Articles

Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on
equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the possibility that courts sometimes award damages in contract disputes.

We argue that the default expectation of equitable relief is a widespread but malleable intuition—and that even a fragile legal intuition has practical consequences, individually and systemically. In a follow-up experiment, we show that subjects are more interested in the prospect of efficient breach when they know
that money damages are a possible remedy. This finding suggests that the mismatch between what people assume the law will do (specific performance) and what it actually does (money damages) sometimes encourages performance. We consider the potential for exploitation of this tendency. Finally, we offer some suggestions about how scholars of law and psychology should elicit folk beliefs about legal rules and remedies.

In 2020, the United States Supreme Court held that the Religious Freedom Restoration Act (RFRA) allows for claims for money damages against federal officials who substantially burden a person’s free exercise rights. As federal courts now grapple with these claims for damages, federal prison officials defending RFRA claims have turned to a trusty and time-honored defense: qualified immunity. In recent years, however, qualified immunity has come under increasing attack from judicial, scholarly, and popular sources, and the rationale underlying qualified immunity doctrine cannot withstand the kind of textual analysis that the Supreme Court used when announcing that the RFRA statute allowed for damages. Using the Supreme Court’s rationale, the text and doctrine of RFRA, and the long-articulated criticisms of qualified immunity, this Article argues that qualified immunity should not be an available defense to statutory claims asserted against federal prison officials.

In formulating this argument, the Article makes three primary contributions. First, it explains the importance of RFRA and its attendant religious rights protections to the more than 150,000 people confined by the federal government in the nation’s prisons. Second, it demonstrates how the defense of qualified immunity is incongruent to the statute’s text, history, and purpose. And, finally, it is the first article to analyze how the qualified immunity defense becomes unworkable when it is applied to the doctrine governing claims brought under the statute. Overall, by focusing on the narrow class of RFRA claims, the Article joins the chorus of commentators urging the federal courts to reconsider the knee-jerk application of qualified immunity to claims involving fundamental rights.

Longstanding U.S. Supreme Court precedents interpreting the Federal Arbitration Act (“FAA”) coupled with more recent corporate law decisions in Delaware have sparked concerns that public corporations may adopt arbitration provisions precluding shareholder lawsuits, particularly securities fraud class actions. In this Article, we show that these concerns are misplaced. It should be trivially easy for courts to conclude that an arbitration provision set forth in a corporate charter or bylaw is unenforceable against public company shareholders. Simply put, it is a matter of equity and the integral role that a state plays in chartering corporations.

Starting first with the corporate law of Delaware, where most public companies are incorporated, we explain that all corporate charter and bylaw provisions must be “twice tested”: they must be both legal and equitable to be enforceable. Applying the twice-tested framework, we then demonstrate that an arbitration provision precluding class actions would be inequitable because it would deny the vast majority of shareholders a remedy for violations of federal securities law, transfer wealth from smaller shareholders to the largest investors, insulate corporate managers and boards from accountability in a manner inconsistent with established state policy, and rupture the balance between federal and state regulation of public corporations.

Turning next to federal law, we demonstrate that Delaware’s ban on shareholder arbitration is not preempted, despite the Supreme Court’s expansive interpretation of the FAA. Here, our analysis starkly departs from prior scholarship. Rather than denying the contractual nature of a corporation’s governing documents, we embrace what the courts have repeatedly stated, that a corporation’s charter and bylaws are a binding contract between the corporation and its shareholders. However, we broaden the aperture to reveal another party to the corporate contract: the state that has chartered the corporation. This insight is critical with regard to interpretation of the FAA. The FAA applies only where there is an agreement to arbitrate, and there can be no such agreement where the chartering state has through its corporate law withheld its assent to arbitration. Thus, without state assent to shareholder arbitration, the essential precondition for application of the FAA is absent.

Observers fear that large corporations have amassed too much political power. The central fact that animates this concern is growing economic concentration—the rise in the market share of a small number of top firms. These firms are thought to use their enhanced economic power to capture the government and undermine democracy by lobbying. Many scholars and activists have urged the use of antitrust law to combat this threat, leading a “political antitrust” movement that advocates explicit incorporation of political considerations into antitrust enforcement. Political antitrust has sparked great debate not only in academic circles but also among policymakers.

But the debate has been largely data-free; there is little systematic evidence on whether increased economic concentration leads to democratic harms in established democracies. This Article seeks to fill that gap, bringing systematic data analysis to bear on the issue for the first time. We make three contributions. First, we create a comprehensive dataset on lobbying of the federal government, capturing nearly one million records over the past two decades. This data was drawn from the reports required by the Lobbying Disclosure Act as compiled by In Song Kim, to which we contributed by refining the coding, improving the matching between lobbying reports and industry and firm data, and adding new data. Second, we use our dataset to map lobbying patterns, focusing on the connection between economics
and politics. Third, we empirically test some postulates of political antitrust.

