Florida State University law review. Florida State University. College of Law最新文献

{"title":"Philosophical Foundations of Labor Law","authors":"Horacio Spector","doi":"10.2139/SSRN.1483898","DOIUrl":"https://doi.org/10.2139/SSRN.1483898","url":null,"abstract":"Labor law is an offspring of the social and political action of the working class movement.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"15 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87099215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Which Judges Write Their Opinions (And Should We Care)","authors":"Stephen Choi, G. Gulati","doi":"10.2139/SSRN.715062","DOIUrl":"https://doi.org/10.2139/SSRN.715062","url":null,"abstract":"Common wisdom holds that many federal judges do not write their own opinions. While their degree of input into opinion writing varies, almost all rely to some extent on law clerks, typically recent law school graduates, to research and draft substantial sections of the opinion. Why should we care which judges write their opinions? We posit that determining the actual input of federal judges into the authorship of opinions provides useful information in a number of contexts, including judicial promotion decisions, the allocation of scarce judicial resources, and the judicial clerkship market for law students. We start with generic tests of authorship obtained from computational linguistics. To assess the effectiveness of these tests in the judicial context, we identify (based on an informal survey of several sitting federal judges), three judges reputed to write their own opinions. We then use a randomly selected set of opinions for active circuit judges from 1998 to 2000 to examine whether the generic tests succeed in ranking these three judges high in terms of authorship. The generic tests failed to distinguish authorship due in part to the subject matter specific nature of opinions. Whether an opinion is a criminal, administrative, or commercial law opinion matters. Comparing two judges based on their criminal law opinions may provide different results than comparing the same judges based on the criminal law opinions of one judge against the administrative law opinions of the other judge. Our generic tests did not control for subject matter of opinions. We provide a number of more customized tests for the judicial context that attempt to control for subject matter. Using these customized tests, we are able to distinguish the three test judges based on authorship.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"14 1","pages":"1077"},"PeriodicalIF":0.0,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88232374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Default Rules Teach us about Corporations: What Understanding Corporations Teaches us about Default Rules","authors":"Tamar Frankel","doi":"10.2139/SSRN.700843","DOIUrl":"https://doi.org/10.2139/SSRN.700843","url":null,"abstract":"This Essay addresses corporate law's Default Rules, which allow corporations to waive their directors' liability for damages for breach of their fiduciary duty of care. Most large corporations have adopted such a waiver. This Essay distinguishes Private Contracts from Public Contracts. Public Contracts include legislation, referendums, and votes on specific outcomes, such as union members' votes on the contracts that their representatives agreed upon with management. This Essay shows that the courts view corporations and corporate articles as Public Contracts. In some Public Contracts gap-filling rules limit the scope of the Public Contracts to the information that the voters received before they voted. In waiver cases, however, the courts do not limit the scope of the waivers to the information that the voting shareholders received before they voted for the waivers. The Essay suggests that courts should follow Public Contract gap-filling rules and interpret the waivers as limited to the circumstances in which the voters voted, and the information they received before the voting.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"39 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2005-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73485605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"There are no Penalty Default Rules in Contract Law","authors":"E. Posner","doi":"10.2139/SSRN.690403","DOIUrl":"https://doi.org/10.2139/SSRN.690403","url":null,"abstract":"In an influential article, Ian Ayres and Robert Gertner introduced the concept of the \"penalty default rule,\" a rule that fills a gap in an incomplete contract with a term that would not be chosen by a majority of parties similarly situated to the parties to the contract in question. Ayres and Gertner argued that such a rule might be efficient in a model in which contracting parties have asymmetric information. However, Ayres and Gertner did not provide any persuasive examples of penalty default rules; their best example is the Hadley rule, but this rule is probably not a penalty default rule. It turns out that there are no plausible examples of penalty default rules that solve the information asymmetry problem identified by Ayres and Gertner. The penalty default rule is a theoretical curiosity that has no existence in contract doctrine.