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Cultural Cognition and the Thoughtful Judge
Full text linkThat judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.
Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward egalitarianism, and communitarians sometimes perceive facts differently than individualists.
But cultural cognition is underappreciated in legal interpretation. In law, cultural cognition theory is sometimes associated with legal realism, and people who are not legal realists might discount it for that reason. Recent empirical work has also concluded that judges have some skill at avoiding cultural cognition’s influence when interpreting the law.
In this Article, I argue that cultural cognition is a more powerful concern for legal judgment than recognized. If cultural cognition exists, then it can influence legal judgment according to many theories of law, not just legal realism. Legal judgment is also susceptible to influences that are hard to track empirically. Figuring out the content of disputed laws is amenable to the values-driven influences—and errors— that cultural cognition theory contemplates.
Cultural cognition poses a problem for the thoughtful judge. Avoiding its power requires cultivating a reflective and curious attitude toward legal questions, which may be expressed in judicial virtues like wisdom, temperance, and humility. Cultural cognition theory also gives reason for concern if the judiciary separates into values-based groups
The Alien Tort Statute and U.S. Extraterritorial Jurisdiction: Legal and Economic Corporate Governance Implications Beyond Al Shimari v. CACI Int\u27l
Full text linkThis note is divided into four overall parts. To continue with the academic dialogue regarding the ATS, the first part (Part I) deals with the historical overview and case law of the ATS, while contrasting the development of extraterritoriality in the United States with that abroad (particularly, Europe). More specifically, the first part is divided into two subparts—Subpart A provides a comprehensive background and historical legal overview of the ATS and Subpart B discusses the international trend, particularly in Europe, in extending legal mechanisms to hold corporations accountable beyond their borders, unlike the United States—which, again, was once at the forefront of extending jurisdiction in the 1980s and 1990s.39 The second part (Part II) focuses more closely on the repercussions relevant to Al Shimari v. CACI and presents an economic analysis of the case and of having a functioning enforcement mechanism (via a resuscitated ATS) while analyzing different consequential schemas possible given the different trajectories of the court may follow in its final ruling. Beginning with the analytical component of this exercise (i.e., Part II, Subpart A), the note presents an analysis of how the Al Shimari v. CACI case fits into the current landscape of the ATS. In this section, the potential ramifications of three possible outcomes are outlined, namely, the demise of ATS, the continuation of specific ATS applications, or the possibility of pushing against the limitations set by prior cases, effectively challenging prior precedent (setting up a new enforcement regime). Finally, Subpart B of Part II focuses on the economic and regulatory implications of how the ATS is ultimately operationalized. This part discusses how to analyze the case using the idea of capturing negative externalities, differing with each outcome, and provides insights into the regulatory reality that these situations may impose. This should encompass a comprehensive examination of how each outcome affects businesses, accountability, and the global legal landscape. This section is organized as follows: the first component constructs an economic analysis of the case; the second component explores the economics of the institutionalization of human rights claims via extraterritorial jurisdiction (i.e., regulatory development); and finally, summarizes the costs associated with each possible outcome
Asking the Rights Questions: An Emgerency Action Exception to the Major Questions Doctrine
Full text linkCongress delegates broad discretionary power to administrative agencies to respond to emergency situations, taking advantage of their extraordinary expertise and response speed. Yet these delegations are defined by a judicial rule known as the “Major Questions Doctrine.” The Major Questions Doctrine seeks to protect the separation of powers by preventing excessive use of executive power without clear delegation by Congress. Where a “major question” of vast economic or political significance is raised, it requires “clear” authorization in the delegating statute. During COVID-19, the Supreme Court used the doctrine to strike down several response programs, including: the Center for Disease Control’s eviction moratorium, the Occupational Safety and Health Administration’s vaccine mandate, and the Secretary of Education’s student loan forgiveness program. Applying the doctrine to emergency actions like these defeats congressional purpose and stifles critical relief policies. This Note argues that certain emergency actions by agencies should be exempt from the Major Questions Doctrine. Three main arguments support the need for an exception. First, the doctrine wrongly asks for clear language in statutory schemes which were meant to be flexible and discretionary. Second, the separation of powers motivations behind the doctrine are not implicated in temporary and conditional emergency provisions. Finally, emergency policy is better handled by specialized agencies with the technical expertise and speed necessary to address complex, time- sensitive issues. This Note concludes by proposing the framework for an exception which asks the right questions—noting relevant factors to define an emergency action, discussing the significance of prior congressional policy, and highlighting other checks and balances at play
