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Lower Court Discretion

Pauline T. Kim

Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must faithfully implement that policy. The law is a signal—the means by which the Court communicates its preferences. This Article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This Article advances a more nuanced account of how law shapes the decisionmaking environment of the lower federal courts, one that focuses on the presence of discretion. It explores how different types of discretion afford distinct types of power over lawmaking and case outcomes, and how that discretionary power is allocated between district and appellate courts. Paying attention to discretion suggests features of the judicial hierarchy that are commonly overlooked in principal-agent models. For example, judges’ goals, and therefore their strategies, will vary depending upon whether they seek to influence law development or merely to shape case outcomes. The Article also questions the normative assumption, implicit in principal-agent models, that lower federal courts should decide cases in accordance with the policy preferences of the Supreme Court. Because judges inevitably have discretion when applying the law, a norm of compliance with superior court precedent does not necessarily require lower courts to follow the policy preferences of the Supreme Court. The reasons judicial discretion exists, such as allocating power within the judicial hierarchy, may argue against such a centralization of power in the Supreme Court.

Things Better Left Unwritten?: Constitutional Text and the Rule of Law

Jane Pek

The written nature of America’s Constitution has been traditionally regarded as a constitutional virtue, and more recently dismissed as an irrelevancy of form. However, the concept of “writtenness” itself, in the constitutional context, remains vague and undefined. Through a comparison of the United States and United Kingdom constitutions, this Note identifies the essential characteristics of a written constitution and examines how such writtenness affects the achievement of the rule of law in a society. The Note argues that an unwritten constitution may prove as conducive to important rule-of-law values as a written constitution, if not more so, and challenges the general perception of writtenness as an unequivocally desirable aspect of our Constitution.

Three Pictures of Contract: Duty, Power, and Compound Rule

Gregory Klass

There is a fundamental divide among theories of contract law between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law places duties on persons entering into agreements for consideration, whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing—a question that should lie at the center of contract theory.

This Article argues that legal powers have two characteristic features. First, there is an expectation that actors will satisfy the rules with the purpose of achieving the associated legal consequences. Second, the legal rules are designed to facilitate such uses. A law might exhibit these features in either of two ways, which define two types of legal powers. Many laws that create legal powers employ conditions of legal validity, such as legal formalities, designed to guarantee the actor’s legal purpose. The presence of such validity conditions is strong evidence that the law’s sole function is to create a legal power, and I suggest reserving the term “power conferring” for such laws. Other laws anticipate and enable their purposive use without conditioning an act’s legal consequences on the actor’s legal purpose. The structure of such laws suggests that they function both to create powers and to impose duties. I coin the term “compound rule” for laws that satisfy this description and argue that the contract law we have is a compound rule. The dual function of compound rules provides empirical support for pluralist justifications of contract law. An example of such a theory can be found in Joseph Raz’s comments on the relationship between contract law and voluntary obligations.

Efficient Breach Theory Through the Looking Glass

Barry E. Adler

A party in breach of contract cannot sue the victim of breach to recover what would have been the victim’s loss on the contract. The doctrinal rationale is simple: A violator should not benefit from his violation. This rationale does not, however, provide an economic justification for the rule. Indeed, efficient breach theory is founded on the proposition that a breach of contract need not be met with reproach. Yet the prospect of recovery by the party in breach—that is, the prospect of negative damages—has received scant attention in the contracts literature. Close analysis reveals potential costs to disallowance of negative damages, particularly where a party with private information about the benefits of termination also has an incentive to continue under the contract. These costs can arise both ex post, at the time of a performance-or-termination decision, and ex ante, in anticipation of that decision. Nevertheless, allowance of negative damages could impose its own costs, where background information would create an incentive to repudiate a contract before either party could gather more information, for example. Ex ante contractual provisions, such as liquidated-damages or specific-performance clauses, permit parties some latitude to balance the costs of disallowance and allowance of negative damages, albeit imperfectly. Common law limitations on the mitigation duty may be seen as a mechanism to approach this balance in the absence of an explicit con- tractual solution.

Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else

Alexander Volokh

In this Article, I propose a theory of how rational, ideologically motivated judges might choose interpretive methods, and how rational, ideologically motivated laymen—legislators, litigation organizations, lobbyists, scholars, and citizens—might respond. I assume, first, that judges not only have ideological preferences but also want to write plausible opinions. Second, I assume that every method of statutory or constitutional interpretation has a “most plausible point” along a spectrum of possible decisions in a given case. As a result, if a judge decides to use any particular interpretive method, that method will pull him towards its “most plausible point,” possibly making him deviate from his own ideal point.

When a judge can choose an interpretive method, he selects the one that (taking these deviations into account), among other things, allows him to stay as close as possible to his favored outcome. Thus, any given method is chosen only by judges whose ideal points, roughly speaking, are not too distant from that method’s most plausible point. This behavior creates a selection bias. An interpretive method’s political valence under a regime of free interpretive choice thus differs systematically from what it would look like if that method were mandatory. As a result, one might favor mandating an interpretive method even though one is politically closer to the current practitioners of a different method.

