images highlight the book’s function in law as symbol, text, and artifact. The article concludes by pointing to opportunities for collecting, research, and teaching that the broader definition of »legal book« presents for curators and the historians they serve
Will Legal Education Change Post-2020?
No full textThe famed book review issue of the Michigan Law Review feels like a reminder of better days. As this issue goes to print, a shocking 554,103 people have died of COVID-19 in the United States alone,' the country seems to have begun a long-overdue national reckoning on race, climate change and economic inequality continue to ravage the country, and our Capitol was stormed by insurrectionists with the encouragement of the president of the United States. In the usual year, a scholar would happily pick up this volume and delight in its contents. This year, one marvels at the scholars who managed to finish their reviews on time.
The editors have asked me to reflect on how 2020, particularly the pandemic, will change legal education. Like most institutions, law schools have undergone a stress test over the past year. During the early days of the pandemic, every school put a centuries-old teaching tradition online, often within the space of a single week. Most thought that the pace of change would slow down in April. It didn't. For months, COVID generated crisis after crisis. Schools had to deal with budgetary shortfalls, a stock market crash, job losses, postponements of the bar exam, the loss of virtually all of their international students, and the terrible hardships that COVID caused for students, staff, and faculty. To top it all off, any school that-like Yale-brought its students back in the fall for in-person learning had to invent new forms of teaching for the classroom and an entirely new set of communal rules for campus interactions. Even though the pandemic has not yet lifted, one can already make out the ways in which law schools' adaptations to the pandemic will eventually be structured into legal education's gene sequence.
While those changes will be the subject of endless discussion by deans and administrators, myself included, I expect those changes to be modest, as I explain in Part I. COVID-19 compelled law schools to adapt, to be sure, but it also centered every law school on its core mission and reminded us of the magic that is missed when we are online
Measuring Lawyer Well‐Being Systematically: Evidence from the National Health Interview Survey
No full textConventional wisdom says that lawyers are uniquely unhappy. Unfortunately, this conventional wisdom rests on a weak empirical foundation. The “unhappy lawyers” narrative relies on nonrandom survey data collected from volunteer respondents. Instead of depending on such data, researchers should study lawyer mental health by relying on large micro datasets of public health data, such as the National Health Interview Survey (NHIS) administered by the U.S. Centers for Disease Control. The NHIS includes data from 100–200 lawyers per year. By aggregating years, an adequate sample size of lawyers can readily be obtained, with much greater confidence that the lawyers in the sample resemble the true population of U.S. lawyers. When we examine the NHIS data, we find that, contrary to the conventional wisdom, lawyers are not particularly unhappy. Indeed, they suffer rates of mental illness much lower than the general population. Lawyer mental health is not significantly different than the mental health of similarly educated professionals, such as doctors and dentists. Rates of problematic alcohol use among lawyers, however, are high, even when compared to the general population. Moreover, problematic use of alcohol among lawyers has grown increasingly common over the last 15 years. These sometimes surprising and nuanced findings demonstrate the value of relying on more reliable data such as the NHIS
Beyond Bail
No full textFrom the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system.
In theory, nonmonetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet, the proposition that nonmonetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the conditions are necessary to avoid the risk or risks that fuel them. Defendants-many of whom are unrepresented at these hearings-may be ill-equipped, financially or otherwise, to comply with these conditions.
Noncompliance may place defendants at risk of either additional criminal charges or future pretrial detention.
This Article argues that the reduction or eradication of monetary bail alone has not, and will not, ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginalized defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying monetary bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to
release-the fee charged in the form of bail-but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial
Korematsu as the Tribute That Vice Pays to Virtue
No full textMark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court's most despised legal decisions, Korematsu v. United States.' He argues that "[w]e should accept and teach Korematsu as an exemplar of what the law regarding invidious discrimination on the basis of race, ethnicity, and national origin should be." In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But "[t]he majority," Killenbeck explains, "refused to heed their own mandate. In Hirabayashi they held that the government policy was 'reasonable.' In Korematsu, . . . they failed to actually utilize" strict scrutiny. "In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents."
But the fact that the Court failed at its institutional duty, Killenbeck argues, should not detract from the importance of its doctrinal achievement-the first announcement that courts should apply strict scrutiny to racial classifications. At the same time, he insists, we should be deeply concerned about the quality of the legal decision making that sits beneath a precedent. That, he asserts, is the real problem with Korematsu, and he spends many pages digging into the history to show how bad the decision-making process really was.
Suppose, Killenbeck asks us to imagine, that we discovered that the Court's work in Brown, Roe, or Grutter, rested on suppressed or fabricated facts, or misconduct by the litigants or the Justices. Perhaps, he suggests, we might now treat these cases
as "infamous."" In Korematsu, Killenbeck argues, "the Court was led down the primrose path by a record that was both incomplete and deceptive. Korematsu's place in the anticanon is based in significant part on these realities. What other cases might we add to that roll of infamy if similar misconduct by the responsible agency or individuals had infected the decision making process?