Scientific findings on brain development increasingly are influencing how we understand children’s social and emotional development and how we interpret their behavior. Such understandings and interpretations, in turn, can shape public policy and legal precedent, as shown by the U.S. Supreme Court’s recognition of constitutional limitations on criminal punishments imposed on young offenders. This essay introduces a transdisciplinary symposium that explores new learning about the negative impact of “early stressors” on brain development and the opportunities that such learning presents for law and policy reforms. The symposium, part of a Washington University initiative on Neuroscience and Society, builds on the influence that neuroscience has already exerted on criminal law and juvenile justice and examines both the promise and the challenges of attempting to replicate this relationship in other contexts. For example, one challenge emerges from American jurisprudence’s distinction between constitutional limits on government action (as in the juvenile justice cases) versus calls for government support in response to demonstrated individual and societal benefits (as in interventions to minimize early stressors). The symposium contributions reflect the diverse expertise of the authors—including law, medicine, neuroscience, psychology, economics, public health, and social work, as well as insights from those with on-the-ground experience in policy making and implementation. Thanks to the wide array of perspectives, the symposium presents a conversation not only about how neuroscience might influence law and policy but also about how neuroscientists can undertake research that would prove most useful in influencing law and policy. For the full symposium, entitled Bringing Science to Law and Policy, see volume 57 of the Washington University Journal of Law & Policy (available online).
{"title":"The Developing Brain: New Directions in Science, Policy, and Law","authors":"S. Appleton, D. Barch, Anneliese M. Schaefer","doi":"10.2139/SSRN.3298485","DOIUrl":"https://doi.org/10.2139/SSRN.3298485","url":null,"abstract":"Scientific findings on brain development increasingly are influencing how we understand children’s social and emotional development and how we interpret their behavior. Such understandings and interpretations, in turn, can shape public policy and legal precedent, as shown by the U.S. Supreme Court’s recognition of constitutional limitations on criminal punishments imposed on young offenders. \u0000 \u0000This essay introduces a transdisciplinary symposium that explores new learning about the negative impact of “early stressors” on brain development and the opportunities that such learning presents for law and policy reforms. The symposium, part of a Washington University initiative on Neuroscience and Society, builds on the influence that neuroscience has already exerted on criminal law and juvenile justice and examines both the promise and the challenges of attempting to replicate this relationship in other contexts. For example, one challenge emerges from American jurisprudence’s distinction between constitutional limits on government action (as in the juvenile justice cases) versus calls for government support in response to demonstrated individual and societal benefits (as in interventions to minimize early stressors). \u0000 \u0000The symposium contributions reflect the diverse expertise of the authors—including law, medicine, neuroscience, psychology, economics, public health, and social work, as well as insights from those with on-the-ground experience in policy making and implementation. Thanks to the wide array of perspectives, the symposium presents a conversation not only about how neuroscience might influence law and policy but also about how neuroscientists can undertake research that would prove most useful in influencing law and policy. For the full symposium, entitled Bringing Science to Law and Policy, see volume 57 of the Washington University Journal of Law & Policy (available online).","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133604597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article identifies and analyzes unsettled areas in compelled commercial speech doctrine, especially those critical to identifying the appropriate level of scrutiny to be applied to mandated warnings and disclosures. Looking back to the original purpose of the commercial speech doctrine, this article suggests that communities should have considerable flexibility to mandate warnings geared towards protecting the public’s health. Mandated warnings may not always be the most effective policy option, but as a matter of First Amendment doctrine, communities should be given broad leeway to decide whether and how to use warnings in order to better inform the public about potential dangers. Part I provides the factual and legal background necessary to explore this issue. After briefly discussing the use of mandated warnings and disclosures as public health tools, it reviews the Zauderer test, which is the prevailing standard for analyzing compelled commercial speech under the First Amendment. It then discusses the 2012 D.C. Circuit Court of Appeals opinion striking down graphic health warnings for cigarette packs and advertisements, which exemplifies the courts’ increasingly aggressive review of compelled commercial speech requirements. Part II identifies some of the core doctrinal questions in need of clarification. It also considers how these questions might best be resolved, keeping in mind the government’s interest in promoting and protecting public health. Finally, Part III concludes the article by discussing a pending legal challenge to San Francisco's warnings for sugar-sweetened beverage advertisements.
