Law Commons^™

Honoring Innocent Until Proven Guilty: Switching The Default Rule From Pretrial Detention To Pretrial Release In Texas's Bail System, Stephen Rispoli

Texas A&M Law Review

Texas’s current prison population consists of far more pretrial detainees than convicted criminals. Despite United States and Texas constitutional protections, the default rule in many jurisdictions, including Texas, detains misdemeanor and non-violent felony defendants unless they can post a monetary bond or get a surety to post the bond for them (“bail bond”) to obtain their release. Most pretrial detainees remain detained due not to their alleged dangerousness, but rather because they simply cannot afford to post bail (or get someone to post it for them). As a result, many pretrial detainees find themselves choosing between hamstringing their financial future …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Margaret F Brinig

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

Private Lawmaking And The Architecture Of Confidentiality In Nonprofit Boardrooms, Norman I. Silber

Norman I. Silber

Abstract

Placement of the boundary line between transparent and confidential deliberation inside a boardroom affects the quality, efficiency, and fairness of corporate decision making. Policies which do not insist upon confidentiality can improve the perceived legitimacy of decisions and of those who make them; confidentiality can improve the ability to implement decisions effectively. The degree of transparency facilitated by these policies affects the volume and quality of available information. In the nonprofit boardroom, the boundaries that are set by governance rules also reflect and give shape to institutional structures and cultural norms.

This article explores justifications for changing from a …

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

Michigan Law Review

By all external appearances, Nudge is a single book-two covers, a single spine, one title. But put these deceptive appearances aside, read the thing, and you will actually find two books-Book One and Book Two. Book One begins with the behavioral economist's view that sometimes individuals are not the best judges of their own welfare. Indeed, given the propensity of human beings for cognitive errors (e.g., the availability bias) and the complexity of decisions that need to be made (e.g., choosing prescription plans), individuals often make mistakes. Enter here the idea of the nudge-the deliberate effort to channel people into …

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Adam M. Gershowitz

Almost everyone agrees that indigent defense in America is under-funded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to “beyond all doubt” to convict indigent defendants. The …

Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig

Journal Articles

This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.

While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …

The Sound Of One Form Battling: Comments On Daniel Keating's 'Exploring The Battle Of The Forms In Action', Richard Craswell

Michigan Law Review

Daniel Keating has provided a thoughtful and useful study of the way that businesses form contracts. In particular, he has given us a good deal of data concerning the problem known as the "battle of the forms." Commercial lawyers have, of course, been wrangling over this problem for decades, so it is no small accomplishment to be able to offer a useful contribution. In Part I below, I describe more precisely just what Keating's data does and does not illuminate. Parts II and III then focus on a particular contracting practice that Keating has identified: the practice of getting both …

The Holder In Due Course Doctrine As A Default Rule, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The "holder in due course" doctrine, as implemented by Article 3 of the Uniform Commercial Code, says that a party who acquires a negotiable instrument in good faith, for value, and without notice of certain facts, and who also meets some additional requirements, takes the instrument free of competing claims of ownership and most defenses to payment. The standard justification for immunizing a holder in due course from claims and defenses is that the immunity will encourage beneficial commercial transactions. The standard explanation for the various requirements for attaining holder in due course status - good faith, value, lacking notice …

Organizational Form, Misappropriation Risk, And The Substantive Consolidation Of Corporate Groups, Christopher W. Frost

Law Faculty Scholarly Articles

The financial collapse of a corporation raises significant questions regarding its shareholders and creditors' ex ante allocation of the risk that such a collapse might occur. In bankruptcy, most of these risk allocation issues relate to the priority of particular creditors' claims against the assets of the failed business. But determining priority first requires some reasoned means of identifying the assets against which creditors may assert their claims. In many cases, this question is simply one of locating and distributing assets. However, when bankrupt firms have conducted their operations through a complex web of subsidiary corporations, each holding distinct assets …