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Comparative Lynch Law: Lynch Trials and Vigilantism
No full textVol. 35:3Jim Whitman does serious comparative law, writing about new and
profound questions. I cannot begin to match that, but offer this small
contribution on the relationship between lynch trials and vigilantism on the
American frontier.
Any area on the frontier that is to say, Western areas not yet included
in a Territory or State lacked a legal system and, in particular, the
infrastructure for trying and punishing criminals. The frontier had no
government, laws, courts, jails, or sheriffs; but there were crimes in even
the smallest communities, as John Philip Ried showed in his books about
criminal law on the overland trail. When a member of a wagon train killed
one of his fellows, Reid found, the wagons stopped and their owners held
an Anglo-American style jury trial, asking members of other wagon trains
to serve as jurors
Credit Markets and the Visible Hand: The Discount Window and the Macroeconomy
No full textVol. 41:1In times of crisis such as the 2008 financial crisis and the 2020
COVID-19 pandemic central banks throughout the world engage in
interventions with lasting effects on financial markets and the
macroeconomy, for better and worse. The negative political consequences
of these interventions—fears of politicizing central banking and
inflationary concerns about dramatic interventions among them—can
dampen the enthusiasm for such interventions early in the face of crisis.
This dynamic creates a dilemma for the US central bank, the Federal
Reserve, causing it to eschew interventions beyond monetary policy until
the crisis has already crashed, at which point the Fed moves into every
aspect of policy throughout the economy. This Article highlights the
inadequacy of this dynamic. Sole reliance on monetary policy is
insufficient in the face of growing crisis, while the Fed's vast emergency
lending facilities face ever stiffer political, inflationary, and equity
concerns. The Article advocates instead for a new approach to
macroeconomic stability, not just through monetary policy or emergency
interventions, but through judicious use of the sleeping giant of Fed policy,
the bank-intermediated discount window. Focusing on the problematic
credit market for debtors-in-possession in the midst of bankruptcy, the
Article suggests a reformed system that safeguards the Fed, supports small
and medium-sized enterprises, and stabilizes the macroeconomy without
exposing the system to the pockets of instability that the Fed’s overreliance
on dramatic intervention can do
What's Wrong With Not Apologizing: International Apologies and the Rule of Law
No full textVol. 35:3International apologies, like domestic apologies, can serve a wide array of goals. They can express contrition, regret, empathy and care, reduce friction, and restore relationships. Of course, the realization of these goals depends, to a great extent, on the form and sincerity of the apology: how it is conveyed and how it is received. Importantly, however, and perhaps less dependent on the vagaries of any particular form of apology or its delivery, apologies also serve to reinforce underlying norms and expectations. An apology is a response to a failure to comply with generally accepted norms or meet legitimate expectations: Either the conduct, and/or its consequences, are to be avoided. Unlike most domestic law, international law recognizes apologies as a formal remedy for wrongdoing by states. Together with expressions of regret or acknowledgements of breaches, apologies are enumerated as a type of remedy known as" satisfaction." And, with the explicit recognition of apologies as remedies for wrongs, international law seems to bolster the role of apologies in reinforcing the underlying norms and expectations of international relations
The Devotion of the Turtle Dove: The Aesthetics of the Legal Sacred in Anthony Trollope’s The Eustace Diamonds
No full text35:2I am delighted to be included in this symposium to celebrate The Legal
Imagination on its fiftieth anniversary. I was a student in Professor White’s
class on civil procedure in my first quarter in law school—fifty years ago.
