{"title":"New Governance and Industry Culture","authors":"K. Schulz","doi":"10.2139/SSRN.2064242","DOIUrl":"https://doi.org/10.2139/SSRN.2064242","url":null,"abstract":"New governance scholarship argues that private regulation is playing a larger role in influencing industry behavior relative to state-centric methods of regulation. Despite its burgeoning growth, new governance scholarship is critiqued as lacking practical examples. This article fills the void by conducting an institutional law and economics analysis of forestry sustainability certifications, a classic example of private regulation. This article analyzes the features of the forestry industry that contribute to the success of sustainability certifications within it. It finds that the industrial characteristics that contribute to successful private regulatory regimes include strong norms within the industry, a resource-type that favors user-developed rules, and robust competition among private actors to regulate the industry. These findings suggest new governance can and does succeed in industries with similar characteristics, providing a novel real-world example of theoretical new governance ideals in practice.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"29 1","pages":"2515-2550"},"PeriodicalIF":0.9,"publicationDate":"2013-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75420338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Understanding Behavioral Antitrust","authors":"Avishalom Tor","doi":"10.2139/ssrn.2293508","DOIUrl":"https://doi.org/10.2139/ssrn.2293508","url":null,"abstract":"Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, firms, and other institutions both facilitate and inhibit rational behavior by antitrust actors; and, third, they erroneously equate all deviations from standard rationality with harm to competition. After establishing the central role of rationality assumptions in present-day antitrust and reviewing illustrative behavioral analyses across the field – from horizontal and vertical restraints, through monopolization, to merger enforcement practices – the Article examines the three classes of mistakes, their manifestation, and their consequences in antitrust scholarship. It concludes by offering two sets of essential lessons that the behavioral approach already can offer to make antitrust law and policy more realistic and effective in protecting competition: One concerning the value of case-specific evidence in antitrust adjudication and enforcement, the other showing how antitrust law can and should account for systematic and predictable boundedly rational behavior that is neither constant nor uniform.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"66 1","pages":""},"PeriodicalIF":0.9,"publicationDate":"2013-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91366472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Are All Species Equal in Dignity?","authors":"","doi":"10.2307/j.ctv19m61nf.5","DOIUrl":"https://doi.org/10.2307/j.ctv19m61nf.5","url":null,"abstract":"","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"1 1","pages":"17-26"},"PeriodicalIF":0.0,"publicationDate":"2013-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147913148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Originalism and the Colorblind Constitution","authors":"Michael B. Rappaport","doi":"10.2139/SSRN.2244610","DOIUrl":"https://doi.org/10.2139/SSRN.2244610","url":null,"abstract":"The legal literature on the subject of originalism and affirmative action asserts two propositions: that originalism strongly supports the constitutionality of affirmative action and that the two originalist justices – Justices Scalia and Thomas – appear to be hypocrites for holding that the Constitution forbids government affirmative action. These claims are made by various leading scholars, including Cass Sunstein and Jed Rubenfeld. This Article challenges these claims. First, I argue that the Constitution’s original meaning does not plainly establish that state affirmative action is constitutional. Instead, there is, at the least, a reasonable argument to be made that such affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the 14th Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. Second, because there is at least a reasonable argument for their position, I argue that the originalist justices are not being inconsistent or hypocritical by supporting a colorblind Constitution. I do argue, however, that the originalist justices should have explained how an originalist methodology could yield the colorblind constitution. The claim that the original meaning supports affirmative action is based on a set of federal statutes passed at the time of the 14th Amendment that are thought to provide race based benefits to blacks. I argue, however, that these statutes do not provide strong evidence that the 14th Amendment allows such race based benefits. These were federal statutes that were not governed by the 14th Amendment and therefore were not directly informative of its meaning. Moreover, most of these statutes, and perhaps virtually all of them, are not necessarily best interpreted as providing race based benefits. In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution. The Article explores two leading and representative theories of the original meaning of the equality component of the 14th Amendment – John Harrison’s interpretation of the Privileges or Immunities Clause and Michelle Saunders’s interpretation of the Equal Protection Clause – to show that they are reasonably interpreted to support the colorblind Constitution.