Judicial opinions in securities fraud class actions frequently do not conform to standard theories of adjudication. Instead of the complex modes of legal reasoning predicted by standard models, decisions in this area commonly rely on rules of thumb-decisionmaking heuristics or shortcuts. To the extent prior literature has focused on the use of decisionmaking heuristics in adjudication, commentators have emphasized procedural shortcuts, such as the doctrine whereby courts refuse to address issues that have not been squarely argued. In contrast, the heuristics we identify are substantive law doctrinal rules of thumb enabling a judge to avoid analysis of a case's full complexities. This distinction is significant. Procedural shortcuts do not affect the evolution of substantive legal doctrines, except as to produce no doctrine. Substantive heuristics, however, not only become doctrine but can come to dominate the on-going evolution of substantive law. We suggest that the desire to avoid complexity is an important factor in explaining the emergence of a number of the newer doctrines in the securities area. Underlying all of these doctrines are assumptions about either, (a) investor responses to information or (b) managerial responses to incentives. The standard approaches used by commentators in the area would be to explain either why the assumptions are accurate or why they are not and how they should be corrected. What we suggest, however, is that the real puzzle thus is that federal judges are claiming-at least implicitly-both a level of expertise about the workings of markets and organizations that, in some areas, not even the most sophisticated researchers in financial economics and organizational theory have reached. Federal judges, however, are far from being experts in these areas. As a group, they have little expertise on the topics of markets and organizational behavior. Further, they are consistently faced with overwhelming caseloads where only a small fraction of cases are securities cases. As a result, there is little opportunity to develop expertise in the area. Finally, judges are known to delegate much of the work of drafting their decisions to their law clerks, who are typically recent law school graduates. Generalizing from the securities regulation context, we contend that standard theories of adjudication are flawed because they fail to adequately account for institutional constraints. Drawing on the tools of new institutional economics (bounded rationality, transaction costs, and agency costs), we tell a story about recent doctrinal developments in the lower federal courts in the area of securities class actions. The story highlights the link between doctrinal developments and the characteristics of the institutions that produce them. That story is then extended to the contexts of the Supreme Court and the Delaware state courts. Our claim is that the institutional perspective provides insights into the evolution of doctrine that t
{"title":"How Do Judges Maximize? (The Same Way Everybody Else Does - Boundedly): Rules of Thumb in Securities Fraud Opinions","authors":"Stephen M. Bainbridge, G. Mitu Mitu Gulati","doi":"10.2139/SSRN.283261","DOIUrl":"https://doi.org/10.2139/SSRN.283261","url":null,"abstract":"Judicial opinions in securities fraud class actions frequently do not conform to standard theories of adjudication. Instead of the complex modes of legal reasoning predicted by standard models, decisions in this area commonly rely on rules of thumb-decisionmaking heuristics or shortcuts. To the extent prior literature has focused on the use of decisionmaking heuristics in adjudication, commentators have emphasized procedural shortcuts, such as the doctrine whereby courts refuse to address issues that have not been squarely argued. In contrast, the heuristics we identify are substantive law doctrinal rules of thumb enabling a judge to avoid analysis of a case's full complexities. This distinction is significant. Procedural shortcuts do not affect the evolution of substantive legal doctrines, except as to produce no doctrine. Substantive heuristics, however, not only become doctrine but can come to dominate the on-going evolution of substantive law. We suggest that the desire to avoid complexity is an important factor in explaining the emergence of a number of the newer doctrines in the securities area. Underlying all of these doctrines are assumptions about either, (a) investor responses to information or (b) managerial responses to incentives. The standard approaches used by commentators in the area would be to explain either why the assumptions are accurate or why they are not and how they should be corrected. What we suggest, however, is that the real puzzle thus is that federal judges are claiming-at least implicitly-both a level of expertise about the workings of markets and organizations that, in some areas, not even the most sophisticated researchers in financial economics and organizational theory have reached. Federal judges, however, are far from being experts in these areas. As a group, they have little expertise on the topics of markets and organizational behavior. Further, they are consistently faced with overwhelming caseloads where only a small fraction of cases are securities cases. As a result, there is little opportunity to develop expertise in the area. Finally, judges are known to delegate much of the work of drafting their decisions to their law clerks, who are typically recent law school graduates. Generalizing from the securities regulation context, we contend that standard theories of adjudication are flawed because they fail to adequately account for institutional constraints. Drawing on the tools of new institutional economics (bounded rationality, transaction costs, and agency costs), we tell a story about recent doctrinal developments in the lower federal courts in the area of securities class actions. The story highlights the link between doctrinal developments and the characteristics of the institutions that produce them. That story is then extended to the contexts of the Supreme Court and the Delaware state courts. Our claim is that the institutional perspective provides insights into the evolution of doctrine that t","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"51 1","pages":"83"},"PeriodicalIF":0.0,"publicationDate":"2001-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.283261","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68367481","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 question of whether to enforce agreements to implant frozen embryos after divorce has become a major concern for the 300 clinics and thousands of couples who use infertility services every year. Although courts in New York and Tennessee support enforcement, recent decisions by appellate courts in Massachusetts and New Jersey have refused to enforce such agreements on the ground that courts should not force people to reproduce. This article analyzes conflicts over enforcement of agreements for disposition of frozen embryos in terms of the precommitment strategies that persons use to plan their lives. It shows that refusal to enforce contracts for frozen embryos is unfair to the parties who relied on them in undertaking invasive infertility treatments, and possibly unconstitutional. It also addresses the extent to which precommitments for rearing rights and duties in resulting children should be enforced, if agreements to implant embryos are recognized.
