In judicial opinions construing statutes, it is common for judges to make a set of assumptions about the legislative process that generated the statute under review. For example, judges regularly impute to legislators highly detailed knowledge about both judicial rules of interpretation and the substantive area of law of which the statute is a part. Little empirical research has been done to test this picture of the legislative process. In this Article, Professors Nourse and Schacter take a step toward filling this gap with a case study of legislative drafting in the Senate Judiciary Committee. Their results stand in sharp contrast to the traditional judicial story of the drafting process. The interviews conducted by the authors suggest that the drafting process is highly variable and contextual; that staffers, lobbyists, and professional drafters write laws rather than elected representatives; and that although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process. The case study suggests not only that the judicial story of the legislative process is inaccurate but also that there might be important differences between what the legislature and judiciary value in the drafting process: While courts tend to prize what the authors call the “interpretive” virtues of textual clarity and interpretive awareness, legislators are oriented more toward “constitutive” virtues of action and agreement. Professors Nourse and Schacter argue that the results they report, if reflective of the drafting process generally, raise important challenges for originalist and textualist theories of statutory interpretation, as well as Justice Scalia’s critique of legislative history. Even if the assumptions about legislative drafting made in the traditional judicial story are merely fictions, they nonetheless play a role in allocating normative responsibility for creating statutory law. The authors conclude that their case study raises the need for future empirical research to develop a better understanding of the legislative process.
Empirical Legal Studies
Ecosystem services are created by the interactions of living organisms with their environment, and they support our society by providing clean air and water, decomposing waste, pollinating flowers, regulating climate, and supplying a host of other benefits. Yet, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author’s recent experiences establishing a market for water quality in Australia, this Article examines the challenges and opportunities of an ecosystem services approach to environmental protection. This Article reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed.
Previous empirical studies have examined various aspects of medical malpractice damages caps, focusing primarily upon their overall effect in reducing insurance premium rates and plaintiffs’ recoveries, and(to a lesser degree) upon other effects such as physicians’ geographic choice of where to practice and the “anchoring” effect of caps that might inadvertently increase award amounts. This Article is the first to explore an unintended crossover effect that may be dampening the intended effects of caps. It posits that, where noneconomic damages are limited by caps, plaintiffs’ attorneys will more vigorously pursue, and juries will award, larger economic damages, which are often unbounded. Implicit in such a crossover effect is the malleability of various components of medical malpractice damages, which often are considered categorically distinct, particularly in the tort reform context. This Article challenges this conventional wisdom.
My original empirical analysis, using a comprehensive dataset of jury verdicts from 1992, 1996, and 2001, in counties located in twenty-two states, collected by the National Center for State Courts, concludes that the imposition of caps on noneconomic damages has no statistically significant effect on overall compensatory damages in medical malpractice jury verdicts or trial court judgments. This result is consistent with the crossover theory. Given the promulgation of noneconomic damages caps, the crossover effect may also partially explain the recently documented trend of rising economic (as opposed to noneconomic) damages in medical malpractice cases.
How War Affects Only Non-War Cases
Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation’s security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.
We attempt to explain this seemingly paradoxical evidence with one unifying conjecture. Instead of balancing rights and security in high stakes cases directly related to the war, the justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles established during wartime for ordinary cases, and attorneys should see it as their responsibility to distinguish cases along these lines.
Economic theory that suggests underperforming boards of directors should be fearful of an ouster vote by shareholders underappreciates the complexity of shareholder voting decisions. Skill at enhancing firm value has less to do with whether directors win votes and stay at the helm of public companies than previous commentators have presumed. Instead, like incumbent politicians, managers of some of the largest U.S. firms tend to stay in charge of firms because they understand—and take advantage o —the political dynamics of corporate voting. This Article presents a competing theory of shareholder voting decisions, one that suggests that shareholder voting in corporate elections is not dissimilar from citizen voting in political elections. Next, the Article presents the evidence. Using a hand-collected dataset from recent board elections, the Article compares the explanatory power of a standard economic variable (long-term stock price returns) and a political variable (money budgeted for campaigning) on election outcomes. Based on the data, directors’ ability to enhance firm value (as measured by stock price returns) is not significantly related to whether they win reelection. Rather, the likelihood of being returned to office appears to be a function of typical election politics—how much was spent by challengers to persuade shareholder voters. These findings have at least two implications. First, the theory that shareholder voting may be politicized helps point the way to how the SEC ought to craft reforms—and, just as important, how not to craft them. Recent SEC reform efforts have the laudable goals of creating new conduits for shareholders to participate in firm affairs, increasing shareholder-nominated candidate success, and disciplining incumbent managers.
