This Article examines the argument that climate change is a “super-wicked” problem. It concludes that the wicked problem concept is best viewed as a rhetorical device that served a valuable function in arguing against technocratic hubris in the early 1970s but is unhelpful and possibly counterproductive as a tool for modern climate policy analysis. Richard Lazarus improved on this analysis by emphasizing the urgency of a climate response in his characterization of the climate problem as “super-wicked.” We suggest another approach based on Charles Lindblom’s “science of muddling through.” The muddling through approach supports the rhetorical points for which the original wicked problem concept was introduced and provides greater practical guidance for developing new laws and policies to address climate change and other complex and messy environmental problems.
{"title":"Beyond Wickedness: Managing Complex Systems and Climate Change","authors":"J. Gilligan, M. Vandenbergh","doi":"10.2139/ssrn.3695265","DOIUrl":"https://doi.org/10.2139/ssrn.3695265","url":null,"abstract":"This Article examines the argument that climate change is a “super-wicked” problem. It concludes that the wicked problem concept is best viewed as a rhetorical device that served a valuable function in arguing against technocratic hubris in the early 1970s but is unhelpful and possibly counterproductive as a tool for modern climate policy analysis. Richard Lazarus improved on this analysis by emphasizing the urgency of a climate response in his characterization of the climate problem as “super-wicked.” We suggest another approach based on Charles Lindblom’s “science of muddling through.” The muddling through approach supports the rhetorical points for which the original wicked problem concept was introduced and provides greater practical guidance for developing new laws and policies to address climate change and other complex and messy environmental problems.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2020-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44782096","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-01DOI: 10.1017/cbo9780511624667.006
David Lyons
{"title":"Formal Justice and Judicial Precedent","authors":"David Lyons","doi":"10.1017/cbo9780511624667.006","DOIUrl":"https://doi.org/10.1017/cbo9780511624667.006","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57082998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-04-27DOI: 10.4324/9781315194349-12
Benjamin c. Zipursky
I. INTRODUCTION Cardozo's opinion in Palsgraf v. Long Island Railroad Co.1 hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right."2 Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff."3 Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case,4 despite Cardozo's pronouncement that "[t]he law of causation, remote or proximate, is thus foreign to the case before us."5 Though Palsgraf is widely regarded as the most famous case in American tort law, Cardozo's own reasoning in Palsgraf is typically ignored or derided, but not explained. The facts of Palsgraf may be peculiar, but its core principle is pervasive: For all torts, courts reject a plaintiffs claim when the defendant's conduct, even if a wrong to a third party, was not a wrong to the plaintiff herself. For example, an injured plaintiff can win in fraud only if she was defrauded, in defamation only if she was defamed, in trespass only if her land rights were violated, and so on. Courts reach these results even where the defendant acted tortiously, the plaintiff suffered a real injury, and the plaintiffs injury was reasonably foreseeable. The legal rule upon which these cases rely is that which our scholarly tradition treats so ambivalently in Palsgraf: A plaintiff cannot win unless the defendant's conduct was a wrong relative to her, i.e., unless her right was violated. I shall call this principle the "substantive standing" rule and shall show that it is a fundamental feature of tort law. Proponents of the most prominent theoretical approaches to tort law, law and economics6 and corrective justice theory,7 have generally neglected the substantive standing rule, and there are strong reasons to believe these approaches are unable to explain this area of tort doctrine. The larger problem is that the substantive standing rule provides evidence that tort law is built around certain conceptions of "wrongs," "rights," and "rights of action," and yet, I shall argue, seminal versions of law and economics and corrective justice theory do not appear to have adequate resources to accommodate these conceptions. With this in mind, I shall sketch a third way of understanding tort law.8 While this third view differs markedly from its competitors, it is far from eccentric. Indeed, I think it is the view that has always been embedded in tort law itself.9 Tort law is not just a system for the selective imposition of liability in ways that will maximize wealth or other social welfare goals, as some law and economics scholars contend. Nor is it simply a system for rectifying losses or apportioning moral responsibility, as some corrective justice theorists maintain. Like a great dea
