When an officer challenges her removal by the president, what relief is available? This article shows that the appropriate remedy will typically be a declaratory judgment. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, there should be a presumption that the federal courts will prevent her removal during the pendency of the litigation. Otherwise, the presumption should be against interim relief. This approach is grounded in the principles of equity, and it prevents “flipping” back and forth in who occupies the office during the litigation.
{"title":"Remedies in the officer removal cases","authors":"Samuel L Bray","doi":"10.1093/jla/laaf012","DOIUrl":"https://doi.org/10.1093/jla/laaf012","url":null,"abstract":"When an officer challenges her removal by the president, what relief is available? This article shows that the appropriate remedy will typically be a declaratory judgment. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, there should be a presumption that the federal courts will prevent her removal during the pendency of the litigation. Otherwise, the presumption should be against interim relief. This approach is grounded in the principles of equity, and it prevents “flipping” back and forth in who occupies the office during the litigation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"139 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2025-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145583050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Data technology is increasingly deployed to assign safety scores to people and products. Could these scores be used to apportion liability for accidents? Instead of liability based on ad-hoc care level (the negligence rule), “safety score liability” imposes liability commensurate with the habitual propensity to behave unsafely. This article describes how such a regime works, the incentives it creates, and the barriers it faces. It demonstrates its application to the most common torts—auto accidents. Safety score liability offers a novel foundation for the notion of fault in tort law, with surprisingly strong incentives for care, and an effective scheme for compensating victims.
{"title":"Safety score liability","authors":"Omri Ben-Shahar","doi":"10.1093/jla/laaf010","DOIUrl":"https://doi.org/10.1093/jla/laaf010","url":null,"abstract":"Data technology is increasingly deployed to assign safety scores to people and products. Could these scores be used to apportion liability for accidents? Instead of liability based on ad-hoc care level (the negligence rule), “safety score liability” imposes liability commensurate with the habitual propensity to behave unsafely. This article describes how such a regime works, the incentives it creates, and the barriers it faces. It demonstrates its application to the most common torts—auto accidents. Safety score liability offers a novel foundation for the notion of fault in tort law, with surprisingly strong incentives for care, and an effective scheme for compensating victims.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"105 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2025-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145241857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article develops a comprehensive account of the methods of consent solicitation broadly construed. We offer four principal contributions. First, we identify the features of a solicitation that can produce coercive intercreditor dynamics. Second, we document the possibility of coercive methods under standard bond and loan contracts. Third, we show that economic considerations can justify coercion. Fourth, we conclude that the most coercive prevailing techniques cannot be so easily justified and propose an approach to construing debt contracts that would restrain what are likely the most value-destructive solicitation methods without condemning longstanding and plausibly value-enhancing techniques.
{"title":"Getting to yes: the role of coercion in debt renegotiations","authors":"Vincent S J Buccola, Marcel Kahan","doi":"10.1093/jla/laaf009","DOIUrl":"https://doi.org/10.1093/jla/laaf009","url":null,"abstract":"This article develops a comprehensive account of the methods of consent solicitation broadly construed. We offer four principal contributions. First, we identify the features of a solicitation that can produce coercive intercreditor dynamics. Second, we document the possibility of coercive methods under standard bond and loan contracts. Third, we show that economic considerations can justify coercion. Fourth, we conclude that the most coercive prevailing techniques cannot be so easily justified and propose an approach to construing debt contracts that would restrain what are likely the most value-destructive solicitation methods without condemning longstanding and plausibly value-enhancing techniques.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"194 1","pages":"166-189"},"PeriodicalIF":2.2,"publicationDate":"2025-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145134624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Traditional approaches for documenting the harm of gerrymandering emphasize collective representation by legislatures, minimizing the relationship between individual voters and their respective representatives. Federal courts have struggled to map collective accounts onto cognizable constitutional harms, reflecting a discomfort evaluating a system of representation inescapably rooted in geographic districts using diagnostics that treat districts and their boundaries as an inconvenience rather than an intrinsic feature. A normative account of representation and accountability rooted in the dyadic relationship between voters and their legislators addresses the exact harms that courts have articulated yet struggled to substantiate. We derive a formal model of dyadic representation that yields a measure of disparities among different voters, including those divided by partisanship. We then compare enacted plans in four states against two million simulated counterfactuals, demonstrating how conclusions about the harms from gerrymandering may be highly sensitive to political factors such as polarization and officeholder motivation.
