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Friends of the Court: Christian Conservative Arguments on Human Dignity Before the U.S. Supreme Court and the European Court of Human Rights
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Conflict of Laws for the Age of Cybertorts: A Game Theoretic Study of Corporate Profiteering from Choice of Law Loopholes and Interstate Torts
Get PDFThis Article identifies a choice of law loophole that corporations can exploit to commit interstate torts against individuals without paying damages by inducing victims to sue in a state where they are guaranteed to lose. The Second Restatement effectively requires plaintiffs bringing interstate tort claims to allege which state has the most significant relationship to their injury, because most federal courts rely on plaintiffs allegations to choose a state law for the purpose of resolving motions to dismiss. However, when torts are committed over state lines (for example, over the internet), plaintiffs can be misinformed or misled as to where the tortious conduct really occurred, even if their knowledge of how they were harmed is otherwise correct. Therefore, if a plaintiff is induced to sue under a wrong state s law, she would waste years litigating only to lose, even if her claims are meritorious. Her complaint would survive a motion to dismiss because her allegations are plausible, but it would be dismissed at discovery , where it would become apparent that her injury originated in a state other than the one she alleged.
This Article has two objectives. First, I show how corporations committing torts remotely can profit from this loophole, using a game theoretic model and a Third Circuit case in which a corporate defendant apparently misrepresented to the court and plaintiffs the state where the alleged tort originated, resulting in the plaintiffs complaint surviving a motion to dismiss but being dismissed after discovery years later. I argue that, if corporations use this loophole often enough, tort victims would be deterred from suing for fear that they would waste years trying cases they are effectively guaranteed to lose. Thus, once a corporation has built a reputation that it will use the loophole, it could commit torts without paying damages or even having to litigate.
Second, I use my study as evidence against the prevailing notion that conflict of laws scholarship is unhelpful to the practice of law. I argue that conflicts scholarship has become notorious for irrelevance because too many scholars employ logically fallacious argumentation and are overly concerned with designing theoretically ideal but practically infeasible choice of law rules. I argue that, by focusing more on studying how existing choice of law rules affect actual litigation, conflicts scholarship can lead the effort to fix our territorially tethered, increasingly unsustainable legal system and to design one fit to survive the age of cybertorts
Country Club Sports: The Disparate Impact of Athlete Admissions at Elite Universities
Get PDFWhile conservative advocacy groups criticize affirmative action as anti-meritocratic, many universities give similar admissions preferences based on ostensibly race-neutral characteristics that highly correlate with wealth and whiteness. Using data made public through the recent legal challenge to Harvard’s affirmative action policies, statisticians have shown that the greatest boost to an applicant’s admission chances at elite universities is not minority status or high test scores, but rather appearing on a coach’s list of potential recruits. At Harvard, where 70% of athletes are white, these athletic recruitment lists are often for “country club sports” that require expensive tutoring and are rarely played outside of predominantly white suburbs. Our current legislative framework is insufficient to challenge facially race-neutral admissions policies that have the effect of discriminating on the basis of race, like athlete preferences. In response, I propose legislative modifications to Title VI and internal policy changes within the Ivy League to limit this indirect discrimination