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"32 1","pages":"563"},"PeriodicalIF":0.0,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78901141","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Penalty Defaults in Family Law: The Case of Child Custody","authors":"M. Brinig","doi":"10.2139/SSRN.671884","DOIUrl":"https://doi.org/10.2139/SSRN.671884","url":null,"abstract":"This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around. While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In addition, 1997 legislation noted in its very first section that it was state policy to [a]ssure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interests of the child. The effect of this legislation was to strengthen the power of noncustodial parents, since denial of access to the children would give the right to terminate spousal or child support, change the parenting plan, or obtain an award for makeup visitation. The legislative history for the bill shows that it was a compromise between men's rights groups and those concerned about domestic violence. After setting out the problem and describing the legislation in some detail, the paper tests whether the change in the Oregon statutes is to what most people would want (in which case there should be a substantially higher percentage of joint custody awards after its enactment than before). If the legislation functions as a penalty default, there should be more mediation after the statute and more filings of domestic abuse petitions to avoid application of the rule. If it does not function as a default rule, one would predict an increase in various kinds of transaction costs, including more court filings generally. We might also find that the legislation acts to disfavor primary custodial parents (largely women) as Mnookin and Kornhauser's analysis would suggest (in which case there should be lower child support or property judgments than before enactment). What we find is some evidence of all these results, with quite strong effects even though this event study is hardly ideal since the 1997 changes in law were subtle and largely procedural.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"44 1","pages":"10"},"PeriodicalIF":0.0,"publicationDate":"2005-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78748427","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Who Judges the Judges","authors":"John V. Orth","doi":"10.13169/socialistlawyer.77.0042","DOIUrl":"https://doi.org/10.13169/socialistlawyer.77.0042","url":null,"abstract":"In the routine performance of their judicial functions, judges are judged, in the loose sense of the word, by the litigants and by the general public, the latter usually informed through the reports of journalists. These two groups represent the ultimate consumers of the judicial product: the litigants directly as parties to the decision, the public indirectly as parties affected by the precedent established. On the judgment of these two groups over time rests the public reputation of the individual judge; on the cumulative judgment of all the judges rests the public reputation of the judicial branch of government. In addition, judges are judged (still in the loose sense of the word) by the legal profession: lawyers who practice in their courts and other judges who rely on the precedents established by their decisions. Judges on appellate courts are also judged by law professors and students who study the written opinions that accompany judicial decisions.2 On these judgments rest the professional reputation of the judges. In the case of a judicial decision appealed to a higher court, the deciding judge is judged, in a stricter sense, by appellate judges, who have the power to affirm or reverse the decision; occasionally the appellate judges comment on the work of the lower court, expressing praise or blame.3 Decisions of a final court of appeal cannot be formally reviewed by any other court. As Justice Robert H. Jackson observed of the judges of the U.S. Supreme Court, “We are not final because we are infallible, but we are infallible only because we are fi-","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"16 1","pages":"1245"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72531748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Empirical Measures of Judicial Performance: An Introduction to the Symposium","authors":"Steven G. Gey, Jim Rossi","doi":"10.2139/SSRN.614550","DOIUrl":"https://doi.org/10.2139/SSRN.614550","url":null,"abstract":"Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this \"Symposium on Empirical Measures of Judicial Performance\" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these papers also raise important issues for future empirical study of judges. Second, many of the papers in the Symposium propose new ways of operationalizing the empirical study of judicial performance or present fresh new empirical evidence about judges and courts. Third, some of the papers focus on the behavioral and institutional implications or empirical studies of judges and courts. As the papers in the Symposium would indicate, the empirical tournament has inspired some important advances in the discourse about measurement of performance in the context of the judiciary and its relevance to the selection of judges and the judicial process. While efforts to measure judicial performance empirically simultaneously revive many old controversies and presents new issues, its debates will be certain to continue as long as we have data, judges, and courts.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"79 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79040756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Possibility and Plausibility in Law and Economics","authors":"R. Korobkin","doi":"10.2139/SSRN.601502","DOIUrl":"https://doi.org/10.2139/SSRN.601502","url":null,"abstract":"The general acceptance won by the behavioral law-and-economics approach to legal analysis raises an important methodological question for law-and-economics scholars. For purposes of deriving policy recommendations, how should the researcher determine whether to assume strict rational choice (RCT) behavior or something more consistent with the behavioral decision theory (BDT) literature, such as bounded rationality or susceptibility to cognitive biases? Although most scholars now are willing to assume that strict rationality is not ubiquitous in the world and not even always the most useful behavioral assumption for purposes of crafting legal scholarship, this does not suggest that the opposite is true. That is, it is almost certainly the case that in many law-relevant situations, many actors evaluate information in a relatively unbiased way, make decisions that maximize their expected utility given available information, and implicitly measure