An Empirical Method for Harmless Error

D. Alex Winkelman, David V. Yokum, Lisette C. Cole, Shelby C. Thompson, & Christopher T. Robertson Trials are often imperfect. When inadmissible evidence is introduced or the jury is incorrectly instructed, judges must determine whether the error was prejudicial or merely harmless. In making that assessment, judges resort to speculation about the counterfactual question of whether the error changed […]

Gambling on Our Financial Future: How the Federal Government Fiddles While State Common Law is a Safer Bet to Prevent Another Financial Collapse

Brian M. McCall Warren Buffett once referred to derivatives as “financial weapons of mass destruction.” Academics, analysts, politicians and regulators have argued that one form of derivative contract was responsible, at least in significant part, for the mass destruction of the financial system in 2008: credit default swaps (“CDSs”). Eric Dinallo, the New York Superintendent of Insurance, compared the 2008 […]

Reversing a Wayward Trend: Why Courts Using the Functional Test For Removal Are Right

Perry Thomas Klauber The federal courts are divided concerning the interpretation of the general, federal removal statute 28 U.S.C. § 1441(a). The statute states that a defendant can remove any civil action from state court to a federal district court so long as the federal court has original jurisdiction. Some courts use a functional test to interpret the meaning […]

Single and Childfree! Reassessing Parental and Marital Status Discrimination

Trina Jones “Janet’s perfect for that job . . . [b]ecause for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19, 20 hours a day to it.” Former Pennsylvania Governor Ed Rendell made the above statement following President Obama’s nomination of Janet Napolitano to head the Department of Homeland Security. […]

Theories of Immigration Law

Kit Johnson Legal scholarship lacks a comprehensive account of the theoretical underpinnings of immigration law. This Article attempts to fill that void by identifying four theories to explain various aspects of immigration law and the arguments advanced in support of such law: (1) individual rights theory, which turns on the prospective migrant’s right of entry into the United States, (2) domestic […]

Venerate, Amend . . . and Violate

Oren Gross Many regard the Constitution as part of the holy trinity of American secular religion. A venerated document, it is often referred to in religious terms. A “kind of Ark of the Covenant of the New Israel that is America,” this “most wonderful instrument ever drawn by the hand of man,” was “divinely inspired,” and ought to be […]

Checking the Balances: An Examination of Separation of Powers Issues Raised by the Windsor Case

Derek Funk The legal definition of marriage is currently a prominent issue in political debates and courtrooms across the nation.  Up until the late 1990s, state and federal law universally defined marriage as between a man and a woman.  The push for recognition of same-sex marriages began to gain momentum in 2000, when Vermont became the first state in […]

It’s not Always Sunny in Private Equity: Analysis and Impact of the First Circuit’s Sun Capital Decision

Mark J. DeLuca Private equity funds in the U.S. are known for generating large profits and, consequently, making fund managers extremely wealthy. But is the sun now beginning to set on this this level of profitability? For the first time, a court has determined that a private equity fund was engaged in a “trade or business” for purposes of […]

Homogeneity Effects in Corporate Law

Jens Dammann Entrepreneurs enjoy considerable freedom in choosing the rules that will govern their firms. As a general rule, they are able to select not only the state of incorporation, but also the entity type. When making these choices, entrepreneurs have reason to care about the extent to which other firms are using a particular legal regime. Traditionally, corporate […]

Lost in Translation: Statistical Inference in Court

Erica Beecher-Monas Scientists and jurists may appear to speak the same language, but they often mean very different things. The use of statistics is basic to scientific endeavors. But judges frequently misunderstand the terminology and reasoning of the statistics used in scientific testimony. The way scientists understand causal inference in their writings and practice, for example, differs radically from the […]