Legislation

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Volume 92.5
The Amended Statute
Jesse M. Cross
Professor of Law, Joseph F. Rice School of Law, University of South Carolina.

The author wishes to thank Aaron Galbraith for his outstanding data analysis contributions. The author also wishes to thank William Eskridge, Abbe Gluck, Anita Krishnakumar, Nicholas Parrillo, Josh Chafetz, Alexander Zhang, and all the participants in the Legislation Roundtable at the Georgetown University Law Center, the Legislation Colloquium at the Georgetown University Law Center, and the works in progress workshop at the Joseph F. Rice School of Law.

We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an afterthought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society. In this Article, Jesse M. Cross demonstrates that, instead, the amended statute belongs at the center of public law. To that end, he undertakes three projects with respect to the amended statute: documenting, theorizing, and interpreting.

Judicial Review Statutory Interpretation
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Volume 92.1
Shedding Light on Secret Settlements: An Empirical Study of California's STAND Act
David Freeman Engstrom
LSVF Professor of Law at Stanford Law School (SLS) and Co-Director of the Deborah L. Rhode Center on the Legal Profession (Rhode Center).

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Nora Freeman Engstrom
Ernest W. McFarland Professor of Law at SLS and Co-Director of the Rhode Center.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Jonah B. Gelbach
Herman F. Selvin Professor of Law at UC Berkeley School of Law and a Non-Resident Fellow at the Rhode Center.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Austin Peters
Non-Resident Fellow at the Rhode Center and a Harry A. Bigelow Teaching Fellow at the University of Chicago Law School. He is also a recent graduate of SLS and holds a Ph.D. in Political Science from Stanford.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Garrett M. Wen
Recent graduate of SLS and former Civil Justice Fellow at the Rhode Center.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Catalyzed by the #MeToo movement, states have adopted a spate of laws restricting secret settlements. In 2018, California led the charge with the Stand Together Against Non-Disclosure (STAND) Act, which targets secrecy in the resolution of sex discrimination, harassment, and abuse cases. Transparency advocates hail these reforms as a major win for victims. Critics, meanwhile, warn that the reforms will hurt those they intend to help.

Nested within this debate sit a raft of confident, conflicting—and eminently testable—claims about what exactly happens in the wake of reform. Will defendants still settle, even if secrecy isn’t on offer? Will case filings disappear? Debate over these questions has raged since the 1980s, and, over these decades, the debate has always centered on fervent predictions regarding each.

Our findings tell a clear and consequential story. Contrary to critics’ fears, the STAND Act did not yield a sharp increase or decrease in case filings. Nor did the Act appear to significantly prolong cases or amplify their intensity. The upshot: cases still settle even when secrecy isn’t on offer. Perhaps most importantly, it appears that positive effects did come to pass.

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