Digital Commons Network^™

The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah Purdy

Faculty Scholarship

In India and China, a population gap has opened between young men and women. There are now about 100 million more men than women in those countries and a few of their neighbors. Many of the "missing women" either were never born because of sex-selective abortion or died in childhood because families devote more medical and other resources to boys. "Missing women" mean men who will never marry. Socially unintegrated young men are associated with a variety of social pathologies; most importantly, they are the prime recruitment targets of nationalist and fundamentalist political groups. Conservative and reactionaries have always argued …

Punitive Damage Awards In Pet-Death Cases: How Do The Ratio Rules Of State Farm V. Campbell Apply?, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

Kelo’S Moral Failure, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.

When Do Interest Groups Use Electronic Rulemaking?, John M. De Figueiredo

Faculty Scholarship

This paper analyzes how electronic rulemaking is affecting the propensity of interest groups to file comments and replies at the Federal Communications Commission. The paper shows that exogenous events and a handful of issues drive filing behavior. Implications of the analysis are discussed.

Incomplete Contracts In A Complete Contract World, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

This paper considers the role that contract doctrine should play in facilitating optimal investment in contractual relationships. All contracts are incomplete in the sense that they do not specify the optimal actions for the buyer and seller in every future contingency. This incompleteness can lead to both under and over-investment in resources specifically targeted to the needs of the other contracting party. To solve these investment problems, economists and legal scholars have looked to complicated contractual solutions and the ownership of assets. This Article offers another solution: contract doctrine. Specifically, we propose a contractual default rule applicable to all contract …

Inequality And Uncertainty: Theory And Legal Applications, Matthew D. Adler, Chris William Sanchirico

Faculty Scholarship

"Welfarism" is the principle that social policy should be based solely on individual well-being, with no reference to 'fairness" or "rights." The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attentioncall this the "ex ante/ex post" problem. The problem arises from the combination of uncertainty-an inevitable feature of real policy choice-and a social preference for equality. If the policymaker is not a utilitarian, but rather has a "social welfare function" that is …

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar

Faculty Scholarship

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. The jury is a unique institution that draws upon laypersons to decide whether a person charged with a crime is guilty or innocent. Although the jury is instructed and guided by a trial judge and procedural rules shape what the jury is allowed to hear, ultimately the laypersons deliberate alone and render their verdict. A basic principle of the jury system is that at the start of trial the jurors should …

Million Dollar Medical Malpractice Cases In Florida: Post-Verdict And Pre-Suit Settlements, Neil Vidmar, Kara Mackillop, Paul Lee

Faculty Scholarship

No abstract provided.

A Pattern Of Parity And Particularity, In Who’S Ahead In Environmental Protection: The United States Or The European Union?, Jonathan B. Wiener

Faculty Scholarship

A debate on the issue of who is ahead in environmental policy with contributions by Michael S. Caplan, Robert Donkers, Meaghan Purvis, Ernie Rosenberg and Jonathan B. Wiener

Agency Law In Cyberspace, Deborah A. Demott

Faculty Scholarship

This short article articulates and defends the proposition that basic doctrines within common-law agency apply readily to transactions and other encounters effected through the internet. In cyberspace, as in physical space, common-law agency specifies the circumstances under which an actor's conduct should carry consequences for another person's legal position unless a statute provides otherwise. Recent cases illustrate an easy translation into cyberspace of concepts that are well-developed elsewhere, including the test of whether a particular relationship amounts to one of agency and whether a person acted with actual or apparent authority to bind another.

Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai

Faculty Scholarship

In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the …

The Executive And The Avoidance Canon, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Welfare Polls: A Synthesis, Matthew D. Adler

Faculty Scholarship

"Welfare polls" are survey instruments that seek to quantify the determinants of human well-being. Currently, three welfare polling formats are dominant: contingent valuation (CV) surveys, quality-adjusted life year (QALY) surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists.This Article seeks to fill that gap.

Part I describes the trio of existing formats. Part II discusses the current and potential uses of welfare polls in governmental decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and …

Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Faculty Scholarship

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …

Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.

Faculty Scholarship

No abstract provided.

Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Faculty Scholarship

Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …

Novel Criminal Fraud, Samuel W. Buell

Faculty Scholarship

The crime of fraud has been underdescribed and undertheorized, both as a wrong and as a legal prohibition. These deficits contribute to contention and uncertainty over the practice of punishing white-collar crime. This Article provides a fuller account of criminal fraud, describing fraud law's open-textured, common-law, and adaptive qualities and explaining how fraud law develops along its leading edge while limiting violence to the legality principle. The legal system has a surprising, often overlooked methodology for resolving whether to treat novel commercial behaviors as frauds: Courts and enforcers often conduct an ex post examination of whether an actor's mental state …