Stickiness and Incomplete Contracts
Julian Nyarko - Assistant Professor of Law, Stanford Law School.
Both economic theory and legal theory assume that sophisticated parties routinely aim to write contracts that are optimal, in the sense of maximizing the parties’ joint surplus. But more recent studies analyzing corporate and government bond agreements have suggested that some contract provisions are highly path dependent, or “sticky,” with future agreements only rarely improving upon previous ones.
Analyzing half a million contracts using automated text analysis, this Article demonstrates that the stickiness hypothesis explains the striking lack of dispute resolution clauses that can be found in agreements between even the most sophisticated commercial parties. When drafting these contracts, external counsel rely heavily on templates, and whether a contract includes a dispute settlement provision is almost exclusively driven by the template that is used to supply the first draft. There is no evidence to suggest that counsel negotiate over the inclusion of dispute resolution clauses, nor that law firm templates are revised in response to changes in the costs and benefits of incomplete contracting.
Together, the findings reveal a distinct apathy toward addressing dispute resolution through contracting. From an institutional perspective, this suggests that the role of default rules in contract law is more important than is often assumed. Whereas traditional accounts hold that commercial actors would simply contract around inefficient defaults, the evidence produced in this Article highlights that defaults are significantly important for transactions between even the most sophisticated commercial actors.
The Comparative Constitutional Law of Presidential Impeachment
Tom Ginsburg - Leo Spitz Professor of International Law and Ludwig and Hilde Wolf Research Scholar, The University of Chicago Law School.
Aziz Huq - Frank and Bernice N. Greenberg Professor of Law, The University of Chicago Law School.
David Landau - Mason Ladd Professor and Associate Dean for International Programs, Florida State University College of Law.
With the charging and acquittal of President Donald Trump, impeachment once again assumed a central role in U.S. constitutional law and politics. Yet because so few impeachments, presidential or otherwise, have occurred in U.S history, we have little understanding of how removing presidents in the middle of a term alters the direction or quality of a constitutional democracy. This Article illuminates the appropriate scope and channels of impeachment by providing a comprehensive description of the law and practice of presidential removal in the global frame. We first catalog possible modalities of impeachment through case studies from South Korea, Paraguay, Brazil, and South Africa. We then deploy large-N empirical analysis of constitutional texts, linked to data about democratic quality in the wake of successful and unsuccessful removal efforts, in order to understand the impact of impeachment on democracy. Contrary to claims tendered in the U.S. context, we show that impeachment is not well conceived as solely and exclusively a tool for removing criminals or similar “bad actors” from the presidency. Instead, it is commonly and effectively used as a tool to resolve a particular kind of political crisis in which the incumbent has lost most popular support. Moreover, despite much recent concern about the traumatic and destabilizing effects of an impeachment, we do not find that either successful or unsuccessful removals have a negative impact on the quality of democracy as such. Our comparative analysis has normative implications for the design and practice of impeachment, especially in the United States—although those implications must be carefully drawn given the limits of feasible causal inference. The analysis provides consequentialist grounds for embracing a broader, more political gloss on the famously cryptic phrase “high Crimes and Misdemeanors,” in contrast to the narrow, criminal standard that President Trump, in line with other presidents, promoted. A criminal offense standard, however, might be appropriate for judges and other officers subject to impeachment. We suggest a multitiered impeachment standard is sensible. Also against settled U.S. understandings, the analysis shows how other institutions, such as courts, can and do play a valuable role in increasing the credibility of factual and legal determinations made during impeachment. Finally, it suggests that impeachment works best where, in contrast to U.S. design, a successful removal triggers rapid new elections that can serve as a “hard reboot” for a crisis-ridden political system.
Proximate Cause Explained: An Essay in Experimental Jurisprudence
Joshua Knobe - Professor of Philosophy and Psychology and Linguistics, Yale University.
Scott Shapiro - Charles F. Southmayd Professor of Law and Professor of Philosophy, Yale University.
One of the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called “responsible cause.”
Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law—one which combines the attractive features of both formalism and realism without accepting their implausible consequences.
In addition to providing a model for interpreting the case law of proximate cause, this Article also introduces a new way of doing legal theory—a method we call “experimental jurisprudence.” Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question.
A Class of One: Multiracial Individuals Under Equal Protection
Desirée D. Mitchell - B.A. 2018, Brigham Young University; J.D. Candidate 2021, The University of Chicago Law School.
When it comes to recognizing multiracial individuals under the Equal Protection Clause, courts have fallen short. Only rarely do courts explicitly identify multiracial plaintiffs as just that—multiracial. Instead, the majority of courts revert to a “one-drop” rule in which they view plaintiffs as only one part of their self-identified racial composition. In doing so, the unique identities and experiences of multiracial individuals remain unaddressed. This Comment builds off previous scholarship by arguing that courts can and should do better at recognizing multiracial plaintiffs in equal protection cases by using a “class-of-one” framework. Under that doctrine, the Supreme Court has held individuals that do not identify with some commonly recognized marginalized class may still assert discrimination claims as a class of one by alleging that they were treated differently from others similarly situated. Given our increasingly multiracial society, it is more important than ever that courts play this vital role in the country’s continued discussions about race by acknowledging the often-marginalized identities of multiracial individuals.