Faculty Bibliography

Legal scholars, economists, and other social scientists interested in property will find this Handbook an often-referenced addition to their libraries.

In this Article, we focus on an important problem with mass-accident cases, a problem highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to allocate liability among the business and governmental entities that contractually participated in the risky venture. Joint and several liability with provision for contribution, for example, enables plaintiffs asserting primary claims to recover all proven damages from a single “deep-pocket” defendant, regardless of that defendant’s own share of legal responsibility for the harm, and then authorizes the defendant to sue other joint venturers to recoup payments in excess of its proportionate share of liability. The key point for our purposes is that contribution claims are entirely creatures of the joint venturers’ own making. Through a contract that establishes the terms of their joint venture relationship (“predispute contract”), the parties can exercise complete control over whether to subject themselves to contribution claims, and, if so, whether to resolve the claims by publicly funded courts or by a privately funded alternative, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. The specific, socially detrimental result of such distorted litigation incentives is delayed resolution of cases that merit greater priority in gaining access to public judicial resources. Generally, these are cases in which the claimants lacked predispute contractual means to control risk and provide for nonjudicial alternatives, and hence the principal social benefits of deterrence and compensation depend on court-enforced civil liability. We argue that courts can effectively correct the contracting parties’ incentives by charging them for the cost of using the judicial process. Requiring contracting parties to pay their way in court would free up judicial resources to increase the average level of benefits from adjudication. Such a user fee, as we show, can be extended to almost all commercial-contract cases.

The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects. Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values? Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.

"The Dramatic Growth of Government since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government's costs, efficiency, and quality of service. This concern, combined with rising confidence in private markets, motivates the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. "Government by contract" now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects." "Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?" "Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns."--Jacket. An earlier version of the chapter appeared as an article in: 46 Boston College Law Review 989 (2005).

Kaufman and Wilkins mark the 20th anniversary of Problems in Professional Responsibility for a Changing Profession with a new 5th edition. Their new edition covers judicial, legislative, and executive developments in the traditional fields of conflicting interests and confidentiality, specialty fields of corporate and government representation as well as representation of those with impaired capacity. It also deals with the problems created by the increasing nationalization and internationalization of law practice, including the basic problem of trying to determine whose professional responsibility law governs the activity of lawyers when they engage in activity beyond their home jurisdictions. Various efforts to reform the profession here and abroad to meet the legal needs of clients and would-be clients are also presented. The authors have added substantial new material dealing with the demographics and institutions of law practice and their effect on professional identity.

An Interdisciplinary Approach to Budget Policy Elizabeth Garrett, Elizabeth A. Graddy, Howell E. Jackson. 6 Counting the Ways The Structure of Federal Spending Howell E. Jackson In the realm of budget policy, numbers are important. ... and suggestions from participants at the February 2006 Conference on Fiscal Challenges: An Interdisciplinary Approach to Budget Policy held at USC Law School and ...

By what criteria should public policy be evaluated? Fairness and justice? Or the welfare of individuals? Debate over this fundamental question has spanned the ages. Fairness versus Welfare poses a bold challenge to contemporary moral philosophy by showing that most moral principles conflict more sharply with welfare than is generally recognized. In particular, the authors demonstrate that all principles that are not based exclusively on welfare will sometimes favor policies under which literally everyone would be worse off. The book draws on the work of moral philosophers, economists, evolutionary and cognitive psychologists, and legal academics to scrutinize a number of particular subjects that have engaged legal scholars and moral philosophers. How can the deeply problematic nature of all nonwelfarist principles be reconciled with our moral instincts and intuitions that support them? The authors offer a fascinating explanation of the origins of our moral instincts and intuitions, developing ideas originally advanced by Hume and Sidgwick and more recently explored by psychologists and evolutionary theorists. Their analysis indicates that most moral principles that seem appealing, upon examination, have a functional explanation, one that does not justify their being accorded independent weight in the assessment of public policy. Fairness versus Welfare has profound implications for the theory and practice of policy analysis and has already generated considerable debate in academia.

This article analyzes the role of hearsay in criminal justice proceedings and advocates for the court to adopt an active role in controlling the introduction of hearsay, to ensure that only credible hearsay is admitted into evidence. It considers the impact that hearsay has on the defendant’s constitutional right of confrontation, discussing in what circumstances corroboration and testing will allow the defendant’s rights and societal needs of justice and fairness to be satisfied.

Are "canons of construction" embarrassing? For a long time, the answer was "yes." Exposed as "contradictory" by Karl Llewellyn, a generation of legal thinkers understood interpretive canons to be so malleable in their application as to operate mostly as pretext. Rather than bring predictability to statutory decisions, the availability of more than one interpretive canon in nearly any appellate case meant that a canon's invocation worked mostly to obscure the choice (conscious or not) by judges between legally permissible outcomes. Interpretive canons were thus tools of legal mystification, providing the appearance of law to what were, ultimately, acts of discretion.

