PrawfsBlawg

JOTWELL: Coleman on Gadson on stolen plausibility

The new Courts Law essay comes from Brooke Coleman (Seattle) reviewing Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L.J. ___ (forthcoming 2021), on courts preventing plaintiffs from relying on facts from other cases and other investigations as a way to satisfy Twiqbal.

JOTWELL: Thomas on Coleman on the Rules Committees

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke D. Coleman, #SoWhiteMale: Federal Procedural Rulemaking Commitees, 68 UCLA L. Rev. Disc. 270 (2020), which explores the race and gender composition of the rules committees and the problems lack of diversity creates.

JOTWELL: Kalajdzic on Salib on AI class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Peter Salib, Artificially Intelligent Class Actions, ___ Tex. L. Rev. ___ (forthcoming), which explores how AI might be used in class-action certification.

Forum-Defendant Rule, Mischief Rule, and Snap Removal

My essay, The Forum-Defendant Rule, the Mischief Rule, and Snap Removal, has been published in Wm. & Mary Law Review Online. It uses Sam Bray's reconfiguration of the mischief rule to provide a textualist solution to snap removal, without having to resort to purposivism or needing new congressional action.

JOTWELL: Mulligan on Main on snap removal

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Thomas O. Main, Jeffrey W. Stempel, & David McClure, The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), which studies the demographics of the judges who follow the textualist approach to snap removal (allowing removal prior to service of a forum defendant, in the face of clear legislative intent). I considered snap removal in a prior JOTWELL essay and expand on that argument in a forthcoming essay; Main's article and a companion piece by the same authors were essential to the research.

New Draft Papers

I have two new articles on SSRN and in circulation to law reviews.

Zombie Laws explores something I discussed here--the statute that remains on the books following a judicial declaration of invalidity, which Fifth Circuit Judge Gregg Costa called a "zombie law." The article discusses how Congress and state legislatures can narrow, expand, or eliminate them. Larry Solum was good enough to flag this one.

Congress and Universal Injunctions discusses five legislative proposals for eliminating universal injunctions and why they do or do not work tor resolve the problem.

JOTWELL: Bookman on King on global civil procedure

The new Courts Law essay comes from Pamela Bookman (Fordham), reviiewing Alyssa King, Global Civil Procedure (Harv. J. Int'l L., forthcoming).

JOTWELL: Bartholomew on Lammon on class-action appeals

The new Courts Law essay comes from new contributor Christine Bartholomew (Buffalo), reviewing Bryan Lammon, An Empirical Study of Class-Action Appeals.

Painting Constitutional Law

I am happy to announce publication of Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (Brill), co-edited by my colleague M.C. Mirow and me.

Cortada is a Miami-based, law-trained artist. His May It Please the Court is a series of paintings depicting SCOTUS cases that originated in in Florida; he did the original seven paintings in 2002, then added three newer cases for this book. We invited legal scholars to discuss the cases and their artistic depictions; all took the mix seriously and produced a fascinating combination of legal and artistic analysis.

Contributors from the legal academy were Paul Marcus (William & Mary) and Sue Backus (Oklahoma), Jenny Carroll (Alabama), Leslie Kendrick (Virginia), Corinna Lain (Richmond), Linda McClain (Boston University), Kathleen Brady (Emory), Jim Pfander (Northwestern), Erwin Chemerinsky (Berkeley), Laura Underkuffler (Cornell), and Andrew Ferguson (American).

Testing the Koufax Curse

Testing the Koufax Curse: How 18 Jewish Hitters, 18 Jewish Pitchers, and Rod Carew Performed on Yom Kippur has been published in the Baseball Research Journal.

JOTWELL: Mullenix on Russell on frivolous defenses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Thomas D. Russell, Frivolous Defenses, which focuses on tort defendants' non-compliance with the rules governing responsive pleadings. I spend time in Civ Pro on this subject, especially the way that defendants refuse to respond to allegations (common response: "Neither admit nor deny and strict proof demanded thereof," which is nonsense) and the refusal of any judge other than Milton Shadur^Z"L of the ND Ill. to hold attorneys to account for these practices.

JOTWELL: Carroll on Martinez on judges behaving badly

The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.

JOTWELL: Vladeck on the new Supreme Court Practice

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing the new 11th edition of Supreme Court Practice.

