Law Commons^™

Explaining The American Norm Against Litigation, Shawn J. Bayern

Scholarly Publications

In the United States, a social norm discourages people from vindicating at least some of their rights in court. However, if courts are an instrument of justice and of sound public policy-for instance, if they provide fair compensation for injured parties and efficient incentives for potential injurers-then a norm against using courts is puzzling.

This Comment explores and evaluates explanations for the norm against litigation; the Comment's goal is to provide a plausible account of the norm. As such, the Comment is largely descriptive. However, normative implications may follow from my exploration; for instance, to the extent that an explanation …

Horizontal Federalism In An Age Of Criminal Justice Interconnectedness, Wayne A. Logan

Scholarly Publications

Despite their status as independent sovereigns, states increasingly exhibit a willingness to interact when it comes to crime control matters. This Article examines the two foremost examples of this phenomenon: criminal recidivist enhancement laws and sex offender registration laws. Both types of laws have been around for decades and have evolved to accommodate ex-offenders, who, consistent with constitutional freedom of movement, can (and often do) change state residences. This effort at accommodation, however, puts states in the unusual position of having to interpret and apply the criminal laws and outcomes of their fellow sovereigns. As the Article makes clear, recidivist …

Model Of Time-Inconsistent Misconduct: The Case Of Lawyer Misconduct, Manuel A. Utset

Scholarly Publications

No abstract provided.

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …

"Slack" In The Administrative State And Its Implications For Governance: The Issue Of Accountability, David Markell

Scholarly Publications

No abstract provided.

The Inseparability Of Professionalism And Personal Satisfaction: Perspectives On Values, Integrity And Happiness, Lawrence S. Krieger

Scholarly Publications

This article suggests a more effective approach to professionalism training based on a modern understanding of human nature. It explains (1) the many empirically established connections between life satisfaction and the values and motivations that would promote professional behavior among lawyers, and (2) the role of character integrity in maintaining physical and emotional wellness. It then describes an approach to teaching this material in the classroom or clinical setting, in order to foster both professionalism and career satisfaction among law students.

The Discourse Beneath: Emotional Epistemology In Legal Deliberation And Negotiation, Erin Ryan

Scholarly Publications

All lawyers negotiate, and all negotiators deliberate. This article addresses the pervasive but unrefined use of emotional insight by deliberating and negotiating lawyers, and suggests that legal education could improve lawyering by adopting a fuller model of legal thinking that takes account of this "epistemological emotionality." In forming the beliefs that underlie choices made during deliberation and negotiation, people rely on insights informed by past and present emotional experience. Such epistemological emotionality fuels a pre-linguistic, quasi-inductive reasoning process that enables us to draw on stored information about emotional phenomena to hypothesize about motives, behavior, and potential consequences. As deliberation moves …

Victim Participation In The Criminal Process, Erin O'Hara O'Connor

Scholarly Publications

No abstract provided.

Time-Inconsistent Management & The Sarbanes-Oxley Act, Manuel A. Utset

Scholarly Publications

No abstract provided.

The Friendship Of The People: Citizen Participation In Environmental Enforcement, Mark Seidenfeld, Janna Satz Nugent

Scholarly Publications

No abstract provided.

Governance Of International Institutions: A Review Of The North American Commission For Environmental Cooperation's Citizen Submissions Process, David L. Markell

Scholarly Publications

No abstract provided.

Beyond The Little Dutch Boy: An Argument For Structural Change In Tax Deduction Classification, Jeffrey H. Kahn

Scholarly Publications

One of the most active disputes in tax law today is the question of the proper tax consequences for a successful plaintiff, a portion of whose taxable damage award is paid to his or her attorney pursuant to a contingent fee arrangement. At issue is whether the plaintiff is taxable on the portion of the award that is payable to the attorney. One aspect of this problem was resolved prospectively by the adoption of the American Jobs Creation Act of 2004, but the problem continues to exist in other areas. The United States Supreme Court resolved a split in the …

On The Role Of Cost-Benefit Analysis In Environmental Law: A Book Review Of Frank Ackerman And Lisa Heinzerling's Priceless: On Knowing The Price Of Everything And The Value Of Nothing, Shi-Ling Hsu

Scholarly Publications

Legal scholarship on the role of cost-benefit analysis in environmental law is often stimulating, but does not seem to be changing anybody's mind. The entrenchment of a camp of detractors and a camp of advocates of cost-benefit analysis parallels the impasse that has stymied environmental law for over a decade. Professors Frank Ackerman and Lisa Heinzerling have coauthored a book that captures most of the arguments from the detractor side, and they have done so skillfully and powerfully. However, this Review criticizes the book's contribution to perpetuating this intellectual stalemate. The book does this by focusing on an environmental theory …

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Same-Sex Marriage, Slippery Slope Rhetoric, And The Politics Of Disgust: A Critical Perspective On Contemporary Family Discourse And The Incest Taboo, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Publicity Rights As Moral Rights, David Landau, David Westfall

Scholarly Publications

Recent legal history has witnessed the creation of a large number of new forms of property. Consequently, judges and legislators have generally been willing to imbue these new forms of property with all or most of the attributes of traditional property. In this article we try to explain this trend by examining one important new kind of property, the publicity right. Publicity rights initially emerged in response to functionalist considerations: transferable rights were needed to keep pace with commercial custom. As time went on, courts began to expand the attributes of the right to new frontiers, such as inheritability. In …

The Two Discourses In Colombian Constitutional Jurisprudence: A New Approach To Modeling Judicial Behavior In Latin America, David Landau

Scholarly Publications

No abstract provided.

Session Law 05-266, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.