Law Commons^™

Abandoned Criminal Attempts: An Economic Analysis, Murat C. Mungan

Faculty Scholarship

An attempt is 'abandoned' if the criminal, despite having a chance to continue with his criminal plan, forgoes the opportunity to do so. A regime that makes abandonment a defense to criminal attempts provides an incentive to the offender to withdraw from his criminal conduct prior to completing the previously intended offense. However, the same regime may induce offenders to initiate criminal plans more often by reducing the expected costs associated with such plans. The former effect is called the marginal deterrence effect and the latter is called the ex-ante deterrence effect of the abandonment defense. This Article formalizes a …

Lessons Learned From Ferguson: Ending Abusive Collection Of Criminal Justice Debt, Neil L. Sobol

Faculty Scholarship

On March 4, 2015, the Department of Justice released its scathing report of the Ferguson Police Department calling for “an entire reorientation of law enforcement in Ferguson” and demanding that Ferguson “replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.” Unfortunately, abusive collection of criminal justice debt is not limited to Ferguson. This Article, prepared for a discussion group at the Southeastern Association of Law Schools conference in July 2015, identifies the key findings in the Department of Justice’s report …

Transforming News: How Mediation Principles Can Depolarize Public Talk, Carol Pauli

Faculty Scholarship

News media interviews bring opposing voices into the public forum where, ideally, audience members can deliberate and reach democratic compromise. But in today’s politically polarized atmosphere, partisans increasingly accuse each other of being a threat to the country, and prospects for compromise have suffered. Journalists have been urged to take a more affirmative role, promoting problem-solving and opposing conflict. They have stopped short, citing professional norms that demand a stance of neutral detachment.

This Article turns to the principles of transformative mediation. Like journalism, it is detached from any goal of settlement. It aims instead at increasing the capacity of …

The Spectrum Of Control: A Social Theory Of The Smart City, Jathan Sadowski, Frank A. Pasquale

Faculty Scholarship

There is a certain allure to the idea that cities allow a person to both feel at home and like a stranger in the same place. That one can know the streets and shops, avenues and alleys, while also going days without being recognized. But as elites fill cities with “smart” technologies—turning them into platforms for the “Internet of Things” (IoT): sensors and computation embedded within physical objects that then connect, communicate, and/or transmit information with or between each other through the Internet—there is little escape from a seamless web of surveillance and power. This paper will outline a social …

Richard Delgado And Ice Cube: Brothers In Arms, André Douglas Pond Cummings

Faculty Scholarship

Critical Race Theory as a movement is best understood through the lens of founding voice Richard Delgado. Delgado’s prolific and fearless writings have inspired thousands and launched theories that have literally changed the course of race law in the United States. In fact, two explosive movements were born in the United States in the 1970s. While the founding of both movements was humble and lightly noticed, both grew to become global phenomena that have profoundly changed the world. Founded by prescient agitators, these two movements were borne of disaffect, disappointment, and near desperation — a desperate need to give voice …

A Friendly Amendment, Larry Yackle

Faculty Scholarship

Heather Gerken comes to praise Justice Kennedy’s opinion for the Supreme Court in United States v. Windsor. 1 I come to praise Gerken’s valiant effort to recast the Windsor opinion along more convincing lines.2 Gerken does not propose a wholesale substitute for Justice Kennedy’s analysis. She suggests a shift in emphasis that lends Kennedy’s explanation for condemning DOMA a surprising jurisprudential significance. Where some us have seen yet another lamentable paean to the sovereignty of the states, Gerken detects the faint hint of the “nationalist” school of federalism that she and others have nurtured in recent years.3 Gerken does not …

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Victim Or Thug? Examining The Relevance Of Stories In Cases Involving Shootings Of Unarmed Black Males, Sherri Keene

Faculty Scholarship

No abstract provided.

Race, Place And Historic Moment – Black And Japanese American World War Ii Veterans: The G.I. Bill Of Rights And The Model Minority Myth, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Four Futures Of Legal Automation, Frank A. Pasquale, Glyn Cashwell

Faculty Scholarship

Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.

Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. …

Wealth And Democracy, Jedediah Purdy

Faculty Scholarship

The renewed debate over inequality has highlighted a set of deficits in much of the last fifty-plus years of thinking on the topic. The late twentieth-century tradition of thinking about distributive justice largely assumed (1) that market dynamics would produce stable and tolerable levels of inequality; and (2) that a relatively powerful, competent, and legitimate state could effectively redistribute to mitigate what inequality did arise. What was largely overlooked in this thought and has since risen to central attention is the prospect that (1) accelerating levels of market-produced inequality will (2) undermine the legitimacy and efficacy of the state and …

Less Enforcement, More Compliance: Rethinking Unauthorized Migration, Emily Ryo

Faculty Scholarship

A common assumption underlying the current public discourse and legal treatment of unauthorized immigrants is that unauthorized immigrants are lawless individuals who will break the law—any law—in search of economic gain. This notion persists despite substantial empirical evidence to the contrary. Drawing on original empirical data, this Article examines unauthorized immigrants and their relationship to the law from a novel perspective to make two major contributions. First, I demonstrate that unauthorized immigrants view themselves and their noncompliance with U.S. immigration law in a manner that is strikingly different from the prevalent view of criminality and lawlessness found in popular and …

The Politics Of Chinese Land: Partial Reform, Vested Interests And Small Property, Shitong Qiao

Faculty Scholarship

This paper investigates the evolution of the Chinese land regime in the past three decades and focus on one question: why has the land use reform succeeded in the urban area, but not in the rural area? Through asking this question, it presents a holistic view of Chinese land reform, rather than the conventional "rural land rights conflict" picture. This paper argues that the so­called rural land problem is the consequence of China's partial land use reform. In 1988, the Chinese government chose to conduct land use reform sequentially: first urban and then rural. It was a pragmatic move because …

How Local Discrimination Can Promote Global Public Goods, Timothy Meyer

Faculty Scholarship

International negotiations struggle to keep pace with global problems like climate change. To fill this gap, local governments increasingly take matters into their own hands. For example, to promote the benefits of clean energy, a local government might give subsidies to renewable energy companies. Since 2001, California has given $2 billion in such subsidies, while states ranging from Minnesota to Kansas and Mississippi have doled out hundreds of millions of dollars each. Cities, such as Austin and Los Angeles, have also gotten into the act, contributing millions to renewable energy firms. To build support for these measures, the local government …

Transnationalizing Comparative Law, Ralf Michaels

Faculty Scholarship

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

Foreword: Reflections On Our Founding, Guy-Uriel Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

Law Journals have been under heavy criticism for as long as we can remember. The criticisms come from all quarters, including judges, law professors, and even commentators at large. In an address at the Fourth Circuit Judicial Conference almost a decade ago, for example, Chief Justice Roberts complained about the “disconnect between the academy and the profession.” More pointedly, he continued, “[p]ick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was …

Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica Silbey

Faculty Scholarship

This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual technology by failing …

The Rise And Fall Of Bad Judge: Lady Justice Is No Tramp, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard

Faculty Scholarship

No abstract provided.

The Rise Of The Security State, Wang Yuhua, Carl F. Minzner

Faculty Scholarship

Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that …

Test Unrest: New York City's Examination High Schools, Aaron J. Saiger

Faculty Scholarship

New York City bases admissions to its eight “specialized” high schools entirely upon scores on a single standardized test. This policy, hotly contested when it was codified by state law in 1971, faces renewed political and legal attacks today. Single-test admissions consistently result in alarmingly low levels of African-American and Hispanic enrollment at the most sought-after specialized schools. This brief essay compares today’s debate to that of 1971. It notes two major developments since then. The City now has eight test-only high schools, not three. Moreover, the eight schools now function in the larger context of New York’s system of …

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

Faculty Scholarship

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah Purdy

Faculty Scholarship

In the area of money in politics, change at the doctrinal level will follow only from change at the political level. The current doctrine is coherent, intelligible, and profoundly misplaced. Shifting it will take a movement.

Markets, Morals, And Limits In The Exchange Of Human Eggs, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

In The Structural Transformation of the Public Sphere, Jürgen Habermas documented the historical emergence and fall of what he called the bourgeois public sphere, which he defined as “[a] sphere of private people come together as a public . . . to engage [public authorities] in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor.” This was a space where individuals gathered to discuss with each other, and sometimes with public officials, matters of shared concern. The aim of these gatherings was not simply discourse; these gatherings …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Faculty Scholarship

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament – and to rectify it – is to pay more attention to the role that organized wealth plays in our system of checks and balances.

This Article shows that the increasing concentration …

Admin, Elizabeth F. Emens

Faculty Scholarship

This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work – both managerial and secretarial – that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people – often women – who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home …

The Future Of Direct Finance: The Diverging Paths Of Peer-To-Peer Lending And Kickstarter, Kathryn Judge

Faculty Scholarship

For centuries, the trend has been toward longer and more complex intermediation chains in a wide array of contexts. The growing length and complexity of intermediation chains were both the by-products and drivers of ever-greater globalization and specialization. In recent years, however, there has been a shift in the opposite direction. In a variety of markets, suppliers and consumers increasingly transact directly with one another. Many of these developments have arisen from technological innovations that reduce search costs and other hurdles to transacting, like verifying information and negotiating the terms of a transaction. Airbnb, Etsy, and their kin, for example, …