The Common Law’s Case Against Non-precedential Opinions – Article by Richard B. Cappalli

From Volume 76, Number 4 (May 2003)
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United States courts of appeals and a number of state appellate courts permit their judicial panels to designate certain decisions as unworthy of publication and as “non-precedential” even though an opinion has been written that justifies them. The designation is based on an assessment by the decisional panel that the resolution of the appealed issues has not added new law to the jurisdiction’s already existing body of law. Judge Richard Posner has described this criterion as “imprecise and nondirective.” An empirical study “casts serious doubt on whether the official criteria for publication of opinions provide a meaningful guide to the judges.” Once a decision-with-opinion receives the “non-precedential” label, it may not be used as authority in future cases by any of the jurisdiction’s courts, and lawyers are prohibited from citing it in their briefs and oral arguments. These opinions were once called “unpublished” and were distributed only to the parties to the appeal, but they are now widely available through online databases and through the Federal Appendix, a new West publication. This Article uses the noun “non-precedent” and the adjective “non-precedential” to refer to these opinions.

The selective publication policy evolved in the precomputer era when courts and judicial councils worried about their physical ability to publish hard copies of the ever-increasing number of court opinions, the costs to the legal community of acquiring and storing voluminous law reporters, and overwhelming law-finding devices.


 

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Class and Status in American Law: Race, Interest, and the Anti-Transformation Cases – Article by Martha R. Mahoney

From Volume 76, Number 4 (May 2003)
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There has been a recent resurgence of interest in class in legal scholarship. This development might have been predictable. Inequality in America has grown sharply over the past two decades. Working people face job tenure insecurity, massive shifts in work structures, and heavy debt. Indigent families have begun experiencing the termination of assistance from the state. Revelations of corporate wrongdoing highlight the power of wealth. But the new interest in class is not rooted primarily in concern with the conditions of low wage workers or the unemployed. Rather, it is a new twist on the topic of race. Out of social discomfort and legal challenges to affirmative action, judges and scholars are seeking a way to confront inequality without confronting race.

Class is important in its own right, but in the United States people usually do not talk much about it. The term is unfamiliar, packed with many different meanings, and uncomfortably radical. In law and popular discourse, the figure of the white working class person has appeared in recent years as the symbol for the need to end or change affirmative action. A searching examination of interest in white working people requires a closer look at class and the social construction of race. The concept of class seems tame only in comparison to the volatility of the discourse on race. It only remains tame if it is understood through a simplistic notion of individual status and divorced from conflict and from consciousness of shared interest among oppressed people – in other words, from groups and relationships of power.


 

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Cookies and the Common Law: Are Internet Advertisers Trespassing on Our Computers? – Article by Michael R. Siebecker

From Volume 76, Number 4 (May 2003)
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Are Internet advertisers trespassing on our computers? The question arises due to the increasing reliance upon cookie technology by Internet advertising firms as the primary means to match online ads with the specific interests and characteristics of individual Internet users.

It seems that whenever we visit a Web site, we are barraged with an increasing number of blinking banner advertisements hocking products and services of every imaginable sort. More than sixty billion advertisements per month are carefully selected for us and sent to our computers by a single Internet advertising firm, DoubleClick, Inc. In order to increase the effectiveness of the ads, DoubleClick deposits small text files or “cookies” on our computers in addition to sending us the banner advertisements. Like most other Internet advertisers, DoubleClick uses cookie files to collect and maintain detailed consumer profiles that reflect the online practices, preferences and other personal characteristics of each individual who surfs the Web. Based on those detailed consumer profiles, DoubleClick places on the pages of affiliated sites various banner advertisements of client companies that target the specific interests of individuals who happen to visit any DoubleClick affiliated site. Since its inception, DoubleClick alone has placed billions of targeted banner advertisements for client companies on sites across the Internet and some estimate that those ads have been viewed by a majority of all Internet users. To date, DoubleClick has compiled perhaps as many as 100 million user profiles in its databases and, with more than 11,000 affiliated commercial Web sites, DoubleClick remains the largest Internet advertising firm in the world.


