Transnational Litigation and Institutional Choice

When U.S. corporations cause harm abroad, should foreign plaintiffs be allowed to sue in the United States? Federal courts are increasingly saying no. The courts have expanded the doctrines of forum non conveniens and prudential standing to dismiss a growing number of transnational cases. This restriction of court access has sparked considerable tension in international relations, as a number of other nations view such dismissals as an attempt to insulate U.S. corporations from liability. A growing number of countries have responded by enacting retaliatory legislation that may ultimately harm U.S. interests. This Article argues that the judiciary’s restriction of access to federal courts ignores important foreign relations, trade, and regulatory considerations. The Article applies institutional choice theory to recommend a process by which the three branches of government can work together to establish a more coherent court-access policy for transnational cases

Due Process in the American Identity

In the last four years, public opinion polls have found an increasingly high level of public support for the methods applied in the war on terror. A significant majority of the population now expresses support for targeted killing through drone strikes and for the indefinite detention of suspected terrorists at Guantánamo Bay. While there are undoubtedly many dynamics at play in the public\u27s changing views of national security and due process, this Article examines one piece of the puzzle: how the concept of due process fits within the structure of the American identity. This Article examines due process and national security through the lens of social psychology, and its approach helps to shed light on how and why public opinion has changed. It opens by contrasting the doctrinal view of due process as a legal principle with an opposing view of due process as an expression of American values, and it concludes that both views can give rise to similar policy choices--but for fundamentally different reasons. The Article then applies two related theories from social psychology to explore how people\u27s views of due process interact with their national identity to create support for different policy choices. Finally, it argues that separating these strands in the public debate on the war on terror can facilitate the conscious consideration of our national identity. In turn, this explicit recognition of the intertwining of identity and policy can create the opportunity to intentionally shape national identity. In order to do so, however, we must broaden the discussion beyond the legality of national security policies--or even their instrumental value--and move the discussion into an examination of more fundamental questions of who we are as a nation and who we want to be

Private Ordering in the Market for Professional Services

Freedom of contract is significantly restricted in the market for professional services. Under the so-called “corporate practice doctrine,” professionals such as doctors and lawyers are prohibited from practicing within corporate entities, and laypeople are likewise prohibited from investing in professional service firms. Defenders of this prohibition argue that it can be justified as a means of protecting professional independence and thereby increasing the quality of care. In fact, however, the available evidence suggests that investment restrictions are counterproductive to their stated goal. In practice, these restrictions raise costs and reduce access without measurably improving the quality of service at all. This Article examines why, in spite of significant criticism, the doctrine remains alive in the twenty-first century in both medicine and law, preventing the professions from reaping the benefits of outside investment. Legislative solutions have largely failed; U.S. jurisdictions universally prohibit corporate practice in the legal field, and a significant (and resurging) minority of states continues to apply corporate practice restrictions in medicine. In both fields, the possibility of reaching a political solution is hindered by protectionist impulses. This Article therefore proposes a challenge to the doctrine on constitutional grounds. The constitutional case in favor of private ordering is not an easy one to make: current constitutional doctrine defers heavily to state choices in the economic sphere, even when those choices lack any empirical evidence of rationality. Nevertheless, there has been an effort in recent years to move toward a more evidence-based version of rational basis review in economic cases. In addition, the Supreme Court\u27s recent jurisprudence on commercial speech buttresses the case for permitting external investment. In a pair of recent decisions, the Court has demonstrated an increased focus on the public\u27s interest in obtaining free and unfettered information. The corporate practice doctrine therefore presents an excellent test case for a more robust review of professional regulation, whether under a rational basis standard or under a more heightened level of scrutiny

Judicial Impartiality in a Partisan Era

Judicial legitimacy rests on the perception of judicial impartiality. As a partisan gulf widens among the American public, however, there is a growing skepticism of the judiciary’s neutrality on politically sensitive topics. Hardening partisan identities mean that there is less middle ground on political issues and less cooperation among those with differing political views. As a result, the public increasingly scrutinizes judges and judicial candidates for signs of political agreement, distrusting those perceived to support the opposing political party. Judges themselves are not immune to these political forces. In spite of a strong judicial identity that demands impartiality and judicial conduct rules that require judges to avoid even the appearance of bias, judges have the same unconscious biases and preconceptions as anyone else. Moreover, judges must generally have strong political affiliations to reach the bench at all, regardless of whether they are elected or appointed. Drawing the line between mere political affiliation and an inappropriate appearance of partisan bias can therefore be difficult. This Article analyzes the mechanisms available to safeguard judicial impartiality. Although recusal motions are the most common weapon against partisan bias, this Article argues that recusal motions cannot effectively guard against the appearance of bias arising from a judge’s political views. When recusal rules rely on an undefined “appearance” standard, they are susceptible to an interpretive bias that undermines their purpose. Nonetheless, the Article concludes that the appearance of partisan bias in the judicial branch is not so different from other types of unconscious bias. As a result, ordinary procedural tools—including the right to a jury trial and our system of appellate review—may provide a stronger safeguard against judicial bias than recusal motions