Lawyers’ and Law Professors’ Experience with Worker Governance
Full text linkPart I surveys some of the leading arguments concerning the benefits and costs of worker governance. It also describes some of the ways in which those benefits and costs can evolve along with the growth, or lack thereof, of companies with worker governance. Part II looks at governance in law firms. It considers how the explanations for the adoption of worker governance fare with respect to law firms, notes the limited, elitist nature of worker governance within law firms, and considers the consequences of that real but elitist worker governance for the understanding of lawyers. Part III considers the same questions for governance at law schools and universities. Part IV concludes that the path-dependence story of business counselors and the adoption of worker governance survives recognition of the fact that lawyers and law professors experience self-governance at their own work. Despite this experience with self-governance, their self-conception as elite professionals keeps them from considering that the self-governance they fight to protect for themselves might be valued by others, even though those others are not so learned and privileged as they are
On Triple Bind Remedies in Fair Shake and Gender Bias Remedies in Psychological Science
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Why (and How) to Give Uncertainty its Due
No full textWe live in a world of uncertainty. Amar Bhidé’s book, Uncertainty and Enterprise: Venturing Beyond the Known, does an enormous service in bringing the topic to the forefront. What are we uncertain about? Principally, about the future – we don’t know what will happen. We may not even know the range of possibilities, much less the associated probabilities. But even our construction of the past and present is often uncertain. We construct narratives regarding what happened and why, based on our present understanding of what is so—an understanding that is often significantly incomplete and subject to revision. Even the description of what happened will differ depending on the underlying causal narrative, something that affects our understanding—and planning—going forward. Why haven’t we thought more about uncertainty? Attempts to be more realistic about human behavior than the orthodox rationality paradigm could have taken uncertainty and reactions thereto, more into account; instead, the dominant focus has been on mistakes humans make, “irrationality.” Reality is straightforward—people are just getting it wrong. But reality isn’t that straightforward—again, we live in a world of uncertainty. In my book with my colleague Richard Painter on bankers’ behavior in the years leading up to the 2008 financial crisis, we detailed why bankers had behaved as they did, given the world as it reasonably, and rationally, seemed to them, in a world of uncertainty, where they sought to maximize their employers’ well-being and their own, and there were no sufficiently agreed-upon ways to assess probabilities—at least not until it was too late. Lawmakers, regulators, and policymakers will continue to be ill-served if they do not do a better job of taking uncertainty into account
Building Bridges: Queer Rights in and out of the Courts
Full text linkIt is unclear whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from differentiating between people based solely on their sexual orientation and/or gender identity. This Note analyzes the Supreme Court’s tiers of scrutiny—rational basis review, intermediate scrutiny, and strict scrutiny—to argue that a new suspect class is warranted for sexual orientation and gender identity (SOGI), triggering strict scrutiny for SOGI classifications. This analysis shows that a united SOGI class meets all of the characteristics associated with suspect classes, including a history of anti-LGBTQIA+ discrimination and the irrelevance between SOGI and one’s ability to contribute to society. This Note highlights the importance of uniting sexual orientation and gender identity into a single suspect class and presuming that any government actions on these bases are unconstitutional
Closing in on the Patent Troll: State Legislatures’ Role in Combatting Trolling Behavior
Full text linkIn the United States, entities known as patent trolls purchase patents solely for the purpose of threatening and bringing litigation and present a significant threat to innovation and economic progress. The question is: Who will rise to the occasion and stop them? In the face of federal inaction, state legislatures have stepped in, enacting laws to combat bad faith assertions of patent infringement. This Note examines the efficacy and constitutionality of state anti-patent troll statutes, analyzing how they operate within the broader framework of federal patent law. State legislatures have taken various approaches to address patent trolling. Some statutes have survived legal scrutiny, empowering successful challenges against patent trolls. Others face obstacles under the Federal Circuit’s stringent bad faith preemption doctrine, which imposes a high bar for proving bad faith claims of patent infringement. Despite these challenges, recent litigation demonstrates that well-crafted state statutes can survive preemption challenges and meaningfully deter patent trolls. This Note argues that states should continue to refine and experiment with anti-patent troll legislation, leveraging the benefits of jurisdictional diversity and iterative legal reform to disrupt trolling tactics. For these reasons, state-level efforts offer a promising path to protecting innovators from predatory litigation, ultimately reinforcing the patent system’s core purpose—to incentivize and reward genuine innovation