 

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Judicially Straight? Boy Scouts v. Dale and the Missing Scalia Dissent – Article by Stephen Clark

From Volume 76, Number 3 (March 2003)
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Was Justice Scalia’s vote in the Boy Scouts case judicially straight? For years he has championed the view that a general conduct law not specifically directed at First Amendment interests does not implicate the First Amendment even if it happens to restrict First Amendment activity in some of its applications. Thus, when Oregon evenhandedly enforced its drug-control law against religious and nonreligious uses of peyote, Scalia maintained that the First Amendment was not implicated, and when Indiana evenhandedly enforced its public indecency law against expressive and nonexpressive public nudity, he took the same position. But in the Boy Scouts case, when New Jersey evenhandedly enforced its civil rights law against expressive as well as nonexpressive discrimination, Scalia not only thought that the law implicated the First Amendment, but he also provided the fifth vote to invalidate it as applied.

When the Court handed down its decision in Boy Scouts, one could fairly have wondered whether Scalia’s dissent was missing. Since the civil rights law at issue could have been characterized as a general law not directed at First Amendment interests, Scalia’s decision to join the majority opinion invalidating the law’s enforcement on First Amendment grounds appeared to conflict with the First Amendment philosophy he developed in Employment Division v. Smith, Barnes v. Glen Theatre, Inc., and similar cases. In what may be called his Smith jurisprudence, Scalia has maintained that, so far as the regulation of conduct is concerned, heightened judicial scrutiny should be reserved for circumstances in which a law specifically targets First Amendment interests for disfavored treatment. Otherwise, accommodation of those interests should ordinarily be left to the political process. Scalia did not seem to adhere to that philosophy in Boy Scouts.


 

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Cognitive Jurisprudence – Article by Adam J. Hirsch

From Volume 76, Number 3 (March 2003)
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Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements. Needless to say, the reality is that rules flow out of the pens of mortal persons beneath the impressive robes, persons who must bend their mental efforts to many complex problems and tasks, all competing for their attention.

Half a century ago, the late Herbert Simon developed the theory of “bounded rationality” in connection with human decisionmaking. His insight was that the cognitive resources (like other resources) of human beings are finite and, accordingly, must be rationed. Whether consciously or unconsciously, we all have to make hard choices about how to allocate our intellectual energies. We cope with cognitive deficits, Simon and his students elaborated, in a variety of ways—for example, by searching selectively through the exponential ramifications of our analysis; by settling on decisions that we find sufficiently good, even if not necessarily best; and by developing mental short-cuts (dubbed heuristics) to simplify cognitive tasks, thereby allowing us to arrive at decisions in a more frugal manner.


 

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Making Markets: Network Effects and the Role of Law in the Creation of Strong Securities Markets – Article by Robert B. Ahdieh

From Volume 76, Number 2 (January 2003)
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As Russia and other formerly socialist states construct market economies, the appearance of strong securities markets remains an unfulfilled expectation. Notwithstanding broad privatization of state-owned enterprises and the elimination of industrial subsidies – essential precursors to demand for capital-raising securities markets – stock markets in Central and Eastern Europe remain illiquid, inefficient, and unreliable.

Strong securities markets do not, it seems, neatly follow from the welfare-maximizing behavior of individuals and institutions. Nor can the appearance of securities markets be effectively dictated by government decree. Post-communist securities market transition therefore presents a puzzle: Do markets emerge, or must they be created?

Joining the debate over whether “law matters” in the creation of securities markets, this Article draws on recent finance and microeconomic analysis of network effects to propose an alternative theory of why law might matter in the creation of securities markets, and to challenge traditionally limited views of how it matters. After articulating the proposed network model of securities markets, this Article outlines the model’s implications for securities market transition. Specifically, it highlights two categories of network inefficiencies that may help explain the persistent weaknesses of securities markets in Russia and other transitional states. The model suggests such inefficiencies may also arise in the modernization of established securities markets, however, implying lessons for the United States and other developed economies as well.

Where network effects undermine the spontaneous emergence of strong markets, this Article proposes a limited coordination of market expectations – as distinct from law’s demarcation of property rights and enforcement of contracts, as conventionally acknowledged, and its protection of minority investors, as recently emphasized by “law matters” corporate and securities law scholars – as a central role for law in the very creation and design of strong securities markets.