Our findings do not support the political antitrust movement’s central hypothesis that there is an association between economic concentration and the concentration of lobbying power. We do not find a strong relationship between economic concentration and the concentration of lobbying expenditure at the industry level. Nor do we find a significant difference between top firms’ and other firms’ allocation of additional revenues to lobbying. And we find no evidence that increasing economic concentration has appreciably restricted the ability of smaller players to seek political influence through lobbying. Ultimately, our findings show that the political antitrust movement’s claims are not empirically well-supported in the lobbying context. Our findings do not allay all concerns about transformation of economic power into political power, but they show that such transformation is complex and nuanced, and they counsel caution about reshaping antitrust law in the name of protecting democracy.

Criminal jurors in American courts typically deliver their judgments through “general verdicts,” which announce only their legal conclusions of “guilty” or “not guilty.” An alternative format, the “special verdict,” would require jurors to confirm their findings of fact regarding each element of the applicable law before reaching a conclusion. Courts have long rejected the use of special verdicts in criminal cases, under the presumption that general verdicts better protect criminal defendants and their right to trial by jury. However, this procedural status quo and its underlying rationale have never been empirically examined—until now.

This Article presents the results of an original nationwide survey on criminal verdict format that comprehensively measured the perspectives of over 1,600 stakeholders in the American legal system: state and federal judges, prosecutors, criminal defense attorneys, law professors, criminal science experts, civil litigators, and jury-eligible lay citizens—with former criminal defendants, victims, and jurors also included in the sample. The data reveal that criminal case law’s longstanding position and presumptions on verdict format are strikingly misaligned with the views and intuitions of current legal stakeholders. The majority of stakeholder groups—including criminal defense attorneys and jury-eligible lay citizens—on average supported the use of special criminal verdicts and expected this format to benefit criminal defendants and jurors in various ways. Furthermore, even the only two stakeholder groups that on average supported the legal status quo in favor of general criminal verdicts—prosecutors and judges—did not subscribe to its rationale that special verdicts will disadvantage criminal defendants.

The survey’s findings call the criminal legal system’s status quo on verdict format into question by debunking the conventional wisdom on which it is based. The Article also draws upon the data to consider why the norm in favor of general criminal verdicts nonetheless persists. It concludes by identifying next empirical steps to qualitatively understand and experimentally test the legal and psychological implications of verdict format in criminal cases.

Why buy something for vast sums of money that other people can seemingly have for free? This is one of the puzzles confronting people new to both the art market and the market in Non-Fungible Tokens (“NFTs”). Both soaring markets depend on a stark division between real and fake, original and copy. Yet in a world of increasingly cheap and limitless copying, why do people still pay so much for authentic originals when you can download or 3D-print identical copies? What is the mysterious mechanism that creates value in a world of unfettered mechanical and digital reproduction?

For years, the mechanism was copyright law, which was created to solve the problem of how to monetize works that could be copied. But the art market, presaging the NFT market, long ago cast aside copyright as the mechanism to create value in a world of copies. Both markets instead depend on a non-legal market mechanism—what I call the “norm of authenticity.”

Yet, in this Article I show, through a deep exploration of the art market, that the norm of authenticity, the bedrock of that market, is artificial: protean, often arbitrary, and ultimately a mutually agreed upon fiction. And the importance of understanding artificial authenticity is urgent because it now has migrated from art to govern the market for NFTs.

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ultimately deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to challenge the growth of the mass deportation regime effectively. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.

A large body of scholarship has debated the constitutionality of criminalizing travel to seek abortions—an issue with new salience in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade. Increasingly, however, antiabortion activists are turning to civil remedies as a supplement or alternative to criminal prosecution in cases involving out-of-state abortions. In contrast to criminal jurisdiction, where the outer bounds of states’ authority to punish out-of-state conduct is highly uncertain, the extraterritorial application of state law in civil litigation is a common, routine effect of choice-of-law analysis that is unlikely to raise constitutional difficulties. As a result, it is reasonable to expect that courts in antiabortion states may give broad geographical effect to abortion-restrictive laws and policies in at least some civil litigation. The resulting decisions are likely to create substantial friction between states, as abortion-permissive states try to protect their own citizens from liability even as the Full Faith and Credit Clause demands recognition of foreign-state judgments that courts may be reluctant to give. Similar clashes between state policies have, to be sure, happened before, and this Article explores their outcomes in the areas of divorce liberalization, cannabis legalization, and the enforceability of noncompete clauses. At the same time, abortion is likely to give rise to broader and more intractable conflicts than any other issue courts have confronted in the recent past. Although individual judges can reduce occasions for interstate friction by applying restrained, conduct-focused conflicts principles, the states’ fundamental disunity on the underlying issue of abortion may prove to be a problem that our choice-of-law
system is simply not equipped to resolve.