Articles

In recent years, legal scholars dissatisfied with the behavioral assumptions of the rational actor model have increasingly turned to the findings of cognitive psychologists and decision theorists to enhance the accuracy of efficiency analysis. Jon Hanson and Douglas Kysar review those findings in this Article, concluding that scholars have been well justified in incorporating the behavioralist account of human behavior into law and economics. Nevertheless, Hanson and Kysar argue that those scholars simultaneously have failed to take the findings of behavioral research to their logical conclusion. Using the scholarly application of behavioralist insights to products liability theory as an example, the authors demonstrate that legal scholars thus far have treated cognitive anomalies as relatively fixed and independent influences on individual decisionmaking. Rather than such an exogenous analysis, Hanson and Kysar advocate an endogenous examination of behavioralist findings that allows for internal, dynamic effects of cognitive biases within the decisionmaking model. By recognizing that cognitive anomalies influence not only the behavior of biased decisionmakers but also the incentives of other economic actors, Hanson and Kysar reveal the possibility of market manipulation–that is, the possibility that market outcomes can be influenced, if not determined, by the ability of one actor to control the format of information, the framing and presentation of choices, and, more generally, the setting within which market transactions occur. Again using the field of products liability theory as an example, the authors argue that such market manipulation will come to characterize consumer product markets; powerful economic incentives will drive manufacturers to engage in practices that, whether consciously or not, utilize non-rational consumer tendencies to influence consumer preferences and perceptions for gain. The authors conclude by previewing the evidence from their companion article that demonstrates the seriousness of the problem of market manipulation and the need for corrective legal devices such as enterprise liability.

In recent years, scholars and policymakers have rediscovered the concept of industrial districts–spatial concentrations of firms in the same industry or related industries. In this Article, Professor Gilson examines the relationship between high-technology industrial districts and legal infrastructure by comparing the legal regimes of California’s Silicon Valley and Massachusetts’s Route 128. He contends that legal rules governing employee mobility influence the dynamics of high technology industrial districts by either encouraging rapid employee movement between employers and to startups, as in Silicon Valley, or discouraging such movement, as in Route 128. Because California does not enforce post-employment covenants not to compete, high technology firms in Silicon Valley gain from knowledge spillovers between firms. These knowledge spillovers have allowed Silicon Valley firms to thrive while Route 128 firms have deteriorated. Professor Gilson concludes with three cautionary notes. First, the success of Silicon Valley firms suggests that per capita firm value will be greater where intellectual property protection is somewhat diluted, in contrast to tie traditional law and economics prescription that emphasizes full protection of intellectual property. Second, the doctrine of inevitable disclosure, as developed in recent trade secret cases, threatens to undermine the advantages conferred by California’s legal regime and should be considered with caution. Third, other regions may not be able to emulate California’s success simply by replicating its legal rules. Rather, policymakers in other states should consider the characteristics of local industries, weighing the advantages to those industries of knowledge spillovers against the reduced incentives for initial innovation that result from decreased employer intellectual property rights.

Our society increasingly perceives information as an owned commodity. Professor Benkler demonstrates that laws born of this conception are removing uses of information from the public domain and placing them in an enclosed domain where they are subject to an owner’s exclusive control. Professor Benkler argues that the enclosure movement poses a risk to the diversity of information sources in our information environment and abridges the freedom of speech. He then examines three laws at the center of this movement: the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act. Each member of this trio, Professor Benkler concludes, presents troubling challenges to First Amendment principles.

Despite periodic outcries in response to particular outrages, it remains notoriously difficult to prosecute police brutality. In this form-shattering Article, Professor Troutt attributes much of this difficulty to the overwhelming power of the stories mainstream American culture tells about the encounters leading to police violence. In this piece, Professor Troutt lays bare these authority narratives–particularly their racialized dimension–and demonstrates how they have been used to defeat, if not silence, the counternarratives related by victims and their representatives.

