Emad H. Atiq, Associate Professor of Law and Philosophy

Legal Positivism and the Moral Origins of Legal Systems,” Canadian Journal of Law & Jurisprudence, vol. 36, no. 1 (2023).

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the “laws of justice” which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; in this paper Atiq argues that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, Atiq suggests that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using “law” (or “lex” or “jus”) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication.

John Blume, Samuel S. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project (with coauthors Anna Effenberger and Martin T. Wells)

Quantifying Disparate Questioning of Black and White Jurors in Capital Jury Selection,” Journal of Empirical Legal Studies, vol. 21, no. 3 (forthcoming 2023).

Numerous studies have demonstrated that female and Black jurors are under-represented on juries in criminal cases, especially so when the prosecution seeks the death penalty. The primary, but not exclusive, way in which this happens is that prosecutors remove them from the jury pool through the exercise of peremptory challenges. The practice remains widespread despite the Supreme Court’s decision more than thirty years ago holding that using such challenges in a racially (or gender based) discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment. In the years since, enforcement by the Supreme Court and state and federal courts has been uneven. However, in several recent cases, in finding that prosecutors struck Black venire persons because of their race, the Supreme Court relied in part on evidence that the prosecution questioned Black and white venire persons differently. The legal term of art for this practice is “disparate questioning.”

In this article, Professor Blume and his co-authors present findings arising from a quantitative study of jury selection using new technology: computational natural language processing software. Analyzing the voir dire in a set of South Carolina capital trials the authors examined the length, descriptiveness and complexity of questioning and found significant, but sometimes subtle, disparate questioning of Black venire members, especially during questioning by the prosecution that might otherwise have gone undetected.

The natural language processing software used in this study has the potential to provide attorneys challenging the use of peremptory challenges on appeal as being based on race or gender discrimination with evidence relevant to the issue of disparate questioning, which is often a pretext for purposeful discrimination. It could also potentially be used at trial since the analysis can be conducted almost instantaneously. Thus this new technology can be a powerful tool in achieving the goal of having more diverse juries in criminal cases, especially where the death penalty is a potential punishment.

Yun-chien Chang (with coauthor Geoffrey P. Miller)

Do Judges Matter?” Journal of Institutional and Theoretical Economics, vol. 179, no. 1 (2023).

An extensive literature examines whether characteristics of judges correlate with votes on cases. These studies generally consider the judges’ votes on the merits of cases. Examining a data set of 4,591 decisions issued by 48 state supreme courts in 2003, the authors consider whether judges’ personal features affect their opinion writing. They find virtually no significant differences along any of the dimensions under review. Judicial characteristics matter only indirectly— ideological differences increase dissensus in public law cases, which increases opinion length and citation numbers. This study suggests that when carrying out the ordinary business of courts, judges are almost all the same.

Michael Dorf, Robert S. Stevens Professor of Law (with coauthor Neil H. Buchanan)

Justice Delayed: Government Officials’ Authority to Wind Down Constitutional Violations,” Boston University Law Review (forthcoming 2023).

Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now. Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify the practice of executive officials and legislatures phasing out rather than immediately ceasing their own violations without judicial intervention. The authority for that practice inheres in the merely prima facie nature of the obligations law imposes. Where immediate compliance would risk disaster, government actors, no less than individuals, act justifiably (even if technically illegally) by decelerating gradually rather than slamming on the brakes. Building on principles, some of which are implicit in extant case law, this article proposes three limits. First, wind-down authority exists only where immediate compliance would lead to extreme harms that clearly and overwhelmingly outweigh the harms of non-compliance; mere inconvenience or expense does not suffice. Second, the duration of any compliance delay should be specified in advance and minimized. Third, failure to wind down a violation in the prescribed time should be excused only following good-faith efforts; even then, in general at most one extension should be allowed before courts impose sanctions for non-compliance. These limits will deter the kind of recalcitrance associated with massive resistance to desegregation that the Supreme Court invited with the “all deliberate speed” formulation of Brown v. Board of Education II. The legitimacy of wind-down authority also implies power to initiate a constitutional violation in extraordinary circumstances. Thus, for example, should Congress fail to raise the debt ceiling before government obligations outstrip revenue, the president need not exhaust technically legal but disastrous options (such as selling national parks to real estate developers at fire sale prices) before taking unconstitutional measures (such as borrowing in excess of the debt ceiling) to mitigate the harm.

