Law Commons^™

The Story Of Parenthood, Courtney Cahill

Scholarly Publications

No abstract provided.

Consumers, Sellers-Advisors, And The Psychology Of Trust, Kelli Alces Williams, Justin Sevier

Scholarly Publications

Every day, consumers ask sellers for advice. Because they do not or cannot know better, consumers rely on that advice in making financial decisions of varying significance. Sellers, motivated by strong and often conflicting self-interests, are well-positioned to lead consumers to make decisions that are profitable for sellers and may be harmful to the consumers themselves. Short of imposing fraud liability in extreme situations, the law neither protects the trust consumers place in “seller-advisors,” nor alerts them to the incentives motivating the advice that sellers give. This Article makes several contributions to the literature. First, it identifies and defines the …

Perfecting Procreation, Courtney Cahill

Scholarly Publications

No abstract provided.

Localism, Labels And Animal Welfare, Samuel R. Wiseman

Scholarly Publications

The law does relatively little to improve the welfare of animals raised for food. In the short term, at least, market-based solutions appear to have more promise as a means of promoting farm animal welfare, as consumers increasingly seek out local and humanelyraised meat and eggs. To aid consumers in identifying these products, certification systems of varying degrees of rigor exist, but even these are of little use to consumers in the restaurant context, which accounts for a large percentage of meat consumption. Patrons see only finished meals, making fraud difficult to detect, and a recent newspaper investigation suggests that …

Writer Re-Written: What Really (Might Have) Happened To Atticus And Scout, Rob Atkinson

Scholarly Publications

No abstract provided.

After Sex, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

Reproduction Reconceived, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

On Marriage Equality And Transformation Through Preservation, Courtney Cahill

Scholarly Publications

No abstract provided.

Liberalism, Philanthrophy, And Praxis: Realigning The Philanthropy Of The Republic And Social Teaching Of The Church, Rob Atkinson

Scholarly Publications

This Article seeks a common ground for theists of the Abrahamist religious faiths and agnostics in the Socratic philosophical tradition on the role that the liberal state should play in advancing the two coordinate aims of traditional philanthropy: helping society's least well off and advancing the highest forms of human excellence. It focuses particularly on Abrahamists who are orthodox Catholics and Socratics who are left-liberals, distinguishing their broad views on the liberal state's proper philanthropic role from the far narrower views of libertarians and other right-liberals. It concludes that adherents of Catholic Social Teaching and advocates of secular left-liberalism can …

A Test To Identify And Remedy Anti-Gay Bias In Child Custody Decisions After Obergefell, Nat Stern, Karen Oehme, Mark Joseph Stern

Scholarly Publications

No abstract provided.

Trauma-Informed Co-Parenting: How A Shift In Compulsory Divorce Education To Reflect New Brain Development Research Can Promote Both Parents' And Childrens' Best Interests, Nat Stern, Karen Oehme, Anthony J. Ferraro, Lisa S. Panisch, Mallory Lucier-Greer

Scholarly Publications

No abstract provided.

Incarceration Incentives In The Decarceration Era, Avlana Eisenberg

Scholarly Publications

After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.

This Article scrutinizes the incentives of these industry stakeholders …

Improving The Medical Services System's Response To Domestic Violence, Nat Stern, Karen Oehme, Elizabeth Donnelly, Rebecca Melvin

Scholarly Publications

No abstract provided.

The Oedipus Hex: Regulating Family After Marriage Equality, Courtney Megan Cahill

Scholarly Publications

Now that national marriage equality for same-sex couples has become the law of the land, commentators are turning their attention from the relationships into which some gays and lesbians enter to the mechanisms on which they — and many others — rely in order to reproduce. Even as one culture war makes way for another, however, there is something that binds them: a desire to establish the family. This Article focuses on a problematic manifestation of that desire: the incest prevention justification. The incest prevention justification posits that the law ought to regulate alternative reproduction in order to minimize the …

A Deficiency In Addressing Campus Sexual Assault: The Lack Of Women Law Enforcement Officers, Nat Stern, Karen Oehme

Scholarly Publications

The federal government has taken a range of measures to combat the scourge of sexual assault afflicting college campuses across the nation. Whatever the efficacy of these policies, however, they fail to address a major obstacle to curbing sexual violence on campus: the chronically low rate of reporting of this crime to police. Research on crime data has produced evidence that as female representation among police officers increases, more crimes against women are reported. Yet, most university campus law enforcement agencies-tasked with taking a “central role” in combatting sexual assault-include strikingly few female officers. This Article proposes an increase in …

Does The Public Care How The Supreme Court Reasons? Empirical Evidence From A National Experiment And Normative Concerns In The Case Of Same-Sex Marriage, Courtney Megan Cahill, Geoffrey Christopher Rapp

Scholarly Publications

Can the Supreme Court influence the public’s reception of decisions vindicating rights in high-salience contexts, like samesex marriage, by reasoning in one way over another? Will the people’s disagreement with those decisions—and, by extension, societal backlash against them—be dampened if the Court deploys universalizing liberty rationales rather than essentializing equality rationales? Finally, even if Supreme Court reasoning does resonate with the people as a descriptive matter, should the Court minimize anxiety-producing characteristics in decisions vindicating civil rights—such as homosexuality in the marriage-equality context—simply in order to assuage the people?