{"title":"Clarifying Standards for Compelled Commercial Speech","authors":"Micah L. Berman","doi":"10.2139/SSRN.2669450","DOIUrl":"https://doi.org/10.2139/SSRN.2669450","url":null,"abstract":"This article identifies and analyzes unsettled areas in compelled commercial speech doctrine, especially those critical to identifying the appropriate level of scrutiny to be applied to mandated warnings and disclosures. Looking back to the original purpose of the commercial speech doctrine, this article suggests that communities should have considerable flexibility to mandate warnings geared towards protecting the public’s health. Mandated warnings may not always be the most effective policy option, but as a matter of First Amendment doctrine, communities should be given broad leeway to decide whether and how to use warnings in order to better inform the public about potential dangers. Part I provides the factual and legal background necessary to explore this issue. After briefly discussing the use of mandated warnings and disclosures as public health tools, it reviews the Zauderer test, which is the prevailing standard for analyzing compelled commercial speech under the First Amendment. It then discusses the 2012 D.C. Circuit Court of Appeals opinion striking down graphic health warnings for cigarette packs and advertisements, which exemplifies the courts’ increasingly aggressive review of compelled commercial speech requirements. Part II identifies some of the core doctrinal questions in need of clarification. It also considers how these questions might best be resolved, keeping in mind the government’s interest in promoting and protecting public health. Finally, Part III concludes the article by discussing a pending legal challenge to San Francisco's warnings for sugar-sweetened beverage advertisements.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134138657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
American racism and discrimination continue to plague our institutions of higher education. Predominantly white law school environments are especially notable for being inhospitable and unfriendly. Many law students of color create and join race/ethnic-specific organizations in order to receive support on otherwise unwelcoming campuses. While many students view these groups as a safe space that provides a buffer from the rest of law school life, others worry that these organizations may increase segregation. When considered through a lens of structural inequality and privilege, we see that “exclusion” may have different meanings and outcomes based on the relative racial hierarchy of the groups involved. My research uses both quantitative and qualitative data to better understand how what some consider “self-segregation” may be necessary for creating safe space.
{"title":"Two Sides of a Coin: Safe Space and Segregation in Race/Ethnic-Specific Law Student Organizations","authors":"Meera E. Deo","doi":"10.2139/SSRN.2097926","DOIUrl":"https://doi.org/10.2139/SSRN.2097926","url":null,"abstract":"American racism and discrimination continue to plague our institutions of higher education. Predominantly white law school environments are especially notable for being inhospitable and unfriendly. Many law students of color create and join race/ethnic-specific organizations in order to receive support on otherwise unwelcoming campuses. While many students view these groups as a safe space that provides a buffer from the rest of law school life, others worry that these organizations may increase segregation. When considered through a lens of structural inequality and privilege, we see that “exclusion” may have different meanings and outcomes based on the relative racial hierarchy of the groups involved. My research uses both quantitative and qualitative data to better understand how what some consider “self-segregation” may be necessary for creating safe space.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131023124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Building on the authors' prior study of attorney negotiation ethics, this paper looks at the data through the lens of gender. The literature examining gender and ethics, both for attorneys and non-attorneys, finds either that women act more ethically than men or that there is no difference between the sexes. The findings in this study are more nuanced: while there was no difference in responses of men and women when asked to engage in a fraudulent negotiation strategy, there was a difference in response to a follow-up request to employ a more subtle form of the fraudulent negotiation strategy, a pure omission. Unexpectedly, the men performed better than women. Additionally, the men performed better than women when asked whether the client’s initial request constituted a misrepresentation and whether a key fact was protected from disclosure by the Rules of Professional Conduct. Some of this difference correlated with the amount of respondent professional experience, but that does not explain the entire difference in the results. The survey instrument was not designed to investigate and uncover the factors that lead to the differences, thus it is not entirely clear why these gender differences exist. The article hypothesizes what these other factors may be, such as differences in the manner in which women and men organize information when making decisions, differences in how men and women respond in ambiguous ethical situations, and differences in how men and women advocate for others.