A judge can choose not only which interpretive method to use but also whether to use the same method from case to case. This Article argues that an individual judge’s choice of interpretive method does not usually substantially affect the methods that other judges use. Therefore, even though ideologically motivated judges (or litigation groups) might want to make the method they prefer in most cases mandatory for everyone, it can often be rational for these judges to deviate from that preferred method in instances where a different method would produce a more appealing outcome.

Automating Contract Law

George S. Geis

The study of contract law is undergoing a difficult transition as it moves from the theoretical to the empirical. Over the past few decades scholars have focused largely on developing economic theories that offer a normative approach to setting the legal rules governing voluntary exchange. The time has now come to test whether these theories provide a meaningful basis for choosing our laws—in other words, to ask whether empirical data supports the theoretical models that contracts scholars have posited. Unfortunately, this type of empirical analysis has proven exceptionally difficult to conduct, and some commentators are beginning to question whether it will ever be possible to test and revise our economic theories of contract in a meaningful manner. Yet the problem of harnessing information to support complex decisions is not unique to contract law. This Essay explores the possibility that recent technological developments from the field of organizational knowledge management—including advances in meaning-based computing algorithms—will soon make it easier to conduct empirical work in contract law on a much larger scale.

Intellectual Property for Market Experimentation

Michael Abramowicz, John F. Duffy

Intellectual property protects investments in the production of information, but the relevant literature has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free riding on the information its entry reveals about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage that discourages innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, thus promoting earlier market entry and increasing the level of entrepreneurial activity in the economy. The goal of encouraging market experimentation helps to explain certain puzzling aspects of current intellectual property doctrine and provides a coherent basis for appreciating some of the current criticisms of intellectual property rights.

Toward One America: A Vision in Law

The Honorable J. Harvie Wilkinson III

Madison Lecture

In his Madison Lecture, Judge Wilkinson urges a new purpose for American law: the explicit promotion of a stronger sense of national cohesion and unity. He argues that the judicial branch should actively seek to promote this nationalizing purpose and suggests seven different ways for federal courts to do so. He contends further that a nationalizing mission for law is needed at this moment in American history to counteract the demographic divisions and polarizing tendencies of our polity. This purpose need not entail the abdication of traditional values of judicial restraint, should not mean the abandonment of the traditional American credo of unity through pluralism, and must not require the sacrifice of the law’s historic commitment to the preservation of order and the protection of liberty. But the need for a judicial commitment to foster a stronger American identity is clear. The day when courts and judges could be indifferent to the dangers of national fragmentation and disunion is long gone.

Trademark Litigation as Consumer Conflict

Michael Grynberg

Trademark litigation typically unfolds as a battle between competing sellers who argue over whether the defendant’s conduct is likely to confuse consumers. This is an unfair fight. In the traditional narrative, the plaintiff defends her trademark while simultaneously protecting consumers at risk for confusion. The defendant, relatively speaking, stands alone. The resulting “two-against-one” storyline gives short shrift to the interests of nonconfused consumers who may have a stake in the defendant’s conduct. As a result, courts are too receptive to nontraditional trade- mark claims where the case for consumer harm is questionable. Better outcomes are available by appreciating trademark litigation’s parallel status as a conflict between consumers. This view treats junior and senior trademark users as proxies for different consumer classes and recognizes that remedying likely confusion among one group of consumers may cause harm to others. Focusing on the interests of benefited and harmed consumers also minimizes the excessive weight given to moral rhetoric in adjudicating trademark cases. Consideration of trademark’s consumer-conflict dimension is therefore a useful device for critiquing trademark’s expansion and assessing future doctrinal developments.

Two and Twenty: Taxing Partnership Profits in Private Equity Funds

Victor Fleischer

Private equity fund managers take a share of the profits of the partnership as the equity portion of their compensation. The tax rules for compensating general partners create a planning opportunity for managers who receive the industry standard “two and twenty” (a two percent management fee and twenty percent profits interest). By taking a portion of their pay in the form of partnership profits, fund managers defer income derived from their labor efforts and convert it from ordinary income into long-term capital gain. This quirk in the tax law allows some of the richest workers in the country to pay tax on their labor income at a low rate. Changes in the investment world—the growth of private equity funds, the adoption of portable alpha strategies by institutional investors, and aggressive tax planning—suggest that reconsideration of the partnership profits puzzle is overdue.

While there is ample room for disagreement about the scope and mechanics of the reform alternatives, this Article establishes that the status quo is an untenable position as a matter of tax policy. Among the various alternatives, perhaps the best starting point is a baseline rule that would treat carried interest distributions as ordinary income. Alternatively, Congress could adopt a more complex “Cost-of-Capital Method” that would convert a portion of carried interest into ordinary income on an annual basis, or Congress could allow fund managers to elect into either the ordinary income or “Cost-of-Capital Method.” While this Article suggests that treating distributions as ordinary income may be the best, most flexible approach, any of these alternatives would be superior to the status quo. These alternatives would tax carried interest distributions to fund managers in a manner that more closely matches how our tax system treats other forms of compensation, thereby improving economic efficiency and discouraging wasteful regulatory gamesmanship. These changes would also reconcile private equity compensation with our progressive tax system and widely held principles of distributive justice.