Professor Troutt focuses on the limited, though important, role that fictional counterstories can have in challenging the epistemological apparatus by which police brutality is supported. To illustrate this point, he offers a fictionalized narration of the events leading up to one of the most significant police brutality prosecutions of this century, Screws v. United States. Using his story as a starting point, Professor Troutt moves on to two broader discussions: First, he compares his account with the dominant narratives of the Screws case, adopted either explicitly or implicitly by almost all of the legal and jurisprudential actors who participated in that case. Second, he examines the theoretical justifications many of his colleagues offer for the use of storytelling in legal writing, highlighting the ways in which his narrative illustrates the possibilities for such storytelling and identifying several additional benefits not emphasized in the existing literature. He concludes with a discussion of the most famous police brutality case of recent times, the Rodney King beating case, Koon v. United States. In his discussion of Koon, Professor Troutt demonstrates the persistence of prevailing cultural narratives of police brutality cases, in part by drawing attention to the similarities in the ways in which the Screws and Koon cases were portrayed by the government and perceived by the public. In the end, through both argument and demonstration, Professor Troutt makes a strong case for the importance of literary fiction as a tool for challenging the core of dominant beliefs about race, crime, and social hierarchy implicit in reigning authority narratives.

This Article is the first comprehensive analysis of the complicated voting rules of Chapter 11. Under these rules, only the debtor may propose a plan of reorganization during a lengthy exclusivity period, creditors are placed in classes which vote separately on the plan, voting is based on a bicameral system with both majority and supermajority requirements, and a plan may be confirmed only if, among other things, every nonconsenting creditor receives at least as much as it would have if the firm were liquidated under Chapter 7. Chapter 11’s rules are idiosyncratic and difficult to understand, yet the literature on these rules is sparse. Several scholars have argued that it should be replaced with a system that avoids voting and relies on a more market-driven valuation process. To date however, no one has tried to understand how all of the voting rules fit together. In this article, Professors Kordana and Posner expand on existing bargaining models to consider bargaining with multiple creditors, paying particular attention to difficulties posed by imperfect information, and analyze all of the major voting rules in Chapter 11. The authors utilize a positive analysis to achieve an increased understanding of the existing bankruptcy system and its costs and benefits, an essential prerequisite to reform of Chapter 11.

In this Article, Professor Hartnett enters the longstanding debate over whether elected officials are obliged to follow the Supreme Court’s interpretation of the Constitution. Responding to a call by Professors Larry Alexander and Frederick Shauer for complete deference to judicial opinions–a stance echoed by a broad range of scholars, now including former antideference advocate Edwin Meese–Professor Hartnett attempts to identify serious flaws in this position. He maintains that because the scope of tie judicial role is narrowly limited to deciding cases and controversies, and not “pronouncing the law,” there is a profound distinction between judgments and opinions. Therefore, we should not confuse deference with obedience and grant the Supreme Court a monopoly on constitutional interpretation.

Louis & Myrtle Research Professor of Business and Law and Alene & Allen F. Smith Professor of Law, University of Michigan and Professor of Law, University of Michigan, respectively.

This Article draws on a rich array of deviant behavior in Russian enterprises to craft lessons for corporate governance theory. First, Professors Fox and Heller define corporate governance by looking to the economic functions of the firm. Based on this definition, they develop a typology that comprehensively shows all the channels through which bad corporate governance can inflict damage on a country’s real economy. Second, they explain the causes of Russian enterprise fiascoes by looking to the particular initial conditions prevailing at privatization-untenable firm boundaries and insider allocation of firm shares-and the bargaining dynamics that have followed. This focus offers a new perspective for a comparative corporate governance literature derived from United States, Western European, and Japanese models. The analytic tools created in this Article can inform pressing debates across contemporary corporate law, ranging from the theory of the close corporation to the viability of “stakeholder” proposals.

Law Clerk to Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. A.B., 1996, Harvard College; M.Phil., 1997, Cambridge University; J.D., 2000, Yale University.

