Law Commons^™

The Situational Character: A Critical Realist Perspective On The Human Animal, Jon Hanson, David Yosifon

Faculty Publications

This Article is dedicated to retiring the now-dominant "rational actor" model of human agency, together with its numerous "dispositionist" cohorts, and replacing them with a new conception of human agency that the authors call the "situational character." This is a key installment of a larger project recently introduced in an article titled

The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture. That introductory article adumbrated, often in broad stroke, the central premises and some basic conclusions of a new approach to legal theory and policy analysis. This Article provides a more complete version of …

Rejecting The Marie Antoinette Paradigm Of Prejudgment Interest, Royce De R. Barondes

Faculty Publications

This paper examines principles for properly computing prejudgment interest by examining the impact on different corporate constituencies. This paper concludes that prejudgment interest at a promisor's cost of funds can undercompensate promisees, by shifting value from the promisee's equityholders to its creditors through a forced investment that decreases the risk of the promisee's portfolio of assets.

Tim, R. Lawrence Dessem

Faculty Publications

There comes a time when every law school dean questions just why she or he has chosen to serve as dean. Deans experience both very high highs and very low lows. The dean often sees faculty, staff, and students at their best but just as often sees these same individuals at their worst. Regardless of the mix of highs to lows in any deanship, decanal service--if taken seriously-- demands a tremendous commitment of time and energy. Thus the question is posed: Why devote such a significant portion of one's professional time to such service?

Two Mistakes Behavioralists Make: A Reply To Professor Feigenson Et Al. And Professor Slovic, Thom Lambert

Faculty Publications

First, the growing catalog of cognitive quirks may lead behavioralists to hastily adopt “non-rational” explanations for otherwise rational behavior. Second, because their evidence seems to undermine the rationality assumption of Chicago school law and economics, behavioralists may improperly assume that their work also undermines that school's default policy prescription--i.e., laissez faire. Consequently, they may advocate inappropriately paternalistic government policies.

Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt

Faculty Publications

The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that …

Refreshing Contractual Analysis Of Adr Agreements By Curing Bipolar Avoidance Of Modern Common Law, Amy J. Schmitz

Faculty Publications

Law governing enforcement of ADR agreement not governed by the Federal Arbitration Act (FAA) has been uncertain, and often aimless. This Article therefore calls for clarification of this law, through development of a modern contractual approach for enforcing these non-FAA ADR procedures. Although courts may look to the FAA as a resource for evaluating and developing an enforcement approach, they also should employ modern contract and remedy tools that are more adaptive than the Act's summary enforcement because it allow courts to consider contextual, relational, and equitable factors when determining application of specific enforcement remedies. This allows courts to apply …

A Mosquito In The Ointment: Adverse Hipaa Implications For Health-Related Remote Sensing Research And A "Reasonable" Solution, Paul M. Secunda

Faculty Publications

No abstract provided.

Proving Negligence In Products Liability Litigation, David G. Owen

Faculty Publications

No abstract provided.

A Brief Exploration Of Space: Some Observations On Law School Architecture, Robert H. Jerry Ii

Faculty Publications

The costs and benefits of some architectural choices are immediately obvious, as in the case of disability accommodations. But other choices are less obvious, even when one does not attempt to predict how a design will function thirty or forty years hence. This is why having a skilled design team involved in developing the plan and executing it is so important.

Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch

Faculty Publications

Our three papers provide a helpful review of the many things that can go wrong with our system for the protection of civil liberties under the pressures of war or other emergencies. Professor Winfield focuses on the U.S. Attorney General, the non-judicial officer from whom the public might expect the highest fidelity to the law and the constitution. She offers a sobering perspective on the ways in which those expectations can be and have been disappointed. The star of her taxonomy, I take it, is the Leveler, who reaches an independent (and rights-protective!) view of the law and works to …

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

Broken Scales: Obesity And Justice In America, Adam Benforado, Jon Hanson, David Yosifon

Faculty Publications

This Article is not so much about the scales we use to measure weight, but the scales we use to infer causation and assign responsibility-including the scales of justice. Ultimately, the problem we face is not obesity itself. Obesity is only a symptom of the problem. When scientists and public health experts point to various environmental agents-whether larger portion sizes, corn subsidies, video games, or urban sprawl-they, too, overlook the deeper source of our troubles. Our real problem is that we have an extremely difficult time seeing and understanding the role of unseen features in our environment and within us …

Solving The Everyday Problem Of Client Identity In The Context Of Closely Held Businesses, Darian M. Ibrahim

Faculty Publications

No abstract provided.

