Law and Society Commons^™

Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

All Faculty Scholarship

The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data. Extravagant …

Mandatory Waiting Periods For Abortions And Female Mental Health, Jonathan Klick

All Faculty Scholarship

Proponents of laws requiring a waiting period before a woman can receive an abortion argue that these cooling off periods protect against rash decisions on the part of women in the event of unplanned pregnancies. Opponents claim, at best, waiting periods have no effect on decision-making and, at worst, they subject women to additional mental anguish and stress. In this article, I examine these competing claims using adult female suicide rates at the state level as a proxy for mental health. Panel data analyses suggest that the adoption of mandatory waiting periods reduce suicide rates by about 10 percent, and …

Final Report Of The Maldivian Penal Law & Sentencing Codification Project: Text Of Draft Code (Volume 1) And Official Commentary (Volume 2), Paul H. Robinson, Criminal Law Research Group -- University Of Pennsylvania

All Faculty Scholarship

The United Nations Development Programme and the Government of the Maldives commissioned the drafting of a penal code based upon existing Maldivian law, which meant primarily a codification of Shari'a. This is the Final Report of that codification project. A description of the process that produced this Report and the drafting principles behind it, as well as a discussion of the special challenges of codifying Islamic criminal law, are contained in an article at http://ssrn.com/abstract=941443.

The Need For A Reduced Workweek In The United States, Vicki Schultz, Allison K. Hoffman

All Faculty Scholarship

This paper argues that a reduced workweek offers a way to alleviate work-family conflict without exacerbating the sex-based division of labor in paid work and unpaid family work. We distinguish our position from two other approaches: (1) one that compensates unpaid family work directly (through such policies as traditional welfare provision, or alimony), policies we argue can discourage women from labor force attachment and contribute to sex-stereotyping and sex-segregated employment; and (2) an approach that spurs employers to accommodate workers' family responsibilities (through such policies as part-time work for parents), policies workers often avoid out of a well founded fear …

The Paradox Of Corruption As Antithesis To Economic Development: Does Corruption Undermine Economic Development In Indonesia And China, And Why Are The Experiences Different In Each Country?, Andrew White

Research Collection Yong Pung How School Of Law

The question of whether corruption is antithetical to economic development has been extensively researched and debated since the 1960s. While nearly all participants in the debate appear to agree that corruption ultimately is antithetical to long-term economic development, the extent to which it positively or negatively affects economic development in the short term depends upon highly contextual factors. In different countries and regions of the world, factors of local culture and history, the nature of the state, the type of corruption and actors involved, and the political responses and motivations to curtail corruption all inform the answer to this question. …

Social Software, Groups, And Governance, Michael J. Madison

Articles

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. …

The Idea Of The Law Review: Scholarship, Prestige, And Open Access, Michael J. Madison

Articles

This Essay was written as part of a Symposium on open access publishing for legal scholarship. It makes the claim that open access publishing models will succeed, or not, to the extent that they account for the existing economy of prestige that drives law reviews and legal scholarship. What may seem like a lot of uncharitable commentary is intended instead as an expression of guarded optimism: Imaginative reuse of some existing tools of scholarly publishing (even by some marginalized members of the prestige economy - or perhaps especially by them) may facilitate the emergence of a viable open access norm.

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

Articles

This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this …

Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor

Articles

My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or …

Foster Care Safety And The Kinship Cue Of Attitude Similarity, David J. Herring

Articles

This article brings behavioral biology research on attitude similarity as a kinship cue to bear on the laws, policies, and practices surrounding the placement of children in foster care. The basic logic of the article relies on the nature and power of kinship cues. Individuals perceive others as kin through fallible, often unconscious mechanisms. Because these mechanisms are fallible, individuals may come to believe that unrelated persons are kin.

Once a cue gives rise to the perception of kinship, the individual who acquires this perception about another person is more likely to treat that other person favorably, providing important benefits …

Cisg Article 31: When Substantive Law Rules Affect Jurisdictional Results, Ronald A. Brand

Articles

No abstract provided.

