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Introduction: Symposium On ‘Convicting The Innocent, Brandon L. Garrett Jul 2012

Introduction: Symposium On ‘Convicting The Innocent, Brandon L. Garrett

Faculty Scholarship

Examining what went wrong in the first 250 DNA exonerations was a sobering occupation, and I describe what I found in my book Convicting the Innocent, published by Harvard University Press in 2011. Still more haunting is the question of how many other wrongful convictions have not been uncovered and will never see the light of day. The New England Law Review has brought together a remarkable group of scholars who have each made leading contributions to the study of wrongful convictions from different disciplines and scholarly perspectives: Simon Cole, Deborah Davis, Gisli H. Gudjonsson, Richard Leo, and Elizabeth Loftus ...


From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles Jan 2012

From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Faculty Scholarship

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of ...


The Eurozone Debt Crisis: The Options Now, Mitu Gulati, Lee C. Bechheit Jan 2012

The Eurozone Debt Crisis: The Options Now, Mitu Gulati, Lee C. Bechheit

Faculty Scholarship

The Eurozone debt crisis is entering its third year. The original objective of the official sector’s response to the crisis -- containment -- has failed. All of the countries of peripheral Europe are now in play; three of them (Greece, Ireland and Portugal) operate under full official sector bailout programs.

The prospect of the crisis engulfing the larger peripheral countries, Spain and Italy, has sparked a new round of official sector containment measures. These will involve active intervention by official sector players such as the European Central Bank in order to preserve market access for the affected countries.

This article surveys ...


A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar Jan 2012

A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar

Faculty Scholarship

No abstract provided.


Recovery Of “Intrinsic Value” Damages In Case Of Negligently Killed Pet Dog, William A. Reppy Jr., Calley Gerber Jan 2012

Recovery Of “Intrinsic Value” Damages In Case Of Negligently Killed Pet Dog, William A. Reppy Jr., Calley Gerber

Faculty Scholarship

The North Carolina Court of Appeals, in a case where negligent killing of a pet dog with no market value was admitted, has denied recovery of “intrinsic” damages (also called “actual” damages). Shera v. NC State University Veterinary Teaching Hospital, 723 S.E.2d 352 (N.C. App. 2012). Because the holding is narrow and the type of damages denied are not the same as emotional damages, a close look at the decision is warranted.


The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang Jan 2012

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control ...


The Mythology Of Game Theory, Mathew D. Mccubbins, Mark Turner, Nick Weller Jan 2012

The Mythology Of Game Theory, Mathew D. Mccubbins, Mark Turner, Nick Weller

Faculty Scholarship

Non-cooperative game theory is at its heart a theory of cognition, specifically a theory of how decisions are made. Game theory's leverage is that we can design different payoffs, settings, player arrays, action possibilities, and information structures, and that these differences lead to different strategies, outcomes, and equilibria. It is well-known that, in experimental settings, people do not adopt the predicted strategies, outcomes, and equilibria. The standard response to this mismatch of prediction and observation is to add various psychological axioms to the game-theoretic framework. Regardless of the differing specific proposals and results, game theory uniformly makes certain cognitive ...


The Theory Of Minds Within The Theory Of Games, Mathew D. Mccubbins, Mark Turner, Nicholas Weller Jan 2012

The Theory Of Minds Within The Theory Of Games, Mathew D. Mccubbins, Mark Turner, Nicholas Weller

Faculty Scholarship

Classical rationality as accepted by game theory assumes that a human chooser in a given moment has consistent preferences and beliefs and that actions result consistently from those preferences and beliefs, and moreover that these preferences, beliefs, and actions remain the same across equal choice moments. Since, as is widely found in prior experiments, subjects do not follow the predictions of classical rationality, behavioral game theorists have assumed consistent deviations from classical rationality by assigning to subjects certain dispositions— risk preference, cognitive abilities, social norms, etc. All of these theories are fundamentally cognitive theories, making claims about how individual human ...


Freedom Of Expression And Its Competitors, George C. Christie Jan 2012

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article ...


The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel Jan 2012

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing ...


A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr. Jan 2012

A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Law Of War Manuals And Warfighting: A Perspective, Charles J. Dunlap Jr. Jan 2012

Law Of War Manuals And Warfighting: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Feminist Legal Scholarship: A History Through The Lens Of The California Law Review, Katharine T. Bartlett Jan 2012

Feminist Legal Scholarship: A History Through The Lens Of The California Law Review, Katharine T. Bartlett

Faculty Scholarship

This Essay describes the evolution of feminist legal scholarship, using six articles published by the California Law Review as exemplars. This short history provides a window on the most important contributions of feminist scholarship to understandings about gender and law. It explores alternative formulations of equality, and the competing assumptions, ideals, and implications of these formulations. It describes frameworks of thought intended to compensate for the limitations of equality doctrine, including critical legal feminism, different voice theory, and nonsubordination theory, and the relationships between these frameworks. Finally, it identifies feminist legal scholarship that has crossed the disciplinary bound-aries of law ...


