Reputation is the foundation of theories of private ordering. These theories contend that commercial actors will act honestly because if they do not, they will get a bad reputation and others will not want to do business with them in the future.
In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of… Read More
The election of Donald J. Trump to the U.S. Presidency coincided with the United States adopting an “America First” policy in trade. This policy reflects an underlying theory of economic nationalism that is fundamentally at odds with the current approach of the multilateral trading system established by the General Agreement on Tariffs and Trade and the World Trade Organization (GATT/WTO). The current multilateral system is based on a “positive sum game” theory, i.e., the view that cooperative trade concessions can… Read More
To read the literature on professional responsibility is to inhabit a world focused on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of the Restatement. However, it often neglects what is not said: spaces where silence reigns. This Article takes a different approach; it listens to the taciturn. This Article draws insight… Read More
For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court… Read More
In January 2014, U.S. Bankruptcy Judge George Hodges, presiding over the asbestos-related bankruptcy of Garlock Sealing Technologies, LLC, a manufacturer of gaskets containing asbestos, issued an order estimating Garlock’s liability for pending and future mesothelioma cases.
During his State of the State Address shortly after taking office, Missouri Governor Eric Greitens discussed some of the problems in Missouri’s judicial system that he believed contributed to its classification as “the worst judicial hellhole in America.” Governor Greitens promised to address these problems, which he claimed were driving businesses and jobs out of the state. One critical step, according to his proposal, was to adopt the Daubert standard for expert witness testimony.
Congress passed the Sarbanes-Oxley Act of 2002 in response to corporate and accounting scandals, including those at Enron and WorldCom. When the fraud and accounting scandals came to light, the share prices of these companies plummeted, costing investors billions of dollars. The rules the Sarbanes-Oxley Act directed were not limited to those addressing accounting practices. Some provisions were aimed at attorney practices.