Information Lost and Found

At the core of every lawsuit is a mix of information-revealing documents that chronicle a party\u27s malfeasance, guarded memos that outline a lawyer\u27s trial strategy, fading memories that recall a jury\u27s key mistakes. Yet the law\u27s system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap. It then fits these five doctrines into a creative rule typology, one built on the frame of (in)valid (mis)information. This typology charts our system\u27s most basic commitments--to accuracy, to adversarialism, and to procedural equality. But it also raises a critical question about the space between what our rules now require and what legal actors actually do. To help answer that question, this Article reaches out to an untapped social-science discipline: the rich and instructive field of Information Behavior (IB). This Article uses 1B to shed new light on how our information rules function and where they still may fail. It also offers fresh and focused insight on the nature of information in civil litigation--from before a lawsuit opens until well after it ends

Jurisdiction\u27s Noble Lie

This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood--and then explains why it would. To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction\u27s foundations--its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid front. This Article aims to prove as much. This Article then examines both the flexibility and the ruse. It supports the first with two uncommon jurisdictional theories--one that shows how pragmatics, remedial context, and rights-accommodation permit courts to reach smart equilibriums; another that details the cultural, spatial, and federalist value of jurisdictional malleability. It then explains the second through more conditional claims about the functional, deliberative, and structural benefits of jurisdiction\u27s long-running trick This study does not mean to excuse the inexcusable. It hopes instead to offer new insight on an old problem. And it helps to make sense of why jurisdiction\u27s lie has so long endured

Unconstitutional Courses

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in runaway federal judges. And nearly every time Congress makes a jurisdiction-stripping threat, it comes to nothing. But if Congress\u27s threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress\u27s noisy calls have obscured another potent threat to the judicial Power : the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the judicial Power --not through bold pronouncements or obvious doctrinal revisions, but through something more inconspicuous, more discreet: the prescription of unconstitutional decisionmaking procedures. These decisionmaking procedures--what this Article calls unconstitutional courses --have attracted little sustained attention; their unexpected source and their subtle form make these courses too easy to ignore. Yet where Congress has so often failed, the Court has quietly succeeded. By charting unconstitutional courses, the Court has refashioned the judicial Power in an untenable way. To show how, this Article examines what unconstitutional courses are, when the Court has charted them, and why these courses merit consideration. As a part of this analysis, this Article identifies two unconstitutional courses, one historic and one contemporary. The first course grows out of Swift v. Tyson, a well-known (if long-derided) discussion of federal common law; the second emerges in Williams v. Taylor, a significant chapter in the story of contemporary habeas law. Both Swift and Williams illustrate the importance of how courts make decisions-what law they consider, what facts they ignore, what analytical steps they take. Both Swift and Williams demonstrate the impact a court\u27s decisionmaking course may (and does) have in resolving individual disputes and in shaping the judicial Power. And both Swift and Williams exhibit the need to examine the Court\u27s less obvious threats to individual rights--and to itself

Countersupermajoritarianism

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation. In this Review, we press two main arguments. First, we contend that McGinnis and Rappaport’s core thesis sidesteps critical problems with elevated voting rules. We also explain how at a crucial point in the book — concerning Reconstruction — the authors trade their commitments to supermajoritarianism and formalism away. Second, we broaden the analysis and suggest that constitutional change can and should occur not just through formal amendment, but also by means of social movements, political mobilizations, media campaigns, legislative agendas, regulatory movement, and much more. Changing the Constitution has always been a variegated process that engages the citizenry through many institutions, by way of many voting thresholds, and using many modes of argument. And that variety helps to make the Constitution good

Post-Newtonian SPH calculations of binary neutron star coalescence. II. Binary mass ratio, equation of state, and spin dependence

Using our new Post-Newtonian SPH (smoothed particle hydrodynamics) code, we study the final coalescence and merging of neutron star (NS) binaries. We vary the stiffness of the equation of state (EOS) as well as the initial binary mass ratio and stellar spins. Results are compared to those of Newtonian calculations, with and without the inclusion of the gravitational radiation reaction. We find a much steeper decrease in the gravity wave peak strain and luminosity with decreasing mass ratio than would be predicted by simple point-mass formulae. For NS with softer EOS (which we model as simple $\Gamma=2$ polytropes) we find a stronger gravity wave emission, with a different morphology than for stiffer EOS (modeled as $\Gamma=3$ polytropes as in our previous work). We also calculate the coalescence of NS binaries with an irrotational initial condition, and find that the gravity wave signal is relatively suppressed compared to the synchronized case, but shows a very significant second peak of emission. Mass shedding is also greatly reduced, and occurs via a different mechanism than in the synchronized case. We discuss the implications of our results for gravity wave astronomy with laser interferometers such as LIGO, and for theoretical models of gamma-ray bursts (GRBs) based on NS mergers.Comment: RevTeX, 38 pages, 24 figures, Minor Corrections, to appear in Phys. Rev.

Post-Newtonian SPH calculations of binary neutron star coalescence. I. Method and first results

We present the first results from our Post-Newtonian (PN) Smoothed Particle Hydrodynamics (SPH) code, which has been used to study the coalescence of binary neutron star (NS) systems. The Lagrangian particle-based code incorporates consistently all lowest-order (1PN) relativistic effects, as well as gravitational radiation reaction, the lowest-order dissipative term in general relativity. We test our code on sequences of single NS models of varying compactness, and we discuss ways to make PN simulations more relevant to realistic NS models. We also present a PN SPH relaxation procedure for constructing equilibrium models of synchronized binaries, and we use these equilibrium models as initial conditions for our dynamical calculations of binary coalescence. Though unphysical, since tidal synchronization is not expected in NS binaries, these initial conditions allow us to compare our PN work with previous Newtonian results. We compare calculations with and without 1PN effects, for NS with stiff equations of state, modeled as polytropes with $\Gamma=3$. We find that 1PN effects can play a major role in the coalescence, accelerating the final inspiral and causing a significant misalignment in the binary just prior to final merging. In addition, the character of the gravitational wave signal is altered dramatically, showing strong modulation of the exponentially decaying waveform near the end of the merger. We also discuss briefly the implications of our results for models of gamma-ray bursts at cosmological distances.Comment: RevTeX, 37 pages, 17 figures, to appear in Phys. Rev. D, minor corrections onl

Sickonomics : Diagnoses and remedies

Original article can be found at: http://www.tandfonline.com/ Copyright Taylor & FrancisIn their recent analysis of the alleged decay in modern economics, Ben Fine and Dimitris Milonakis claim to find its source and origin in the "marginal revolution" of the 1870s. They argue that this development led to "methodological individualism" and the detachment of economics from society and history. I contest their account of the marginal revolution and of the role of Alfred Marshall among others. They also fail to provide an adequate definition of methodological individualism. I suggest that neoclassical economics adopted a denuded concept of the social rather than removing these factors entirely. No such removal is possible in principle. It is also mistaken to depict neoclassical economics as the science of prices and the market. In truth, neoclassical economics fails to capture the true nature of markets. I consider some sketch an alternative explanation of the sickness of modern economics, which focuses on institutional developments since World War II.Peer reviewe