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"26 1","pages":"71"},"PeriodicalIF":0.9,"publicationDate":"2013-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81017038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Against Coherence in Statutory Interpretation","authors":"J. D. Ohlendorf","doi":"10.2139/SSRN.2309071","DOIUrl":"https://doi.org/10.2139/SSRN.2309071","url":null,"abstract":"A long tradition in legal theory views the judicial role as centrally including the duty to make the entire body of law “speak with one voice.” This coherence ideal permeates much of the law of statutory interpretation, but one body of doctrine that it has particularly influenced is the set of standards that federal courts use to determine when a newly-enacted statute overrides preexisting legal rules. Determining whether Congress implicitly intends to preempt state law, repeal previous legislation, or displace federal common law is an increasingly important part of the “ordinary diet of the law.” And although, this Article maintains, modern preemption doctrine is largely consistent with the presumptive judicial role in statutory interpretation — that of Congress’s faithful agent — the desire for coherence has motivated the Court to develop standards governing repeal and displacement that deviate from the preemption framework. This Article argues that courts should abandon the quest for coherence in statutory interpretation. In a reasonably pluralistic society like ours, widespread agreement on a coherent ranking of basic values is unlikely. Against this backdrop of deep disagreement, collective social action is purchased only by hammering out specific compromises, and the overall pattern of compromises is unlikely to be coherent. Imposing coherence on the body of law accordingly unravels the very compromises that allowed the legislature to act and, in doing so, both disrespects the process of mutual compromise that made collective action possible and impedes future legislative action. Recognizing the importance of compromise to modern legislation should lead to the rejection of normative coherence as an ideal in statutory interpretation. And, absent some other justification for their current divergence, the doctrinal standards for repeal and displacement should be unified with the current preemption framework.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"28 1","pages":"735"},"PeriodicalIF":0.9,"publicationDate":"2013-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75088293","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Is Expert Evidence Really Different","authors":"F. Schauer, Barbara A. Spellman","doi":"10.2139/SSRN.2210397","DOIUrl":"https://doi.org/10.2139/SSRN.2210397","url":null,"abstract":"Daubert v. Merrell Dow Pharmaceuticals, which along with its successor cases has imposed demanding standards of reliability on the admission of scientific and other expert evidence, has transformed much of American evidence law. The Daubert revolution has been subject to strong endorsement and equally strong criticism, but few critics, and none since Daubert, have asked why expert evidence is treated differently in the first place. The common assumption, going back over a century, is that expert evidence is treated differently because of the risk that juries (and judges), not themselves possessed of the relevant expertise, will systematically overvalue such evidence. The overvaluation may be based on ignorance, or on novices being overly impressed by expert credentials and trappings, but the belief in overvaluation as the primary foundation for the distinct treatment of expert evidence persists, generating not only Daubert but also a long history of treating expert evidence specially. It turns out, however, that the longstanding assumption of overvaluation is unsupported by the research. Several decades of research, mostly by psychologists, shows the common assumptions of jury overvaluation of expert evidence to be large unfounded. Indeed, modern research shows that it is eyewitness and other so-called direct evidence that is overvalued. By relying on the erroneous assumption of jury overvaluation of expert testimony and the equally erroneous assumption of non-overvaluation of direct testimony, the law of evidence has drawn a distinction that rests on a false empirical basis. Moreover, insofar as the distinction between expert and other evidence also rests on a distinction between the facts that lay witnesses offer and the inferences (opinions) that come from experts, this distinction is undercut not only by the modern treatment of lay opinion, but by a great deal of philosophical work on the expert-dependence of the judgments that ordinary people make in all aspects of their lives.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"44 1","pages":"1"},"PeriodicalIF":0.9,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74482255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ex-Post Right, Ex-Ante Wrong","authors":"A. Porat","doi":"10.2139/SSRN.2172932","DOIUrl":"https://doi.org/10.2139/SSRN.2172932","url":null,"abstract":"Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time of trial? Should a manufacturer be held liable for harm caused to a consumer from a product considered reasonable, and therefore non-defective, at the time of trial, but should have been considered unreasonable, and therefore defective, at the time of its distribution? More generally put: Should the law impose liability for ex-post right but ex-ante wrong behaviors? The answer offered by this Article is yes, on both efficiency and corrective justice grounds. The Article also proposes the adoption, in certain cases, of an “Alternative Liability Rule,” whereby an injurer bears liability if his behavior is either