{"title":"What is the harm in (partisan) gerrymandering? Collective vs. dyadic accounts of representational disparities","authors":"Sanford C Gordon, Douglas M Spencer, Sidak Yntiso","doi":"10.1093/jla/laaf006","DOIUrl":"https://doi.org/10.1093/jla/laaf006","url":null,"abstract":"Traditional approaches for documenting the harm of gerrymandering emphasize collective representation by legislatures, minimizing the relationship between individual voters and their respective representatives. Federal courts have struggled to map collective accounts onto cognizable constitutional harms, reflecting a discomfort evaluating a system of representation inescapably rooted in geographic districts using diagnostics that treat districts and their boundaries as an inconvenience rather than an intrinsic feature. A normative account of representation and accountability rooted in the dyadic relationship between voters and their legislators addresses the exact harms that courts have articulated yet struggled to substantiate. We derive a formal model of dyadic representation that yields a measure of disparities among different voters, including those divided by partisanship. We then compare enacted plans in four states against two million simulated counterfactuals, demonstrating how conclusions about the harms from gerrymandering may be highly sensitive to political factors such as polarization and officeholder motivation.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"67 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2025-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"145089712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Using a novel dataset of about 640,000 circuit court decisions from 1985 to 2020, I show that panel political composition is associated with case outcomes in a vastly broader array of federal circuit court cases—representing together about 90% of all cases—than prior work has appreciated. In cases between parties that could be perceived to have unequal power, Democratic-nominated judges tend to have a “Pro-Weak” tendency to side with the seemingly weaker party. In cases without perceived power inequality, Democratic-nominated judges tend to have a “Less-Deference” tendency to be more willing to reverse lower court decision.
{"title":"The Pervasive Influence of Political Composition on Circuit Court Decisions","authors":"Alma Cohen","doi":"10.1093/jla/laaf004","DOIUrl":"https://doi.org/10.1093/jla/laaf004","url":null,"abstract":"Using a novel dataset of about 640,000 circuit court decisions from 1985 to 2020, I show that panel political composition is associated with case outcomes in a vastly broader array of federal circuit court cases—representing together about 90% of all cases—than prior work has appreciated. In cases between parties that could be perceived to have unequal power, Democratic-nominated judges tend to have a “Pro-Weak” tendency to side with the seemingly weaker party. In cases without perceived power inequality, Democratic-nominated judges tend to have a “Less-Deference” tendency to be more willing to reverse lower court decision.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"52 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2025-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"144694116","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The USA, alongside many other nations, presently faces a vital policy choice: should it adopt the global minimum tax proposed by the Organization for Economic Cooperation and Development, purportedly to ensure basic levels of corporate taxation of large multinationals? I set out a framework for analyzing and predicting global minimum tax adoption by self-interested, national-income-maximizing governments. Contrary to both popular and prior scholarly claims, the global minimum tax is incentive incompatible: countries from which multinationals originate will likely suffer deep losses; the tax’s purported enforcement tool, even read in an aggressive, controversial fashion, is ineffective. The global minimum tax may unravel despite initial adoption. (JEL codes: F23, F55, H25, H73, H87, K34).
