Law Commons^™

Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg

Coase-Sandor Working Paper Series in Law and Economics

This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …

Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein

Coase-Sandor Working Paper Series in Law and Economics

Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of "panic" that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent …

Legal Beagle Blog (November 2008), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Professional Development: Your Key To Success And Satisfaction, Sandee Magliozzi, Susan P. Beneville

Faculty Publications

No abstract provided.

The Uncertain Future Of Legal Reform In China, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

This talk looks at how far Chinese law reform has come since 1979, possible further reforms, and obstacles to meaningful reform.

Legitimating Criminal Justice Through Community Engagement: Lessons From The Jury Experience, Mark Findlay

Research Collection Yong Pung How School Of Law

Fundamentally justifying the jury is the opportunity it provides for community participation in criminal justice and the legitimation function that offers. Indeed, a strong political motivation for the recent introduction of jury trial in several transitional jurisdictions is the public confidence it transfers to the system at large. Recent research on juror comprehension and satisfaction suggests the possibility of interrogating the participation/confidence nexus more intricately. This note argues that it is the quality of the participation and the participant satisfaction which eventuates that predicts juror confidence. Where the legitimacy of criminal justice through juror participation is to be maximised then …

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, John B. Kirkwood, Robert H. Lande

All Faculty Scholarship

The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that …

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

The Effect Of Blakely V. Washington On Upward Departures In A Sentencing Guideline State, Brian Iannacchione, Jeremy Ball

Criminal Justice Faculty Publications and Presentations

One of the problems facing the criminal justice system is unwarranted disparity as a result of unbridled discretion. Although disparity, by itself, does not necessarily indicate a problem in the criminal justice system, disparity unwarranted does present a problem. Disparity becomes unwarranted when, controlling for legal factors, extralegal factors such as race/ethnicity, gender, and age influence court processing decisions. The greater the discretion one possesses, the higher the likelihood of unwarranted disparity in one’s decisions (Albonetti, 1991; Meeker, Jesilow, & Aranda, 1992; Bushway & Piehl, 2001). Within the criminal court system, judicial discretion in sentencing has received the most scrutiny.

Bong Hits 4 Jesus: Making Sense Of Free Speech In High Schools, Mark W. Cordes

College of Law Faculty Publications

The Supreme Court’s most recent high school speech case, Morse v. Fredericks, 127 S.Ct. 2618 (2007), generated much attention, perhaps more than the specific issue before the Court was worth. Much of that attention, of course, was attributable to the informal name for the case - “Bong Hits 4 Jesus.” By itself that was enough to create a groundswell of curiosity and allowed the media to make the normally dry and stuffy workings of the Supreme Court sound downright fun. Beyond that, however, the case involved the intersection of a highly valued liberty, free speech, with the tumultuous setting of …

Adjusting Alienability, Lee Anne Fennell

Public Law and Legal Theory Working Papers

No abstract provided.

Behavioral Criminal Law And Economics, Thomas S. Ulen, Richard H. Mcadams

Public Law and Legal Theory Working Papers

A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.

Constitutional Afterlife: The Continuing Impact Of Thailand’S Post-Political Constitution, Tom Ginsburg

Public Law and Legal Theory Working Papers

Thailand’s constitution of 1997 introduced profound changes into the country’s governance, creating a “postpolitical” democratic structure in which an intricate array of guardian institutions served to limit the role of elected politicians. Ultimately, the constitutional structure was undermined in a military coup against populist billionaire Thaksin Shinawatra, who had taken over many of the institutions designed to constrain political power. Nonetheless, the 1997 constitution appears to be having a significant afterlife, in that its institutional innovations have survived the enactment of a new Constitution and continue to constrain the political process. This article describes the Thai situation and speculates on …

Crisis Governance In The Administrative State: 9/11 And The Financial Meltdown Of 2008, Eric A. Posner, Adrian Vermeule

Public Law and Legal Theory Working Papers

No abstract provided.

Guarding The Guardians: Judicial Councils And Judicial Independence, Nuno Garoupa, Tom Ginsburg

Public Law and Legal Theory Working Papers

This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for …

Judging National Security Post-9/11: An Empirical Investigation, Cass R. Sunstein

Public Law and Legal Theory Working Papers

Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of “panic” that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent …

Naturalizing Jurisprudence: Three Approaches, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

Originalism's Expiration Date, Adam M. Samaha

Public Law and Legal Theory Working Papers

The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …

The Clash Of Commitments At The International Criminal Court, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

