In Exploring Panel Effects, Professor Pauline Kim revisits the panel-effects study she advanced in Deliberation and Strategy on the United States Courts of Appeals. Professor Kim reaffirms that despite its critical discussion of Frank Cross & Emerson Tiller’s seminal piece on whistleblower theory, Deliberation and Strategy sought to focus solely on panel effects, and did not seek to “test” Cross & Tiller’s hypothesis. Though Kim believes that Cross & Tiller’s theory is in need of updating, she insists that it remains a seminal contribution to the literature and that she only sought to distinguish and clarify the terminology she uses in discussing panel effects. Kim finds that while the findings of her study were consistent with many elements of whistleblower theory, it did discredit the notion that appellate decisions are influenced by the presence of a minority panel member able to “blow the whistle” by dissenting.  Professor Kim then addresses the methodological concerns raised by Professors Lindquist & Martinek and Linkous & Tiller in their responses, and concludes that both sets of authors are correct when they find that more large-scale, quantitative studies are needed before a comprehensive explanation of panel effects can be offered.

In Punitive Damages and Private Ordering Fetishism, Professor Dan Markel responds to Professor Krauss’s and Professor Owen’s critiques of his piece, How Should Punitive Damages Work?. Professor Markel seeks to clarify some misunderstandings regarding that piece, including how his proposal for reforming punitive damages schemes would work in practice.  He begins by noting that while observers of tort law attempt to analyze reform proposals for punitive damages within the traditional framework, his prescriptions are largely forward-looking and should be viewed in light of the pluralistic worldview Markel takes in How Should Punitive Damages Work?. Markel argues that punitive damages can be seen as advancing a number of separate goals—including cost internalization, victim vindication, and the public interest in retributive justice—without threatening its essential restitutionary attributes. With the right safeguards, says Markel, a system of extracompensatory damages can advance these purposes. He concludes by noting that Krauss’s and Owen’s fears regarding the economic and legal consequences of such a pluralistic punitive damages framework will not be realized, provided that the proper constraints are put in place.

In Testing the Master Tools, Professor Kimberly West-Faulcon responds to Professors Guy-Uriel Charles and Girardeau Spann, who critiqued West-Faulcon’s article The River Runs Dry. The River Runs Dry attacked the assumption that compliance with state anti–affirmative action law has led to plunging minority admissions. West-Faulcon reaffirms her argument that race-conscious admissions and hiring practices are not foreclosed by state anti–affirmative action law where those actions are taken in order to comply with the disparate impact provisions of Title VI. Professor West-Faulcon accepts that ideology and politics will inevitably influence the discussion, but goes on to argue that factual assumptions undergirding current doctrine need to be revisited. First, she notes that Title VI disparate impact analysis is influenced greatly by inaccurate perceptions of the ability of standardized tests to identify merit, particularly among the most qualified applicants. West-Faulcon argues that the Supreme Court’s analysis in the Ricci firefighter case supports her argument that the strong-basis-in-evidence standard for reviewing affirmative action policies is appropriate, and that many affirmative action policies are justifiable under such a standard. Professor West-Faulcon concludes by noting that as long as ideology continues to influence legal decisionmaking, the discourse on affirmative action must take place in both the doctrinal and ideological realms.