{"title":"Gender and Attorney Negotiation Ethics","authors":"A. Hinshaw, J. K. Alberts","doi":"10.2139/SSRN.2097972","DOIUrl":"https://doi.org/10.2139/SSRN.2097972","url":null,"abstract":"Building on the authors' prior study of attorney negotiation ethics, this paper looks at the data through the lens of gender. The literature examining gender and ethics, both for attorneys and non-attorneys, finds either that women act more ethically than men or that there is no difference between the sexes. The findings in this study are more nuanced: while there was no difference in responses of men and women when asked to engage in a fraudulent negotiation strategy, there was a difference in response to a follow-up request to employ a more subtle form of the fraudulent negotiation strategy, a pure omission. Unexpectedly, the men performed better than women. Additionally, the men performed better than women when asked whether the client’s initial request constituted a misrepresentation and whether a key fact was protected from disclosure by the Rules of Professional Conduct. Some of this difference correlated with the amount of respondent professional experience, but that does not explain the entire difference in the results. The survey instrument was not designed to investigate and uncover the factors that lead to the differences, thus it is not entirely clear why these gender differences exist. The article hypothesizes what these other factors may be, such as differences in the manner in which women and men organize information when making decisions, differences in how men and women respond in ambiguous ethical situations, and differences in how men and women advocate for others.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114193946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
P. Kim, Margo Schlanger, C. L. Boyd, Andrew D. Martin
Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district judge may rule in a single case on multiple occasions and on different types of questions, only a few of which could be dispositive but all of which affect the case’s progress and ultimate outcome. In this Essay, we argue for a new and more suitable approach to studying decision-making in the federal district courts - one that takes into account the trial level litigation process and the varied nature of the tasks judging in a trial court entails. We critique the existing empirical literature’s predominant method for studying district courts - analysis of district court opinions, usually published opinions - and discuss the limitations and biases inherent in this approach and propose a new approach to studying decision-making by district judges. By taking advantage of the electronic docketing system now operating in all federal district courts, researchers can use dockets, orders, and other case documents, as well as opinions, as data sources, thereby incorporating into their analysis the relevant institutional features of district courts. In particular, expanding the focus beyond opinions allows researchers to capture both the procedural context and the iterative nature of district judge decision-making. We also describe an ongoing project focused on the litigation activities of the Equal Employment Opportunity Commission, in which we implement this new approach to studying the work of the district courts.
{"title":"How Should We Study District Judge Decision-Making?","authors":"P. Kim, Margo Schlanger, C. L. Boyd, Andrew D. Martin","doi":"10.2139/SSRN.1121057","DOIUrl":"https://doi.org/10.2139/SSRN.1121057","url":null,"abstract":"Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district judge may rule in a single case on multiple occasions and on different types of questions, only a few of which could be dispositive but all of which affect the case’s progress and ultimate outcome. In this Essay, we argue for a new and more suitable approach to studying decision-making in the federal district courts - one that takes into account the trial level litigation process and the varied nature of the tasks judging in a trial court entails. We critique the existing empirical literature’s predominant method for studying district courts - analysis of district court opinions, usually published opinions - and discuss the limitations and biases inherent in this approach and propose a new approach to studying decision-making by district judges. By taking advantage of the electronic docketing system now operating in all federal district courts, researchers can use dockets, orders, and other case documents, as well as opinions, as data sources, thereby incorporating into their analysis the relevant institutional features of district courts. In particular, expanding the focus beyond opinions allows researchers to capture both the procedural context and the iterative nature of district judge decision-making. We also describe an ongoing project focused on the litigation activities of the Equal Employment Opportunity Commission, in which we implement this new approach to studying the work of the district courts.