I.引言Cardozo在Palsgraf v.Long Island Railroad Co.1一案中的观点基于一个关于是非的明确断言：原告没有行动权，除非她能向自己表明“错误”；即侵犯了自己的权利。2 Cardozo本人将这一原则作为其分析的核心，但学者们通常认为它是不可穿透的、循环的、空洞的，或者，正如Posner所说，“雄辩的虚张声势。”3因此，难怪读者通常会将“合理的可预见性”作为案件的本质。著名学者将帕尔斯拉夫案视为近因案件，4尽管卡多佐宣称“因果关系法，无论是遥远的还是接近的，因此对我们面前的案件来说都是陌生的。”5尽管帕尔斯拉夫被广泛认为是美国侵权法中最著名的案件，但卡多佐自己在帕尔斯拉夫的推理通常被忽视或嘲笑，但没有得到解释。Palsgraf的事实可能很特殊，但其核心原则是普遍的：对于所有侵权行为，当被告的行为，即使对第三方的错误，对原告本人来说也不是错误时，法院驳回原告的索赔。例如，受伤的原告只有在被诈骗的情况下才能在欺诈中获胜，只有在被诽谤的情况下才可以在诽谤中获胜，如果她的土地权受到侵犯，才可以在非法侵入中获胜，等等。即使被告的行为侵权，原告受到了真正的伤害，原告的伤害是可以合理预见的，法院也会得出这些结果。这些案件所依据的法律规则是我们的学术传统在《帕尔斯拉夫》中如此矛盾地对待的：除非被告的行为与她有关，即除非她的权利受到侵犯，否则原告无法获胜。我将把这一原则称为“实质地位”规则，并表明它是侵权法的一个基本特征。侵权法、法律和经济学6以及矫正正义理论7的最突出理论方法的支持者普遍忽视了实质性常设规则，有充分的理由认为这些方法无法解释侵权学说的这一领域。更大的问题是，实质性常设规则提供了证据，证明侵权法是围绕着“错误”、“权利”和“诉讼权”的某些概念建立的，然而，我认为，法律、经济学和矫正司法理论的开创性版本似乎没有足够的资源来适应这些概念。考虑到这一点，我将勾勒出理解侵权法的第三种方式。8尽管第三种观点与竞争对手有明显不同，但它远非古怪。事实上，我认为这一观点一直植根于侵权法本身。9正如一些法律和经济学学者所认为的那样，侵权法不仅仅是一种选择性地以最大化财富或其他社会福利目标的方式施加责任的制度。正如一些矫正正义理论家所坚持的那样，它也不仅仅是一个弥补损失或分担道德责任的系统。与许多成文法一样，侵权法阐明了规则，告诉公民他们可以如何对待彼此，也可以不对待彼此，以及他们可能期望他人如何对待他们。在决定和宣布这些规则时，上诉法院规定个人有义务不以某些方式对待他人，并为个人创造不受某些方式对待的权利。侵权法的权利和义务网络体现了与我们的成文法一样广泛的多种价值观。行动权利应该在这些对、错和义务的背景下理解。我们的制度通常禁止个人和国家对另一个人采取行动。然而，当国家承认私人行动权时，它赋予个人权力和特权，通过国家的强制机制对他人采取行动，夺走他的财产或强迫他以某种方式行事。实质性常设规则规定了个人有权对被告采取行动的条件：只有当她在法律上受到被告的冤屈时，只有当她自己的合法权利受到被告的侵犯时…
{"title":"Rights, Wrongs, and Recourse in the Law of Torts","authors":"Benjamin c. Zipursky","doi":"10.4324/9781315194349-12","DOIUrl":"https://doi.org/10.4324/9781315194349-12","url":null,"abstract":"I. INTRODUCTION Cardozo's opinion in Palsgraf v. Long Island Railroad Co.1 hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show \"'a wrong' to herself; i.e., a violation of her own right.\"2 Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, \"eloquent bluff.\"3 Small wonder, then, that readers typically turn to \"reasonable foreseeability\" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case,4 despite Cardozo's pronouncement that \"[t]he law of causation, remote or proximate, is thus foreign to the case before us.\"5 Though Palsgraf is widely regarded as the most famous case in American tort law, Cardozo's own reasoning in Palsgraf is typically ignored or derided, but not explained. The facts of Palsgraf may be peculiar, but its core principle is pervasive: For all torts, courts reject a plaintiffs claim when the defendant's conduct, even if a wrong to a third party, was not a wrong to the plaintiff herself. For example, an injured plaintiff can win in fraud only if she was defrauded, in defamation only if she was defamed, in trespass only if her land rights were violated, and so on. Courts reach these results even where the defendant acted tortiously, the plaintiff suffered a real injury, and the plaintiffs injury was reasonably foreseeable. The legal rule upon which these cases rely is that which our scholarly tradition treats so ambivalently in Palsgraf: A plaintiff cannot win unless the defendant's conduct was a wrong relative to her, i.e., unless her right was violated. I shall call this principle the \"substantive standing\" rule and shall show that it is a fundamental feature of tort law. Proponents of the most prominent theoretical approaches to tort law, law and economics6 and corrective justice theory,7 have generally neglected the substantive standing rule, and there are strong reasons to believe these approaches are unable to explain this area of tort doctrine. The larger problem is that the substantive standing rule provides evidence that tort law is built around certain conceptions of \"wrongs,\" \"rights,\" and \"rights of action,\" and yet, I shall argue, seminal versions of law and economics and corrective justice theory do not appear to have adequate resources to accommodate these conceptions. With this in mind, I shall sketch a third way of understanding tort law.8 While this third view differs markedly from its competitors, it is far from eccentric. Indeed, I think it is the view that has always been embedded in tort law itself.9 Tort law is not just a system for the selective imposition of liability in ways that will maximize wealth or other social welfare goals, as some law and economics scholars contend. Nor is it simply a system for rectifying losses or apportioning moral responsibility, as some corrective justice theorists maintain. Like a great dea","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2018-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41293934","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years, both scholars and rule makers have begun to reconsider the long established practice of the producer-pays model of discovery cost allocation. There are many arguments, on both sides of the issue, as to whether this practice represents wise social policy. In this article, however, Professor Redish challenges the constitutionality of the producer-pays model when applied to defendants, under both the Equal Protection and Due Process Clauses. Professor Redish initially characterizes the cost of a litigant’s discovery as the requesting party’s cost, even though the initial outlay for those costs is made by the producing party. In doing so he reasons by analogy to the doctrine of quantum meruit. On the basis of this premise that the costs of discovery are appropriately seen as the costs of the requesting party, he characterizes the requirement that the producer of the discovery bear the costs incurred in making production as simply a forced subsidy of what are properly deemed the requesting party’s costs. Such forced subsidization, he argues, constitutes a deprivation of a defendant’s property, which can be justified under equal protection only if it is at least rational. He argues that absent a finding that plaintiff’s injury was in fact caused by defendant’s violation of plaintiff’s legal rights, it is irrational to distinguish a defendant from any other member