{"title":"Precommitment stategies [sic] for disposition of frozen embryos.","authors":"J A Robertson","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The question of whether to enforce agreements to implant frozen embryos after divorce has become a major concern for the 300 clinics and thousands of couples who use infertility services every year. Although courts in New York and Tennessee support enforcement, recent decisions by appellate courts in Massachusetts and New Jersey have refused to enforce such agreements on the ground that courts should not force people to reproduce. This article analyzes conflicts over enforcement of agreements for disposition of frozen embryos in terms of the precommitment strategies that persons use to plan their lives. It shows that refusal to enforce contracts for frozen embryos is unfair to the parties who relied on them in undertaking invasive infertility treatments, and possibly unconstitutional. It also addresses the extent to which precommitments for rearing rights and duties in resulting children should be enforced, if agreements to implant embryos are recognized.</p>","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"50 4","pages":"989-1046"},"PeriodicalIF":0.0,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22561024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues that cognitive science models of human thinking tell us a huge amount about how analogical reasoning operates in law. Judges, attorneys, law professors, and students all reason with legal cases in ways that are clearly explained by cognitive science theories and experiments. The Article begins by explaining the different features of cognitive science theories of analogy. It examines the most salient theory - the multiple-constraint model - applies it to legal analogical reasoning, and shows how it fits with constraint theories in law generally. In Part II, the Article examines the approach of legal theory to analogy. It begins by showing the different uses made of analogy within legal reasoning. Then it reviews the major theories of analogical inference presented by theorists like Alexander, Dworkin, Levi, Golding, Brewer and Sunstein. These theories are characterized by their reliance on a rule-based model of legal analogy. The author argues that this is fundamentally incoherent, and not as expressive or relevant as those provided by the multiple-constraint model. The Article concludes with an explanation of why these legal theories are so limited, and makes a call for greater attention to what is actually happening when lawyers and judges reason with analogy.
{"title":"Reason is Too Large: Analogy and Precedent in Law","authors":"D. Hunter","doi":"10.2139/SSRN.239739","DOIUrl":"https://doi.org/10.2139/SSRN.239739","url":null,"abstract":"This Article argues that cognitive science models of human thinking tell us a huge amount about how analogical reasoning operates in law. Judges, attorneys, law professors, and students all reason with legal cases in ways that are clearly explained by cognitive science theories and experiments. The Article begins by explaining the different features of cognitive science theories of analogy. It examines the most salient theory - the multiple-constraint model - applies it to legal analogical reasoning, and shows how it fits with constraint theories in law generally. In Part II, the Article examines the approach of legal theory to analogy. It begins by showing the different uses made of analogy within legal reasoning. Then it reviews the major theories of analogical inference presented by theorists like Alexander, Dworkin, Levi, Golding, Brewer and Sunstein. These theories are characterized by their reliance on a rule-based model of legal analogy. The author argues that this is fundamentally incoherent, and not as expressive or relevant as those provided by the multiple-constraint model. The Article concludes with an explanation of why these legal theories are so limited, and makes a call for greater attention to what is actually happening when lawyers and judges reason with analogy.","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2000-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.239739","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68179203","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}
{"title":"Re-engineering the laws of organ transplantation.","authors":"L R Siegel","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"49 3","pages":"917-55"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22297212","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}
{"title":"Law and human genetics on the threshold of the new millennium. Introduction.","authors":"M S Yesley","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"49 3","pages":"745-51"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22297207","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}
{"title":"Re-examining the role of patents in appropriating the value of DNA sequences.","authors":"R S Eisenberg","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"49 3","pages":"783-800"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22297209","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}
{"title":"The man on the moon, immortality, and other millennial myths: the prospects and perils of human genetic engineering.","authors":"G J Annas","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"49 3","pages":"753-82"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22297208","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}
{"title":"The Human Genome Project and public perception: truth and consequences.","authors":"M Z Pelias, N J Markward","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"49 3","pages":"837-58"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22297211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1996-01-01DOI: 10.7551/mitpress/1648.003.0005
J. Reidenberg
{"title":"Governing Networks and Rule-Making in Cyberspace","authors":"J. Reidenberg","doi":"10.7551/mitpress/1648.003.0005","DOIUrl":"https://doi.org/10.7551/mitpress/1648.003.0005","url":null,"abstract":"","PeriodicalId":81162,"journal":{"name":"Emory law journal","volume":"45 1","pages":"911"},"PeriodicalIF":0.0,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71235017","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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