Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, but agency discretion aversion and the concerns it raises have gone largely unaddressed in legal scholarship. And yet the discretion aversion syndrome is primed only to expand as climate change implicates a broadening span of agency programs as having environmental impacts. This Article is the first to comprehensively describe and assess the ESA/NEPA discretion aversion trend to extract what it has to say not only about agencies, courts, and statutes, but also about agency discretion in general. Part I describes the origins and features of the ESA and NEPA assessment programs leading to agency discretion aversion. Part II identifies the strategies agencies use to escape the ESA and NEPA assessment programs by disclaiming discretion. Part III probes institutional concerns for agencies, courts, and the statutes that arise from the discretion aversion syndrome, including agency gaming behavior, judicial conflicts regarding when nondiscretion exists, and compromised statutory purposes. Before turning to solutions, Part IV steps back to assess what questions the ESA and NEPA nondiscretion case law raises for the conceptualization of agency discretion writ large, identifying discretion’s “negative space” as the source of tension between agencies and courts. Part V then circles back to reexamine the ESA and NEPA nondiscretion doctrines, evaluating alternative measures to deflate agencies’ discretion aversion impulse while promoting the statutes’ purposes. We conclude that the most effective reform will be to eliminate discretion as the litmus test for the ESA and NEPA, replacing it with criteria more responsive to the statutes’ twin purposes of improving agency decisions and providing information to other political institutions and the public.
{"title":"Agencies Running from Agency Discretion","authors":"J. Ruhl, Kyle W. Robisch","doi":"10.2139/SSRN.2736561","DOIUrl":"https://doi.org/10.2139/SSRN.2736561","url":null,"abstract":"Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations of the nature and scope of agency discretion available in modern administrative law, but agency discretion aversion and the concerns it raises have gone largely unaddressed in legal scholarship. And yet the discretion aversion syndrome is primed only to expand as climate change implicates a broadening span of agency programs as having environmental impacts. This Article is the first to comprehensively describe and assess the ESA/NEPA discretion aversion trend to extract what it has to say not only about agencies, courts, and statutes, but also about agency discretion in general. Part I describes the origins and features of the ESA and NEPA assessment programs leading to agency discretion aversion. Part II identifies the strategies agencies use to escape the ESA and NEPA assessment programs by disclaiming discretion. Part III probes institutional concerns for agencies, courts, and the statutes that arise from the discretion aversion syndrome, including agency gaming behavior, judicial conflicts regarding when nondiscretion exists, and compromised statutory purposes. Before turning to solutions, Part IV steps back to assess what questions the ESA and NEPA nondiscretion case law raises for the conceptualization of agency discretion writ large, identifying discretion’s “negative space” as the source of tension between agencies and courts. Part V then circles back to reexamine the ESA and NEPA nondiscretion doctrines, evaluating alternative measures to deflate agencies’ discretion aversion impulse while promoting the statutes’ purposes. We conclude that the most effective reform will be to eliminate discretion as the litmus test for the ESA and NEPA, replacing it with criteria more responsive to the statutes’ twin purposes of improving agency decisions and providing information to other political institutions and the public.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"58 1","pages":"97"},"PeriodicalIF":0.0,"publicationDate":"2016-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2736561","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68280508","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}
Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.
在美国，辩诉交易在关键方面是不受监管的，一个关键原因是法官被降级到边缘地位。在1971年的桑托贝罗诉纽约案(Santobello v. New York)之后，下级法院制定了正当程序原则，通过这些原则监督辩诉交易过程某些方面的公平性。然而，在十年之内，美国最高法院的判决开始关闭对认罪谈判或协议进行司法监督的任何宪法依据。这些决定主要基于两项主张:权力分立，以及在繁忙的刑事司法系统中监管辩诉交易的实际成本。事实证明，这两个理由都极具影响力。立法规则制定和州法院在很大程度上都遵循最高法院的做法，将法官——实际上是法律——排除在任何有意义的角色之外。本文对这些长期存在的理论提出了挑战。历史实践表明，三权分立原则并不需要现行的、极其宽泛的概念，即对指控和抗辩程序的其他组成部分实行“排他性”行政控制。这在各州尤其如此，其中许多州有着长期的私人检察官和司法监督某些起诉决定的传统，以及不同的宪法结构。相比之下，基于普通法和立法的英国法院保留了一些审查此类决定的权力。此外，辩诉交易受到法律限制会致命地损害裁决的“效率”的说法，在辩诉交易受到更严格监管的英国，以及在最高法院关闭有意义的司法审查理由之前的美国法院，认罪率都非常高的证据都证明是错误的。
{"title":"Judicial Power to Regulate Plea Bargaining","authors":"Darryl K. Brown","doi":"10.2139/SSRN.2719909","DOIUrl":"https://doi.org/10.2139/SSRN.2719909","url":null,"abstract":"Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 1","pages":"1225"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68272244","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}
Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard — and the left-right division on the Court is considered so entrenched — that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that — that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways that cuts against ideological preferences. The second dimension is systematic and significant, occurring in multiple different legal areas, and in consistent patterns. Seen in this way, the justices and their decisions can be understood in more complex terms, not just as ideological flag bearers, but as jurists who regularly have to choose between legal methodology and outcome preferences. In two dimensions, different patterns of coalitions emerge: in the second dimension, it is the Chief Justice and Justice Sotomayor, not Justice Kennedy, who sit at the median of the Court, and decide the balance of power.