of society as a potential subsidizer of plaintiff’s discovery costs. Under the Due Process Clause, unless the plaintiff has factually established the truth of his allegation of defendant’s fault before a neutral adjudicator, imposition of plaintiff’s discovery costs on defendant is unconstitutional because it is impossible to distinguish the defendant from any other potential subsidizer. Because discovery takes place at a point in the litigation process before any evidentiary showing has been made or any factual determinations have been made by a neutral adjudicator, Professor Redish argues, the deprivation of defendant’s property to subsidize plaintiff’s costs constitutes an unconstitutional deprivation of defendant’s property. According to Professor Redish, then, the issue of discovery cost allocation is not one of social or legal policy, but rather one purely of constitutional law.
{"title":"Discovery Cost Allocation, Due Process, and the Constitution's Role in Civil Litigation","authors":"Martin H. Redish","doi":"10.2139/SSRN.3168142","DOIUrl":"https://doi.org/10.2139/SSRN.3168142","url":null,"abstract":"In recent years, both scholars and rule makers have begun to reconsider the long established practice of the producer-pays model of discovery cost allocation. There are many arguments, on both sides of the issue, as to whether this practice represents wise social policy. In this article, however, Professor Redish challenges the constitutionality of the producer-pays model when applied to defendants, under both the Equal Protection and Due Process Clauses. Professor Redish initially characterizes the cost of a litigant’s discovery as the requesting party’s cost, even though the initial outlay for those costs is made by the producing party. In doing so he reasons by analogy to the doctrine of quantum meruit. On the basis of this premise that the costs of discovery are appropriately seen as the costs of the requesting party, he characterizes the requirement that the producer of the discovery bear the costs incurred in making production as simply a forced subsidy of what are properly deemed the requesting party’s costs. Such forced subsidization, he argues, constitutes a deprivation of a defendant’s property, which can be justified under equal protection only if it is at least rational. He argues that absent a finding that plaintiff’s injury was in fact caused by defendant’s violation of plaintiff’s legal rights, it is irrational to distinguish a defendant from any other member of society as a potential subsidizer of plaintiff’s discovery costs. Under the Due Process Clause, unless the plaintiff has factually established the truth of his allegation of defendant’s fault before a neutral adjudicator, imposition of plaintiff’s discovery costs on defendant is unconstitutional because it is impossible to distinguish the defendant from any other potential subsidizer. Because discovery takes place at a point in the litigation process before any evidentiary showing has been made or any factual determinations have been made by a neutral adjudicator, Professor Redish argues, the deprivation of defendant’s property to subsidize plaintiff’s costs constitutes an unconstitutional deprivation of defendant’s property. According to Professor Redish, then, the issue of discovery cost allocation is not one of social or legal policy, but rather one purely of constitutional law.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2018-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46916075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
IntroductionHow much does law matter in election cases where the partisan stakes are high? At first glance, election cases may seem the worst context for studying the influence of law on judicial decisionmaking. Election cases, which decide the applicable rules for a given election, often determine election outcomes and therefore feature the highest political stakes in the balance. There is great temptation for judges to decide these cases in a partisan fashion to help their side. And we have found empirically in earlier work that judges do often appear influenced by partisanship in deciding these cases for their own parties in a way that suggests politics matter more than law.1 But in this Article, we argue that election cases actually offer a unique opportunity to study the role of law in judicial decisionmaking precisely because we can assume partisanship influences judges in these cases.If judges prefer to decide election cases consistent with their partisan interests, then they may decide these cases contrary to partisan interests mainly when the out-party litigant's case has strengths sufficient to overcome this usual, countervailing influence of partisan loyalty. For this reason, we use lower court judges' decisions contrary to their partisan interests (e.g., for a litigant from the opposite party, or against one from their own) as a proxy for underlying case strength. Lower court judges' decisions against their partisan interests buck the normal pattern of partisan loyalty and therefore offer an inference of greater case strength compared to other decisions that are consistent with partisan expectations. Put another way, case strength is assumed to be greater for winning litigants when lower court judges went against their own partisan interests to decide for the winning litigants, than in cases where lower court judges predictably decided in favor of their own party's interests. With this inference of