utility in terms of their selfish interest. In a submission to the Florida State University Law Review's symposium issue on Behavioral Analysis of Law, Professor Jonathan Klick, responding to my previously published work on the subject of standard form contracts, implicitly provides two answers to this methodological question. The first response, can be paraphrased as follows: the scientific method should be used to determine whether an RCT-based or BDT-based assumption is empirically accurate in the law-relevant circumstances under consideration. The second response is that, until proven otherwise, researchers should presume that citizens act in accordance with RCT. In this rejoinder to Klick, I argue that the first response is unobjectionable but often not helpful for the purposes of legal scholarship, and that the second response should be rejected. Instead, I will argue that the choice between using an RCT-based behavioral assumption and a BDT-based behavioral assumption in law-and-economics analysis should turn on the relative plausibility of competing accounts in light of existing knowledge, which is often incomplete and indeterminate.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"13 1","pages":"17"},"PeriodicalIF":0.0,"publicationDate":"2004-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76998120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comment: Evolutionary Theories of Common Law Efficiency: Reasons for (Cognitive) Skepticism","authors":"A. Hirsch","doi":"10.2139/SSRN.600041","DOIUrl":"https://doi.org/10.2139/SSRN.600041","url":null,"abstract":"This comment critically examines evolutionary models of the common law in the light of behavioral theory. To the extent that the common law assumes the characteristics that judges strive to impart upon it, their efforts are doomed to succeed imperfectly, as a consequence of judges' bounded rationality. On the other hand, several different but related models of common law dynamics posit that judge-made law tends ineluctably in the direction of economic efficiency as a consequence of blind, evolutionary mechanisms operating independently of judges' predilections. Hence, evolutionary models suggest the possibility that over time, the process of lawmaking can transcend the bounded rationality of lawmakers and achieve a degree of efficiency that advertent efforts of design could not. Nevertheless, this comment concludes that evolutionary models of common law dynamics offer no escape from the bottleneck of bounded rationality. Although the states of minds of judges are irrelevant to those models, they depend instead upon the assumption that other participants in the judicial process - litigants and their attorneys - are rational decision-makers. When we assume instead that litigants and attorneys are susceptible to the same cognitive frailties that human beings generally share, the models break down, or at least become adulterated by noise that weakens the evolutionary pressures that they hypothesize. The difficulties with those models do not disappear even when we relax the assumption that the common-law system within which rules are formulated is fixed in its present structure. A historical alternative to the current structure that one scholar has hypothesized to have been particularly productive of efficient rules is in fact degraded by the same cognitive frailties. Nor can we predict that meta-evolutionary processes of competition between legal systems will lead the principles of jurisprudence in the direction of a system most likely to generate efficient rules.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"23 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2004-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78921389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Tournament of Virtue","authors":"Lawrence B. Solum","doi":"10.2139/SSRN.588322","DOIUrl":"https://doi.org/10.2139/SSRN.588322","url":null,"abstract":"How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the basis of merit - we want judges who are excellent. But Choi and Gulati have gotten something crucial terribly wrong: the selection of judges on the basis of measurable performance criteria would lead us away from true excellence. A tournament of judges would be won by judges who possess arbitrary luck and the vices of originality and mindless productivity; a tournament of virtue would be lost by those who possess the virtues of justice and wisdom. The judicial selection process should not be transformed into a game. I begin in Part II, \"What is Judicial Excellence?,\" by tackling the tough problem that Choi and Gulati avoid - the explication of a theory of virtue for judges. The judicial virtues include: (1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom. In Part III, \"Discerning Excellence,\" I discuss the question as to how we can tell whether candidates for judicial office are bad, which incompetent, and which are truly excellent. Three technniques for discerning judicial excellence are discussed: (1) screening for judicial vice; (2) detection of judges who possess practical wisdom; and (3) the recognition of judges whose record reveals a respect for the law. Part IV, \"The Mismeasurement of Virtue,\" engages the idea of quantitative measures of judicial performance as a proxy for excellence. In this section, I argue that citation rates, productivity measures, and independence - as measured by Choi and Gulati - are poor measures of true judicial excellence. A real world tournament of judges, moreover, would be gamed, leading to the selection of vicious rather than virtuous judges. Finally, Part V, \"Conclusion: The Redemption of Spectacular Failure.\" I argue that Choi and Gulati's idea is that rare and valuable thing - an idea that is both completely wrong and wonderfully illuminating.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":"15"},"PeriodicalIF":0.0,"publicationDate":"2004-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76030114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}