Litigating Partial Autonomy

Who is responsible when a semi-autonomous vehicle crashes? Automobile manufacturers claim that because Advanced Driver Assistance Systems (ADAS) require constant human oversight even when autonomous features are active, the driver is always fully responsible when supervised autonomy fails. This Article argues that the automakers’ position is likely wrong both descriptively and normatively. On the descriptive side, current products liability law offers a pathway toward shared legal responsibility. Automakers, after all, have engaged in numerous marketing efforts to gain public trust in automation features. When drivers’ trust turns out to be misplaced, drivers are not always able to react in a timely fashion to re-take control of the car. In such cases, the automaker is likely to face primary liability, perhaps with a reduction for the driver’s comparative fault. On the normative side, this Article argues that the nature of modern semi-autonomous systems requires the human and machine to engage in a collaborative driving endeavor. The human driver should not bear full liability for the harm arising from this shared responsibility. As lawsuits involving partial autonomy increase, the legal system will face growing challenges in incentivizing safe product development, allocating liability in line with fair principles, and leaving room for a nascent technology to improve in ways that, over time, will add substantial safety protections. The Article develops a framework for considering how those policy goals can play a role in litigation involving autonomous features. It offers three key recommendations, including (1) that courts consider collaborative driving as a system when allocating liability; (2) that the legal system recognize and encourage regular software updates for vehicles, and (3) that customers pursue fraud and warranty claims when manufacturers overstate their autonomous capabilities. Claims for economic damages can encourage manufacturers to internalize the cost of product defects before, rather than after, their customers suffer serious physical injury

A Collaborative Model Of Offshore Legal Outsourcing

International outsourcing has come to the legal profession. The ABA and other bar associations have given it their stamp of approval, and an ailing economy has pushed both clients and firms to consider sending more legal work abroad. This article integrates research from the fields of organizational behavior, social psychology, and economic theory to analyze the effectiveness of the legal outsourcing relationship. It identifies organizational pressures in the practice of law that affect how legal work is performed in a transnational context, and it examines how individuals on both sides of the outsourcing process influence the success or failure of a globalized practice. Ultimately, the article recommends that parties involved in legal offshoring should move away from a model of disaggregation and toward a model of collaboration. Unlike a disaggregation model that assumes outsourcing vendors will autonomously complete discrete legal tasks, a collaborative model would explicitly focus on cooperation, communication, and renegotiation of status and resources

Beyond the Torture Memos: Perceptual Filters, Cultural Commitments, and Partisan Identity

Who should face accountability for the mistreatment of prisoners in the war on terror? Five years ago, the scope of prisoner abuse at Abu Ghraib was first revealed; this year, the Justice Department admitted that a single suspect was waterboarded 183 times. Some at the bottom of the political hierarchy have already been convicted for their participation in prisoner abuse. Those closer to the top of the political hierarchy also find their actions subject to scrutiny, as the Department of Justice\u27s Office of Professional Responsibility is carrying out an investigation into the professional conduct of the lawyers who authored the memos permitting enhanced interrogation. This article argues that efforts to hold the memo authors professionally accountable for their advice will face two difficulties. First, it will likely be difficult to prove that the memos were written in bad faith. While legal scholars and other lawyers agree nearly universally that the memos represent bad legal advice, bad advice does not necessarily equate to bad-faith advice. The existence of perceptual filters and deep partisan identification may have shaped the lawyers\u27 views of the situation in ways that appear unfathomable to outsiders. Second, even if the Office of Professional Responsibility finds evidence of professional misconduct, there is a risk that efforts to hold the memo authors accountable will lack political legitimacy. Onlookers will also view such efforts through their own perceptual frameworks and partisan commitments, and may therefore not agree that the memo authors\u27 conduct deserves to be punished. In particular, this article argues that between 25 and 29 there was a redefinition of cultural commitments associated with partisan identity. In 24 there was still a broad anti-torture American identity, but that identity became fragmented by 28, with support for torture breaking along partisan lines. In time, cultural commitments may again shift to allow a united American identity that condemns torture. Until that happens, however, it is likely that accountability efforts will further entrench partisan animosity

Private Ordering in the Market for Professional Services

Freedom of contract is significantly restricted in the market for professional services. Under the so-called “corporate practice doctrine,” professionals such as doctors and lawyers are prohibited from practicing within corporate entities, and laypeople are likewise prohibited from investing in professional service firms. Defenders of this prohibition argue that it can be justified as a means of protecting professional independence and thereby increasing the quality of care. In fact, however, the available evidence suggests that investment restrictions are counterproductive to their stated goal. In practice, these restrictions raise costs and reduce access without measurably improving the quality of service at all. This Article examines why, in spite of significant criticism, the doctrine remains alive in the twenty-first century in both medicine and law, preventing the professions from reaping the benefits of outside investment. Legislative solutions have largely failed; U.S. jurisdictions universally prohibit corporate practice in the legal field, and a significant (and resurging) minority of states continues to apply corporate practice restrictions in medicine. In both fields, the possibility of reaching a political solution is hindered by protectionist impulses. This Article therefore proposes a challenge to the doctrine on constitutional grounds. The constitutional case in favor of private ordering is not an easy one to make: current constitutional doctrine defers heavily to state choices in the economic sphere, even when those choices lack any empirical evidence of rationality. Nevertheless, there has been an effort in recent years to move toward a more evidence-based version of rational basis review in economic cases. In addition, the Supreme Court\u27s recent jurisprudence on commercial speech buttresses the case for permitting external investment. In a pair of recent decisions, the Court has demonstrated an increased focus on the public\u27s interest in obtaining free and unfettered information. The corporate practice doctrine therefore presents an excellent test case for a more robust review of professional regulation, whether under a rational basis standard or under a more heightened level of scrutiny