case strength in hand, we then can examine whether case strength is predictive for state supreme court decisionmaking in these cases on appeal.We find that our measure of case strength is predictive of state supreme court decisionmaking in election cases. We find, for instance, that state supreme court justices from both parties are most likely to affirm when case strength is indicated by our measure. This is particularly true when case strength aligns with a justice's own partisan interests such that both law and partisanship direct the same result on appeal. When presented with a winning Democratic litigant who won before a Republican lower court judge, Democratic justices voted to affirm 88.9% of the time on appeal. Republican justices voted to affirm at an 86.4% rate for winning Republican litigants who won before a Democratic judge below. But even when case strength conflicted with a supreme court justice's partisan loyalty, case strength won out most of the time. For instance, when faced with a Republican litigant who triumphed before
{"title":"Judging Law in Election Cases","authors":"Michael S. Kang, Joanna M. Shepherd","doi":"10.2139/SSRN.3085289","DOIUrl":"https://doi.org/10.2139/SSRN.3085289","url":null,"abstract":"IntroductionHow much does law matter in election cases where the partisan stakes are high? At first glance, election cases may seem the worst context for studying the influence of law on judicial decisionmaking. Election cases, which decide the applicable rules for a given election, often determine election outcomes and therefore feature the highest political stakes in the balance. There is great temptation for judges to decide these cases in a partisan fashion to help their side. And we have found empirically in earlier work that judges do often appear influenced by partisanship in deciding these cases for their own parties in a way that suggests politics matter more than law.1 But in this Article, we argue that election cases actually offer a unique opportunity to study the role of law in judicial decisionmaking precisely because we can assume partisanship influences judges in these cases.If judges prefer to decide election cases consistent with their partisan interests, then they may decide these cases contrary to partisan interests mainly when the out-party litigant's case has strengths sufficient to overcome this usual, countervailing influence of partisan loyalty. For this reason, we use lower court judges' decisions contrary to their partisan interests (e.g., for a litigant from the opposite party, or against one from their own) as a proxy for underlying case strength. Lower court judges' decisions against their partisan interests buck the normal pattern of partisan loyalty and therefore offer an inference of greater case strength compared to other decisions that are consistent with partisan expectations. Put another way, case strength is assumed to be greater for winning litigants when lower court judges went against their own partisan interests to decide for the winning litigants, than in cases where lower court judges predictably decided in favor of their own party's interests. With this inference of case strength in hand, we then can examine whether case strength is predictive for state supreme court decisionmaking in these cases on appeal.We find that our measure of case strength is predictive of state supreme court decisionmaking in election cases. We find, for instance, that state supreme court justices from both parties are most likely to affirm when case strength is indicated by our measure. This is particularly true when case strength aligns with a justice's own partisan interests such that both law and partisanship direct the same result on appeal. When presented with a winning Democratic litigant who won before a Republican lower court judge, Democratic justices voted to affirm 88.9% of the time on appeal. Republican justices voted to affirm at an 86.4% rate for winning Republican litigants who won before a Democratic judge below. But even when case strength conflicted with a supreme court justice's partisan loyalty, case strength won out most of the time. For instance, when faced with a Republican litigant who triumphed before","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44293306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Matthew D. Cain, Jill E. Fisch, S. Solomon, Randall S. Thomas
In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award. We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger litigation, to increase the number of cases that are dismissed, and to reduce the size of attorneys’ fee awards. At the same time, we document an adaptive response by the plaintiffs’ bar in which cases are being filed in other state courts or in federal court in an effort to escape the application of the new rules. This responsive adaptation offers important lessons about the entrepreneurial nature of merger litigation and the limited ability of the courts to reduce the potential for litigation abuse. In particular, we find that plaintiffs’ attorneys respond rationally to these changes by shifting their filing patterns, and that defendants respond in kind. We argue, however, that more expansive efforts to shut down merger litigation, such as through the use of fee-shifting bylaws, are premature and create too great a risk of foreclosing beneficial litigation. We also examine Delaware’s dilemma in maintaining a balance between the rights of managers and shareholders in this area.
