In Hedonic Adaptation and the Settlement of Civil Lawsuits, John Bronsteen, Christopher Buccafusco, and Jonathan Masur offer an interesting application of the nascent research on hedonic psychology to a mature economic model of litigation.  Informed by empirical research on individual happiness and hedonic adaptation, the authors argue that delays in civil trials create greater economic opportunities for settlement of civil lawsuits. In short, they argue that where a plaintiff suffers an adaptable injury—i.e., an injury that does not permanently affect the happiness of an individual—settlement is easier for two reasons: (1) Over time, “the degree to which a plaintiff believes she has been ‘wronged’ will dissipate,” and therefore, (2) the plaintiff will accept a lower settlement offer because she will believe that less money is required to make her whole.  I offer first a number of positive critiques about the data on hedonic adaptation and on the authors’ arguments about how the litigation process affects individual adaptation. Then I consider the normative question of whether the judicial system ought to foster post-adaptation settlements.

Judicial decisions provide a wealth of information—but information about what? In recent years, the empirical study of judicial decisions has exploded in popularity as legal academics and social scientists have conducted statistical analyses of court decisions in many substantive areas of law. The purpose of these empirical investigations is to learn something about the way in which judges decide cases. Typically, these studies ask whether a judge’s identity or background—her ideological disposition, race, education, experience, and so forth—influence the way in which she decides cases.  Rarely, and only when demanding conditions are met, have researchers looked to the success rates in published cases to glean information about the facts that underlie those lawsuits.

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, and a related study by one of us, Not Like the South?: Regional Variation and Political Participation Through the Lens of Section 2.

In Procedures as Politics in Administrative Law, Lisa Bressman pulls together two disparate traditions in contemporary administrative law scholarship: one that stems from the work of generations of leading legal scholars and the other that emerges, more recently, from leading work in positive political theory (PPT) in political science. Professor Bressman explains why and how theories of judicial control of regulatory administration must take account of both how agencies function and the political environment in which administrative decisionmaking occurs. After all, administrative law shapes administrative politics in profound ways. Congress configures administrative procedures in the shadow of legal doctrines; moreover, courts are themselves deep in the business of procedure-configuring, as modern American administrative law amply demonstrates.

Professor Garrett’s impressive empirical analysis of the first 200 postconviction DNA exonerations in the United States (“Garrett Study”) has the potential to affect contemporary debates surrounding our nation’s criminal justice system. This Response explores this potential by harnessing the Study’s data in support of arguments for and against a contested doctrinal proposition—that guilt-based harmless error rules should never apply in death penalty appeals.

In Procedures as Politics in Administrative Law, I aim to connect the insights of legal scholars and positive political theory (PPT) scholars about the purpose of administrative procedures. For some time now, legal scholars and PPT scholars have maintained parallel but largely independent discussions of this subject. According to legal scholars, administrative procedures serve due process or rule-of-law values and often run at odds with political values, including accountability and efficiency. Because administrative law has vacillated over time between procedures and politics, it seems to contain significant tensions. For example, agencies must confront the prospect of judicial scrutiny but are due judicial deference for their decisions. Agencies must choose procedures that command the force of law, but have a choice among procedures. Agencies must answer for their failures to enforce the law but may choose whether to enforce the law. Within this framework, legal scholars have divided themselves into two camps: those who favor procedure, and those who favor politics.