Larry Walker: An Intellectual Pioneer

It is hard to picture Larry Walker in retirement. He looks not a day older than when I arrived in Charlottesville twenty-one years ago and remains an energetic and enthusiastic teacher, scholar, and participant in the intellectual life of the Law School. I think of Larry in much the way I do our colleague Glen Robinson-regardless of his chronological age, he is always intellectually in his prime.

Larry is a native of South Carolina who gradually worked his way north to Virginia. He graduated from Davidson College in 1959 and from Duke Law School in 1963. After law school, he served in the Army, practiced law in Atlanta, and served as counsel to the Senate Judiciary Committee. He then received an S.J.D. degree from Harvard to prepare for an academic career, which he began at the University of North Carolina Law School.

Larry taught Civil Procedure among other things, and like many teachers of that subject, routinely explained the logic behind procedural rules with reference to widely shared assumptions about human behavior and psychology. But he found himself wondering why lawyers took those assumptions to be true.

That led him to seek out John Thibaut, a social psychologist at UNC whose research focused on perceptions of fairness. They set out together to study the fairness of legal procedures-not from the standpoint of moral theory or intuition but as perceived by the parties to a legal dispute. In doing so, Larry can fairly be called one of the pioneers in the use of experimental methods in law.

Theirs was interdisciplinary research at its finest, making important contributions both to law and psychology. At that time, research on perceptions of fairness in psychology focused almost entirely on the distribution of resources. Thibaut and Walker opened a rich vein of research by turning attention to subjects’ perception of the fairness of the procedure by which a distribution was determined. Their research was part of a revolution in social psychology that affected not only thinking about law, but about business and public policy, among other things.

The work was no less revolutionary in the legal academy. In the 1970s, law and social science meant law and economics, and law and economics meant the application of microtheory to the analysis of legal rules. Thibaut and Walker’s work, by contrast, drew on psychology and used empirical methods to test theory instead of using theory to explain doctrine.

One of their early experiments involved the resolution of a simulated dispute between experimental subjects.[1] They compared two dispute-resolution procedures, one adversarial in the style of Anglo-American litigation and one inquisitorial in the style of continental European adjudication. They found that subjects perceived the adversarial system, which gives the parties themselves more control over the evidence and arguments presented, as more fair than the inquisitorial system. Later work found that experimental subjects were more likely to conclude that the substantive outcome of litigation was fair if they had first concluded that the procedure was fair.[2]

Larry visited here and, fortunately for Virginia, accepted an offer to join our faculty in 1978. Shortly after his arrival, the Law School became the first American law school to hire a non-lawyer psychologist as a full-time member of the faculty. John Monahan’s hire was a testament to the Law School’s strong emphasis on interdisciplinary study. It also gave Larry the opportunity to continue collaborating with an outstanding psychologist. Thus began a long and productive partnership that has produced some of the most influential and thoughtful scholarship on law and social science methods ever written, a collaboration that Larry has identified as the highlight of his professional career.

John and Larry’s first project was a casebook, Social Science in Law, the first of its kind, published in 1985 and still widely in use today in its 6th edition.[3] The casebook project forced them to think broadly and systematically about the use of social science research in legal disputes. John and Larry concluded that social science was used in litigation for three basic purposes. The first two were not novel: social science methods could be used to establish case specific facts. Empirical results and theory from the social sciences could be used as a source of authority that could inform doctrine. The third, however, was novel; they noted that social science research is often used as a “framework,” as they put it, to guide the court in determining facts. For example, research into the accuracy of visual memory can help a fact-finder decide how much weight to assign to an eyewitness’s testimony about a perpetrator’s height or clothing. This taxonomy of the use of social science research shaped John and Larry’s research agenda for several years and produced a series of articles that to this day inform the use of social science in litigation.[4] They then turned to a number of discrete problems of social science methodology within law.[5]

To his faculty colleagues, Larry’s infectious good humor and openness have been as important as his intellectual contributions. Larry’s boisterous, exuberant laugh communicates uninhibited pleasure and has rung frequently through these halls for the past thirty-three years. He is a wonderful friend as well as a wonderful colleague. He and his wife Sharon have been a delightful presence at the Law School and we all hope to have the benefit of their friendship for many years to come.


[1] See John Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis (1975) (summarizing several articles that reported the findings of a series of Thibaut and Walker’s laboratory experiments comparing “adversarial” and “inquisitorial” procedures).

[2] See Laurens Walker, E. Allan Lind & John Thibaut, The Relation Between Procedural and Distributive Justice, 65 Va. L. Rev. 1401 (1979).

