Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Why do family and friends take each other to court, what happens when they get there, and how does the litigation affect their ongoing relationship? Based on interviews and observations of pro se small-claims litigants in a mid-sized New England city, this paper argues that multiple motivations drive "intimate litigants" into court, and that these litigants consequently deploy irreducibly interwoven logics of rationality and morality when presenting their cases. While intimate litigants are, like most litigants, instrumentally interested in securing a favorable verdict, they also seek to address an increasingly intractable, emotionally and morally laden disagreement. For this reason, despite their disagreement over the dispute's substance, intimate litigants actually cooperate with each other in the courtroom to maintain a shared sense among themselves and among court personnel of the case's high-stakes moral dimension. The closer the relationship, the more important is this dimension of the case and the more fully intertwined are the argumentative logics.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Legal scholars often classify litigants into “one-shotters” and “repeat players” consistent with Mark Galanter’s landmark article on “Why the ‘Haves’ Come Out Ahead”, but these categories are typically used in political science as placeholders for the “upperdogs” and “underdogs” who differ more in their resources or the litigation experience of their counsel. These categories ignore one of the most intriguing aspects of Galanter’s original work, which postulates that “repeat player” participants will litigate differently than those who are less invested in the future state of the law. In this article, I investigate the appeal decisions of litigants involved in federal preemption litigation in the federal district courts. The “repeat players” thesis suggests that differing litigation strategies across types of litigants can affect the content of legal rules, but to date most research within judicial politics examines court outcomes as a product of judges’ choices. Using original data collected from the Rehnquist Court era—a period of substantial change for economic regulation and federalism law—I analyze the sensitivity of potential appellants’ decisions to legal and political circumstances and the effects of litigant choices on the economic agenda of the federal judiciary.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: The Equal Employment Opportunity Commission is a major political actor, setting policy in a variety of ways—issuing interpretive regulations and “guidelines”; investigating and conciliating individual charges of discrimination; and (relevant here) litigating cases on behalf of aggrieved workers. Over the last 10 years, the EEOC filed about 4000 cases against private employers seeking monetary and injunctive relief to compensate victims of discrimination. We are in the early stages of a major project examining these cases, looking at the process by which they are litigated in federal district courts and at their outcomes. This paper looks at the injunctions in the larger, class-action-like cases; we hope to test the conventional wisdom that structural reform litigation is a nearly defunct phenomenon, and to explore trends in the terms of the injunctions.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: As a partial remedy to the reduction of First Amendment protections for religious action in Employment Division v. Smith (1990), Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. Among other things, RLUIPA's core provisions require local zoning and historic preservation officials to exempt religious organizations from burdensome regulations unless doing so would threaten a compelling governmental interest.

To what extent has RLUIPA protected religious rights? Judging by litigation outcomes alone, the evidence looks bleak; indeed, in the reported decisions to date, religious organizations have usually failed in court when pressing RLUIPA claims. Yet as this paper shows, RLUIPA has indeed fostered greater accommodation of religion in numerous instances around the country -- because its statutory remedies have increased the leverage of religious interests in bargaining outside of court. Simply put, critics of RLUIPA who decry its ineffectiveness as a judicial remedy may be missing the forest for the trees. In dozens of instances of church-state conflict from coast to coast, religious organizations have effectively used RLUIPA -- and its implicit threat of judicial remedy -- as an effective tool in gaining accommodations through negotiations. In those cases, no resort to courts and formal litigation ever became necessary.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: The standards for admitting linguists as expert witnesses in civil and criminal cases in American courts are, in the end, set on a case-by-case basis by the courts having jurisdiction, and in recent years courts have seemingly been reluctant to exclude proposed linguistics “experts” as unqualified. This paper describes several recent cases in American trademark litigation in which the methodologies employed by the linguistic experts were clearly deficient, and in which the deficiencies appear to stem from inadequate training and experience on the part of the putative expert. While no credentialing agency exists in America for forensic linguistics, the paper proposes a number of putative minimal standards that the legal profession might use in screening putative linguistic experts, including not only an advanced university degree in linguistics, experience in teaching and research, and active membership in recognized relevant scholarly organizations, but also training and/or experience in the relevant subfields (e.g., lexicography in the case of one testifying about trademarks).