This Article combines constitutional theory and empirical legal analysis to ask …

The Implementation Of The Food Safety Modernization Act And The Strength Of The Sustainable Agriculture Movement, Samuel R. Wiseman

Scholarly Publications

In the wake of growing public concerns over salmonella outbreaks and other highly publicized food safety issues, Congress passed the FDA Food Safety Modernization Act in 2011, which placed more stringent standards on food growing and packaging operations. In negotiations preceding the Act's passage, farmers of local, sustainable food argued that these rules would unduly burden local agricultural operations or, at the extreme, drive them out of business by creating overly burdensome rules. These objections culminated in the addition of the Tester-Hagan Amendment to the Food Safety Modernization Act, which created certain exemptions for small farms. Proposed Food and Drug …

Scale Economies, Scale Externalities: Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Scholarly Publications

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of scaling up. But these laws are not widely observed nor rigorously enforced, which upsets this balance and gives large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture is …

Balance And Team Production, Kelli A. Alces

Scholarly Publications

No abstract provided.

Capital Rigidities, Latent Externalities, Shi-Ling Hsu

Scholarly Publications

Capital, one of two fundamental inputs to production, is critical to economic growth. As such, legal rules and institutions generally seek to create more of it, and they also seek to protect existing capital from policy changes. However, capital is often durable, and during its natural life, information may emerge pointing to negative externalities resulting from operation of that capital. Legal rules and institutions, in seeking to stimulate and sustain economic growth by promoting and protecting capital, thus tend to induce the creation of excess capital. This abundance of capital creates excess resistance to new regulation or policy reform, as …

A Cost-Benefit Analysis Of Sugary Drink Regulation In New York City, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Tax Favors For Philanthropy: Should Our Republic Underwrite De Tocqueville's Democracy?, Rob Atkinson

Scholarly Publications

This article critically reviews the current rationales for the federal income tax system's favorable treatment of philanthropy, gives those rationales a new descriptive synthesis based on de Tocqueville's account of American democracy, and offers a normative alternative based on neo-classical ethical and political theory. It first identifies the two basic normative questions: What is the function of philanthropy that warrants favorable tax treatment, and how well does favorable tax treatment advance that function? It then examines the answers of three distinct phases of normative tax theory: the traditional subsidy thesis, the antithetical technical definition of income theory, and a set …

The Future Of Philanthropy: Questioning Today's Orthodoxies, Re-Affirming Yesterday's Foundations, Rob Atkinson

Scholarly Publications

No abstract provided.

Abortion And Disgust, Courtney Megan Cahill

Scholarly Publications

This Article uses disgust theory — defined as the insights on disgust by psychologists and social scientists — to critique disgust’s role in abortion lawmaking. Its starting point is a series of developments that independently highlight and call into question the relationship between abortion and disgust. First, the Supreme Court introduced disgust as a valid basis for abortion regulation in its 2007 case Gonzales v. Carhart. Second, psychologists have recently discovered a sufficiently strong association between individual disgust sensitivity and abortion opposition to suggest that disgust might drive that opposition. They have also discovered that “abortion disgust” appears to be …

Towards A Moral Agency Theory Of The Shareholder Bylaw Power, Jay B. Kesten

Scholarly Publications

Corporate bylaws are the new leading edge of a decades-long struggle between shareholders and managers over the allocation of decision-making authority in public companies. Bylaws are the only method by which shareholders can unilaterally restrict the powers and discretion of the board. Yet the scope of this statutory authority remains notoriously uncertain. Corporate law scholars generally agree that there is a limited domain in which shareholders can restrict managerial authority, but disagree on the appropriate boundary. The Delaware Supreme Court recently confronted this issue for the first time in CA, Inc. v. AFSCME Employees Pension Plan, but that decision …

An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler

Scholarly Publications

Did the divorce revolution betray the interests of American women? While there has been considerable disagreement about the impact of divorce reform on women’s standard of living, many agree that judicial practices involving the division of marital property and the allocation of alimony have systematically disadvantaged women. Most often, in the courts and the academy, commentators see these practices as evidence of the need for family law reform.

These conclusions rely on a shared account of the history of divorce reform. According to this account, the transformation of divorce law in the 1970s and 1980s was a “silent revolution,” a …

Medicine And Law As Model Professions: The Heart Of The Matter (And How We Have Missed It), Rob Atkinson

Scholarly Publications

This article has two coordinate goals: to undergird the functionalist understanding of professionalism with classical normative theory and to advance the classical theory of civic virtue with the insights of modern social science. More specifically, this article seeks to connect classical theories about the care of the body and the soul with modern theories of market and government failure. The first step is to distinguish two kinds of professions, caring professions like medicine and public professions like law, by identifying the distinctive virtue of each. The distinctive virtue of the caring professions is single-minded commitment to those in their care, …

Re-Focusing On Philanthropy: Revising And Re-Orienting The Standard Model, Rob Atkinson

Scholarly Publications

This paper undertakes a detailed analysis of today's standard theory of the philanthropic sector to provide a new model that is both more accurate in its details and more comprehensive in its scope. The standard theory sees the philanthropic sector as subordinate and supplementary to our capitalist market economy and liberal democratic polity. That approach has a fundamental short-coming: its explanation of both the state and philanthropy as adjuncts to the market fails to appreciate the ways in which all three sectors support and supplement each other. The standard model's primary focus on the market ignores how the demands that …

The Reality Of Social Rights Enforcement, David Landau

Scholarly Publications

Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights hut should do so in …

The Possibility Of Compromise: Antiabortion Moderates After Roe V. Wade, Mary Ziegler

Scholarly Publications

Did Roe v. Wade destroy the possibility for compromise in the abortion debate? Leading studies argue that Roe itself radicalized debate and marginalized antiabortion moderates, either by issuing a sweeping decision before adequate public support had developed or by framing the opinion in terms of moral absolutes. Others rely on this history in criticizing the sweeping privacy framework set out in Roe, attributing the radicalization of the general discussion and the antiabortion movement to the timing, reach, or framing of the abortion right in the opinion.

The polarization narrative on which leading studies rely obscures important actors and arguments that …