Again and again in notorious criminal trials, courts neglect significant public interests by transferring the trial out of the community in which the crime was committed. The acquittal of the officers who shot Amidou Diallo reflects but the latest of a number of high-profile verdicts in which the change of venue undermined the verdict’s legitimacy, particularly within the community victimized by the crime. American law always has presumed that jurors must be drawn from within the victimized community in order to permit the jury to fulfill its representative and adjudicative functions. Local jurors stamp the community’s judgment on the verdict, permit the trial to serve as an outlet for community concern, and interpret ambiguous statutory terms in light of the common sense of the community. These essential jury functions were understood by the Founders, yet they wholly are absent from the prevailing law governing change of venue motions. In this Article, Steven Engel argues that the public enjoys a constitutional right to adjudicate criminal trials locally. He first examines a series of cases in the 1980s where the Supreme Court recognized that the public enjoys a right of access to criminal proceedings premised on the tradition of public access, the public interest in publicity, and the link between the right and established constitutional values. He then suggests that the public’s “vicinage right” grows from the same soil as does the public’s right of access, has long-standing roots in our legal tradition, continues to serve important public policies, and is implicit in other constitutional doctrines protecting the jury right. Engel concludes that recognizing such a public right would encourage courts to explore alternatives to transfers that would preserve the defendant’s right to an impartial jury without damaging the community interests implicit in the trial by jury.

Assistant Professor of Law, University of Arkansas at Little Rock. B.A., 1976, M.S., 1978, J.D.,1988, University of Miami; LLM., 1995, Columbia University.

Scientific evidence is an inescapable facet of modern litigation. The Supreme Court, beginning with the seminal case of Daubert v. Merrell Dow Pharmaceuticals, Inc., and continuing with General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael, has instructed federal judges to evaluate the scientific validity of such evidence in determining the evidence’s admissibility. In this Article, Professor Erica Beecher-Monas argues that many judges ignore the science component of their “gatekeeping” duties, focusing instead on rules of convenience that have little scientific justification. As a result, she demonstrates that judges reject even scientifically uncontroversial evidence that would have little trouble finding admissibility under the pre-Daubert “general consensus” standard and admit evidence that is scientifically baseless. Such faulty analysis of scientific evidence deprives litigants of intellectual due process from judges and undercuts the proper functioning and credibility of the judicial system. Beecher-Monas contends that understanding certain basic principles underlying all fields of science will enable judges to make better admissibility decisions. Based on the language of science and criteria scientists use to assess validity, as well as the Supreme Court’s requirements in Daubert, Joiner, and Kumho Tire, Beecher-Monas proposes a five-step framework for sound analysis of scientific evidence Size then demonstrates the usefulness of the heuristic in two cases where applying the heuristic would have changed the outcome dramatically. The framework proposed in this Article will allow triers of science to make scientifically justifiable admissibility assessments, and in so doing will give litigants in cases involving scientific evidence the intellectual due process they deserve.

John A. Garver Professor of Jurisprudence, Yale Law School. B.A., 1973, Davidson College; M.A., 1974, Harvard University, J.D., 1978, Yale University.

Arguments against equal rights for gay men, lesbians, bisexuals, and transgendered people have shifted from, “Those are bad people who do sinful, sick acts,” to “A progay reform would promote homosexuality.” Professor Eskridge’s article presents a history of this rhetorical shift, tying it to the rise of a politics of preservation by traditionalists seeking to counter gay people’s politics of recognition. Eskridge also shows how modern antigay discourse has become sedimented, as arguments are layered on top of (but never displace) each other. Evaluating the various forms no promo homo arguments can take, he maintains that the most obvious versions are not plausible, and that the most plausible are not constitutional. This archaeology of no promo homo discourse has interesting ramifications for constitutional theory and doctrine. Among then, as Eskridge concludes, is the way in which the channeling function of law not only changes group rhetoric, but also group identity, and helps the state “manage” polarizing culture clashes.