{"title":"The Second Dimension of the Supreme Court","authors":"J. Fischman, Tonja Jacobi","doi":"10.2139/SSRN.2649427","DOIUrl":"https://doi.org/10.2139/SSRN.2649427","url":null,"abstract":"Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard — and the left-right division on the Court is considered so entrenched — that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that — that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways that cuts against ideological preferences. The second dimension is systematic and significant, occurring in multiple different legal areas, and in consistent patterns. Seen in this way, the justices and their decisions can be understood in more complex terms, not just as ideological flag bearers, but as jurists who regularly have to choose between legal methodology and outcome preferences. In two dimensions, different patterns of coalitions emerge: in the second dimension, it is the Chief Justice and Justice Sotomayor, not Justice Kennedy, who sit at the median of the Court, and decide the balance of power.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 1","pages":"1671"},"PeriodicalIF":0.0,"publicationDate":"2015-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2649427","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68239101","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 American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions. Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available. This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.
{"title":"Charging on the Margin","authors":"P. Crane","doi":"10.2139/SSRN.2649229","DOIUrl":"https://doi.org/10.2139/SSRN.2649229","url":null,"abstract":"The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions. Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available. This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 1","pages":"775"},"PeriodicalIF":0.0,"publicationDate":"2015-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68238987","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}
People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-information-forcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts to inform many contracting parties about complex legal rules, this Article also develops and critiques several alternative justifications for “clause-forcing” rules that encourage sophisticated parties to draft express contract terms. Such terms could facilitate the activities of avid comparison shoppers, reviewers, and consumer advocates. Comprehensive written terms also may promote ex post legal clarity and thereby reduce the costs of resolving disputes. Finally, exculpatory clauses allow parties to contract out of the comparatively expensive legal system of dispute resolution in favor of a regime governed by informal social norms. On this account, clause-forcing rules encourage sophisticated drafting parties to signal their preference for a norm-governed relationship, and lawmakers then demarcate the boundary between law and norms by deciding whether to enforce exculpatory clauses. The normative desirability of these clause-forcing rules is unclear, but my exploration of these alternative justifications shows the conceptual poverty of accounts that presume express contract terms inform the majority of unsophisticated parties.
{"title":"Legal Ignorance and Information-Forcing Rules","authors":"J. Verkerke","doi":"10.2139/SSRN.2408120","DOIUrl":"https://doi.org/10.2139/SSRN.2408120","url":null,"abstract":"People are often ignorant about the legal rules that govern the most common transactions in their lives. This Article analyzes one common regulatory response to our widespread legal ignorance. A surprisingly broad range of legal rules have the ostensible purpose of inducing sophisticated parties to draft express contract language that will inform their contractual partners about the legal rules governing a particular transaction. However, this “legal-information-forcing” objective often remains unrealized because people routinely sign contracts without reading and understanding their terms. In theory, courts could design information-forcing rules that would be truly informative. But recognizing the potential futility of attempts to inform many contracting parties about complex legal rules, this Article also develops and critiques several alternative justifications for “clause-forcing” rules that encourage sophisticated parties to draft express contract terms. Such terms could facilitate the activities of avid comparison shoppers, reviewers, and consumer advocates. Comprehensive written terms also may promote ex post legal clarity and thereby reduce the costs of resolving disputes. Finally, exculpatory clauses allow parties to contract out of the comparatively expensive legal system of dispute resolution in favor of a regime governed by informal social norms. On this account, clause-forcing rules encourage sophisticated drafting parties to signal their preference for a norm-governed relationship, and lawmakers then demarcate the boundary between law and norms by deciding whether to enforce exculpatory clauses. The normative desirability of these clause-forcing rules is unclear, but my exploration of these alternative justifications shows the conceptual poverty of accounts that presume express contract terms inform the majority of unsophisticated parties.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"56 1","pages":"899"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68185895","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 Note analyzes the recent United States District Court for the Northern District of California decision in the O'Bannon v. NCAA case. The Note focuses narrowly on the court's decision to hold that improved education quality is a procompetitive benefit that justifies NCAA rules that restrict student-athlete compensation. The analysis lays out the relevant antitrust framework and compares the court's decision to Supreme Court precedent in National Society of Professional Engineers v. United States, FTC v. Indiana Federation of Dentists, and FTC v. Superior Court Trial Lawyers Association. The Note concludes that improved product quality in this situation does not justify the restraints in question. If compensating student-athletes really does decrease education quality, each university and prospective student-athlete can consider that before offering or accepting financial aid beyond the traditional athletic scholarship.