The results of this study suggest that these reforms will not achieve the stated goals. Even with these reforms, the board continues to have an important political advantage, which likely translates into real votes. As the research here shows, the outcome of elections depends on persuasion and, not simply, as the SEC contends, on shareholders’ director nominees being presented alongside those of management. Second, the evidence and theory about shareholder voting presented here has significant implications for understanding mergers and acquisitions, particularly hostile acquisitions. The theory is that acquirers have steep incentives to target firms with poor performance. In most cases, however, such acquisitions depend on winning a vote from shareholders. Thus, if there is any disciplinary effect created by the prospect of takeovers, it depends crucially on understanding what motivates shareholder voting behavior. If voting shareholders respond to political motivations, not economic ones, then the performance of target board members might not be as relevant as takeover theorists had previously surmised.
Because punishable guilt requires that bad thoughts accompany bad acts, the
Model Penal Code (MPC) typically requires that jurors infer the mental state of a
criminal defendant at the time the crime was committed. Specifically, jurors must
sort the defendant’s mental state into one of four specific categories—purposeful,
knowing, reckless, or negligent—which will in turn define both the nature of the
crime and the degree of the punishment. The MPC therefore assumes that ordinary
people naturally sort mental states into these four categories with a high degree of
accuracy, or at least that they can reliably do so when properly instructed. It also
assumes that ordinary people will order these categories of mental state, by
increasing amount of punishment, in the same severity hierarchy that the MPC
The MPC, now turning fifty years old, has previously escaped the scrutiny of comprehensive
empirical research on these assumptions underlying its culpability architecture.
Our new empirical studies, reported here, find that most of the mens rea
assumptions embedded in the MPC are reasonably accurate as a behavioral matter.
Even without the aid of the MPC definitions, subjects were able to distinguish regularly
and accurately among purposeful, negligent, and blameless conduct.
However, our subjects failed to distinguish reliably between knowing and reckless conduct. This failure can have significant sentencing consequences for certain
crimes, especially homicide.
The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions
Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, that intuition has largely gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judge in question will vote for business litigants. Surprisingly, though, when we disaggregate partisan and nonpartisan elections, we find that a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests exists only for judges elected in partisan elections, and not for judges elected in nonpartisan ones. Our findings therefore suggest that political parties play an important causal role in creating this connection between campaign contributions and favorable judicial decisions. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention.
It was with great interest that we read David Law and Mila Versteeg’s thoughtful article on the influence of the U.S. Constitution. Their piece contributes some very useful and clearly-drawn empirical benchmarks, which will undoubtedly advance the conversation about the historical role of the U.S. Constitution in interesting and even provocative ways. Law and Versteeg provide many empirical nuggets to consider.
Many people—perhaps most—want to make money and lower their taxes, but few want to unabashedly break the law. These twin desires have led to a range of strategies, such as the use of “paper corporations” and offshore tax havens, that produce sizable profits with minimal costs. The most successful and ingenious plans do not involve shady deals with corrupt third parties, but strictly adhere to the letter of the law. Yet the technically legal nature of the schemes has not deterred government lawyers from challenging them in court as “nothing more than good old-fashioned fraud.”
In this Article, we focus on government challenges to corporate financial plans—often labeled “corporate shams”—in an effort to understand how and why courts draw the line between legal and fraudulent behavior. The scholars and commentators who have investigated this question nearly all agree: Judicial decision making in this area of the law is erratic and unpredictable. We build on the extant literature with the help of a new, large dataset, and uncover important and heretofore unobserved trends. We find that courts have not produced a confusing morass of outcomes (as some have argued), but instead have generated more than a century of opinions that collectively highlight the point at which ostensibly legal planning shades into abuse and fraud. We then show how both government and corporate attorneys can exploit our empirical results and explore how these results bolster many of the normative views set forth by the scholarly and policymaking communities.