JOTWELL: Levy on Garder and McAlister on nonbinding authority

The new Courts Law essay comes from Marin Levy (Duke), reviewing Maggie Gardner, Dangerous Citations (forthcoming N.Y.U. L. Rev.) and Merritt E. McAlister, Missing Decisions (forthcoming U. Pa. L. Rev.), each addressing different problems related to the use of nonbinding authority.

JOTWELL: Smith on Davis on public standing

The new Courts Law essay comes from Fred Smith (Emory), reviewing Seth Davis, The New Public Standing, 71 Stan. L. Rev. 1229 (2019), analyzing state and local governments as plaintiffs.

JOTWELL: Effron on Rose on online class action notice

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Amanda M. Rose, Classaction.gov (U. Chi. L. Rev., forthcoming), on a government website to handle class-action administration.

JOTWELL: Campos on Civ Pro Unavailability Workshop

The new Courts Law essay comes from Sergio Campos (Miami), discussing the Civil Procedure Unavailability Workshop, a remote civ pro workshop that Suzanna Sherry (Vanderbilt) and Adam Steinman (Alabama) established late last spring. (I did one of the talks, on Erie and SLAPP laws). Edward Cheng (Vanderbilt) originated the program with an evidence workshop.

Reynolds on cameras in the classroom

An article of note by Glenn Reynolds (Tennessee) on using (inexpensive) real cameras to create a better-looking remote classroom.

JOTWELL: Mangat on Weinstein-Tull on local courts

The new Courts Law essay comes from guest Leonard Mangat, reviewing Justin Weinstein-Tull, The Structure of Local Courts (Va. L. Rev., forthcoming), analyzing the hidden-but-consequential practices of local courts.

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

JOTWELL: Singer on Reichman, Sagy, & Balaban on machines and judges

The new Courts Law essay comes from guest reviewer Jordan Singer (New England Law-Boston), reviewing Amnon Reichman, Yair Sagy, & Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

JOTWELL: Endo on Engstrom & Gelbach on legal tech

The new Courts Law essay comes from new contributor Seth Katsuya Endo (Florida) reviewing Daniel Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism, 169 U. Pa. L. Rev. ___ (forthcoming 2020), exploring the interplay between new legal technology and the adjudicative process.

JOTWELL: Wasserman on Bray on mischief

I have the new Courts Law essay, reviewing Samuel L. Bray, The Mischief Rule (forthcoming Geo. L.J.) and connecting his arguments about the statutory mischief rule as a solution to snap removal.

JOTWELL: Erbsen on Nash & Collins on certificates of division

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. ___ (forthcoming 2021), about the certificate of division that Justices used when riding circuit to get cases before SCOTUS.

JOTWELL: Coleman on Wood on the real world of sexual harassment litigation

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Diane P. Wood, Sexual Harassment Litigation With a Dose of Reality, 2019 U. Chi. Legal F. 395 (2019), which demonstrates the real-world problems facing sexual-harassment litigants.

JOTWELL: Mulligan on Rubenstein on federal common law

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing David. S. Rubenstein, Supremacy, Inc. (UCLA L. Rev., forthcoming), exploring the interaction among federal-contractor immunity, preemption, and federal common law.

JOTWELL: Effron on Zambrano on discovery as regulation

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Diego Zambrano, Discovery as Regulation (Mich. L. Rev., forthcoming 2020), which reframes discovery in private enforcement litigation not as a tool of litigation but as a form of public regulation.

JOTWELL: Kalajdzic on Fitzpatrick on the conservative argument for class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Brian Fitzpatrick, The Conservative Case for Class Actions (2019). Brian gave a Fed Soc on the book at FIU last month.

A Model of Constitutional Litigation

My new piece on universal injunctions has been published in Lewis & Clark Law Review. Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A Model of Constitutional Litigation joins three threads that I have been writing and blogging about here--the requirement of particularized injunctions, the distinction between precedent and judgment, and a model of departmentalism in which all branches are bound by judgments but only courts are bound by judicial precedent. The result is a model of how constitutional litigation functions in fact and should function in our understanding.

Abstract after the jump.

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions;

4) a judgment controls the parties to the case, while the court’s opinion creates precedent to resolve future cases; and

5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding.

The synthesis of these five principles produces a constitutional system defined by the following features:

1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case;

2) the challenged law remains on the books; and

3) the challenged law may be enforced against non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

JOTWELL: Steinman on Engstrom on Lone Pine Orders

The latest Courts Law essay comes from Adam Steinman (Alabama), reviewing Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019), on the history and development of Lone Pine orders in mass-tort class actions.