与许多其他国家一样，美国目前面临着一个至关重要的政策选择：它是否应该采用经济合作与发展组织（Organization for Economic Cooperation and Development）提出的全球最低税率，据称这是为了确保大型跨国公司的基本企业税水平？我建立了一个框架，用于分析和预测利己的、追求国民收入最大化的政府采用的全球最低税率。与流行的和先前的学术主张相反，全球最低税与激励不相容：跨国公司的原籍国可能会遭受重大损失；所谓的税收执行工具，即使以一种激进的、有争议的方式来解读，也是无效的。尽管最初采用了全球最低税，但它可能会瓦解。（JEL代码：F23、F55、H25、H73、H87、K34）。
{"title":"Strategic Incentives for Adopting the Global Minimum Tax","authors":"Wei Cui","doi":"10.1093/jla/laae008","DOIUrl":"https://doi.org/10.1093/jla/laae008","url":null,"abstract":"The USA, alongside many other nations, presently faces a vital policy choice: should it adopt the global minimum tax proposed by the Organization for Economic Cooperation and Development, purportedly to ensure basic levels of corporate taxation of large multinationals? I set out a framework for analyzing and predicting global minimum tax adoption by self-interested, national-income-maximizing governments. Contrary to both popular and prior scholarly claims, the global minimum tax is incentive incompatible: countries from which multinationals originate will likely suffer deep losses; the tax’s purported enforcement tool, even read in an aggressive, controversial fashion, is ineffective. The global minimum tax may unravel despite initial adoption. (JEL codes: F23, F55, H25, H73, H87, K34).","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"20 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142815770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Formalism is the dominant mode of separation of powers analysis on the Supreme Court and one of two paradigmatic approaches in the academy. It seeks to resolve disputes between Congress and the President by asking which branch has exclusive power over the relevant matter. This method is thought to work because, if one branch has exclusive power over the matter, then, by definition, the other branch does not. Although this method is coherent and workable in some relatively straightforward cases, it is of no use in areas where both branches’ “exclusive” powers overlap—as formalists routinely concede is possible. This is a major problem because almost all the disputes that actually arise today involve areas of overlapping power. In such cases, both branches have relevant power to act and come into conflict. This Article argues that separation of powers formalism has never built—and can never build—a coherent method that tells us which branch to prioritize in such instances. These are the limits of formalism in the separation of powers. Formalism might help us understand some uncontroversial separation of powers questions, but it cannot resolve the disputes that actually matter today.
{"title":"The Limits of Formalism in the Separation of Powers","authors":"Shalev Gad Roisman","doi":"10.1093/jla/laae007","DOIUrl":"https://doi.org/10.1093/jla/laae007","url":null,"abstract":"Formalism is the dominant mode of separation of powers analysis on the Supreme Court and one of two paradigmatic approaches in the academy. It seeks to resolve disputes between Congress and the President by asking which branch has exclusive power over the relevant matter. This method is thought to work because, if one branch has exclusive power over the matter, then, by definition, the other branch does not. Although this method is coherent and workable in some relatively straightforward cases, it is of no use in areas where both branches’ “exclusive” powers overlap—as formalists routinely concede is possible. This is a major problem because almost all the disputes that actually arise today involve areas of overlapping power. In such cases, both branches have relevant power to act and come into conflict. This Article argues that separation of powers formalism has never built—and can never build—a coherent method that tells us which branch to prioritize in such instances. These are the limits of formalism in the separation of powers. Formalism might help us understand some uncontroversial separation of powers questions, but it cannot resolve the disputes that actually matter today.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"18 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142645835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I develop a novel, rights-based conception of contract—the “democratic conception”—that can deliver a justification for granting a sphere of freedom to contracting parties while setting principled limits on that grant. It justifies doctrines—including the penalty doctrine, the doctrine of substantial performance, a robust doctrine of changed circumstances, and a robust doctrine of unconscionability—that an influential group of contract theorists argue set unprincipled limits on the parties’ equal procedural freedom. My account shows how these doctrines can be rendered compatible with a robust principle of freedom of contract that is grounded in the parties’ rights.
