An Empirical Method for Harmless Error

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 the outcome, compared to the decision of a properly informed and instructed jury. These decisions are likely colored by confirmation and status quo biases, along with “mental contamination” of the error itself. Even when appellate judges perform these analyses accurately, their decisions appear conclusory. Scholars and judges have roundly criticized this doctrine, but no solution has emerged. We developed and piloted an unbiased and transparent method for making harmless error determinations, using randomized experiments with simulated jurors. To pilot this method on…
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Gambling on Our Financial Future: How the Federal Government Fiddles While State Common Law is a Safer Bet to Prevent Another Financial Collapse

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 Financial Crisis to the 1907 Panic because in his opinion both were caused by unregulated betting on markets by people who did not own assets in those markets. He explained: “Many compare this financial crisis to the stock market crash of 1929, but it is closer to the credit freeze and bank panic of 1907 . . . . What has been forgotten is one major cause of the crisis—unregulated speculation on the prices of securities by people who did not…
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Reversing a Wayward Trend: Why Courts Using the Functional Test For Removal Are Right

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 of “state court,” while other courts use the plain meaning test and exclude state administrative courts from the “state court” definition. Thus, in some jurisdictions certain cases can be removed from a state administrative court to a federal district court if the federal court applies the functional test and finds that the administrative court functions as a “court” that provides judicial, binding, enforceable decisions. In contrast, other jurisdictions require cases to continue in administrative court until adjudication is complete, before there is…
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Single and Childfree! Reassessing Parental and Marital Status Discrimination

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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. Rendell’s observations about Napolitano, who is unmarried and childless, reflect concerns being raised in the United States by some single workers without children. These workers, referred to herein as SWOCs, maintain that their employers assume they have no lives and therefore can and should devote all of their waking hours to work, meaning employers expect single workers without children to travel with little notice, to work evening hours, and to be available on weekends and holidays. SWOCs contend that these expectations are…
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Theories of Immigration Law

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 interest theory, which considers whether and to what degree allowing migrants into the United States will benefit the country as a whole, (3) national values theory, which focuses on whether the admission of migrants promotes the fundamental values of the country, and (4) global welfare theory, which considers how immigration decisions at the domestic level affect the political, social, and economic makeup of the global community. This Article argues that the universe of theoretical arguments must be employed to evaluate immigration policy proposals. This conceptual…
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Venerate, Amend . . . and Violate

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 safeguarded with a “holy zeal.” A President and a Chief Justice exhorted the teaching of the principles of the Constitution in terms that in the Jewish prayer book referred to divine commandments: “[T]each them to your children, speak of them when sitting in your home, speak of them when walking by the way, when lying down and when rising up, write them upon the doorplate of your home and upon your gates.” The Constitution is the most recent chapter in a…
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Checking the Balances: An Examination of Separation of Powers Issues Raised by the Windsor Case

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 the U.S. to legalize same-sex civil unions and registered partnerships.  In the next few years, several other states across the nation changed their definitions of marriage to include same-sex couples.  Nevertheless, the federal definition of marriage under the Defense of Marriage Act (“DOMA”), enacted in 1996, continued to define marriage as meaning only a legal union between a man and a woman as husband and wife. As more and more states changed their definitions of marriage, same-sex marriage advocates criticized the federal…
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It’s not Always Sunny in Private Equity: Analysis and Impact of the First Circuit’s Sun Capital Decision

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 the Multiemployer Pension Plan Amendments Act (“MPPAA”). In the eyes of pension funds and the Pension Benefit Guaranty Corporation (“PBGC”), both of whom want to reach deep pockets to ensure that employee pension benefits are paid in full, this is a significant step in the right direction. The door has now been opened, at least in the First Circuit, for pension funds to go after private equity investors when seeking to recover from companies that withdraw from multiemployer pension plans. This is…
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Homogeneity Effects in Corporate Law

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 law scholarship on this topic has drawn attention to the relevance of the number of other firms using a given legal regime. Drawing on insights from network theory, Michael Klausner has famously shown that the benefits of a particular legal regime increase as more firms come to use it. This article does not dispute that the number of other users matters, but argues that the qualitative features of a legal regime’s users are relevant as well: in particular, firms benefit if…
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Lost in Translation: Statistical Inference in Court

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
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 testimony jurists require to prove causation in court. The result is a disconnect between science as it is practiced and understood by scientists, and its legal use in the courtroom. Nowhere is this more evident than in the language of statistical reasoning. Unacknowledged difficulties in reasoning from group data to the individual case (in civil cases) and the absence of group data in making assertions about the individual (in criminal cases) beset the courts. Although nominally speaking the same language, scientists…
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