Academic Feeder Judges

I have posted to SSRN the pre-submission draft of Academic Feeder Judges--a study of the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and who “produce” law professors from the ranks of their former clerks. Coming soon to a law-review mailbox near you.

Update: Karen Sloan at National Law Journal gave the piece a nice little write-up, as did Above the Law.

The abstract is after the jump. Spoiler alert above the jump: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), Dorothy Nelson (Ninth Circuit), Richard Posner (Seventh Circuit, resigned in 2018), and Harry Edwards (D.C. Circuit).

PermaPrawfs' former judges are well-represented in the top-101 (arbitrarily set at 8+ academic former clerks)--John Walker of the Second Circuit (Ethan), Patrick Higginbotham of the Fifth Circuit (Rick H.), Joseph Sneed of the Ninth Circuit, died in 2008 (Lyrissa), Alex Kozinski of the Ninth Circuit (Dan), Raymond Randolph of the D.C. Circuit (Carissa), Calabresi (Gerard), and Jane Roth of the Third Circuit (me, as well as current guest Christine Chabot). Marsha Berzon of the Ninth Circuit (Steve), Richard Arnold of the Eighth CIrcuit (Rick G.), and Ed Carnes of the Eleventh Circuit (Paul) just missed the 8-prof line.

I wrote previously about the origins of the paper: Seven or eight years ago while helping with a reunion/portrait unveiling for Judge Roth, I noticed what seemed a lot of .edu addresses on the list of former clerks. I wondered how many of her former clerks went into teaching (13, it turned out, plus several in other disciplines), whether that was a lot or a little, and who among lower-court judges "produced" academics from among their former clerks. I finally got around to doing the study and writing the paper.

Comments welcome.

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

JOTWELL: Michalski on Copus on judicial attention

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Ryan Copus, Statistical Precedent: Allocating Judicial Attention (Vand. L. Rev., forthcoming), which considers ways to determine the types of cases that warrant judicial attention.

JOTWELL: Malveaux on Burbank & Farhang on rights retrenchment

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Ford. L. Rev. 37 (2019), a follow-up to their 2017 book on the counter-revolution against federal litigation.

JOTWELL: Pfander on Sohoni on universal injunctions

The new Courts Law essay comes from Jim Pfander (Northwestern-Pritzker), reviewing Mila Sohoni, The Lost History of the "Universal" Injunction, 133 Harv. L. Rev. (forthcoming), which shows the long SCOTUS practice of issuing universal injunctions (without calling them such).

Another study shows handwriting > computers

New in the Journal of Legal Education, from Colleen Murphy and Christopher Ryan, Jr. of Roger Williams Law and Yajni Warnapala of the Roger Williams Mathematics Department. The study looks at performance in required 2L Con Law and Evidence courses at Roger Williams. It also contains a piece from Murphy's 1L Civ Pro class, showing that students who were given the option of using a laptop but were shown a memo describing the studies comparing handwriting with computer notetaking were more likely to elect not to use computers.

JOTWELL: Azad on McAlister on unpublished dispositions

The new Courts Law essay is a guest submission from Ryan Azad (a clerk on the California Supreme Court), reviewing Megan McAlister, "Downright Indifference": Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 1 (2019), arguing that unpublished opinions should at least explain the reasoning for the benefit of the (often pro se) litigants.

JOTWELL: Tidmarsh on McGovern & Rubenstein on negotiation class actions

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Shareholders. The timing is perfect, because the Sixth Circuit just agreed to review the class certification decisions in the opioid litigation that followed the McGovern & Rubenstein approach.

JOTWELL: Mullenix on Choi on class-action mega fees

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, which examines "mega fee" awards in class actions.

JOTWELL: Bookman on new approaches to dispute resolution

The new Courts Law essay comes from Pamela Bookman (Fordham), reviewing Matthew Erie, The Emergent Landscape of International Commercial Dispute Resolution, ( Va. J. Int'l. L., forthcoming 2020) and Will Moon, Delaware's New Competition (Nw. U. L. Rev., forthcoming 2020), exploring new procedural mechanisms for handling business disputes in other countries.

JOTWELL: Campos on Bartholomew on e-notice in class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018), exploring the use (or non-use) of new technologies for providing notice in class actions.