{"title":"NCAA and the Rule of Reason: Analyzing Improved Education Quality as a Procompetitive Justification","authors":"Cameron Duane Ginder","doi":"10.2139/SSRN.2531950","DOIUrl":"https://doi.org/10.2139/SSRN.2531950","url":null,"abstract":"This Note analyzes the recent United States District Court for the Northern District of California decision in the O'Bannon v. NCAA case. The Note focuses narrowly on the court's decision to hold that improved education quality is a procompetitive benefit that justifies NCAA rules that restrict student-athlete compensation. The analysis lays out the relevant antitrust framework and compares the court's decision to Supreme Court precedent in National Society of Professional Engineers v. United States, FTC v. Indiana Federation of Dentists, and FTC v. Superior Court Trial Lawyers Association. The Note concludes that improved product quality in this situation does not justify the restraints in question. If compensating student-athletes really does decrease education quality, each university and prospective student-athlete can consider that before offering or accepting financial aid beyond the traditional athletic scholarship.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 1","pages":"675"},"PeriodicalIF":0.0,"publicationDate":"2015-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2531950","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68194014","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}
Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.” I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction. More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.
{"title":"Why Plea Bargains are Not Confessions","authors":"Brandon L. Garrett","doi":"10.2139/SSRN.2533985","DOIUrl":"https://doi.org/10.2139/SSRN.2533985","url":null,"abstract":"Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.” I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction. More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"57 1","pages":"1415"},"PeriodicalIF":0.0,"publicationDate":"2014-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68194406","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}
TABLE OF CONTENTS INTRODUCTION I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES II. MODELS OF JURY DAMAGE AWARD DECISION MAKING III. VALUES AND DAMAGE AWARDS A. Individual Jurors' Experiences and Values B. Community Effects C. Judges Versus Juries D. Jury Damage Awards: Admittedly Imperfect Mirrors of Community Sentiment CONCLUSION "The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering." (1) INTRODUCTION In a recent article, The Political Puzzle of the Civil Jury, Jason Solomon questions whether the civil jury operates effectively as a political institution. (2) Civil juries are said to perform multiple political functions. They inject community perspectives and values into legal decision making. (3) They act as a check on government and corporate power. (4) They legitimize the civil justice system. (5) Finally, they promote greater civic engagement among jurors. (6) Solomon concludes, however, that these claims about the civil jury's multiple political functions are overstated and understudied. (7) He calls for more theoretical and empirical study of the civil jury's performance of its political functions. (8) This Article offers a response to Solomon's piece, providing evidence about the political dimensions of jury damage award decision making. (91) argue that the damage award is a key part of the civil jury's political activity. Indeed, in my view, it is just as significant as the political nature of the civil jury's liability judgment, which up to now has been a more frequent topic of scholarly inquiry. (10) This Article focuses on one of the dimensions Solomon identifies: the injection of community perspectives and values into legal decision making. (11) I contend that damage awards and community values are deeply intertwined. The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations, are very much products of community views and sentiments. (12) In my view, damage awards constitute powerful political actions by the civil jury. Civil jury damage awards serve to check or endorse private power, whether it is power over one's own neighbors or over business corporations. To support my argument, I draw on theoretical accounts of jury decision making about damages, including the story model, (13) insights from cultural cognition research, (14) and a new gist model that cognitive psychologist Valerie Reyna and I have developed to explain the process of jury damage award decision making. (15) Jurors' values constitute an important component of these and other models. (16) I also describe the empirical research that documents and establishes the pervasive influence and content of community values in jury damage award judgments. (17) I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES The dollar amount of a jur
