Jordan M. Singer and Hon. William G. Young
In a companion piece, the authors argued for a more comprehensive model of federal district court productivity that included, among other things, a measure of each court’s capacity and commitment to provide procedural fairness to litigants. The authors further proposed a new procedural fairness metric called bench presence, a measure of the time that district judges spend adjudicating issues in an open forum.
This Article examines real-world bench presence data from the Administrative Office of the United States Courts. On the surface, the numbers are disappointing for those who view courtroom time as integral to procedural fairness protections. Specifically, the data reveal a decline in total courtroom hours in more than two-thirds of the federal district courts between FY 2008 and FY 2012, and an overall national decline in total courtroom hours of more than eight percent during that same period.
But there is encouraging news in the data as well. Strong levels of bench presence are not restricted to courts of a particular size, circuit, or docket composition, suggesting that there are no persistent structural barriers to any district court increasing the amount of time that its judges spend in the courtroom. In addition, there is only a weak correlation between a district court’s average courtroom hours per judge and its average time to case disposition, indicating that district courts need not choose between efficiency and procedural fairness in addressing their caseloads. Based on these findings, the authors urge judges to increase courtroom hours in their own districts, and invite scholars and court administrators to further investigate the potential of the bench presence metric.
preferred citation: Jordan M. Singer & Hon. William G. Young, Measuring Bench Presence: Federal District Judges in the Courtroom, 2008-2012, 118 Penn St. L. Rev. 243 (2013).
Charles R. Korsmo
The law and economics movement has been a victim of its own success. Over the past four decades, it has generated an enormous specialist literature, often explicitly intended for other specialists. As is so often the case with increased specialization, the result has been escalating technical complexity accompanied by forbiddingly formal mathematics and a tendency to retreat into abstraction. As a result, economic analysis has often failed to provide general legal audiences with insight into important legal questions, even where the tools of economics would be appropriate and useful. This Article examines—and rectifies—just such a failure. In particular, this Article examines departures from a uniform reasonable person standard in negligence law. From an economic standpoint, individuals might be held to different standards of care because: (1) they differ in their costs of taking precautions (e.g., a good driver can take additional precautions more cheaply than a bad driver); or (2) they differ in the accident costs they generate when exercising a given amount of care (e.g., a good driver causes fewer accidents than a bad driver who is exercising the same precautions). Though the two possibilities lead to sharply different prescriptions, the law and economics literature has focused almost entirely on the former scenario, while neglecting the latter. By examining both possibilities, I provide a new and superior explanation of how tort law treats disabilities and professional skill, with the potential to change the way these important topics are conceptualized, taught, and ultimately adjudicated. In doing so, I also demonstrate the extent to which important legal insights can remain unappreciated when buried in an overly abstract mathematical literature.
preferred citation: Charles R. Korsmo, Lost in Translation: Law, Economics, and Subjective Standards of Care in Negligence Law, 118 Penn St. L. Rev. 285 (2013).
Kindaka Jamal Sanders
This Article examines why the Black Farmers case, a series of legal events involving claims of racial discrimination by African-American farmers against the federal government, may technically qualify as a slavery reparations case. This Article also explores how the case became a viable slavery reparations case in a legal and political environment hostile to race-based claims and fatal to slavery reparations-related litigation. In doing so, this Article offers a legally cognizable definition for slavery reparations and a viable path for future reparations-related litigation.
The procedural mechanisms at play in the Black Farmers case substantially reduced the barriers between race-aggrieved status and recovery. This Article posits that a close relationship between race-aggrieved status and recovery and central to any definition of reparations.
One procedural mechanism that helps to convert the Black Farmers case into a slavery reparations case is the highly controversial class action device. Commentators critical of the class action device argue that the coercive force of class actions gives plaintiffs inordinate power to force the settlement of meritless claims. This Article suggests that the class action device was used in the Black Farmers case not to circumvent merit, but to vindicate it.
preferred citation: Kindaka Jamal Sanders, Re-Assembling Osiris: Rule 23, the Black Farmers Case, and Reparations, 118 Penn St. L. Rev. 339 (2013).
Dylan Oliver Malagrino
NCAA v. Christie, a recent landmark sports-betting case, is making its way through the federal courts and reigniting the fight for sports-betting opportunities in the United States. The Professional and Amateur Sports Protection Act (PASPA) is at the center of the dispute in that case. PASPA currently allows only four U.S. states to conduct sports-betting schemes in their casinos. Even if PASPA is held to be constitutional after NCAA v. Christie plays out in the courts, Congress should modify PASPA to allow states to regulate their own sports-betting enterprises. Without modification, billions of dollars in tax revenues and income from legitimate sports-betting industries that could go to the United States instead will continue to go to offshore Internet operations, back-room book makers, and organized crime. Sports bettors in the United States who do not live in or frequent one of the four states that sanction sports betting instead turn to offshore and illegal outfits to place their bets. Courts have struggled to develop an effective solution of obtaining jurisdiction over foreign entities that license gambling websites. However, with minimal enforcement power to regulate foreign and illegal betting outfits, it is time now to modify PASPA to grant every U.S. state an opportunity to use revenue-generating sports betting to relieve debt from their current fiscal budgets. Instead of outlawing 46 states from conducting their own sports-betting schemes, Congress should modify PASPA to allow each state to decide for itself whether it wants to sanction a sports-betting scheme within its jurisdiction. By allowing each state to experiment as a laboratory with a sports-betting scheme—tailored to each state’s specific needs—a national solution will emerge, which in time can be implemented into more appropriate and effective federal regulation.
preferred citation: Dylan Oliver Malagrino, Off the Board: NCAA v. Christie Challenges Congress to “Move the Line” on the Professional and Amateur Sports Protection Act, 118 Penn St. L. Rev. 375 (2013).