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130525773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When lawyers represent clients in the process of mediation, tensions may arise between the goals and actions of the mediators and those of the lawyers. Mediators may be seeking to find ways to create new value for the parties, beyond a simple compromise of their legalistic claims and defenses. Or they may be seeking to repair or improve the parties' relationship. Or they may wish to lead the parties to greater mutual understanding. But lawyers often seem to be limited to an adversarial, legalistic approach, looking only for some minimal or reasonable compromise and standing in the way of the mediators' other goals. These tensions run deeper than a difference in goals or tactics or techniques. They arise from different cognitive frameworks about conflict and ways to deal with it. The cognitive frameworks, often operating tacitly and without an actor's conscious awareness, create different and competing perceptions of what is relevant and what is appropriate to do. The mediation literature has articulated four different, if overlapping, cognitive frameworks for dealing with conflict in a mediation setting: distributive compromises, creating more value for all, changing relationships, and increasing the mutual understanding of the parties in conflict. Four examples of conflicts between mediators and lawyers, drawn from stories of actual mediations, demonstrate these conflicting frameworks. Understanding the cognitive frameworks reveals ways in which lawyers can operate congruently with mediators, rather than in opposition to them. The cognitive frameworks are versions of ways that people - lawyers included - ordinarily have available to deal with conflict. There is nothing inherent in "legal thinking" that prevents lawyers from shifting into non-adversarial frameworks in a mediation, although the shift can be challenging. Similarly, a lawyer's ethical obligation to act in a client's interest does not stand in the way of a lawyer inhabiting one of the alternative frameworks. Indeed, because the alternative frameworks can actually serve a client's interests in ways not easily achievable within an adversarial, distributive approach, lawyers have a moderate ethical obligation to seek to use alternative frameworks within a proper mediation setting. But it is not easy to shift from one framework to another simply by intending to do so. I suggest that paying attention to certain categories of things discussed in mediation is a practical way to identify and influence the operative framework. Certain subject matters, such as what happened in the past, what will happen in the future, legal meaning versus moral meaning, feelings, relationship, and how the parties intend to move into the future, tend to be distinctive for different frameworks, both partially constituting a framework and leading others into it. Beyond the questions of whether lawyers can mentally inhabit the alternate frameworks, whether they ethically may use them, and whether they ethically sh
{"title":"Four Ways of Looking at a Lawsuit: How Lawyers Can Use the Cognitive Frameworks of Mediation","authors":"Jonathan M. Hyman","doi":"10.2139/SSRN.1347057","DOIUrl":"https://doi.org/10.2139/SSRN.1347057","url":null,"abstract":"When lawyers represent clients in the process of mediation, tensions may arise between the goals and actions of the mediators and those of the lawyers. Mediators may be seeking to find ways to create new value for the parties, beyond a simple compromise of their legalistic claims and defenses. Or they may be seeking to repair or improve the parties' relationship. Or they may wish to lead the parties to greater mutual understanding. But lawyers often seem to be limited to an adversarial, legalistic approach, looking only for some minimal or reasonable compromise and standing in the way of the mediators' other goals. These tensions run deeper than a difference in goals or tactics or techniques. They arise from different cognitive frameworks about conflict and ways to deal with it. The cognitive frameworks, often operating tacitly and without an actor's conscious awareness, create different and competing perceptions of what is relevant and what is appropriate to do. The mediation literature has articulated four different, if overlapping, cognitive frameworks for dealing with conflict in a mediation setting: distributive compromises, creating more value for all, changing relationships, and increasing the mutual understanding of the parties in conflict. Four examples of conflicts between mediators and lawyers, drawn from stories of actual mediations, demonstrate these conflicting frameworks. Understanding the cognitive frameworks reveals ways in which lawyers can operate congruently with mediators, rather than in opposition to them. The cognitive frameworks are versions of ways that people - lawyers included - ordinarily have available to deal with conflict. There is nothing inherent in \"legal thinking\" that prevents lawyers from shifting into non-adversarial frameworks in a mediation, although the shift can be challenging. Similarly, a lawyer's ethical obligation to act in a client's interest does not stand in the way of a lawyer inhabiting one of the alternative frameworks. Indeed, because the alternative frameworks can actually serve a client's interests in ways not easily achievable within an adversarial, distributive approach, lawyers have a moderate ethical obligation to seek to use alternative frameworks within a proper mediation setting. But it is not easy to shift from one framework to another simply by intending to do so. I suggest that paying attention to certain categories of things discussed in mediation is a practical way to identify and influence the operative framework. Certain subject matters, such as what happened in the past, what will happen in the future, legal meaning versus moral meaning, feelings, relationship, and how the parties intend to move into the future, tend to be distinctive for different frameworks, both partially constituting a framework and leading others into it. Beyond the questions of whether lawyers can mentally inhabit the alternate frameworks, whether they ethically may use them, and whether they ethically sh","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127503590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2008-12-31DOI: 10.1007/978-3-319-14154-1_4
R. Richter
{"title":"The Role of Law in the New Institutional Economics","authors":"R. Richter","doi":"10.1007/978-3-319-14154-1_4","DOIUrl":"https://doi.org/10.1007/978-3-319-14154-1_4","url":null,"abstract":"","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114640554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.