 

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A New Direction for LLC Research in a Contractarian Legal Environment – Article by Sandra K. Miller

From Volume 76, Number 2 (January 2003)
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This Article discusses a survey on limited liability companies (LLCs) to which 770 attorneys responded in California, Delaware, New York, and Pennsylvania. Of the 770 attorneys who responded in these states, Delaware respondents reported a higher rate of experience with disputes than respondents in New York and Pennsylvania, and reported a higher rate of lawsuits filed than the respondents from California, New York, and Pennsylvania who stated they had handled majority/minority disputes. The findings challenge the view that greater contractual flexibility will necessarily lead to a decrease in disputes and/or judicial intervention. Many respondents lacked a basic understanding of the LLC members’ statutory default buy-out rights, and only fourteen percent said their usual LLC agreement included the minority contractual protection of a dissolution for illegal, fraudulent, or oppressive majority conduct. The Article analyzes the survey results in light of recent LLC litigation, discusses the important role that courts can be expected to play in the articulation of standards of LLC member and manager conduct, and makes several policy recommendations regarding the course of future business entity education and research.


 

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Private Justice – Article by Pamela H. Bucy

From Volume 76, Number 1 (November 2002)
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New crimes require new thinking about regulation. Because of computerization and globalization, today’s world faces new crimes and new ways of committing old crimes. Because of the interconnectedness of our global financial markets, this evolving criminal activity has unprecedented power to wreak havoc on every aspect of modern life. Law enforcement has no choice but to respond effectively.

One aspect of this new thinking is revising our concept of crime. Complex, economic wrongdoing is difficult to categorize as criminal primarily because it is enormously difficult to prove the high level of mens rea traditionally and appropriately required in criminal law. Proving this requisite mental state by the heightened burden required in criminal cases is even more difficult. Moreover, even when proof of criminal intent beyond a reasonable doubt is possible, conducting the investigation and proving a case by these standards is so expensive and time-intensive for both the executive and judicial branches that the costs often outweigh any benefit achieved. Lastly, imposing the criminal sanction of imprisonment on defendants whose wrongdoing, however destructive to society, may be malum prohibitum, is morally and practically questionable for a criminal justice system and is often economically inefficient.


 

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Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution – Article by Ray D. Madoff

From Volume 76, Number 1 (November 2002)
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Mediation—the process through which a third party neutral assists parties in reaching their own agreement—has achieved a prominence in our legal system that belies its youth. Earlier in the twentieth century, the use of mediation was limited almost entirely to small disputes (which did not justify the expense of litigation) and labor disputes (which required quick resolution in order to avoid costly strikes and shutdowns.) By contrast, mediation today is touted for disputes of all sizes and in all areas of the law, including probate, family, commercial lending and business, criminal, employment discrimination, environmental, legal malpractice, medical malpractice, and maritime law. Indeed, such is the enthusiasm for mediation, that one is hard pressed to find a legal area in which mediation is not actively encouraged. Despite such broad encouragement, its success varies widely in different fields of law. While in some areas of law it has achieved dominance, in others its development has been far slower. Two areas where this disparity is particularly puzzling are divorce and will contests.


 

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The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review – Article by Dan T. Coenen

From Volume 75, Number 6 (September 2002)DOWNLOAD PDF

In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause? Anticipating a flurry of recent scholarship, Justice Linde took particular interest in whether the absence of legislative findings offered in support of an otherwise duly enacted law should bear upon that law’s constitutionality.

Drawing in part on Justice Linde’s work, Professor Laurence Tribe began in the same time frame to advocate a style of judicial review that combines both process-centered and substance-centered components. In doing so, he documented the pre-Rehnquist Court’s use of this technique in high-profile cases—such as New York Times Co. v. United States, Hampton v. Mow Sun Wong, and Mississippi University for Women v. Hogan—to invalidate statutes and rules. Professor Tribe also gave this approach to constitutional decisionmaking a name, calling it “structural due process.” For a variety of reasons, I prefer the more encompassing term “semisubstantive review.”


 

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