{"title":"Putting Freedom of Contract in its Place","authors":"Rebecca Stone","doi":"10.1093/jla/laae004","DOIUrl":"https://doi.org/10.1093/jla/laae004","url":null,"abstract":"I develop a novel, rights-based conception of contract—the “democratic conception”—that can deliver a justification for granting a sphere of freedom to contracting parties while setting principled limits on that grant. It justifies doctrines—including the penalty doctrine, the doctrine of substantial performance, a robust doctrine of changed circumstances, and a robust doctrine of unconscionability—that an influential group of contract theorists argue set unprincipled limits on the parties’ equal procedural freedom. My account shows how these doctrines can be rendered compatible with a robust principle of freedom of contract that is grounded in the parties’ rights.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"44 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141857793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Matthew Dahl, Varun Magesh, Mirac Suzgun, Daniel E Ho
Do large language models (LLMs) know the law? LLMs are increasingly being used to augment legal practice, education, and research, yet their revolutionary potential is threatened by the presence of “hallucinations”—textual output that is not consistent with legal facts. We present the first systematic evidence of these hallucinations in public-facing LLMs, documenting trends across jurisdictions, courts, time periods, and cases. Using OpenAI’s ChatGPT 4 and other public models, we show that LLMs hallucinate at least 58% of the time, struggle to predict their own hallucinations, and often uncritically accept users’ incorrect legal assumptions. We conclude by cautioning against the rapid and unsupervised integration of popular LLMs into legal tasks, and we develop a typology of legal hallucinations to guide future research in this area.
{"title":"Large Legal Fictions: Profiling Legal Hallucinations in Large Language Models","authors":"Matthew Dahl, Varun Magesh, Mirac Suzgun, Daniel E Ho","doi":"10.1093/jla/laae003","DOIUrl":"https://doi.org/10.1093/jla/laae003","url":null,"abstract":"Do large language models (LLMs) know the law? LLMs are increasingly being used to augment legal practice, education, and research, yet their revolutionary potential is threatened by the presence of “hallucinations”—textual output that is not consistent with legal facts. We present the first systematic evidence of these hallucinations in public-facing LLMs, documenting trends across jurisdictions, courts, time periods, and cases. Using OpenAI’s ChatGPT 4 and other public models, we show that LLMs hallucinate at least 58% of the time, struggle to predict their own hallucinations, and often uncritically accept users’ incorrect legal assumptions. We conclude by cautioning against the rapid and unsupervised integration of popular LLMs into legal tasks, and we develop a typology of legal hallucinations to guide future research in this area.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"87 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141461890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes. We offer an analytical framework to explain why. Contrary to heated political rhetoric, election policies have small effects on outcomes because they tend to target small shares of the electorate, have a small effect on turnout, and/or affect voters who are relatively balanced in their partisanship. After developing this framework, we address how the findings bear on minority voting rights. We then show that countermobilization from political parties cannot explain the small effects of election laws. We explain that even when a state passes multiple policies at the same time, the reforms will still only have a marginal effect on turnout and an ambiguous effect on who wins. Finally, we explain what policies should raise alarm about affecting outcomes.
{"title":"How Election Rules Affect Who Wins","authors":"Justin Grimmer, Eitan Hersh","doi":"10.1093/jla/laae001","DOIUrl":"https://doi.org/10.1093/jla/laae001","url":null,"abstract":"Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes. We offer an analytical framework to explain why. Contrary to heated political rhetoric, election policies have small effects on outcomes because they tend to target small shares of the electorate, have a small effect on turnout, and/or affect voters who are relatively balanced in their partisanship. After developing this framework, we address how the findings bear on minority voting rights. We then show that countermobilization from political parties cannot explain the small effects of election laws. We explain that even when a state passes multiple policies at the same time, the reforms will still only have a marginal effect on turnout and an ambiguous effect on who wins. Finally, we explain what policies should raise alarm about affecting outcomes.","PeriodicalId":45189,"journal":{"name":"Journal of Legal Analysis","volume":"78 1","pages":""},"PeriodicalIF":2.2,"publicationDate":"2024-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140534117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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