1 .陪审团损害赔偿是否反映了社会规范?不同的视角2。陪审团损害赔偿决策模型iii。价值和损害赔偿金a .陪审员个人经验和价值观B.社区影响C.法官与陪审团D.陪审团损害赔偿金:公认的社区情绪的不完美反映结论“法律明智地将损害赔偿金的评估作为一项规则，留给陪审团，并承认没有衡量人类痛苦的尺度。”在最近的一篇文章《民事陪审团的政治谜题》中，杰森·所罗门质疑民事陪审团作为一种政治制度是否有效运作。(2)据说民事陪审团具有多种政治功能。他们将社区观点和价值观注入到法律决策中。他们对政府和企业的权力起到制衡作用。(4)使民事司法制度合法化。(5)最后，他们促进陪审员更多的公民参与。(6)然而，所罗门的结论是，这些关于民事陪审团多重政治功能的主张被夸大了，而且研究不足。他呼吁对民事陪审团履行其政治职能进行更多的理论和实证研究。(8)本文对所罗门的文章做出了回应，提供了有关陪审团损害赔偿决策的政治维度的证据。(91)认为损害赔偿裁决是民事陪审团政治活动的重要组成部分。事实上，在我看来，它与民事陪审团责任判决的政治性质同样重要，后者迄今为止一直是一个更为频繁的学术研究主题。(10)本文关注的是所罗门提出的一个维度:将社区观点和价值观注入法律决策。(11)我认为损害赔偿和社区价值是紧密相连的。陪审团裁决的金额，从他们给予汽车事故受害者的赔偿金额到他们对大公司的惩罚性损害赔偿，在很大程度上是社会观点和情绪的产物。(12)我认为，损害赔偿是民事陪审团强有力的政治行动。民事陪审团损害赔偿裁决的作用是遏制或支持私人权力，无论是对自己邻居的权力还是对商业公司的权力。为了支持我的观点，我借鉴了陪审团关于损害赔偿决策的理论，包括故事模型(13)，文化认知研究的见解(14)，以及认知心理学家Valerie Reyna和我为解释陪审团损害赔偿决策过程而开发的一个新的要点模型。(15)陪审员的价值观是这些模式和其他模式的重要组成部分。(16)我还描述了一些实证研究，这些研究记录并确立了社区价值观在陪审团损害赔偿判决中的普遍影响和内容。(17)陪审团损害赔偿是否反映了社会规范?不同观点陪审团赔偿的金额以多种方式表达了社会价值观。它反映了伤害的社会评估价值，并考虑到具体情况以及伤害者和受伤者的身份和情况进行了校准。陪审团的损害赔偿金额也包含了社区成员持有的金钱的含义。共同体判决反映在经济损害赔偿、非经济损害赔偿和惩罚性损害赔偿的裁决中。所罗门承认:社会规范也可能决定某些错误或伤害的损害赔偿值多少....有人可能会说，损害程度是社区传达错误或伤害有多严重的一种方式，这是帮助组成社区的重要组成部分——伸张正义……是一种表达社区价值观的方式。(19)在这一点上，我们完全同意彼此的意见，也完全同意大陪审团学者哈里·卡尔文(Harry Kalven, Jr. ...)的意见
{"title":"What's It Worth? Jury Damage Awards as Community Judgments","authors":"V. Hans","doi":"10.31228/osf.io/vjgw3","DOIUrl":"https://doi.org/10.31228/osf.io/vjgw3","url":null,"abstract":"TABLE OF CONTENTS INTRODUCTION I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES II. MODELS OF JURY DAMAGE AWARD DECISION MAKING III. VALUES AND DAMAGE AWARDS A. Individual Jurors' Experiences and Values B. Community Effects C. Judges Versus Juries D. Jury Damage Awards: Admittedly Imperfect Mirrors of Community Sentiment CONCLUSION \"The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering.\" (1) INTRODUCTION In a recent article, The Political Puzzle of the Civil Jury, Jason Solomon questions whether the civil jury operates effectively as a political institution. (2) Civil juries are said to perform multiple political functions. They inject community perspectives and values into legal decision making. (3) They act as a check on government and corporate power. (4) They legitimize the civil justice system. (5) Finally, they promote greater civic engagement among jurors. (6) Solomon concludes, however, that these claims about the civil jury's multiple political functions are overstated and understudied. (7) He calls for more theoretical and empirical study of the civil jury's performance of its political functions. (8) This Article offers a response to Solomon's piece, providing evidence about the political dimensions of jury damage award decision making. (91) argue that the damage award is a key part of the civil jury's political activity. Indeed, in my view, it is just as significant as the political nature of the civil jury's liability judgment, which up to now has been a more frequent topic of scholarly inquiry. (10) This Article focuses on one of the dimensions Solomon identifies: the injection of community perspectives and values into legal decision making. (11) I contend that damage awards and community values are deeply intertwined. The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations, are very much products of community views and sentiments. (12) In my view, damage awards constitute powerful political actions by the civil jury. Civil jury damage awards serve to check or endorse private power, whether it is power over one's own neighbors or over business corporations. To support my argument, I draw on theoretical accounts of jury decision making about damages, including the story model, (13) insights from cultural cognition research, (14) and a new gist model that cognitive psychologist Valerie Reyna and I have developed to explain the process of jury damage award decision making. (15) Jurors' values constitute an important component of these and other models. (16) I also describe the empirical research that documents and establishes the pervasive influence and content of community values in jury damage award judgments. (17) I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES The dollar amount of a jur","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"55 1","pages":"935"},"PeriodicalIF":0.0,"publicationDate":"2014-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640831","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}
In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude — i.e., the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is simultaneously overinclusive and underinclusive. It is overinclusive because it proves far too much: All judges — even federal judges protected by Article III — owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections. This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge, because it is in this context that the very real threat to decisional independence arises. Judicial fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge’s independent assessment of the facts and law. The Article argues that life tenure or at the very least some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness which lie at the core of the due process guarantee.
