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The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting justices want to vacate the field altogether. The Supreme Court's most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several justices expressed interest in the concept of partisan symmetry—the idea that apian should treat the major parties symmetrically in terms of the conversion of votes to seats—and suggested that it could be shaped into a legal test. In this Article, we take the justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis. Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years—and peaking in the 2012 election—plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several are likely to remain extreme for the remainder of the decade, as indicated by our sensitivity testing. Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and 8 percent for state house plans, but only if the plans probably will stay unbalanced for the remainder of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies or were inevitable due to the states' political geography. This approach would neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court's \"unanswerable question\" of \"[h]ow much political ... effect is too much.\"

We examine the relation between disclosure tone and shareholder litigation to determine whether managers' use of optimistic language increases litigation risk. Using both general-purpose and context-specific text dictionaries to quantify tone, we find that plaintiffs target more optimistic statements in their lawsuits and that sued firms' earnings announcements are unusually optimistic relative to other firms experiencing similar economic circumstances. These findings are consistent with optimistic language increasing litigation risk. In addition, we find incrementally greater litigation risk when managers are both unusually optimistic and engage in abnormal selling. This finding suggests that firms can mitigate litigation risk by ensuring that optimistic statements are not contradicted by insider selling. Finally, we find that insider selling is associated with litigation risk only when contemporaneous disclosures are unusually optimistic.

We explore the role of sex in judging by addressing two questions of long-standing interest to political scientists: whether and in what ways male and female judges decide cases distinctly—\"individual effects\"—and whether and in what ways serving with a female judge causes males to behave differently—\"panel effects.\" While we attend to the dominant theoretical accounts of why we might expect to observe either or both effects, we do not use the predominant statistical tools to assess them. Instead, we deploy a more appropriate methodology: semiparametric matching, which follows from a formal framework for causal inference. Applying matching methods to 13 areas of law, we observe consistent gender effects in only one—sex discrimination. For these disputes, the probability of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant. These results are consistent with an informational account of gendered judging and are inconsistent with several others.

Platform companies disrupt not only the economic sectors they enter, but also the regulatory regimes that govern those sectors. We examine Uber in the United States as a case of regulating this disruption in different arenas: cities, state legislatures, and judicial venues. We find that the politics of Uber regulation does not conform to existing models of regulation. We describe instead a pattern of “disruptive regulation”, characterized by a challenger-incumbent cleavage, in two steps. First, an existing regulatory regime is not deregulated but successfully disregarded by a new entrant. Second, the politics of subsequently regulating the challenger leads to a dual regulatory regime. In the case of Uber, disruptive regulation takes the form of challenger capture, an elite-driven pattern, in which the challenger has largely prevailed. It is further characterized by the surrogate representation of dispersed actors—customers and drivers—who do not have autonomous power and who rely instead on shifting alignments with the challenger and incumbent. In its surrogate capacity in city and state regulation, Uber has frequently mobilized large numbers of customers and drivers to lobby for policy outcomes that allow it to continue to provide service on terms it finds acceptable. Because drivers have reaped less advantage from these alignments, labor issues have been taken up in judicial venues, again primarily by surrogates (usually plaintiffs’ attorneys) but to date have not been successful.

This article examines the relationship between fiduciary liability and knowing assistance liability. We first consider the question as one of precedent and principle. What can be gleaned from case law and theory as to the nature of the two liabilities and, therefore, how they should relate to each other? We then consider three questions concerning the interaction of fiduciary and knowing assistance liability: (a) whether the plaintiff's release of one party will necessarily release others involved in the same breach of fiduciary duty; (b) whether plaintiffs can make 'split elections' between fiduciaries and knowing assistants (that is, recover gain-based relief from some defendants and compensatory relief from others); and (c) whether wrongdoing fiduciaries and knowing assistants can seek contribution from each other. Each issue has recently been considered by an intermediate Australian court but not in completely satisfactory ways. We show how the resolution of these issues depends upon, and will contribute to, clarification of the relationship of the two liabilities.

The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated \"clearly established law, \" which usually requires specific precedent on point. This Article argues that the qualified immunity doctrine is unlawful and inconsistent with conventional principles of statutory interpretation. Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law \"good-faith\" defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides \"fair warning\" to government officials, akin to the rule of lenity. On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. Furthermore, even if these things were otherwise, the doctrine of qualified immunity would not be the best response. The unlawfulness of qualified immunity is of particular importance now. Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat. The unlawfulness of qualified immunity is of particular importance now. Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.

The fields of animal law and environmental law have an uneasy relationship. At a basic level, they are intertwined by the fundamental observation that animals, human and nonhuman, exist in the environment. The rights that advocates seek for animals are far more robust and categorically reject that the inherent purpose of an animal is to serve human interests and uses. The plaintiffs seek release of these animals to a setting in which they can live more natural lives, such as a sanctuary, given that these animals generally cannot be placed in a fully natural, wild environment. Rights of nature approaches are instructive to the cause of animal rights, intellectually and practically. They do not offer a model to be copied wholesale, but instead call for careful study of the parallels and points of disconnection, of the commonalities and the conflicts, with the potential for significant results.

Using a unique and rich database of high-technology firms in China, we show that effective enforcement of intellectual property rights at the provincial level is critical in encouraging financing and investing in R& D. Better enforcement of intellectual property (IP) rights positively affects firms' ability to acquire new external debt and allows firms to invest in more R&D, generate more innovation patents, and produce more sales from new products. Our results suggest that facilitating financing and investing in R&D are the channels through which better IP rights enforcement can affect economic growth.

We study ingroup bias—the preferential treatment of members of one's group—in naturally occurring data, where economically significant allocation decisions are made under a strong non-discriminatory norm. Data come from Israeli small claims courts during 2000—2004, where the assignment of a case to an Arab or Jewish judge is effectively random. We find robust evidence for judicial ingroup bias. Furthermore, this bias is strongly associated with terrorism intensity in the vicinity of the court in the year preceding the ruling. The results are consistent with theory and lab evidence according to which salience of group membership enhances social identification.

This article offers a theoretical and empirical analysis of legal endogeneity-a powerful process through which institutionalized organizational structures influence judicial conceptions of compliance with antidiscrimination law. It finds that organizational structures (e.g., grievance and evaluation procedures, antiharassment policies) become symbolic indicators of rational governance and compliance with anti-discrimination laws, first within organizations, but eventually in the judicial realm as well. Lawyers and judges tend to infer nondiscrimination from the mere presence of those structures. Judges increasingly defer to organizational structures in their opinions, ultimately inferring nondiscrimination from their presence. Legal endogeneity theory is tested by analyzing a random sample of 1,024 federal employment discrimination opinions (1965-99) and is found to have increased over time. Judicial deference is most likely when plaintiffs lack clout and when the legal theories require judges to rule on unobservable organizational attributes. The authors argue that legal endogeneity weakens the impact of law when organizational structures are viewed as indicators of legal compliance even in the face of discriminatory actions. Adapted from the source document.