Ip's Problem Child: Shifting The Paradigms For Software Protection, Jacqueline D. Lipton

Articles

Computer software is somewhat of a problem child for intellectual property law. Courts and legislatures have struggled to encourage innovations in software development while, at the same time, attempting to avoid undesirable digital information monopolies. Neither the patent nor the copyright system has provided a particularly satisfactory paradigm for software protection. Although patents have received greater attention than copyrights in the software context (consider, for example, the recent BlackBerry case), copyright law arguably creates more insidious undercurrents in today's marketplace. This is partly because we have not yet appreciated the potential impact of recent developments in programming methodology and digital …

Computer Models For Legal Prediction, Kevin D. Ashley, Stephanie Bruninghaus

Articles

Computerized algorithms for predicting the outcomes of legal problems can extract and present information from particular databases of cases to guide the legal analysis of new problems. They can have practical value despite the limitations that make reliance on predictions risky for other real-world purposes such as estimating settlement values. An algorithm's ability to generate reasonable legal arguments also is important. In this article, computerized prediction algorithms are compared not only in terms of accuracy, but also in terms of their ability to explain predictions and to integrate predictions and arguments. Our approach, the Issue-Based Prediction algorithm, is a program …

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

Scholarly Works

No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

Making Meaning Of Megan’S Law, Rose Corrigan

Rose Corrigan

This study of Megan's Law contrasts scholarly narratives that describe and analyze sexual predator laws with a case study of implementation in New Jersey. A critical feminist perspective shows that Megan's Law employs a radically underinclusive notion of sexual violence that conflicts sharply with feminist arguments about the cultural and institutional roots of sexual violence. The law excludes many of the most common offenders from reach of the law, thus deflecting attention away from assaults committed by family and friends in favor of reviving stereotypes about deviant strangers. The most significant effect of Megan's Law is not to expand the …

Hate Crime Law And The Limits Of Inculpation, Janine Young Kim

Janine Kim

Communist’S Post-Modern Power Dilemma: One Step Back, Two Steps Forward, “Soft No” And Hard Choices …, Nicos Trimikliniotis

Nicos Trimikliniotis

This paper considers the challenges ahead after having assessed what determined the outcome of the referendum in April 2004 and the balance of forces as they emerge in the Parliamentary elections of 2006. In spite of the generally sound claims that globalisation shifts decision-making away from nation-states, particularly weak and small states to networks beyond the nation-state, in the case of Cyprus what we have for the first time paradoxically is the “fate” of Cyprus primarily in the hands of Cypriots themselves. Although semi-occupied the two communities can make their decision as to the future of their country and state, …

Immigration To Cyprus, Nicos Trimikliniotis

Nicos Trimikliniotis

This chapter discusses the context that has transformed Cyprus from an emigration to an immigration country. It examines public discourse, the legal status, and the social position of migrants and asylum-seekers. This is exposed against the historical and political backdrop of Cyprus, dominated by the ‘national’ problem, which keeps the island divided.

Direitos De Personalidade, Figuras Próximas E Figuras Longínquas, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

A. Introdução I. Da Lei à Doutrina II. Da Pessoa III. Do Personalismo B. Delimitação IV. Aspectos Objectivos da Personalidade V. Subjectividade e Personalidade VI. Etapas e Âmbito da Personalidade VII. Fundamento do Direito de Personalidade VIII. Direitos de Personalidade e Direitos Fundamentais C. Conclusão IX. Desafios Metodológicos aos Direitos de Personalidade

Politeia And Paideia. “Reminiscences” Of Western Political Thought In A Reading Of Plato’S Politeia, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Many readings have been proposed of the Politeia. We propose here a brief reflection of the intertextual type, not upon the theme or main themes of this work, but more precisely in search of aspects that also seem to have acquired a posterity (or at any rate a universality that allows for the detection of coincidences). It is not merely that Plato’s great utopian ideas have found an echo in later authors, as one the most important of western politico-philosophical canons. It is also that some topics and arguments that appear through this richly magnificent dialogue seem to have had …

The Blogosphere And The New Pamphleteers, Donald J. Kochan

Donald J. Kochan

The future of the free dissemination of information lies in the blog, some may say. The internet has entirely transformed how we receive and consume information. It’s the newest incarnation of information dissemination. From the insights of Alexis de Tocqueville, “Feelings and opinions are recruited, the heart is enlarged, and the human mind is developed only by the reciprocal influence of men upon one another.” Bloggers are a powerful force in the distribution of information and ideas and the creation of communities of conversation. Throughout history, the dissemination of information, news, opinions, and ideas has continuously transformed. In the 18th …