He taught us common law pleading! Common law pleading was at once
bizarrely alienating and revelatory. This was law. And I finished my legal
education with The Legal Imagination in the spring of 1976. Some fifteen
years later, after I had quit practicing law, Professor White served on my
PhD examining and dissertation committees at the University of Chicago
Divinity School. I now have the enormous pleasure of introducing graduate
students in religious studies to his work. White’s writing speaks in a special
way to those studying Islamic law who see in his work a humane approach
to law that resonates with their efforts at repair of the western
misunderstandings of Islamic law in contemporary scholarship. So, thank
you, Jim. From me and from my students. This symposium celebrates the
founding of a field now known as law and literature, but the field has always
had a third implicit partner, religion. I will make that third partner more
explicit here, drawing on my own field, law and religion
Reading for Law in Barry Unsworth’s Sacred Hunger
No full text35:2The contestation between a humanist, ethical law and a dehumanizing, profit-exalting law animates the plot and is dramatically embodied in the principal characters of Barry Unsworth’s Sacred Hunger.1 In the process, the novel illuminates the three intertwined concerns central to James Boyd White’s The Legal Imagination: how language constitutes cultures, communities, and selves; how politics and ethics are encoded in different ways of talking about other people (as objects or “means to an end” rather than “centers of autonomy and value”); and how forms of inherited speech and expression both constrain and enliven the imagination.2 The fact that Sacred Hunger is a historical novel about Britain’s role in the slave trade—a literature of realities—adds layers of complexity to its legal imaginations
An Empirical Investigation of Arbitrator Race and Gender in U.S. Arbitration
No full textVol. 35:1For decades, the United States system of arbitration has been
subject to nearly constant public criticism. Calling arbitration a rigged judicial
system, consumer and employee rights groups have voiced opposition to the
practice of “forced arbitration” whereby millions of Americans are
contractually required to resolve disputes in arbitration rather than in litigation.
On top of the concerns over the unfairness of forced arbitration itself, recent
attention has been drawn to the lack of racial and gender diversity within the
arbitrator profession. When women and racially marginalized plaintiffs are
forced to arbitrate their employment discrimination or consumer-based claims
in the arbitral forum, that they may have no meaningful access to arbitrators
that look like them seems additionally problematic.
Scholars in the field have argued back and forth about the root of the
diversity problem. Is it a labor supply problem? In other words, are parties to
arbitration open to hiring marginalized arbitrators but there are just not enough
to choose from? Or is it a labor demand problem? In other words, when women
and arbitrators of color are available, are they chosen at rates consistent with
their white male counterparts? Or, are both supply and demand problems at
work? Because much of the scholarly diversity conversation has been based on
anecdotal information and survey data which don’t cover the full population of
U.S. arbitrators, these basic questions are still unanswered.
This paper contributes to the literature by using an originally-collected data
set of arbitrator race, ethnicity and gender from the two largest arbitration firms
in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the
American Arbitration Association (“AAA”). The data were collected using
public data sources and cutting-edge machine learning techniques. This is the
first-ever scholarly effort to empirically estimate the race and ethnicity of
arbitrators for both the JAMS and AAA populations. The analysis presents
estimates of the demographic profile of the supply of U.S. arbitrators and the
demographic profile of the subset of arbitrators that are actually selected to
arbitrate—with a special focus on the extent to which under-selection is
happening.
The study has four main findings. First, along the supply dimension,
women and people of color are underrepresented amongst JAMS arbitrators,
both relative to the U.S. population and relative to the population of American
lawyers and judges. The extent of the underrepresentation for both groups is
significant, though it is more severe for arbitrators of color than for female
arbitrators. For AAA arbitrators, I find an even greater degree of underrepresentation
for Black arbitrators.
Second, along the demand dimension, I find different results for JAMS and
AAA. For JAMS, I find that, conditional on being selected to arbitrate at least
once in the sample period, Asian and Black arbitrators receive fewer cases than
their proportional share, and female arbitrators receive slightly more cases than
their proportional share. Moreover, arbitrators that were formerly judges
receive more cases than their proportional share. For AAA, the selection
analysis is hampered by limited data availability. However, the data that I do
have suggest that diverse neutrals are selected for cases at a rate that is at or
above their proportional share.
Third, given the first two results, my data suggest that diversity issues exist
both along the labor supply dimension and the labor demand dimension within
U.S. arbitration.