JOTWELL: Levy on Fisher and Larsen on virtual briefing

The new Courts Law essay comes from Marin Levy (Duke), reviewing Jeffrey L Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court (Cornell L. Rev., forthcoming), exploring how online speech and writing affects SCOTUS decisionmaking.

Lawyering Somewhere Between Computation and the Will to Act: The Last Outtake

I've now posted my summer project on SSRN (it's my contribution to the "Lawyering in the Digital Age" conference I mentioned earlier). The title has changed since I first posted a week or so ago - and that turns out to be one of last outtakes.  It's now Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection, with the following abstract:

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

Yet, unlike machines, human lawyers are self-reproducing automata. They can perceive purposes and have a will to act that cannot be reduced to mere third-party scientific explanation. For all its power, computational intelligence is unlikely to evolve intuition, insight, creativity, and the will to change the objective world, characteristics as human as System 1 thinking’s heuristics and biases. We therefore need to be circumspect about the extent to which we privilege System 2-like deliberation (particularly that which can be replicated computationally) over uniquely human contributions to lawyering: those mixed blessings like persistence, passion, and the occasional compulsiveness.

The deleted title (before the colon) was Unsure at Any Speed, a bit of just-a-tad-too-clever wordplay on my part.

As you can see, the piece is an exploration of the upsides and downsides of, in Daniel Kahneman's coinage and book title, Thinking Fast and Slow.  My little joke was/is:

Over a forty-year professional career, in Kahneman’s lexicon, my thinking has been both fast and slow. What that really means is that often I was unsure at any speed. At the same time, I made binary “go/nogo” decisions in the face of complexity and uncertainty.

What I thought was really clever was the play on Ralph Nader's Unsafe at Any Speed, his classic 1965 takedown of the Chevy Corvair. One of my reader/editor/commenter/friends, clearly far too young to catch the allusion, tagged it with a big question mark.  A good reason to have a reader/editor/commenter/friend, because her suggestion that I perform a pre-colon-oscopy on the title was well-taken.

The ultimate outtake.

DeStefano on "the Adjacent Possible"

Last week, one of the SSRN journal emails included a new piece by an old friend, Michele DeStefano (Miami, left) - Innovation: A New Key Discipline for Lawyers and Legal Education. From the abstract:

It begins by demonstrating that clients' call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers' professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator's DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

This is music to my ears - because it's about the self-imposed limitations, for better or worse, that can be the result of the frames or presuppositions from which many lawyers (and law professors) see and make sense of the world (e.g., deliberately, logically, algorithmically, dispassionately, syllogistically). Michele's point here (and in her book Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law) is that kind of square-cornered thinking is just the beginning; clients will demand as well a collaborative and creative mindset in order to craft solutions to problems.

What was particularly delightful was finding Michele's incorporation of a coinage from Stuart Kauffman, M.D., theoretical biologist, and complexity researcher (University of Chicago, University of Pennsylvania, Santa Fe Institute, among other affiliations), about the "adjacent possible." I also recently came across Kauffman's work, and I've used it in the piece (title has changed but that's another blog post to come) from which I've been out-taking this month. The "adjacents possible" are the possible next states from the one in which we are in or which we are observing. Kauffman's point was to distinguish the adjacent possible in physics (or cybernetics) from that in a complex biological or economic system.  In a physics or computational system, all of the adjacents possible in either direction, all state changes, are predictable. But not so in biology (and I would add, in human thought). There, the move to the adjacent possible (the set of all possible next states), while not random, is not predictable. (I like this particular observation: the universe has constructed every possible stable atom, but not every possible protein.)

The connection to human creativity and innovation should be obvious.

More to come later.

Administrator bias and legal frameworks

I have posted a draft of an article entitled Bias in Regulatory Administration.  Comments welcome.

The larger questions of which this article is a part are not at all new:  How ought we to think about the sacred principle that We the People are entitled to an open-minded, neutral decisionmaking in administrative agency decisionmaking -- especially in the context of administrative adjudication, but even on occasion in rulemaking?  Should the principle be different in the regulatory context than in the traditional courtroom, given unique features of the administrative state?  Lon Fuller famously opined on this question in "Forms and Limits" and Judge Friendly's famous unpacking of the requirement of "some kind of a hearing" furthered helpfully the discussion in an earlier era.