{"title":"The Shifting Tides of Merger Litigation","authors":"Matthew D. Cain, Jill E. Fisch, S. Solomon, Randall S. Thomas","doi":"10.2139/SSRN.2922121","DOIUrl":"https://doi.org/10.2139/SSRN.2922121","url":null,"abstract":"In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award. \u0000 \u0000We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger litigation, to increase the number of cases that are dismissed, and to reduce the size of attorneys’ fee awards. At the same time, we document an adaptive response by the plaintiffs’ bar in which cases are being filed in other state courts or in federal court in an effort to escape the application of the new rules. \u0000 \u0000This responsive adaptation offers important lessons about the entrepreneurial nature of merger litigation and the limited ability of the courts to reduce the potential for litigation abuse. In particular, we find that plaintiffs’ attorneys respond rationally to these changes by shifting their filing patterns, and that defendants respond in kind. We argue, however, that more expansive efforts to shut down merger litigation, such as through the use of fee-shifting bylaws, are premature and create too great a risk of foreclosing beneficial litigation. We also examine Delaware’s dilemma in maintaining a balance between the rights of managers and shareholders in this area.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45191155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
IntroductionEvery state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief.1 To address this scholarly gap, this Article exploits the Survey of criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, "NCSC Study"). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.2Building upon prior research that we describe in Part I, our research design, described in Part II, focuses on two subpools of state criminal appeals: a defendant's first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant's only chance at review. By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes.3 Given the critical differences between these two streams of appeals, we measure a defendant's "success" in distinct ways. For first appeals of right, we model a defendant's success in receiving a review on the merits and obtaining a favorable outcome. In the court of last resort setting, we model a defendant's success in terms of obtaining leave to appeal and, for those appeals granted review, obtaining a favorable outcome.Our findings are presented in Part III and discussed in the Conclusion. Comparisons with existing studies imply that defense appellate success rates may have declined in recent decades. In appeals of right, defendants who challenge a sentence enjoy a greater likelihood of success, as do those who have legal representation, file a reply brief or secure oral argument, and appellants from Florida. In high courts of last resort, appeals from sex offenses, raising certain trial issues, and appellants represented by publicly funded attorneys appear to fare better than others. Also notable is the absence of a relation between defense success and factors including most crime types and claims raised, the court's workload, and, for all but one model, whether the appellate judges were selected by election.I. Prior Research on Criminal Appeals OutcomesWe are aware of no other dataset that comes close to the Nese Study in terms of depth and breadth. Most states have collected and published only disposition times and aggregate caseload information for criminal appeals (i.e., number of cases filed, pending, and disposed). The Nese Study itself remains underexamined despite its public release. Two Bureau of Justice Statistics Bulletins report descriptive and preliminary information, often aggre
{"title":"State Criminal Appeals Revealed","authors":"Michael Heise, N. King, Nicole Heise","doi":"10.2139/SSRN.3047395","DOIUrl":"https://doi.org/10.2139/SSRN.3047395","url":null,"abstract":"IntroductionEvery state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief.1 To address this scholarly gap, this Article exploits the Survey of criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, \"NCSC Study\"). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments.2Building upon prior research that we describe in Part I, our research design, described in Part II, focuses on two subpools of state criminal appeals: a defendant's first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant's only chance at review. By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes.3 Given the critical differences between these two streams of appeals, we measure a defendant's \"success\" in distinct ways. For first appeals of right, we model a defendant's success in receiving a review on the merits and obtaining a favorable outcome. In the court of last resort setting, we model a defendant's success in terms of obtaining leave to appeal and, for those appeals granted review, obtaining a favorable outcome.Our findings are presented in Part III and discussed in the Conclusion. Comparisons with existing studies imply that defense appellate success rates may have declined in recent decades. In appeals of right, defendants who challenge a sentence enjoy a greater likelihood of success, as do those who have legal representation, file a reply brief or secure oral argument, and appellants from Florida. In high courts of last resort, appeals from sex offenses, raising certain trial issues, and appellants represented by publicly funded attorneys appear to fare better than others. Also notable is the absence of a relation between defense success and factors including most crime types and claims raised, the court's workload, and, for all but one model, whether the appellate judges were selected by election.I. Prior Research on Criminal Appeals OutcomesWe are aware of no other dataset that comes close to the Nese Study in terms of depth and breadth. Most states have collected and published only disposition times and aggregate caseload information for criminal appeals (i.e., number of cases filed, pending, and disposed). The Nese Study itself remains underexamined despite its public release. Two Bureau of Justice Statistics Bulletins report descriptive and preliminary information, often aggre","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45172091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
