Volume 73, Number 5

November 1998

Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning

Gregory C. Sisk, Michael Heise, Andrew P. Morris

In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical legal problem, the authors have produced an unprecedented empirical study of judicial reasoning in action. By exploiting this treasure trove of data, the authors have looked deeper into the judicial mind and observed the emergence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutional theory, and engaged in legal reasoning.

Realization as Subsidy

David M. Schizer

Perhaps no concept in tax law is so well established, and yet so widely criticized, as realization, the rule that defers tax on appreciated property until it is sold. In this Article, Professor Schizer offers a new justification for realization: It is a subsidy for savings. The recent reduction in the capital gains tax rate suggests that Congress wants such a subsidy, the author observes. He then argues that realization has a significant advantage as a subsidy. It is credible, in that taxpayers expect it to strive long enough for them to collect it This is important, Professor Schizer then argues, because realization offers taxpayers no benefit when an investment is made. It offers only the government’s word-a promise, in essence-that unrealized appreciation will not be taxed. The author then demonstrates that even though the government remains free to renege on this promise taxpayers will not expect this for reasons rooted in history, administrability, and politics. Taxpayers thus will have more confidence in realization than in another “promise” subsidy, a low capital gains rate. Notwithstanding this advantage, the author then points out, realization has unique disadvantages, such as the tendency to lock investors into particular investments, and also shares efficiency and equity concerns common to all savings subsidies.

Is International Antitrust Possible?

Andrew T. Guzman

This Article analyzes the economic incentives countries face in selecting an antitrust policy. It demonstrates that, in the presence of international trade, antitrust policies chosen by national governments will generally not lead to an outcome that is desirable from an international perspective. Professor Guzman identifies the reasons why national policies are different from the optimal global policy and shows how the direction of the deviation from the optimal policy depends on trade patterns and the extent to which national laws are applied extraterritorially. The author concludes that; although international agreement is not impossible, the prospects for substantive cooperation on international antitrust policy are slight. Unlike trade policy, an international agreement on antitrust policy would benefit some countries at the expense of others. The Article identifies tie potential winners and losers from such an agreement and points out that because international compensatory transfer payments are unlikely, an agreement will be difficult to achieve. Recognizing that agreement is nevertheless desirable to avoid welfare losses associated with a noncooperative approach to international antitrust policy Professor Guzman analyzes the fora in which antitrust agreements are most likely to be negotiated and assesses tire likelihood of success in each forum. Because concessions in other areas of negotiation may be necessary to compensate countries that will suffer a loss under a cooperative antitrust policy, the analysis suggests that negotiations on antitrust policy should be combined with the negotiations of other issues.


Advice, Consent, and Senate Inaction—Is Judicial Resolution Possible?

Lee Renzin

Part I of this Note explores the problem of judicial vacancies. By demonstrating the extent to which such vacancies are effecting the federal judiciary, Part I seeks to show why judicial intervention is warranted. This Part also discusses the remedies that would be available to a federal court should an action be brought. In Part II, this Note analyzes possible theories under which a claim may be brought. It first looks at the history and meaning of the Advice and Consent Clause of the Constitution, arguing that the Senate’s failure to fulfill its advice and consent role is a violation of the doctrine of separation of powers. Part II then explores the possibility that the Senate’s confirmation role should be judicially enforced under a theory of legislative due process. Finally, Part II shows that Senate inaction may rise to the level of a de facto repeal of legislation establishing the size of the federal court system, thus violating the constitutional requirements of bicameralism and presentment. Part III discusses several procedural obstacles that such an action would face, and suggests the theory of “underenforcement” as an alternative should a judicial remedy not be feasible. More specifically, Part Ill argues that the standing requirement, the Speech or Debate Clause of the Constitution, and the political question doctrine should not preclude judicial action in this situation.

The Right to Farm: Hog-Tied and Nuisance-Bound

Alexander A. Reinert

While RTFs are widespread and radically restructure common law property rights, RTF proponents have glossed over any potential issues of unfairness and have suggested changes in order to strengthen perceived weaknesses in protection afforded by the laws. Commentators have paid little attention to the effects RTFs have had on conflicts between landowners in traditionally agrarian communities. In an attempt to begin the type of critical examination demanded by RTFs, this Note discusses RTFs as they currently exist and offers empirical and theoretical critiques of their structure. Part I summarizes the doctrinal and regulatory framework in which RTFs emerged, including the current condition of farms in the United States. Part II describes the current RTFs and discusses some of the explanations offered to justify RTFs. Part III offers a critique of RTFs from several perspectives, integrates this critique with the conflicts between urban and rural land use, and suggests changes to RTFs in an attempt to tailor the statutes more closely to the perceived problems of urban encroachment.

Chromalloy: United States Law and International Arbitration at the Crossroads

Stephen T. Ostrowski, Yuval Shany

This Note will critique the Chromalloy analysis, identify the key issues raised by the decision, and suggest the proper interpretation of the New York Convention as a major multilateral legal instrument. Part I discusses the New York Convention, as well as relevant portions of the FAA and state law regarding enforcement of foreign judgments. Part II presents the facts and reasoning employed by the district court in Chromalloy, and offers a critical analysis of the case, particularly regarding the problems posed by the court’s reliance on Article VII of the New York Convention as the basis of its decision. Part III examines the relationship between the respective rules for the recognition of arbitral awards and foreign judgments. This Note then proposes guidelines for handling such conflicts in the future and argues that Article V is the more appropriate mechanism to consider all of the relevant interests.

Why Bankruptcy “Related to” Jurisdiction Should Not Reach Mass Tort Nondebtor Codefendants

Lori J. Forlano

Consider the following scenario: Companies X, Y, and Z all manufacture and distribute the same defective product. The product causes injuries; a mass tort litigation ensues. Company X files a petition for relief under chapter 11 of the United States Bankruptcy Code, which freezes all suits against it. Suits against Companies Y and Z are not stayed, and these companies are eager to find a way to delay suits against them, even if they cannot halt them altogether. If Companies Y and Z can argue successfully that the suits against them are “related to” the debtor’s bankruptcy, they may be able to transfer these suits to the district court where the bankruptcy case of debtor Company X is pending, unless that court abstains from hearing the case. This Note argues that the district court hearing the Company X bankruptcy petition should not assert “related to” jurisdiction over proceedings by tort plaintiffs against Companies Y and Z, the nondebtor codefendants. Exploring this jurisdictional question is not simply an intellectual exercise. Such issues have figured prominently in at least two mass tort litigations, the A. H. Robins “Dalkon Shield” bankruptcy and, more recently, the Dow Corning breast implant litigation. Both the Fourth Circuit in the Robins bankruptcy and the Sixth Circuit in the Dow Corning bankruptcy found that tort claims against nondebtor codefendants were “related to” the bankruptcy case of the debtor corporation. Part I of this Note will examine the history and present statutory bases of bankruptcy court jurisdiction, including “related to” jurisdiction. Part II will discuss the ambiguities of the various judicial standards for “related to” jurisdiction, including the Sixth Circuit’s assertion of “related to” jurisdiction in the Dow Corning mass tort litigation. Part III will illustrate why an expansive reading of “related to” as applied to nondebtor codefendants creates problems for mass tort plaintiffs and for our state and federal judiciaries. Such a reading of the relevant statutory language allows nondebtor codefendants to delay the trial of mass tort cases, making it harder for plaintiffs to continue litigating. Expanded “related to” jurisdiction also infringes on states’ rights and exemplifies why bankruptcy jurisdiction should be interpreted narrowly out of respect for Article II of the Constitution.