Published with Thomson Reuters since 2010.

The paper analyzes the effects of holding firms liable for non-disclosure of material information when raising capital. We develop a model in which a privately-informed entrepreneur can choose to withhold information from prospective investors when issuing and selling stock and the investors can bring suit against the firm ex post for (alleged) non-disclosure. The damage payment received by the investors is partially offset by the reduced value of their equity stake. The analysis shows that the equilibrium depends on, among others, (1) the amount of personal capital the entrepreneur has to commit, (2) the frequency with which the entrepreneur is privately informed (the degree of adverse selection), (3) the size of damages payment, and (4) the cost of litigation. Court errors decrease social welfare by weakening deterrence while litigation costs may increase social welfare by deterring the inefficient types or decrease social welfare through wasteful litigation spending. The effects of liability or class action waivers and holding entrepreneurs personally liable for non-disclosure are also explored, and various normative and empirical implications are discussed.

Across the ages, moneys exhibit a recurring set of design elements: they are made of debt; that debt is specifically fashioned to create liquidity; and the debt medium that results comes with a pledge of value (commonly collateral, convertibility, a commitment of public faith, and/or insurance) to enhance its credibility. While those design elements appear again and again, they vary greatly in form. Debt, for example, can be structured as a straightforward liability or issued by agents (e.g., a central bank acting for a government). Every difference in design changes the dynamics of the medium and the way people treat it. Every difference in design thus affects exchange, its societal context, and how value travels. Like the law of payments, the legal design of money shapes the economy itself. [This essay is written as part of a festschrift for Professor Benjamin Geva.]

This article explores subjects in optimal income taxation characterized by recent research interest, practical importance in light of concerns about inequality, potential for misunderstanding, and prospects for advancement. Throughout, the analysis highlights paths for further investigation. Areas of focus include multidimensional abilities and endogenous wages; asymmetric information and the income of founders; production and consumption externalities from labor effort; market power and rents; behavioral phenomena relating to perceptions of the income tax schedule, myopic labor supply, and the interactions of savings, savings policies, and labor supply; optimal income transfers; the relationship between optimal income taxation and the use of other instruments; and issues relating to the social welfare function and utility functions, including nonwelfarist objectives, welfare weights, heterogeneous preferences, and taxation of the family.

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a *standard*, not a *decision procedure*. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.Distinguishing standards from decision procedures explains how originalists can tolerate substantial uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.It would be very nice if the correct constitutional theory gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

Roscoe Pound was one of the most celebrated figures in twentieth century American legal thought, having originated the field of sociological jurisprudence which presaged legal realism and having served for two decades as Dean of Harvard Law School. Less well known is his extended role in China as a principal advisor to the Nationalist government as it fought a civil war during the 1940s against the Chinese Communist Party. And even less fully explicated is the story of how Pound's ideas influenced Chinese legal thought to this day and of how China influenced his thinking. Pound for Pound has two principle objectives. The first is to reconstruct, from archival and other materials, Pound's adventures (and misadventures) in China, and then to examine the ways in which his thought was first lionized by Chinese scholars, then denounced during the early years of the People's Republic of China, and subsequently, in the late twentieth and early twenty-first centuries, embraced there. The second is to use Pound's experience to raise questions about the role of U.S. and other foreign scholars involved in Chinese legal development over the past several decades that have not received the scrutiny warranted.

The United States Tax Court hears well over 90% of the federal tax cases litigated each year with only a small percentage of opinions coming out of district courts and the Court of Federal Claims. The Tax Court classifies its opinions as precedential or non-precedential based on the issues presented. Over 75% of Tax Court litigants file their petition pro se. Each year it classifies a handful of opinions as precedential in which the petitioner(s) is pro se. In almost all of these cases the Court creates binding precedent on the basis of a case in which only one side, the IRS, presents meaningful legal arguments thus turning the process leading to the decision from one based on the adversarial process to the inquisitorial process. While the Tax Court works hard to reach the right conclusion, it loses the benefit of legal argument on the side of the petitioner/taxpayer and potentially reaches a different conclusion than it might have reached had the taxpayer’s side of the argument been well developed. Tax Court opinions typically take several months or years after trial before the Court renders an opinion. This paper suggests that when the Tax Court decides to render a precedential opinion in a pro se case it pause its deliberations for a short period and appoint or solicit members of its bar, either in the low income taxpayer clinical community or other pro bono counsel, to allow the submission of an amicus on behalf of the position of the taxpayer. The paper points to practices in other courts that have developed a more formal approach to amicus briefs as models for the proposed practice. Adopting such a practice would not only benefit the individual litigant but all who follow with the same issue.

