Bankruptcy in the Administrative State

A national interacting metasystem of national education and fostering developed in the Finnish speaking region Tornedalen in northern Sweden from the late 19th century to the 1950s. It was not formally agreed as a deliberate education system, but was more of a tacit understanding of a common nationalistic goal within different educational institutions such as primary schools, the residential industrial schools [arbetsstugor], the folk high-schools and the different forms of explicit military education. The aim was to help the poor region economically, to spread the Swedish language and culture in the area, to break the isolation of the region through education and to integrate this geopolitically sensitive border region into the nation. The integrative phase of Swedish nationalism was a common denominator. Leading persons in the educational and fostering activities were many times the same persons. There was a consensus over party lines about the need of acculturation and assimilation of the Tornedalians. The school, the nation and the family was regarded as central concepts in the fostering of the minority into Swedish citizens. By regarding the educations in Tornealen as a metasystem of ideological influences you get an imagination of the ideological power single educations gets when interconnected as a system

The Effect of Rules Shifting Supreme Court Jurisdiction from Mandatory to Discretionary - An Empirical Lesson from Taiwan

Theoretical works suggest that granting a supreme court discretion in choosing the cases to be decided on the merits could shift dockets away from traditional case-based adjudication and towards issue-based adjudication. According to this prediction, legislatures can recast supreme courts' roles in society by modifying jurisdictional rules. This study tests this prediction empirically. Using a newly assembled data set on appeals terminated by the Taiwan Supreme Court for the period 1996-2008, we study the effect of jurisdictional-source procedural reform, a switch from mandatory jurisdiction to discretionary jurisdiction in 2003, on the Taiwan Supreme Court's performance. Our study shows that the 2003 reform failed to transform the function of the Court from correcting error to a greater role in leading the development of legal doctrine as intended by the legislature. Our findings suggest that a supreme court can adjust the way it conducts business according to its own preference and the role it defines for itself, which are influenced both by the background against which it operates and the inertia of its members' working habits. Our study informs policy-makers that merely amending procedural rules, without more, is unlikely to change the function of a supreme court. Our findings also suggest that statutorily dictated mandatory jurisdiction may not be implemented by a high court faced with caseload pressure.

The Government as Litigant: Further Tests of the Case Selection Model

We develop a model of the plaintiff's decision to file a law suit that has implications for how differences between the federal government and private litigants and litigation translate into differences in trial rates and plaintiff win rates at trial. Our case selection model generates a set of predictions for relative trial rates and plaintiff win rates depending on the type of case and whether the government is defendant or plaintiff. In order to test the model, we use data on about 350,000 cases filed in federal district court between 1979 and 1997 in the areas of personal injury and job discrimination where the federal government and private parties work under roughly similar legal rules. We find broad support for the predictions of the model.

Empirical Methods and the Law

One can divide empirical analysis of legal issues into three major branches: (1) the use of scientific empirical analysis by litigants to attempt to prevail in individual cases, (2) the use of social scientific empirical analysis in individual cases, and (3) the use of the empirical methods to describe the legal system’s operation. The first two uses present difficulties that reflect a fundamental limitation on using statistical methods in law: the difference between establishing statistical association and establishing actual causation in an individual case filtered through our adversary legal system. The third use encounters no such obstacle and can aid understanding of how the legal system operates and inform policymakers. Accurate description of the legal system’s operation can in turn influence the outcome of specific cases. More important accurate description of the legal system can supply the information necessary for sound policymaking; for example, a substantial body of evidence suggests that our civil justice system performs quite well

Measuring the Deterrent Effect of Punitive Damages

Professor Viscusi\u27s article differs from the dominant mode of law and economics scholarship on punitive damages. The usual punitive damages article contains purely theoretical considerations about when punitive damages are appropriate and about their optimal level; no effort is made to ascertain whether the existing pattern of punitive awards corresponds with the theory. This is part of a larger problem: the dearth of empirical evidence in law and economics scholarship. Viscusi, on the other hand, provides empirical tests of whether punitive damages accomplish their goals, and he makes creative use of publicly available data sources. For the goal of his project and his use of the data, he should be commended. As executed, however, Viscusi\u27s study is inappropriate as a basis for policymaking and unreliable as evidence about punitive damages. The study is based on questionable empirical premises about punitive damages, questionable understanding of applicable legal rules, and questionable statistical methodology. In addition, the study analyzes punitive damages\u27 effects in areas of law in which one would least expect to find substantial effects

U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business

The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal change but no detailed evaluation of the survey’s quality exists. This article presents evidence that the survey is substantively inaccurate and methodologically flawed. It incorrectly characterizes state law; respondents provide less than 10 percent correct answers for objectively verifiable responses. It is internally inconsistent; a state threatened with judicial hellhole status ranked first in the survey while venues not on the list ranked lower. The absence of correlation between survey rankings and observable activity suggests that other factors drive the rankings. Two factors may help explain them. First, persistent low ranking of Gulf Coast states indicates that corporate counsel cannot shed hostility to states that were prominent in asbestos and tobacco litigation, notwithstanding changes in state laws. Second, low rankings of populous states suggest respondents fail to distinguish between rates of events and the absolute number of events. Adverse events in large states may occur more often but not necessarily at higher rates than in small states. The Chamber’s uses of the survey fail to account for the sample design, fail to account for the same respondent rating multiple states, fail to account for industry effects, and fail to distinguish among respondents based on their knowledge of a state. The survey may discourage investment in the United States and corporate risk managers’ views suggest that the survey promotes corporate behavior that needlessly endangers the public

Four Decades of Federal Civil Rights Litigation

Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases

Reflections on a Unified Theory of Motive

In this commentary the author claims that one should not attempt to answer the question whether motive should be considered in constitutional adjudication too quickly. One should not extrapolate that motive should be constitutionally relevant in one circumstance simply because motive is relevant in another circumstance. The author concludes that one should not expect a single answer to the motive question

Baseline Problems in Assessing Chapter 11

Dealing with failing businesses is like dealing with failing marriages. It is messy. The bigger the business the messier the process is likely to be. Many big business failures in the United States go through their death throes or cure their ills in reorganizations under Chapter 11 of the Bankruptcy Act. As the vehicle in which big business messes travel, Chapter 11 is viewed as unnecessarily complex, time-consuming, and costly. The justification for Chapter 11\u27s very existence has been challenged. This article suggests that we are blaming the vehicle for the mess that it carries. Much of what is problematic with divorce law is that divorce must deal with personal misery. Divorces produce unhappy results, we can\u27t do much about the underlying problem, so we reform divorce law. Business failure is also an unfortunate, sometimes tragic, event. Much of what is problematic with Chapter 11 is that it must deal with commercial misery. There are limits on how content we are likely to be with even the most perfect reorganization law. We erroneously measure Chapter 11\u27s efficiency by focusing on its absolute costs. We also misjudge its distributional results by comparing them with a classical liquidation regime that predates large corporations. To develop these points, section I narrows the focus to large reorganizations. Section II provides historical background that is central to both of my claims. Section III builds on the historical discussion to suggest that much of the cost and delay in Chapter 11 are unavoidable. After analysing a recent empirical attack on Chapter 11, Section IV considers the history\u27s implications for modem reform proposals