This paper aims to assist analysis of and reflection on the range of options for ensuring Social Security's future while not adding yet another solvency proposal to the already ample supply. It begins with several background observations. These are followed by a discussion of personal (or private) accounts to which former President George W. Bush gave salience and which continue to be included among the talking points of politicians hostile to Social Security's fundamental structure. Next the paper reviews the more likely program changes that would (unlike personal accounts) directly address Social Security's long-term "deficit." That section is followed by one sketching possible revisions in the program's benefit structure designed to achieve ends other than reducing Social Security expenditures. The paper concludes with some observations on the role that framing has played in past debates over Social Security's future. Finally, there is an appendix explaining the central terms and components of the current program. It is provided for readers who might otherwise be unclear about the meaning or implications of changing Social Security's "Primary Insurance Amount" formula or its "Full Retirement Age."

Since these tried cases are not representative of the larger class of disputed cases, it is risky to draw any inference from the outcome of tried disputes to the soundness of the legal rules by which these disputes are decided. The sample of tried cases may contain many victories for the plaintiff and many for the defendant. One cannot infer from that fact alone, however, the fairness or desirability of the underlying legal rules. If the rules are heavily weighted for the plaintiff, then the closeness of the tried cases is consistent with there being many cases in which plaintiffs recover handsomely without litigation. Similarly, if the rules are weighted heavily for the defendant, then the total mass of cases brought will, by the time of trial, be reduced, as defendants will be able to settle many cases on favorable terms. The observation of hotly contested trials is therefore wholly consistent with the underlying rules that are skewed toward the plaintiff, toward the defendant, or toward neither side. The power of the selection effect is generally recognized in the academic literature. It has been the basis of complex litigation models and has been subjected to empirical testing and debate.

Closely akin to but clearly distinguishable from, the selection effect, is the so-called 50 percent hypothesis. This hypothesis is a more specific prediction than the selection effect. The 50 percent hypothesis posits that the set of tried cases culled from the mass of underlying disputes will result in 50 percent victories for plaintiffs and 50 percent victories for defendants. The 50 percent hypothesis can conveniently be regarded as the limiting case of the selection effect theory. It follows, therefore, that any empirical corroboration of it generates powerful support for the more general selection hypothesis. This article suggests the incompleteness of existing methods of statistically testing the 50 percent hypothesis and reformulates the criteria for accepting or rejecting the hypothesis.

This Article uses both impressionistic conjecture about litigation and formal litigation theory to develop and test hypotheses about factors affecting outcomes in civil rights and prisoner litigation. It examines data from nearly all federal § 1983 cases, title VII employment discrimination cases, and prisoner cases tried between 1978 and 1985 for which the Administrative Office of United States Courts reported an outcome. The Article explores four topics: success rates at trial, examined by category of case; differences in case outcomes across geographical regions; differences in success rates between cases tried by judges and those tried before juries; and differences in outcomes between litigation involving the federal government and suits in which the federal government is not a party.

Plainly, interested observers of the system have radically different views of litigation reality. This article explores why this might be so. For example, why is it that we cannot identify a civil rights explosion when judges and others perceive one? How can a Supreme Court Justice announce a geometric increase in civil rights litigation after enactment of a fee-shifting statute at a time when there was little support for even arithmetic growth? Why is it that some observers suspect that constitutional tort litigation is highly successful when, by most tangible measures, it is one of the less successful classes of federal litigation?

The paper first establishes that the Obama administration’s conception of empathy is clear, reasonable, and workable, but reviews the political considerations that seem to have stymied overtly embracing empathy as a consideration. The paper then shows that the role empathy might play for a particular justice once on the Court is uncertain, suggesting that perhaps empathy should not be the leading consideration advanced by the president in choosing a nominee. Overall, this paper reveals the arguments for why empathy is a meaningful and admirable quality and should remain a consideration. The paper also shows that for both policy and pragmatic political reasons empathy should probably not occupy the central public role initially insinuated by President Obama in the nomination of Sonia Sotomayor. In order to structure the argument the paper culls the nomination and confirmation records and testimonies of four current Justices purportedly nominated and confirmed to the Court because of the unique perspective they would bring as Justices: Clarence Thomas, appointed by George H. W. Bush; Ruth Bader Ginsburg, appointed by Bill Clinton; and Sonia Sotomayor and Elena Kagan, both nominees of Barack Obama and by default arguably symbolic of his empathy standard.

This paper was initially written for the course “Congress, the Constitution, and the Supreme Court” at University of Pennsylvania Law School while the author was a visiting student at Penn. The course was taught by former U.S. Senator Arlen Specter and former General Counsel to Senator Specter, Matthew Wiener. The views in the paper are the author’s own.

Sound policymaking requires information about how the legal system operates. Critical information about its past operation often is not available in published texts, opinions, or routinely maintained databases. This article illustrates what should be obvious-that archival sources can and should inform policymaking. This exercise may be necessary or appropriate because policymakers too often ignore available information and neglect the historical record. Neglecting the historical legal record not only deprives policymakers of useful information. Information vacuums, like natural vacuums, will be filled. Absent reliable information, special interest groups with little incentive to accurately describe the legal system's operation will fill the vacuum with self-serving information and analysis.

Part II of this article discusses long-term patterns in three areas of recent policy discussion: tort awards, trial rates, and class actions. Claims of ever-increasing awards persist, both for punitive and compensatory damages. Without access to long-term data about trial-level awards, it is impossible to know how awards have changed. Two data sets illustrate the importance of archival information in describing the long-term trends in awards. The data supply no evidence of a broad-based, real increase in tort awards. The long-term decline in trial rates needs to be assessed using historical data about the procedural stages of case disposition. Historical information is least available about class action activity. Recent analysis by researchers at the Federal Judicial Center shows that analysis of case records can illuminate modem class action discussions. Little evidence yet exists that state and federal courts process class certification significantly differently.

Part III explores the uphill struggle to allow historical legal data to tell their story. The results relating to damages awards and class actions contradict the public relations efforts and empirical studies funded by groups with policy agendas. These groups engage in disinformation campaigns that distract from empirical realities. Accurate historical information about legal cases supplies the raw data needed for valid empirical description. Disinterested analysis of the information must be promoted to assure that policymaking is not captured by the policy agendas of well-funded special interest groups.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty now damaging EMU prospects. That is the matter of how best to defend, legally speaking, continuity of contract in the event of some basic change in the current Euro regime.

The hope is that sizing up and breaking down this question into its constituent parts might accomplish at least three related aims. One is to render the hypothetical problems raised by the question more tractable than they would otherwise be. Another is to facilitate the development of provisional plans of approach to such problems in the event they should present themselves. Finally, yet another is to afford confidence to the markets by enabling contingency planning of the sort just suggested, thereby lessening the likelihood of self-fulfilling ‘run’-like activity on European debt instruments.