The tax system designed by Congress imposes significant administrative burdens on taxpayers. IRS decisions regarding how it administers tax laws can add to congressionally imposed burdens. The administrative burdens are consequential and hurt some people, especially lower- or moderate-income individual taxpayers, more than others. While the IRS strives to measure and reduce the time and money taxpayers spend to comply with their tax obligations, it does not consider the effect administrative burdens have on taxpayer rights, including the right to be informed, the right to pay no more than the correct amount of tax, and the right to a fair and just tax system. In this Article we discuss the concept of administrative burdens and reveal specific examples of how IRS actions, and inaction, have burdened taxpayers and jeopardized taxpayer rights. In addition to identifying and contextualizing these problems, we propose that the IRS conduct Taxpayer Rights Impact Statements on new and existing systems to evaluate when it would be appropriate to reduce, eliminate, or shift burdens away from citizens and onto the government or third parties.

Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in public accommodations law. Can public accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to public accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a public accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.

What do restorative justice initiatives and racial justice initiatives have to offer one another? In high schools and in criminal law settings, these phrases name and mobilized people, resources, and critiques. Despite real differences in original methods, there seems much for racial justice and restorative justice to share. Racial justice advocates rightly call for both personal change and also systemic transformation. Restorative justice points toward political, legal, and economic policies and practices while also working hard on transformations of the attitudes, feelings, and world-views of individual. Both need to attend as well to media and public education, as well as the day-to-day interactions in communities. And both point to ways to connect the personal and the structural, the interpersonal and the political, the individual freedom to act and the collective systems that so often seem hard to move. And both can focus on the concentric circles of actors and contributing influences on conflicts that can be resources for change.

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to be the most likely to reoffend.

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of the answer turns on legal craft—identifying the tools available to a Justice as she decides individual cases. However, part of it also requires adopting a regime perspective— ensuring that a Justice’s actions meet the challenges of her own constitutional moment. In my account, Chief Justice Roberts takes centerstage. Beginning with legal craft, I analyze the tools that Roberts employs to preserve the Court’s legitimacy in concrete cases—namely, coalition building, calls for action by the elected branches, incrementalism, charity for the opposing side, triangulating between constitutional extremes, and promoting a vision of institutional humility. From there, I adopt a regime perspective, charting three future paths for the Roberts Court—each with its own set of challenges for the Justices as they seek to preserve the Court’s institutional legitimacy.

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity, thereby delivering an important victory for LGBTQ+ persons in their continuing struggle to be treated with equal regard in all areas of life. A striking feature of the case, and one reason why it has been so widely discussed, is that all three opinions—the majority and two dissents—professed to apply a textualist theory of statutory interpretation. In particular, all three opinions took for granted that courts should enforce a statute’s ordinary meaning at the time of enactment.3 No competing theory of statutory interpretation was even on the table. Going forward, we can expect textualism to play an increasingly prominent role in how courts resolve questions of statutory interpretation. So, it is worth asking what textualism instructs courts to do and whether courts should do as textualism instructs. A recent Article by Professors William N. Eskridge, Brian G. Slocum, and Stefan Th. Gries attempts to answer both of those questions. It contends that there were multiple versions of textualism on display in the Justices’ opinions in Bostock and that none of those versions is ultimately defensible. This is a long and rich Article by distinguished scholars, and I agree with much of what they say. Yet I also think that their characterization of and objections to textualism miss the mark. In this Essay, I argue (i) that the versions of textualism that Eskridge, Slocum, and Gries criticize are not really textualism; (ii) that their examples of “societal dynamism” do not put any pressure on textualism properly understood; and (iii) that their corpus-linguistics analysis of the word “sex” would not persuade any textualist to adopt their preferred interpretation of Title VII. I am not a dyed-in-the-wool textualist myself: while frequently sympathetic to textualism, I doubt that judges ought to employ it in every case. Still, my sense is that many commentators are unduly dismissive of textualism—tending to criticize strawman versions of it rather than the genuine article—and my goal is to push back against that tendency here. Below, Part I attempts to lay out more clearly what textualism claims. Parts II and III argue that the “compositional” and “extensional” versions of textualism that Eskridge, Slocum, and Gries criticize are not textualism and, indeed, not positions that any mainstream legal interpreter today claims to hold. Part IV answers the authors’ objections to textualism based on so-called societal dynamism. Finally, Part V turns to the authors’ corpus-linguistics analysis of “sex.”

As the semantic capability of computer systems increases, the law should resolve clearly whether the First Amendment protects machine speech. This essay argues it should not be read to reach sufficiently sophisticated — "replicant" — speech.