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Volume 113 - Issue 5



Meredith R. Aska McBride | March 1, 2019

This is the first annual issue of the Northwestern University Law Review exclusively comprising empirical legal scholarship. We are thrilled to present a diverse group of Articles that show the breadth of contemporary legal empiricism.


Does Patented Information Promote the Progress of Technology?

Jonathan H. Ashtor | March 1, 2019

This Article investigates the relationship between the exclusive rights of patents, their information disclosures, and the impact they have on the development of future technologies. An examination of over 1000 patents that courts have held valid or invalid reveals a significant positive relationship. Specifically, the private rights and technological impact of patents rise and fall together, and moreover, both are related to the quantity of new and useful technical information contained in their disclosures. This Article identifies, for the first time, significant differences between the technological impact of valid patents and invalid patents, as measured by the future patented inventions that relate to the original patent. Additionally, significant differences are also observed based on the reason for a patent’s invalidity, with failure to disclose novel technical information corresponding to the weakest future impact. These differences are traced back to quantifiable variations in the information content of valid patents relative to patents invalidated for lack of novelty, obviousness, or indefiniteness. Finally, the analysis completes the circuit by linking the breadth of a patent’s exclusive claims, when validly supported by its disclosure, to the impact that patent has on future technological progress. Taken together, this study finds that the greater the information content of a patent’s disclosure, the higher the probability it will be held valid, and in turn, the larger its expected positive impact on the development of future technologies. This study contributes to patent and cumulative innovation scholarship by investigating how the information disclosure of patents relates both to the private value of their exclusive rights and to the technological progress they promote. Furthermore, this study uncovers significant differences between valid and invalid patents. Moreover, unique metrics are offered for directly analyzing the information content of any patent, providing tools for future research.

Contract Governance in Small-World Networks: The Case of the Maghribi Traders

Lisa Bernstein | March 1, 2019

This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of over 200 Maghribi merchant letters, it develops a network governance-based account of the way that private ordering might have supported exchange among the Maghribi traders with little or no reliance on the public legal system. The analysis reveals that a particular type of bridge-and-cluster configuration of ties among traders and trading centers–known as a “small-world network”—can have strong reputation-based contract enforcement properties that make it possible support trade over long distances, even in environments of noisy information. This structure economizes on information costs by aggregating information in local nodes and then connecting these nodes with ties that are robust enough to transmit the relevant information but sparse enough to do so at a cost far below the cost of keeping all transactors in the market aware of all reputation-relevant information all of the time. Identifying the governance power of small-world networks reveals that the small, geographically concentrated, close-knit groups (known as cliques) that the legal literature has long associated with successful private ordering are not in fact a precondition for well-functioning private order—small-world networks can effectively support trade among large numbers of traders operating at considerable distances from one another. In addition, because the small world network form can be found in many industries today, recognizing its potential contract governance properties should make it possible to better understand the ways trade both is and can be supported in a variety of modern markets.

Prosecuting in the Shadow of the Jury

Anna Offit | March 1, 2019

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors. Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States. Part II describes the ethnographic research method deployed in this case study. Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors’ evaluations of their cases, evidence, investigations, and plea agreement discussions. Part IV considers several explanations for hypothetical jurors’ perceived relevance to prosecutors’ work beyond their instrumental and strategic value. Part V concludes that the United States Attorney’s Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form. This finding offers a powerful rationale for fortifying the United States jury system and brings a novel perspective to the study of prosecutorial ethics.

A New Strategy for Regulating Arbitration

Sarath Sanga | March 1, 2019

Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, states have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act. In this Article, I argue that states can and should adopt a new strategy: Deter parties from forming such contracts in the first place. The Article proceeds in three parts. First, I explain the problem. Over the last fifty years, the Supreme Court systematically immunized arbitration provisions against every plausible contract defense. Yet the Supreme Court continues to insist that, just as the Federal Arbitration Act requires, arbitration agreements are still subject to “generally applicable contract defenses, such as fraud, duress, or unconscionability.” This is false. Second, I present the first large-scale evidence on the pervasiveness of arbitration. The Supreme Court’s arbitration precedents have effect only to the extent private parties agree to arbitrate their disputes. To study this, I use machine-learning protocols to parse millions of filings with the Securities and Exchange Commission and create a database of nearly 800,000 contracts formed by public companies. These contracts include employment agreements, credit agreements, joint ventures, purchases, and others. Employment contracts are by far the most likely to include a mandatory arbitration provision. Finally, I argue that, because the Supreme Court has all but stripped states of their power to enforce contracts, states should adopt policies that deter formation of objectionable contracts. For example, states cannot prohibit forced arbitration of sexual harassment claims. They can, however, prohibit sexual harassment as a subject matter for employment contracts; they can also enforce this with civil penalties and whistleblower rewards. Similarly, states cannot stop an employer from arbitrating under the laws of another jurisdiction, thereby evading mandatory limits on noncompete agreements. But states can declare noncompetes illegal, levy civil fines on employers that form them, and again offer employees whistleblower rewards to report violations. These approaches work because they create a cause of action for a third party—the state—who is not subject to the arbitration agreement. And unlike past efforts, these laws would not be preempted because they do not “derive their meaning from the fact that an agreement to arbitrate is at issue.”

Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination

Issa Kohler-Hausmann | March 1, 2019

podcast icon The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science—the counterfactual causal model—is wrong. In that model, racial discrimination is detected by measuring the “treatment effect of race,” where the treatment is conceptualized as manipulating the raced status of otherwise identical units (e.g., a person, a neighborhood, a school). Most objections to talking about race as a cause in the counterfactual model have been raised in terms of manipulability. If we cannot manipulate a person’s race at the moment of a police stop, traffic encounter, or prosecutorial charging decision, then it is impossible to detect if the person’s race was the sole cause of an unfavorable outcome. But this debate has proceeded on the wrong terms. The counterfactual causal model of discrimination is not wrong because we can’t work around the practical limits of manipulation, as evidenced by both Eddie Murphy’s comic genius in the Saturday Night Live skit “White Like Me” and the entire genre of audit and correspondence studies. It is wrong because to fit the rigor of the counterfactual model of a clearly defined treatment on otherwise identical units, we must reduce race to only the signs of the category, meaning we must think race is skin color, or phenotype, or other ways we identify group status. And that is a concept mistake if one subscribes to a constructivist, as opposed to a biological or genetic, conception of race. The counterfactual causal model of discrimination is based on a flawed theory of what the category of race references, how it produces effects in the world, and what is meant when we say it is wrong to make decisions of import because of race. I argue that discrimination is a thick ethical concept that at once describes and evaluates the actions to which it is applied, and therefore, we cannot detect actions as discriminatory by identifying a relation of counterfactual causality; we can do so only by reasoning about the action’s distinctive wrongfulness by referencing what constitutes the very categories that are the objects of concern. An adequate theory of discrimination must rest upon (1) an account of the system of social meanings or practices that constitute the categories at issue and (2) a moral theory of what is fair and just in various state and private arenas given what the categories are.


Empirical Legal Scholarship: Observations on Moving Forward

Shari Seidman Diamond | March 1, 2019

Empirical legal scholarship was once a novel and contested participant in the legal academy. In the twenty-first century, it has emerged as an active and valued player. That is not to say that empirical research has replaced doctrinal scholarship, or even that an empirical perspective is uncontroversial as a foundation for conclusions about how the legal system ought to operate. The current legal landscape, however, does reflect that empirical legal scholarship is now recognized as a legitimate contributor to our understanding of law and the operation and effects of legal institutions.