Exacerbating Injustice, Stephanos Bibas

All Faculty Scholarship

This brief essay responds to Josh Bowers' argument that criminal procedure should openly allow innocent defendants to plead guilty as a legal fiction. Though most scholars emphasize the few but salient serious felony cases, Bowers is right to refocus attention on misdemeanors and violations, which are far more numerous. And though the phrase wrongful convictions conjures up images of punishing upstanding citizens, Bowers is also right to emphasize that recidivists are far more likely to suffer wrongful suspicion and conviction. Bowers' mistake is to treat the criminal justice system as simply a means of satisfying defendants' preferences and choices. This …

Data Note: Tracking Employment And Day Support Participation And Outcomes In State Intellectual Disability And Developmental Disability Agencies, Samita Bhattarai, Jean E. Winsor

Data Note Series, Institute for Community Inclusion

As a part of the FY2007 National Survey of Day and Employment Programs data was requested from state Intellectual Disabilities and Developmental Disabilities (ID/DD) agencies regarding the sources of information used to report the total number of individuals served in the following services categories: integrated employment, facility-based work, community-based non work, and facility-based non work. Data on sources is an important factor to note when comparing each state’s service outcomes over time. Collecting information on the source of the data can help to explain unexpected trends in state service distribution when the state has not implemented changes in policy or …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

Punitive Damages, Criminal Punishment, And Proportionality: The Importance Of Legislative Limits, Leo M. Romero

Faculty Scholarship

This Article addresses the timely and controversial topic of constitutional limits on punitive damages and brings a criminal punishment theory perspective to the analysis of this issue. The question of how to determine when punishment is unconstitutionally excessive has been and continues to be a subject of intense debate in the courts and scholarly circles. The United States Supreme Court has subjected criminal sanctions, criminal forfeitures, and punitive damages to a proportionality requirement, but the Court uses different approaches to the proportionality analysis depending on the type of punishment. In the criminal context, the Court has retreated in large part …

Prison’S Spoilt Identities: Racially Structured Realities Within And Beyond, Nafis Hanif

Research Collection School of Social Sciences

This article begins by seeking an explanation for the solidarity between Malay inmates and guards in perpetrating abusive and discriminatory treatment towards Malay transvestites. In the course of explaining an empirical phenomenon in the Singapore prison, this article has examined Singapore's history and ethnic demography, the ethnic Malay minority's lack of socio-economic development and modernisation vis-a-vis the ethnic Chinese majority, geo-politics, the ideology and strategic choices of the state's political elite and their implications for inter-ethnic interactions between Malays and Chinese. As this article will argue, prison culture, rather than being divorced from larger society, is in effect able to …

Cultural Norms As A Source Of Law: The Example Of Bottled Water, Christine A. Klein, Ling-Yee Huang

UF Law Faculty Publications

As a metaphor for the interaction of law and culture, bottled water is striking in its simplicity and clarity. Bottled water consumers form a surprisingly loyal subculture of beverage drinkers, united by the water truths and water myths that they embrace. More recently, an equally fervent subculture of bottled water protestors has begun to coalesce. Notably, the cultural norms associated with both supporters and detractors extend beyond mere hydration and encompass such fundamental and varied notions as health, taste, convenience, status, morality, anti-privatization, sustainability, and truth-telling. In contrast to the cultural story, the legal narrative is surprisingly sparse, overlooking an …

Sense And Sensibility In Securitization: A Prudent Legal Structure And A Fanciful Critique, Thomas E. Plank

Scholarly Works

This article responds to a recent critique that the securitization of receivables is a legally shaky financial product that survives only because it is too big to fail. This critique argues that securitization's success in avoiding the costs that the Bankruptcy Code imposes on secured credit, including a bankruptcy trustee's ability to use the cash collateral from the receivables, is a type of fraud that hinders or delays the creditors of the originators of receivables. The critique, however, fails. The cases cited for the author's fraud analysis do not support its thesis. Further, the critique fails to demonstrate that securitization's …

Queer Teens And Legislative Bullies: The Cruel And Invidious Discrimination Behind Heterosexist Statutory Rape Laws, Michael J. Higdon

Scholarly Works

Most states make an exception to their statutory rape laws for sexual acts involving an adolescent victim, who is below the age of consent, when the defendant is close in age to the victim (i.e., generally no older than three or four years). However, a few states explicitly limit such exceptions (commonly referred to as Romeo and Juliet exceptions) to only those situations involving teens who are of the opposite gender. Thus, adolescents in these states who have sex with someone below the age of consent, and who are also the same gender as the defendant, cannot avail themselves to …

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, Keith N. Hylton, David S. Evans

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …

Appeal No. 0788: Louis Chodkiewicz V. Division Of Mineral Resources Management And Ohio Valley Energy Systems Corp., Mark R. Scoville, Jerry Esker, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2007-74 (Ohio Valley Energy Systems) (Glatzer Unit #1 Well)

Appeal No. 0786: Hall & Horning Oilfield V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2007-57 (Oravec Well #2)