Although my paper doesn't address, except in passing, this issue, there are some important reasons to reconsider the entire matter of administrator bias, both at the level of principle and of administration, given the rise and impact of machine-learning mechanisms in the regulatory administration context.  Discussions of algorithmic bias is all the rage, and rightfully so.  My hope is that we can tie together more ambitiously the deep questions underlying discussions of AI, its promise and pitfalls, to ubiquitous issues of bias, interest, and influence as they have arisen in the doctrinal context for a long while in administrative law.  That, in any event, is the more global question of which this paper is a small part.

Confusion of the Inverse??

At JOTWELL, Omri Ben-Shahar has a review of a forthcoming article in the Stanford Law Review claiming to have shown in a study that consumers are cowed by a consumer contract's fine print even if they believe they have been defrauded by the seller - i.e., have been expressed guaranteed A and learn later that (i) they aren't getting A, and (ii) the fine print says they have no legal right to A. (The reviewed piece is Meirav Furth-Matzin & Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud, 72 Stan. L. Rev ___ (2020)).

I've been blogging with outtakes from the not-quite-ready-for-prime time Unsure at Any Speed . Here the outtake intersects with another subject on which I have gotten involved recently: how to deal with the spread of detailed and unread consumer contract fine print, particularly given the ease by which it can appear to be made binding via internet click-throughs.

The question is not whether the conclusions Furth-Matzin and Sommers draw from their laboratory experiments are correct.  First, I don't know enough about qualitative research methods to assess their hypotheticals and questions to test subjects. Second, from what I can tell, they have given enough detail about the methodology to allow the tests to be repeated and therefore falsified. So I accept them for what they seem to say: people seem to take the fine print seriously even when they know they have gotten screwed.

My question is rather about empirical statements that underlie the study to begin with. Is it the case that widespread non-readership of fine print leaves consumers open to exploitation by unscrupulous firms? Is it true that sellers can outright lie about their products and services and then contradict the lie in the fine print?  The Stanford article takes the answer "yes" to those questions as a given, and then proceeds to assess the impact of fine print, given that there was fraud.  I cannot find, however, at least in the footnotes on the first six pages of the article anything other than a couple of anecdotes in support of the proposition that unscrupulous firms are a widespread problem.  I'm not saying they aren't; I just don't see any evidence one way or the other.

Is this an example of "confusion of the inverse," the subject of my outtake?

What I mean by "confusion of the inverse"

I cut from Unsure a detailed explanation of the "confusion of the inverse." It is, along with things like availability heuristic, the law of small numbers, hindsight bias, and confirmation bias, an example of the predictable divergences from actual probabilities to which Kahneman, Tversky, and others demonstrated humans are prone. My particular heuristic/bias peeve has to do with academic assumptions about the morality and competence of corporate oversight (Caremark doctrine for you governance nerds), exacerbated perhaps when, my having recently been been a corporate executive, a colleague blithely characterized corporate executives as "turnips" at a workshop shortly after I joined the faculty.

Here is the confusion of the inverse applied to my peeve.  Conditional probability is the quantification of the following question: given the probability that A is true (P(A)), what is the probability of B given A (P(B/A))?  The formula for deriving the answer is:

P(B/A) = [P(A/B) x P(A)]/P(B)

What we are trying to derive is the probability that we have a corrupt/incompetent board given that we have observed material corporate wrongdoing.

The probability of MW among the set of all corporations is P(A).

The probability of MW given CIB is P(A/B).

The probability of CIB is P(B).  Note that you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.

Our formula now looks like this: P(CIB/MW) = [P(MW/CIB) x P(MW)]/P(CIB)

So...

Let's assume the following.  It turns out MW among all corporations is very rare.  Say P(MW) = .01 (one in a hundred).

The probability of material wrongdoing, however, is very high, IF you have a corrupt/incompetent board.  Say P(MW/CIB) = .95

The formula gives us the following numerator:  .95 (the probability of MW given that we have a CIB) x .10 (the probability we have MW).

But remember you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.  So the denominator P (CIB) has to take all possibilities into account.

Hence, P(CIB) = [the probability that there is MW given CIB times the probability of MW] plus [the probability that there is MW with no CIB times the probability of no CIB].