Legal Medievalism In Lex Mercatoria Scholarship, Ralf Michaels Jan 2012

Legal Medievalism In Lex Mercatoria Scholarship, Ralf Michaels

Faculty Scholarship

This short reaction piece to an article by Emily Kadens asks why a long-refuted story of an alleged uniform medieval lex mercatoria is still being maintained. The answer is that the story serves not as an actual history but instead as a foundation myth. Attempts to falsify the myth with historical data are therefore futile: the myth derives its value not from its truth value but from its symbolic power.


The Stages Of Scandal And The Roles Of General Counsel, Deborah A. Demott Jan 2012

The Stages Of Scandal And The Roles Of General Counsel, Deborah A. Demott

Faculty Scholarship

This Essay examines the roles of a general counsel, as the corporation’s chief legal officer, in responding to scandals when they happen and in developing and enforcing internal preventive practices prior to the occurrence of any particular scandal. The Essay differentiates between scandals and crises more generally, emphasizing the integral connection between scandal and jeopardy to reputation and tracing the interrelationships between a corporation’s reputation and that of its general counsel. The Essay argues that risks associated with scandal may strengthen general counsel’s power within the senior management team, in particular in general counsel’s relationship with ...


Code Vs. Code: Nationalist And Internationalist Images Of The Code Civil In The French Resistance To A European Codification, Ralf Michaels Jan 2012

Code Vs. Code: Nationalist And Internationalist Images Of The Code Civil In The French Resistance To A European Codification, Ralf Michaels

Faculty Scholarship

French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefore of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms ...


Public Discourse, Expert Knowledge, And The Press, Joseph Blocher Jan 2012

Public Discourse, Expert Knowledge, And The Press, Joseph Blocher

Faculty Scholarship

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether ...


Understanding Regulatory Capture: An Academic Perspective From The United States, Lawrence G. Baxter Jan 2012

Understanding Regulatory Capture: An Academic Perspective From The United States, Lawrence G. Baxter

Faculty Scholarship

Although it sometimes seems that financial regulatory agencies have been entirely captured by the larger players in the industry they regulate, a closer examination reveals that a variety of factors contribute to policy outcomes in this arena. Agencies have different agendas and stakeholders, and banks often perform quasi-governmental roles that blur the line between the captors and the captured. The real danger is that public policy can be distorted as a result of excessive influence by one set of interests at the expense of others. This danger is best thwarted or at least mitigated through the application of a range ...


Capture Nuances In The Contest For Financial Regulation, Lawrence G. Baxter Jan 2012

Capture Nuances In The Contest For Financial Regulation, Lawrence G. Baxter

Faculty Scholarship

Applying capture analysis in the hotly contested arena of financial regulation is difficult. Numerous regulators with widely differing missions and widely diverse stakeholders are involved. Regulators operate under widely differing authorizing legislation. They even function at different levels of government. Agencies are often at odds with each other when it comes to determining optimal public policy. Unlike policy disputes in many other areas of regulation, which can be settled by reference to scientific data, public policy in financial regulation rests profoundly on essentially contested economic ideologies. This makes financial policy doubly difficult: one the one hand, it requires deep expertise ...


Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young Jan 2012

Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young

Faculty Scholarship

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the ...


Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos Jan 2012

Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos

Faculty Scholarship

State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.

This Article challenges the presumption of adequate public representation. By ...


States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman Jan 2012

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is ...


Use Patents, Carve-Outs, And Incentives — A New Battle In The Drug-Patent Wars, Arti K. Rai Jan 2012

Use Patents, Carve-Outs, And Incentives — A New Battle In The Drug-Patent Wars, Arti K. Rai

Faculty Scholarship

The Hatch-Waxman Act of 1984 aims to strike a balance between the innovation incentives provided by patents and the greater consumer access provided by low-cost generic drugs. The legislation, which relies in part on an explicit link between the FDA drug approval process and the U.S. patent system, has been controversial, particularly because of the ways in which firms producing brand-name drugs have exploited that link to delay market entry of generics as long as possible. Voluminous scholarship has focused on so-called "pay-for-delay" settlements of patent litigation between brand name and generic firms.

In contrast, this Perspective uses the ...


Defensive Medicine And Obstetric Practices, Michael D. Frakes Jan 2012

Defensive Medicine And Obstetric Practices, Michael D. Frakes

Faculty Scholarship

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no ...


Marriage Fraud, Kerry Abrams Jan 2012

Marriage Fraud, Kerry Abrams

Faculty Scholarship

This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework ...


Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Arti K. Rai Jan 2012

Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Arti K. Rai

Faculty Scholarship

In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on ...


Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher Jan 2012

Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher

Faculty Scholarship

Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.


Judges And Wrongful Convictions, Brandon L. Garrett Jan 2012

Judges And Wrongful Convictions, Brandon L. Garrett

Faculty Scholarship

No abstract provided.


Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller Jan 2012

Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller

Faculty Scholarship

Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of ...


Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller Jan 2012

Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.