{"title":"The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism","authors":"Martin H. Redish, Jennifer Aronoff","doi":"10.2139/SSRN.2402021","DOIUrl":"https://doi.org/10.2139/SSRN.2402021","url":null,"abstract":"In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude — i.e., the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is simultaneously overinclusive and underinclusive. It is overinclusive because it proves far too much: All judges — even federal judges protected by Article III — owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections. This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge, because it is in this context that the very real threat to decisional independence arises. Judicial fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge’s independent assessment of the facts and law. The Article argues that life tenure or at the very least some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness which lie at the core of the due process guarantee.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"56 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2014-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182841","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}
In a polarized political environment, allegations of excessive partisanship by public actors are ubiquitous. Commentators, courts, and activists levy and process these allegations daily. But with remarkable consistency, they do so as if “partisanship” described a single phenomenon. This piece recognizes, for the first time, that the default mode of understanding is a descriptive and diagnostic failure, with meaningful consequences. Partisanship is not an “it,” but a “those.”Without a robust conceptualization of partisanship, it is difficult to treat pathologies of partisan governance. Indeed, it is difficult to distinguish the features from the bugs in our political system. Moreover, the failure to understand the multifarious nature of partisanship impairs our ability to assess how to best confront the partisanship we care about most, particularly in electoral regulation.In particular, most observers attempt to further or constrain partisanship through substantive rules and structural design. But parsing the spectrum of partisanship shows that these tools are neither necessary nor sufficient to address partisanship in its most disparaged forms. Conversely, analysts have failed to appreciate the power of strong situational norms to accomplish these ends. Because norms are socially constructed, our discourse about partisanship matters — and we are likely getting the discourse very wrong.This piece attempts to flesh out the distinctions that have been heretofore elided. It develops a typology of partisanship, and then engages that conceptual structure to assess the various tools by which forms of partisanship — including the most pernicious portions of the partisan structure — may be addressed.
{"title":"The Partisanship Spectrum","authors":"Justin Levitt","doi":"10.2139/SSRN.2239491","DOIUrl":"https://doi.org/10.2139/SSRN.2239491","url":null,"abstract":"In a polarized political environment, allegations of excessive partisanship by public actors are ubiquitous. Commentators, courts, and activists levy and process these allegations daily. But with remarkable consistency, they do so as if “partisanship” described a single phenomenon. This piece recognizes, for the first time, that the default mode of understanding is a descriptive and diagnostic failure, with meaningful consequences. Partisanship is not an “it,” but a “those.”Without a robust conceptualization of partisanship, it is difficult to treat pathologies of partisan governance. Indeed, it is difficult to distinguish the features from the bugs in our political system. Moreover, the failure to understand the multifarious nature of partisanship impairs our ability to assess how to best confront the partisanship we care about most, particularly in electoral regulation.In particular, most observers attempt to further or constrain partisanship through substantive rules and structural design. But parsing the spectrum of partisanship shows that these tools are neither necessary nor sufficient to address partisanship in its most disparaged forms. Conversely, analysts have failed to appreciate the power of strong situational norms to accomplish these ends. Because norms are socially constructed, our discourse about partisanship matters — and we are likely getting the discourse very wrong.This piece attempts to flesh out the distinctions that have been heretofore elided. It develops a typology of partisanship, and then engages that conceptual structure to assess the various tools by which forms of partisanship — including the most pernicious portions of the partisan structure — may be addressed.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"55 1","pages":"1787"},"PeriodicalIF":0.0,"publicationDate":"2014-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68020726","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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