The Peculiar Federal Marriage Amendment, Scott Dodson

Faculty Publications

In this essay, I discuss the Constitution's commitment to three themes - state power over familial matters, individual liberty, and equality - and then demonstrate how the proposed Federal Marriage Amendment is uniquely contrary to all three. I do not intend to go so far as to suggest that the FMA would be an unconstitutional amendment, if such things are possible, nor do I mean to suggest that same-sex marriage is or should be affirmatively protected by the Constitution. I mean only to suggest that proposed amendments altering the Constitution's commitment to multiple existing themes in the Constitution should be …

Bankruptcy And Mortgage Lending: The Homeowner Dilemma, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Race Matters In Bankruptcy, A. Mechele Dickerson

Faculty Publications

No abstract provided.

The Judicial Safeguards Of Federalism, Neal Devins

Faculty Publications

No abstract provided.

Statutory Interpretation In Econotopia, Nathan B. Oman

Faculty Publications

Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is possible to use Coase's Theorem and the concept …

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

Fear And Risk In 'Times Of Crisis': The Media's Challenge, Richard C. Reuben

Faculty Publications

As we have heard time and again during this conference, perspective is a crucial safeguard against the distorting effect of fear. While space and consumer patience may be thin, it is during times of crisis that the media's capacity to provide context becomes most important. This is part of the challenge of risk communication. Editors need to insist on this perspective rather than trying to cut it out if the story still reads, and reporters need to learn how to write about it effectively as well as compellingly. None of these challenges is easy. Institutional reform never is. But I …

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …

"National Security" Information And The Freedom Of Information Act, Christina E. Wells

Faculty Publications

Secrecy regarding national security information is a widely accepted phenomenon. Throughout history, however, such secrecy has proved problematic. Although officials often have credible and legitimate reasons to keep national security information secret, government secrecy initiatives have invariably expanded to encompass information beyond their initial rationale. Over time, we have come to realize the very real problems associated with excessive government secrecy.

Why (Consumer) Bankruptcy?, Richard M. Hynes

Faculty Publications

No abstract provided.

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

The Correlation Between Team Payroll And Competitive Performance In Professional Sports Leagues, Ralph C. Anzivino

Faculty Publications

No abstract provided.

Culture Clash: Teaching Cultural Defenses In The Criminal Law Classroom, Susan S. Kuo

Faculty Publications

In the law school classroom, the Socratic method of legal analysis removes a dispute at issue in a given case from its sociocultural context and takes the cultural backgrounds of the parties into account only when they serve the legal argument. The language of the law commands law students to siphon off the emotional and cultural content because of the enduring belief that the law is neutral and impartial. Accordingly, cultural conflicts are deemed irrelevant to legal analysis because laws are unbiased and culture-blind. This detached outlook has been termed perpectivelessness to denote a neutral, odorless, colorless non-perspective.

This essay …

The Vanishing Trial Report, John M. Lande

Faculty Publications

Some in the alternative dispute resolution community are afraid that ADR will be blamed for the apparent disappearance of trials. A close look at the data, however, suggests that changing patterns of litigation are not necessarily bad and that the growth of ADR is probably as much a result of these changes as a cause of them.

Reappraising T.L.O.'S Special Needs Doctrine In An Era Of School-Law Enforcement Entanglement, Josh Gupta-Kagan

Faculty Publications

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the twenty-year old case, New Jersey v. T.L.O., to most school searches. T.L.O. based its application of a lower standard for searches of students by school officials on the presumption that firm gates separate public school from law enforcement and criminal justice institutions. Later administrative search cases inside and outside of the school context show that tee lower standard of T.L.O. depends entirely on programmatic purposes that distinguish school systems and ordinary law enforcement. Porous schoolhouse …

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.

Politics Of Embryonic Discourse, Kevin Quinn

Faculty Publications

In our brave new world of stem cells, clones, and parthenotes, how should we talk about early human embryos? In fashioning a response to this very thorny question, Ann Kiessling has a core message. It is: (1)that new science produces "new" conceptuses;(2) that science and scientists have failed to differentiate (with appropriate clarity) these new ex vivo conceptuses from those createdin vivo; (3) that new, more appropriate and scientifically-informed, terms are necessary; and (4) that this new language should transform the public discourse about human embryos. No one would deny that the subtleties of human embryology are neglected in public …