{"title":"The University as Constructed Cultural Commons","authors":"M. J. Madison, Brett M. Frischmann, K. Strandburg","doi":"10.31228/osf.io/z8x7m","DOIUrl":"https://doi.org/10.31228/osf.io/z8x7m","url":null,"abstract":"This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131507831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The recent Supreme Court decision in Bell Atlantic v. Twombly stands at the crossroads of antitrust and civil procedure. As an antitrust case, Twombly makes sense on structural grounds. The FCC regulation of the telecommunications industry, and the many innocent explanations as to why each telecommunications company would stay out of its rival's territories obviated the need for further discovery. But in many other contexts, including Conley v. Gibson a case involving potential breach of the duty of fair representation on matters of racial discrimination discovery could flesh out the relevant factual issues. The Supreme Court's general disapproval of Conley sweeps far too wide. Discovery should only be denied when the plausible inferences that can be drawn from the complaint and publicly available evidence clearly imply further discovery is of little value. Accordingly, the Federal Rules of Civil procedure should explicitly acknowledge that in a small set of cases motions on the pleadings can properly function as truncated and disguised motions for summary judgment.
{"title":"Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments","authors":"R. Epstein","doi":"10.2139/SSRN.1126359","DOIUrl":"https://doi.org/10.2139/SSRN.1126359","url":null,"abstract":"The recent Supreme Court decision in Bell Atlantic v. Twombly stands at the crossroads of antitrust and civil procedure. As an antitrust case, Twombly makes sense on structural grounds. The FCC regulation of the telecommunications industry, and the many innocent explanations as to why each telecommunications company would stay out of its rival's territories obviated the need for further discovery. But in many other contexts, including Conley v. Gibson a case involving potential breach of the duty of fair representation on matters of racial discrimination discovery could flesh out the relevant factual issues. The Supreme Court's general disapproval of Conley sweeps far too wide. Discovery should only be denied when the plausible inferences that can be drawn from the complaint and publicly available evidence clearly imply further discovery is of little value. Accordingly, the Federal Rules of Civil procedure should explicitly acknowledge that in a small set of cases motions on the pleadings can properly function as truncated and disguised motions for summary judgment.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"134 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116344534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"Statutory Construction" examines the effect of judges' social backgrounds on the method of statutory construction used to justify decisions in a database of federal appellate tax cases. It concludes that social backgrounds have a modest effect. Relatively few descriptive statistics were statistically significant, as was also true of predictive statistics. Results regarding aspects of the case, such as the type of taxpayer (e.g., individual, business) or representation by a lawyer, were more robust. These results are consistent with earlier research by the author on the same topic, in a database of federal trial tax cases.
{"title":"Statutory Construction in Federal Appellate Tax Cases: The Effect of Judges' Social Backgrounds and of Other Aspects of Litigation","authors":"Daniel M. Schneider","doi":"10.2139/SSRN.467242","DOIUrl":"https://doi.org/10.2139/SSRN.467242","url":null,"abstract":"\"Statutory Construction\" examines the effect of judges' social backgrounds on the method of statutory construction used to justify decisions in a database of federal appellate tax cases. It concludes that social backgrounds have a modest effect. Relatively few descriptive statistics were statistically significant, as was also true of predictive statistics. Results regarding aspects of the case, such as the type of taxpayer (e.g., individual, business) or representation by a lawyer, were more robust. These results are consistent with earlier research by the author on the same topic, in a database of federal trial tax cases.","PeriodicalId":438020,"journal":{"name":"Washington University Journal of Law and Policy","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116559547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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