[3] John Monahan & Laurens Walker, Social Science in Law: Cases and Materials (6th ed. 2006).

[4] See, e.g., United States v. Hessling, 845 F.2d 617, 621 n.1 (6th Cir. 1988); Tuli v. Brigham & Women’s Hosp., 592 F. Supp. 2d 208,210 n.2 (D. Mass. 2009).

[5] See John Monahan & Laurens Walker, A Judges’ Guide to Using Social Science, 43 Ct. Rev. 156 (2007); John Monahan, Laurens Walker & Gregory Mitchell, The Limits of Social Framework Evidence, 8 Law, Probability & Risk 307 (2009); Laurens Walker & John Monahan, Sampling Evidence at the Crossroads, 80 S. Cal. L. Rev. 969 (2007); Laurens Walker & John Monahan, Scientific Authority: The Breast Implant Litigation and Beyond, 86 Va. L. Rev. 801 (2000).

The Insignificance of Proxy Access

Proxy access is the right of shareholders to nominate directors and to have their nominees included in the company’s proxy statement. Because proxy access is viewed as dramatically lowering the costs of an election contest, both proponents and opponents of proxy access predict that it will have a significant impact. Contrary to this conventional wisdom, we argue that proxy access will lead to few shareholder nominations, that most of these nominees will be defeated, and that the occasional nominee who may get elected will have little impact.

Based on past involvement in shareholder activism, we believe that neither mutual funds nor private pension funds would make significant use of proxy access. Certain large public pension funds have shown a modest interest in activism and may make some nominations. The entities with the greatest interests in activism hedge funds and union-affiliated funds-would generally not satisfy the ownership and holding period requirements.

When compared to traditional proxy contests and to withhold campaigns, proxy access involves significant disadvantages while promising only modest advantages. The cost savings of proxy access compared to traditional contests are overstated because most proxy contest expenses are discretionary campaign expenses or relate to other expense items that are unaffected by the proxy access rule. By contrast, the limitations that come with proxy access are significant: the number of nominees a shareholder can propose is limited; the level of shareholder support required to gain a seat, as a practical matter, is increased; the company retains control over the design of the proxy cards; and the company retains exclusive access to preliminary voting information.

When compared to withhold-vote campaigns, proxy access has the advantage that, if it succeeds, it results in the election of a dissident director. But this benefit must be weighed against countervailing factors that reduce the likelihood of success: the higher level of shareholder support required for success, the greater challenge of positive versus negative campaigning, and the vulnerability of the dissident shareholders and their nominees to attacks by the company for lack of qualification or conflicts of interest. Such attacks will resonate especially for nominees by unions and public pension funds and may make it difficult to find qualified nominees.

Overall, we believe that proxy access would have some undesirable effects-it would result in some increase in company expenses and may, rarely, increase the leverage of shareholders whose interests conflict with those of shareholders at large-and some desirable effects-it may occasionally lead to the election of nominees to recalcitrant boards, where such nominees may have a modest impact on governance and a marginal impact on company value. None of these effects is likely to be very material, and the net effect is likely to be close to zero.

Securing Sovereign State Standing

States can premise standing to sue as plaintiffs in federal court upon three main categories of interests—proprietary, sovereign, and quasi-sovereign interests. Proprietary and sovereign interests, this Note contends, are held independently by states qua states, whereas quasi-sovereign interests are derivative of citizens’ collective welfare concerns. This Note attempts to correct the pervasive confusion clouding the boundary between sovereign and quasi-sovereign interests, arguing that they are meaningfully distinct and should be treated differently.

This argument is especially important in the context of the jurisdictional bar instituted by the Supreme Court in Massachusetts v. Mellon, which prohibits states from pursuing “parens patriae” suits to shield their citizens from federal law. Parens patriae is a special type of representative standing through which states can vindicate generalized citizen interests. This Note argues that states act as parens patriae in the relevant context when they assert quasi-sovereign standing only—and thus not when they seek to defend their sovereign interests. The Mellon bar, therefore, should disallow only certain quasi-sovereign suits; it should be wholly inapplicable to sovereignty-vindicating claims.

Finally, a look at Virginia’s current attack on the constitutionality of recent federal healthcare reform, Virginia ex rel. Cuccinelli v. Sebelius, sharpens and contextualizes these issues. Virginia has asserted purely sovereign interests, but the federal government defendant has argued—incorrectly—that the Mellon bar should nevertheless apply.

This discussion is both timely, given the immediacy and prominence of the standing issues underlying the Virginia healthcare challenge, and significant, given its importance for fundamental and enduring issues of American federalism.