So... P(CIB/MW) = (.95 x .01) /[(.95 x .01) + (.05 x .99)]

P(CIB/MW) = .16

So given that you observe material wrongdoing, the probability of also encountering a corrupt or incompetent board P(CIB/MW) is .16.  The confusion of the inverse is to believe P(CIB/MW) is .95.  It is not to say that you can't have corrupt or incompetent boards. It is to say instead that it is wrong to assume board members are turnips just because you observed material wrongdoing.

There are even more malignant examples of the confusion of the inverse.  When a police officer pulls over a car, what is the probability that there are drugs in the car, given that the driver is African-American?  When TSA does a search, what is the probability that the individual is a terrorist, given that he/she appears to be Middle Eastern?  When you are tested for a rare disease, what is the probability you have it, given that the test is positive?

Confusion of the inverse and contract fine print issues

As I said, I express no view on the study in the Stanford Law Review article.  I just don't see any evidence about the prevalence of out-and-out fraud. My intuition is there is probably less of it than the article seems to suggest.

That isn't to say there aren't real fairness issues with fine print. I have engaged with Rob Kar on his Harvard Law Review article with Margaret Radin, the thesis of which is to ground an attack on over-reaching boilerplate on a demarcation of the "true" agreement between the contract drafter and the consumer by way of Grice's "conversational maxims" and an actual shared meaning.  (Theirs is Pseudo-Contract and Shared Meaning Analysis; my response, just published in the Australasian Journal of Legal Philosophy (Vol. 43, pp. 90-105) is Conversation, Cooperation, or Convention? A Response to Kar and Radin.)

What I take from the Stanford Law Review study is that consumers aren't completely led down the primrose path by the fact of "fine print" - they expect there to be terms and conditions even if they don't read them.  The study seems to bear that out, even in the extreme where the consumer really does believe he/she/they got screwed. The real question is to what extent should the fine print be binding.  I agree with Omri that disclosure is not likely to be helpful - oy, more fine print disclaiming the fine print. Nor do I think trying to find the actual agreement or shared meaning is going to be fruitful.  Rather, there is a convention about what is and is not fair, and that probably ought to be reflected in regulation.

JOTWELL: Smith on Litman on remedial collapse

The new Courts Law essay comes from Fred Smith (Emory), reviewing Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev. 1477 (2018), exploring how recent doctrine has caused the exclusionary rule, habeas limits, and qualified immunity to converge, resulting in denial of all remedy for constitutional violation. Both are worth a read.

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

JOTWELL: Erbsen on Frye on Tompkins

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Bryan L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019), which argues that we may have the facts of Erie wrong, that Tompkins actually was trying to jump on the train when he was struck by that protrusion.

FIU Micro-Symposium: Infield Fly Rule Is in Effect (Updated)

I am happy to announce that FIU Law Review has published a micro-symposium on my book, Infield Fly Rule Is in Effect. We found nine people, in and out of legal academia, to write short comments, followed by my overall response. This was fun to put together.

I want to flag two contributions containing ideas that I really wish I had seen or thought of myself while I was writing the book, if only to respond to them.

Rob Nelson, a former minor-league pitcher and the founder of Big League Chew, introduced what he called the "Enfield Fly Rule." There are two versions, both designed to keep the basic protections of the Rule in place but denying to the defense any windfall from an unintentional drop. Under one version, an infield fly is a foul ball, so the batter is out if it is caught and the ball is foul if it is not caught. Under a second version, the ball is fair and live if caught (so the runners could tag-up), but a do-over if not caught (so it does not even count as a strike).

Spencer Waller (Loyola) identifies another non-baseball situation requiring a limiting rule--flopping in soccer and in basketball. Both fit the criteria I described for when a limiting rule is needed to deter the conduct and avoid an extraordinary benefit. What is interesting is that the solution both soccer and basketball have come up with is post-game sanctions of fines and/or suspensions should officials, upon reviewing plays on video, identify a flop. But these rules do nothing to sanction or deter the flop in the moment, thereby allowing the flopping player to gain the benefit of the flop (a penalty kick or red card in soccer, free throws or a turnover in basketball). So fines or suspensions may not provide sufficient deterrence against the conduct--a player may deem the flop worth it in the moment to allow his team to win, willing to deal with a fine or even one-game suspension after the fact.

JOTWELL: Mulligan on Spencer on personal jurisdiction in federal court

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing A. Benjamin Spencer, The Territorial Reach of Federal Courts, Fla. L. Rev. (forthcoming), which argues for federal courts exercising jurisdiction based on national contacts through a self-executing Fifth Amendment Due Process.