Maggie Gardner, Professor of Law

Their Beef Is with Burger King,” New York University Journal of International Law and Politics, vol. 56 (2023).

International Shoe Co. v. Washington was decided seventyfive years ago, and there are some rumblings that it is showing its age. On the Supreme Court, Justice Gorsuch has been the most open skeptic, wondering whether “International Shoe just doesn’t work quite as well as it once did,” though Justice Thomas and Justice Alito have shared similar concerns. While other Justices seem less open to jettisoning International Shoe itself, they have nonetheless worried about its limits, raising questions about online commerce, coffee farmers in Kenya, and duck decoy makers in Maine.

These complaints are misdirected. The Justices’ criticisms (both explicit and implicit) are not really about International Shoe—they are about the doctrinal scaffolding that the Supreme Court superimposed on top of International Shoe in the mid-1980s. In cases like Burger King v. Rudzewicz, Helicopteros Nacionales de Colombia, S. A. v. Hall, and Asahi Metal Industries Co. v. Superior Court, the Supreme Court bifurcated personal jurisdiction analysis into general and specific jurisdiction and articulated a threepart test for specific jurisdiction that we still teach 1Ls today. This festschrift essay draws on Professor Linda Silberman’s prescient contemporaneous commentary about these doctrinal developments to remind readers of the choices made and paths not taken. If Burger King’s effort to rulify personal jurisdiction is proving unworkable, that is not a reason to abandon International Shoe. Instead, the Court could scrape off some of the barnacles of interpretation that have accumulated on top of International Shoe, a process the Court may already have started. Granted, even a scrubbeddown version of International Shoe’s framework may not be enough to placate those Justices (like Gorsuch and Thomas) who are seeking an originalist understanding of the Due Process Clause. But better and more stable progress will be made if we can at least diagnose the source of current complaints correctly.

James Grimmelmann, Tessler Family Professor of Digital and Information Law (with coauthor Pengfei Zhang)

An Economic Model of Intermediary Liability,” Berkeley Technology Law Journal (forthcoming 2023).

Scholars have debated the costs and benefits of Internet intermediary liability for decades. Many of their arguments rest on informal economic arguments about the effects of different liability rules. Some scholars argue that broad immunity is necessary to prevent overmoderation; others argue that liability is necessary to prevent undermoderation. These are economic questions, but they rarely receive economic answers.

In this paper, the authors seek to illuminate these debates by giving a formal economic model of intermediary liability. The key features of their model are externalities, imperfect information, and investigation costs. A platform hosts usersubmitted content, but it does not know which of that content is harmful to society and which is beneficial. Instead, the platform observes only the probability that each item is harmful. Based on that knowledge, it can choose to take the content down, leave the content up, or incur a cost to determine with certainty whether it is harmful. The platform’s choice reflects the tradeoffs inherent in content moderation: between false positives and false negatives, and between scalable but more error-prone processes and more intensive but costly human review.

The authors analyze various plausible legal regimes, including strict liability, negligence, blanket immunity, conditional immunity, liability on notice, subsidies, and mustcarry, and they use the results of this analysis to describe current and proposed laws in the United States and European Union.

George Hay, Charles Frank Reavis Sr. Professor of Law (with coauthor Thomas Turgeon)

Genius or Chaos: The ‘Big Tech’ Antitrust Cases as a Window into the Complex Procedural Aspects of U.S. Antitrust Law,” ABA Antitrust Law Journal (forthcoming 2023).

The antitrust cases filed in the United States late in 2020 and in 2023 against Google and Facebook have attracted a lot of media attention, moving antitrust from the back pages of the business section to the front page of newspapers nationwide and internationally as well. While the surviving cases will not actually go to trial until late 2023, at the earliest, between now and then, there will be no shortage of scholarly analysis of the merits and demerits of the cases or their chances for success.

The authors of this paper wish to focus on the cases for a different reason. Specifically, they provide a timely and rich “real- world” blackboard for pointing out the extraordinarily complex and rich procedural aspects of antitrust law in the United States. While some readers may be generally familiar with many of the observations we will make, it is still a rare opportunity to see all these procedural aspects of U.S. antitrust law so prominently on display in the context of one segment of the economy (often referred to as “big tech”).