INTRODUCTIONIn 2009, three roommates at Purdue University in Indiana were drinking in their living room on a Saturday night when one of them, Landon Siela, headed to the bathroom. The other two roommates, William Calderon and Cory Lynch, each decided to "prank" Siela by pulling an unloaded gun on him and pretending to shoot when he returned to the living room. Tragically, Lynch's gun, unbeknownst to him, still had a live bullet lodged in the chamber, which struck and killed Siela when Lynch pulled the trigger. As a result, Calderon and Lynch were both convicted of criminal offenses. But while Calderon was convicted only of the Class A misdemeanor of "pointing a firearm," punishable by no more than a year in prison,1 Lynch was convicted of reckless manslaughter, a Class C felony that carries a maximum sentence of eight years.2It is clear that the fact that Lynch's reckless actions caused Siela's death exposed him to much harsher legal penalties than those faced by Calderon. It is less clear, however, what justifies this discrepancy in severity, given that Lynch does not seem to have behaved any more culpably than Calderon. This dilemma, a close cousin of the philosophical problem of "moral luck," has long stood as an intractable puzzle in the theory of criminal law.3The majority position among scholars on this topic, exemplified by Stephen J. Schulhofer in his influential 1974 article Harm and Punishment, is that differentiating punishment based on its results cannot be justified as a matter of practice.4 However, some theorists have dissented from this view. A few proponents of retributive punishment, most prominently philosopher Michael Moore,5 have attempted to resolve the dilemma of "differential punishment" by claiming that the consequences of one?s actions weigh directly on one?s ?moral desert,? and thus that an action that causes greater harm merits greater punishment.6 Other commentators, such as Judge Richard Posner, have advanced utilitarian rationales for more severely punishing those offenders who cause greater harm, arguing, inter alia, that this approach more effectively and efficiently deters future harmful conduct.7 However, as of yet, no theorist has succeeded in producing a widely accepted justification for this feature of the criminal law.In this Article, we propose a general theory of differential punishment-that is, the practice of differentiating an offender?s punishment based on whether her actions bring about a statutory harm. In so defining differential punishment, we borrow Schulhofer?s definition of statutory harm as ?[a]ny consequence of conduct . . . [that] is a necessary element of a given offense.?8 As Schulhofer explains, the concept of statutory harm is not coextensive with what might ordinarily be thought of as the ?harms? caused by a criminal offense, or with the ultimate harm or consequence that the criminal offense seeks to prevent.9 For example, if a married man is murdered, his wife might be ?harmed? in that
{"title":"A Theory of Differential Punishment","authors":"John A. Boeglin, Zachary B. Shapiro","doi":"10.2139/ssrn.2910719","DOIUrl":"https://doi.org/10.2139/ssrn.2910719","url":null,"abstract":"INTRODUCTIONIn 2009, three roommates at Purdue University in Indiana were drinking in their living room on a Saturday night when one of them, Landon Siela, headed to the bathroom. The other two roommates, William Calderon and Cory Lynch, each decided to \"prank\" Siela by pulling an unloaded gun on him and pretending to shoot when he returned to the living room. Tragically, Lynch's gun, unbeknownst to him, still had a live bullet lodged in the chamber, which struck and killed Siela when Lynch pulled the trigger. As a result, Calderon and Lynch were both convicted of criminal offenses. But while Calderon was convicted only of the Class A misdemeanor of \"pointing a firearm,\" punishable by no more than a year in prison,1 Lynch was convicted of reckless manslaughter, a Class C felony that carries a maximum sentence of eight years.2It is clear that the fact that Lynch's reckless actions caused Siela's death exposed him to much harsher legal penalties than those faced by Calderon. It is less clear, however, what justifies this discrepancy in severity, given that Lynch does not seem to have behaved any more culpably than Calderon. This dilemma, a close cousin of the philosophical problem of \"moral luck,\" has long stood as an intractable puzzle in the theory of criminal law.3The majority position among scholars on this topic, exemplified by Stephen J. Schulhofer in his influential 1974 article Harm and Punishment, is that differentiating punishment based on its results cannot be justified as a matter of practice.4 However, some theorists have dissented from this view. A few proponents of retributive punishment, most prominently philosopher Michael Moore,5 have attempted to resolve the dilemma of \"differential punishment\" by claiming that the consequences of one?s actions weigh directly on one?s ?moral desert,? and thus that an action that causes greater harm merits greater punishment.6 Other commentators, such as Judge Richard Posner, have advanced utilitarian rationales for more severely punishing those offenders who cause greater harm, arguing, inter alia, that this approach more effectively and efficiently deters future harmful conduct.7 However, as of yet, no theorist has succeeded in producing a widely accepted justification for this feature of the criminal law.In this Article, we propose a general theory of differential punishment-that is, the practice of differentiating an offender?s punishment based on whether her actions bring about a statutory harm. In so defining differential punishment, we borrow Schulhofer?s definition of statutory harm as ?[a]ny consequence of conduct . . . [that] is a necessary element of a given offense.?8 As Schulhofer explains, the concept of statutory harm is not coextensive with what might ordinarily be thought of as the ?harms? caused by a criminal offense, or with the ultimate harm or consequence that the criminal offense seeks to prevent.9 For example, if a married man is murdered, his wife might be ?harmed? in that ","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42248887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
