Finding the Proper Balance: A Look at the Continuing Development of Campus Suicide Policies

This Note will address the difficulties that university officials have faced in recent years when addressing suicidal students and the mixed signals that have been sent by courts and legislatures regarding a university’s duties toward suicidal students—signals that influence the development of university suicide policies, and ultimately push many colleges toward a conservative, hands-off course 
of action. This Note will suggest an alternative model for delineating the legal duties of universities with respect to suicidal students—a model that attempts to balance the privacy and civil rights of the suicidal student, the need for suicidal students to receive proper treatment, and the liability concerns of universities. The model emphasizes the importance of using campus suicide policies to push students toward getting the help and treatment they need to cope with their mental health problems. At the same time, the suggested model would allow university officials to maintain control over determining whether a student is permitted to remain on campus.

From Langdell to Law and Economics: Two Conceptions of Stare Decisis in Contract Law and Theory

In his classic monograph, The Death of Contract, Grant Gilmore argued that Christopher Columbus Langdell, Oliver Wendell Holmes, and Samuel Williston trumped up the legal credentials for their classical bargain theory of contract law. Gilmore’s analysis has been subjected to extensive criticism, but its specific, sustained, and fundamental charge that the bargain theory was based on a fraudulent misrepresentation of precedential authority has never been questioned. In this Essay, I argue that Gilmore’s case against the classical theorists rests on the suppressed premise that the precedential authority of cases resides in the express judicial reasoning used to decide them. In contrast, I argue that the classical theorists implicitly presuppose that the precedential authority of cases consists in the best theory that explains their outcomes, even if that theory is inconsistent with the case’s express judicial reasoning. The classical view of precedential authority completely defuses Gilmore’s charge of fraud. In Gilmore’s view, merely demonstrating the inconsistency between the proposition for which the classical theorists cited a case and the express reasoning in that case suffices as proof of misrepresentation. But in the classical theorists’ view, the express reasoning in a case is simply a theory of its precedential authority, which, like any theory, can be wrong. Thus, the classical theorists simply reject Gilmore’s claim that a case cannot properly be cited for a proposition inconsistent with its express reasoning. The real dispute, then, between Gilmore and the classical theorists is over the nature of precedential authority and not the content of contract law.

Having reframed the classic death-of-contract debate, I then trace these competing conceptions of precedential authority through the major schools of contemporary contract theory. I argue that a contract theory’s embrace of one view instead of the other can be explained by the relative priority it accords to each of the two components in a conception of adjudicative legitimacy. A conception of adjudicative legitimacy consists in a theory of what it means for a decision to be based on law and a theory of what is required for law to be justified. I explain why theories according priority to the former tend to subscribe to the precedents-as-outcomes view, while theories according priority to the latter tend to favor the express reasoning view. The Essay concludes by arguing that the economic analysis of contract law subscribes to the precedents-as-outcomes view and therefore is the contemporary jurisprudential successor to the late 19th century classical theorists.

Overcoming Procedural Boundaries

This article questions one of the most deeply-rooted taxonomies of modern legal thought, that dividing civil and criminal procedure. It highlights a fundamental shortcoming of our legal system that stems from its failure to provide adequate procedural protections to individuals who are sued by the government or large organizational entities and face severe civil sanctions, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. Many justifications have been offered for the civil-criminal rift in procedure. Some argue that the distinction rests on utilitarian grounds, while others point to egalitarian rationales. Still others invoke the expressive role played by procedure, with others focusing on the unique role of the state in a liberal democracy. The article challenges each of these rationales, showing that they are obsolete, if not completely unfounded, and proposes a simple alternative: cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction or remedy. The balance of power axis refers to the model’s two sets of procedural rules, aimed at remedying asymmetry problems inherent to litigation. One set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (comprised of both governmental bodies and large organizational entities such as big corporations and financial institutions) or else individuals (including small businesses); a second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The model’s second axis focuses on the degree of harm that would be generated by an adverse decision for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. Applying these two parameters, our proposed procedural regime maps out the entire procedural landscape. The resulting redistribution of procedural protections diverges significantly from the current regime. The article shows that the proposed model, as a regime based on the true goals of procedure, in fact, better realizes the ends underlying the rationales used to justify the current procedural regime. It concludes with some remarks about the feasibility of such a reform.