ex-post or ex-ante wrong.Thus far, there are no reported cases where a plaintiff brought suit for ex-post reasonable but ex-ante unreasonable behavior or products. This is puzzling, especially given the abundance of reverse cases before the courts, where the defendant’s behavior or product is found to be ex-post unreasonable but ex-ante reasonable, and liability is not imposed. The Article’s explanation for the lack of suits for ex-post right but ex-ante wrong behavior is plaintiffs’ and their attorneys’ strong belief that when a behavior, or a product, is considered reasonable at the time of trial, it is considered reasonable by the law. The claim made in the Article is that this belief is unfounded and a plaintiff who proves ex-ante negligence should succeed at trial, regardless of whether the defendant’s behavior is considered reasonable at that time.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"150 1","pages":"1209"},"PeriodicalIF":0.9,"publicationDate":"2012-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77399316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Way Forward after Wal-Mart","authors":"G. Rutherglen","doi":"10.2139/SSRN.2147955","DOIUrl":"https://doi.org/10.2139/SSRN.2147955","url":null,"abstract":"The Supreme Court's decision denying certification of a class action in Wal-Mart Stores, Inc. v. Dukes elicited a strong dissent from Justice Ginsburg, and widespread criticism in liberal circles, but in several important respects, the decision was unanimous. All the Justices agreed that a class action could not be certified under Federal Rule of Civil Procedure 23(b)(2), the rule which governs class actions in which injunctive relief is \"appropriate respecting the class as a whole.\" The holding that divided the Justices concerned the failure of the plaintiffs’ case to meet the requirement of Rule 23(a)(2) that there were \"questions of law or fact common to the class.\" Yet even on this issue there were points of apparent agreement, and one of them was the need to inquire into the merits to determine whether the prerequisites to certification were satisfied. This article begins by situating this widely accepted observation in the context of perennial disputes over substance and procedure in class actions. It then turns to the question of where to put certification decisions in the structure of pretrial litigation: in pleading, discovery, or summary judgment. That inquiry, in turn, leads to the larger question of how to reform class action procedure. Looking to the merits provides a way to differentiate among class actions, both in fine-grained analysis of particular claims and in broad terms defined by different areas of law. The cases and commentary on class actions presume that class actions must be divided into conventional categories, such as mass torts, consumer class actions, civil rights claims, and securities class actions, but they provide little more than a pragmatic justification for this division. A look at the merits was tacitly accepted as the premise of most analyses of class actions before Wal-Mart. This article provides a theoretical justification for doing so -- at the level of legal doctrine, based on the relationship between the substance of a claim and the requirements of Rule 23, and at the level of optimal enforcement, by identifying cases in which the expense of aggregate litigation yields gains in the basic goals of compensation, deterrence, and efficient litigation.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"38 1","pages":"871"},"PeriodicalIF":0.9,"publicationDate":"2012-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81638158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Nonincorporation: The Bill of Rights after McDonald v. Chicago","authors":"Suja A. Thomas","doi":"10.2139/SSRN.2000435","DOIUrl":"https://doi.org/10.2139/SSRN.2000435","url":null,"abstract":"Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Supreme Court held that the Second Amendment right to bear arms, which the Court previously had decided did not apply against states, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights — the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right — rights that the Court previously decided do not apply against the states that remain not incorporated. After the decision to incorporate the right to bear arms, an important unaddressed question with far-reaching implications is whether nonincorporation is defensible under the Court’s jurisprudence. Scholars to date have viewed the Bill of Rights exclusively through theories of incorporation, including the theory of selective incorporation under which incorporation occurs if a fundamental right exists. This Article is the first to view incorporation from the perspective of a theory of nonincorporation. This theory could be simply the opposite of selective incorporation — that a right is not fundamental — or, it could be, that the Court has not incorporated rights for some other reason. This Article sets forth possible theories of nonincorporation, both prior to and after McDonald, and exploring their viability, concludes that no nonincorporation theory is defensible under the Court’s jurisprudence. The resulting incorporation of the nonincorporated rights would change the administration of justice in the states and also would make the Court’s theory of selective incorporation more justifiable.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"23 1","pages":"159-204"},"PeriodicalIF":0.9,"publicationDate":"2012-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86180090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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