IntroductionOn February 13, 2016, Justice Antonin Scalia was found dead in his room at a ranch in West Texas, where he was on a hunting vacation, with a pillow over his head.1 It is possible that people die with pillows over their heads, but this was the most famous member of the U.S. supreme court, who was in good enough health to go on a hunting vacation and had shown few signs of illness to his hunting companions. That said, Justice scalia was in his late seventies and had the kinds of preexisting medical conditions that made it probable that he had died of natural causes. Nevertheless, there was enough in the story to get conspiracy theorists riled up, and even our current President (then, candidate) said in response to an interviewer asking him about the possibility of something suspicious: "It's a horrible topic, but they say they found a pillow on his face, which is a pretty unusual place to find a pillow."2Yet, the death examiner, Cinderela Guevara-not a trained pathologist, but a local county judge-decided to forego the autopsy without visiting the scene because the county sheriff assured her that there was "no foul play," Justice Scalia's personal physician told the judge that the death was due to "natural causes," and the Scalia family requested that no autopsy take place.3 Had, by contrast, Justice Scalia died in a hotel in Boston, Singapore, or Tokyo, there would have been a detailed investigation and an autopsy by a qualified pathologist.4 That is, the kind of examination that those of us who watch crime shows on television assume happens in every case.Putting aside the credibility of Alex Jones and other conspiracy theorists about whether President Obama or aliens were eliminating conservative Supreme Court Justices prior to the 2016 presidential election,5 there exists a real question here, which is whether there needs to be a uniform system of professional death examinations across the United States. Currently, there are counties and states where decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner.6 In the nineteenth century, the coroner system predominated in the United States. Many but not all states shifted toward professional medical examiners in the twentieth century. Members of the medical profession who work in this area have long expressed concern about the persistence of coroners today in certain states.7 For them, the answer is obvious: the system should be run by highly trained, board-certified pathologists.8 Our instinct is that the doctors are probably right. Given that there is significant variation across the states in terms of whether death examination offices are run by trained professionals or local politicians, we should, in theory, be able to empirically test the question of whether professionals or politicians do a better job of adjudicating death. It turns out that, altho
{"title":"Adjudicating Death: Professionals or Politicians?","authors":"Stephen Choi, G. Gulati","doi":"10.2139/SSRN.2992755","DOIUrl":"https://doi.org/10.2139/SSRN.2992755","url":null,"abstract":"IntroductionOn February 13, 2016, Justice Antonin Scalia was found dead in his room at a ranch in West Texas, where he was on a hunting vacation, with a pillow over his head.1 It is possible that people die with pillows over their heads, but this was the most famous member of the U.S. supreme court, who was in good enough health to go on a hunting vacation and had shown few signs of illness to his hunting companions. That said, Justice scalia was in his late seventies and had the kinds of preexisting medical conditions that made it probable that he had died of natural causes. Nevertheless, there was enough in the story to get conspiracy theorists riled up, and even our current President (then, candidate) said in response to an interviewer asking him about the possibility of something suspicious: \"It's a horrible topic, but they say they found a pillow on his face, which is a pretty unusual place to find a pillow.\"2Yet, the death examiner, Cinderela Guevara-not a trained pathologist, but a local county judge-decided to forego the autopsy without visiting the scene because the county sheriff assured her that there was \"no foul play,\" Justice Scalia's personal physician told the judge that the death was due to \"natural causes,\" and the Scalia family requested that no autopsy take place.3 Had, by contrast, Justice Scalia died in a hotel in Boston, Singapore, or Tokyo, there would have been a detailed investigation and an autopsy by a qualified pathologist.4 That is, the kind of examination that those of us who watch crime shows on television assume happens in every case.Putting aside the credibility of Alex Jones and other conspiracy theorists about whether President Obama or aliens were eliminating conservative Supreme Court Justices prior to the 2016 presidential election,5 there exists a real question here, which is whether there needs to be a uniform system of professional death examinations across the United States. Currently, there are counties and states where decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner.6 In the nineteenth century, the coroner system predominated in the United States. Many but not all states shifted toward professional medical examiners in the twentieth century. Members of the medical profession who work in this area have long expressed concern about the persistence of coroners today in certain states.7 For them, the answer is obvious: the system should be run by highly trained, board-certified pathologists.8 Our instinct is that the doctors are probably right. Given that there is significant variation across the states in terms of whether death examination offices are run by trained professionals or local politicians, we should, in theory, be able to empirically test the question of whether professionals or politicians do a better job of adjudicating death. It turns out that, altho","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42581523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