Fourth and finally, I find that future empirical diversity work in arbitration
will be severely hindered unless more and better data are available to
researchers.
The study concludes by offering concrete and specific recommendations
for how and why better data should be collected and made available to the
public
MIDSTREAM CONTRACT INTERPRETATION
No full textThis Article makes two original contributions to the contract interpretation and renegotiation literatures. First, we introduce an underexplored cause of renegotiation failure: party uncertainty regarding the type of court that will interpret their contract. Parties may predict differently how the applicable court will weigh facts, apply legal rules, or interpret contracts. When parties disagree regarding the court's interpretive practices, they will assess their expected litigation payoffs differently. This could cause parties to litigate transactions rather than complete them, even when the parties agree on the economic parameters. Litigators know that differing predictions about what a court will do can impede settlement. We add that party uncertainty over court types can prevent parties from making efficient deals and continuing those deals to completion. Neither scholars nor courts have analyzed how the consequences of uncertainty over court types affects the parties' behavior. Our second contribution is to suggest a novel interpretive procedure that responds to uncertainty about both party and court types. Parties should be able to obtain a "midstream contract interpretation": a judicial interpretation of their contract at the renegotiation stage rather than after a breach occurs. A midstream interpretation, in the form of a declaratory judgment or a new reformation remedy, would permit parties to learn about the applicable court and each other. As a result, parties would be more likely to continue an arrangement they would otherwise inefficiently terminate, or efficiently terminate a relationship without bearing unnecessary performance or litigation costs
The Law of Information States: Evidence from China and the United States
No full textGovernment could not function--legally, administratively, or politically--without producing information about the population, the economy, crime, elections, public health, and more. This Article theorizes the informational incentives of political and administrative officials and the legal interventions that can control them. It then uses case studies in the United States and China to illustrate those informational dynamics in practice. Our account reveals a novel form of information regulation: government structure and, in particular, the vertical division of informational powers between levels of government, or "informational federalism." We describe the use of informational federalism and its distinctive functions as part of the portfolio of informational production law in regimes that are both strongly federalist like the United States and strongly centralized like China
Death and Discretion: Some Thoughts on Living
No full text35:2Fifty years ago, James Boyd White inspired a quiet revolution in the
world of legal studies. He encouraged lawyers to think more deeply about
questions of law and justice by drawing upon the humanities, which
provided sources and methods well beyond those that the legal academy
then recognized as legitimate ways of thinking and talking about law.1
Among other things, Professor White insisted that there was a morality to
authentic legal argument and decision making that required a close and
engaged reading of texts, an understanding of community, and an openness
to being persuaded by others.2 It was a courageous move, particularly in the
early 1970s, when many academic lawyers still thought that their job was
simply to teach students to “think like a lawyer,” in the narrow and
instrumental sense in which they understood it. Even those who took a
slightly broader view – who recognized that the social sciences might add
value to legal studies – found little to be said in favor of the humanities. At
best, they thought that the unpacking of fuzzy concepts like “justice” or
“fairness” might be appropriate (if ultimately pointless) work for a
philosophy or political science department, but not for a law school. At
worst, they thought that legal decision making was simply an exercise of
power, that judges were effectively unconstrained by law, and that it made
no sense to study closely the reasons that judges give for their decisions
because those reasons are not the drivers of decisions, but merely post hoc
justifications for outcomes reached for other reasons and on other grounds.
Or they implicitly (and sometimes explicitly) invoked utilitarian concepts
such as efficiency as if those concepts could provide an adequate substitute
for “justice.
The Origins of the Legal Imagination
No full text35:2I want to say at the outset that I feel honored beyond imagining at this
celebration of the fiftieth anniversary of my book, and all the more because
it is you who have set this up—so many beloved friends over the years and
others who will surely become friends. I thank you deeply.
As I wondered about what I might say this morning, I thought perhaps
you would be interested in where this truly odd book, with its 986 pages of
readings and questions, came from