The New Legal Process: Games People Play and the Quest for Legitimate Judicial Decision Making

In this Article, I will argue in favor of a new legal process jurisprudence, analogizing the legitimacy of such an approach to the process theory that undergirds the legitimacy of contemporary athletics. In Part I, the Article describes the balkanization of contemporary jurisprudence into increasingly specialized sects. Part II examines the importance of process to contemporary athletic contests and explores the relationship of process to the legitimacy of the outcomes…

Arbitration and Assimilation

Stephen J. Ware
While largely accepting the points that Professor Spitko and I make, Professor Ron Krotoszynski suggests that we present an incomplete picture. He acknowledges the benefits we attribute to privatizing law through arbitration, but contends that we undervalue the costs of doing so. In particular, he expresses “grave doubts about the wisdom of balkanizing the adjudication of basic legal rights in private courts defined by a common membership in a particular…

Judge Not: In Defense of Minority-Culture Arbitration

E. Gary Spitko
In his article, The New Legal Process: Games People Play and the Quest for Legitimate Judicial Decision-Making, Professor Ron Krotoszynski warns that such minority-culture arbitration will further undermine the legitimacy of the federal and state court systems. Professor Krotoszynski fears that a “mass exodus” strategy for avoiding cultural bias in the public courts will sufficiently reduce the opportunities for inter-cultural interaction, such that the potential for harms from misunderstanding and…

Opting in or Opting out: The New Legal Process or Arbitration

Geraldine Szott Moohr
Professor Krotoszynski suggests that judicial legitimacy has fallen victim to the expectations of multiple constituencies, who evaluate judicial competency on the basis of particular substantive results. These “outsider” constituencies— feminists, critical race scholars, queer theorists, critical legal studies scholars, and law and economics advocates— have effectively demonstrated the deficiencies in the judicial system. While applauding their contribution to a fairer and more just society, Professor Krotoszynski laments the damage to…

Toward a Delaware Common Law of Closely Held Corporations

Robert A. Ragazzo
Part I of this Article examines the national law on shareholder rights and obligations in closely held corporations. It will focus on the types of majority shareholder misconduct that have been thought sufficient to justify judicial intervention in the close corporation context. Part II examines the limited Delaware case law on closely held corporations. A close analysis of Nixon reveals that, although the court’s refusal to create special rules for…

Moving up the Residential Hierarchy: A New Remedy for an Old Injury Arising from Housing Discrimination

Kathleen C. Engel
In this Article, I demonstrate that claims for lost access to desirable communities can be easily incorporated into an extant category of compensable injuries under the Fair Housing Act. I then introduce a method for assessing the value of this injury. In brief, the method compares the price of housing that a victim of discrimination obtained to the price of the housing he sought and was unlawfully denied to approximate…

Reining in the “Junior Varsity Congress”: A Call for Meaningful Judicial Review of the Federal Sentencing Guidelines

Joseph W. Luby
Part II presents a brief history of federal sentencing reform, including the rise of judicial and academic dissatisfaction with the Guidelines. To provide a context for the administrative law prescriptions that I propose, Part II reviews some of the Commission’s more questionable judgments. Part III details and criticizes the limited judicial review surrounding the Commission’s implementation of its statutory mandates. Part III focuses upon “statutory review”— the side-by-side comparison of…

Improving the Efficacy of CITES by Providing the Proper Incentives to Protect Endangered Species

Jay E. Carey