To recap recent events, in Part I, Hay and Turgeon provide a synopsis of the recent big tech antitrust cases brought against Google and Facebook. In Part II, they discuss how federal and state antitrust enforcers operate. In Part III, they discuss civil-procedure concepts in the context of antitrust enforcement actions. In Part IV, Hay and Turgeon explore the process for joint investigations among agencies and at the state and federal level. In Part V, they discuss the efficacy of state involvement in nationwide antitrust litigation. Finally, in Part VI, they discuss the utility of having two federal agencies oversee antitrust enforcement. Hay and Turgeon use the cases against Google and Facebook as mechanisms to discuss the concepts that they explore in Parts II through VI.

Jaclyn Kelley-Widmer, Clinical Professor of Law, and Estelle McKee, Clinical Professor of Law

Essentializing Cultures in U.S. Asylum Law,” Brooklyn Law Review (forthcoming 2023).

Asylum law requires an applicant to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive or complicit. Such a narrative necessarily essentializes the applicant’s culture to its most negative and threatening features, eliminating its complexity and flattening its positive contours. This cultural essentialization reinforces racism, stereotypes, and the narrative of Western moral superiority. And it harms all participants in the asylum system: applicants, advocates, and adjudicators.

Once such a narrative succeeds in persuading an adjudicator to grant asylum, its constricted depiction of the applicant’s culture becomes the predominant narrative of that culture, validated by case law and replicated in new asylum applications. As a wellknown example, the authors trace the development of “machismo”: a cultural narrative that has ascended through agency and federal-court case law to dominate Central American asylum claims based on the persecution of women applicants. Through a lens of racial and social justice, the authors examine the harm caused by this narrative and propose solutions to potentially mitigate it.

Alexandra Lahav, Professor of Law

Crime and Tort: Reflections on Legal Categories,” DePaul Law Review, vol. 72, no. 2 (2023).

This essay investigates how a particular category of torts— suits for injuries caused by dangerous products—has been seen alternatively as based in contact or criminal law—in addition to, or sometimes instead of, an independent doctrine sounding in tort that arises from a duty not to harm others. This category problem has plagued courts even though, since the 1850s, courts have held that manufacturers had a duty enforceable by private suit not to sell harmful products. The essay tells the story of regulation of one very dangerous product, milk, in the late nineteenth century as a window into the meaning of how conduct is categorized, with reflections on the significance of putting torts at the periphery rather than the center. The meanings of legal categories map on to conceptions about how society should be governed that continue to be at the heart of many doctrinal and policy debates today.

Jeffrey Rachlinski, Henry Allen Mark Professor of Law

Nudges, Defaults, and the Problem of Constructed Preferences,” Duke Law Journal, vol. 72, (2023).

Regulatory bodies have increasing become interested in “nudges” or low-cost adjustments to the environment in which people make choices that preserve freedom and enhance welfare. Such interventions hold out the promise of giving more people what they truly want while still allowing freedom of choice. Furthermore, if setting default rules in particular ways can survive a thorough cost-benefit analysis, they not only preserve liberty, but they also enhance welfare. Altering a default rule, however, can change people’s preferences. Stable cost-benefit analysis is thus not possible, and choice of a default rule also thus influences personal freedom.

W. Bradley Wendel, Edwin H. Woodruff Professor of Law (with coauthor Joshua Paul Davis)

Complex Litigation Funding: Ethical Problem or Ethical Solution?” Hastings Law Journal (forthcoming 2023).

Commentators have worried that third-party funding, particularly in complex litigation, may give rise to ethical concerns. In this essay, Wendel and Davis explore an alternative possibility. Third-party funding may solve ethical problems rather than cause them. They explain why thirdparty funding can comply with the letter and spirit of the relevant ethical rules and why whether it causes or cures ethical problems depends on the setting. The authors note that if third-party funding agreements are properly structured, they should not pose ethical problems. On the contrary, in some contexts third-party litigation funding may ameliorate tensions between clients and counsel. Wendel and Davis identify two settings in which third-party litigation funding may do more good than harm: first, encouraging an optimal level of private enforcement of the antitrust laws and, second, diversifying the plaintiffs’ lawyers who pursue class actions and other complex litigation. A theme runs throughout their analysis. We should be careful to avoid a mistake that might be characterized as a variation on the naturalistic fallacy— that the practices to which we are accustomed are necessarily good. Instead, the authors suggest returning to first principles to determine whether third-party litigation funding is good, bad, or indifferent—a conclusion that may well vary by context.