INTRODUCTIONThe township system is an [e]ducator [i]n Self-Government, and has been commended, at all times, by political thinkers, who have at heart the good of the people. It is one of the grandest of political principles, leaving absolutely to neighborhoods the right to govern themselves in local matters . . . .1Slavery is an indispensable police institution . . . .2In 1860, the population of Granville County, North Carolina, was evenly split: half of the residents were free and half were slaves.3 Local government for the free white citizens took the form of the old county court system-appointed county justices of the peace (generally drawn from the social and economic elite) ran the business of local government.4 Where slavery was strong (as it was in Granville County), the counties were largely controlled by planter elites.5 In every instance county governments were primarily dedicated to protecting the property rights of residents. Counties provided courts and minimal law enforcement, but few other services (schools, aid to the poor, etc.).One reason that the counties were weak was because another, much stronger system of local government existed alongside and within them. The slaves of Granville County were subject to the despotic feudal control of slaveholders on their home plantations.6 With a few minor limitations, slaveholders had wide jurisdiction over slaves' bodies and social lives.7 Although there were certainly circumstances when slaves came into contact with the county court system,8 plantations were the primary unit of local government for the vast majority of the black population.In 1865 at the end of the Civil War, the once stable systems of local government in Granville County (and across the South) were broken. The feudal control of the planters on their plantations was eradicated with emancipation. With the stroke of a pen at Appomattox, the county's citizenry had doubled. More importantly, that citizenry was, for the first time in American history, evenly split between white and black voters. The weak county government that had been run by the planters to protect their property was now tasked with representing and governing a newly integrated population which presented problems of local governance that had never been faced. All of the thorny difficulties of Reconstruction were present: How should freed slaves be integrated into the political community? How should they live as neighbors with their former masters? How should property, power, wealth, and influence be redistributed? How should the South be modernized, reborn, protected? In the face of all this, unable to return to the old system under slavery or chart a path forward, local government floundered and failed.9 What remained was a question: What would local government look like in the post-bellum South?This Article tells the story of the struggle over the answer to that question. At the center of that struggle is an untold legal history of local government reform
{"title":"Reconstructing Local Government","authors":"Daniel Farbman","doi":"10.2139/ssrn.2939200","DOIUrl":"https://doi.org/10.2139/ssrn.2939200","url":null,"abstract":"INTRODUCTIONThe township system is an [e]ducator [i]n Self-Government, and has been commended, at all times, by political thinkers, who have at heart the good of the people. It is one of the grandest of political principles, leaving absolutely to neighborhoods the right to govern themselves in local matters . . . .1Slavery is an indispensable police institution . . . .2In 1860, the population of Granville County, North Carolina, was evenly split: half of the residents were free and half were slaves.3 Local government for the free white citizens took the form of the old county court system-appointed county justices of the peace (generally drawn from the social and economic elite) ran the business of local government.4 Where slavery was strong (as it was in Granville County), the counties were largely controlled by planter elites.5 In every instance county governments were primarily dedicated to protecting the property rights of residents. Counties provided courts and minimal law enforcement, but few other services (schools, aid to the poor, etc.).One reason that the counties were weak was because another, much stronger system of local government existed alongside and within them. The slaves of Granville County were subject to the despotic feudal control of slaveholders on their home plantations.6 With a few minor limitations, slaveholders had wide jurisdiction over slaves' bodies and social lives.7 Although there were certainly circumstances when slaves came into contact with the county court system,8 plantations were the primary unit of local government for the vast majority of the black population.In 1865 at the end of the Civil War, the once stable systems of local government in Granville County (and across the South) were broken. The feudal control of the planters on their plantations was eradicated with emancipation. With the stroke of a pen at Appomattox, the county's citizenry had doubled. More importantly, that citizenry was, for the first time in American history, evenly split between white and black voters. The weak county government that had been run by the planters to protect their property was now tasked with representing and governing a newly integrated population which presented problems of local governance that had never been faced. All of the thorny difficulties of Reconstruction were present: How should freed slaves be integrated into the political community? How should they live as neighbors with their former masters? How should property, power, wealth, and influence be redistributed? How should the South be modernized, reborn, protected? In the face of all this, unable to return to the old system under slavery or chart a path forward, local government floundered and failed.9 What remained was a question: What would local government look like in the post-bellum South?This Article tells the story of the struggle over the answer to that question. At the center of that struggle is an untold legal history of local government reform ","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2017-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42358602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"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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