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Articles 1 - 7 of 7
Full-Text Articles in Social and Behavioral Sciences
The Effect Of Minority Preferences On The White Applicant: A Misplaced Consensus?, Brian P. Flanagan
The Effect Of Minority Preferences On The White Applicant: A Misplaced Consensus?, Brian P. Flanagan
Brian P Flanagan
In recent years, a consensus has developed among both affirmative action's advocates and opponents that in relation to the typical white applicant, the effects of minority preferencing are minimal. In this essay, the aim is to clarify the mathematics of affirmative action's impact on majority applicants, and to flag the distinction between that question and affirmative action's opportunity cost. First, the essay establishes the level of agreement among judges and academics on the triviality of affirmative action's effect on the regular white applicant's prospects of success. Second, it demonstrates how the prevailing position on the impact of minority preferencing on …
Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz
Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz
Andrew E. Taslitz
This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …
The Fake Revolution: Understanding Legal Realism, Eric A. Engle
The Fake Revolution: Understanding Legal Realism, Eric A. Engle
Eric A. Engle
Abstract: Legal interpretation in the United States changed dramatically between 1930 and 1950. The Great Depression and World War II unleashed radical critique (particularly prior to the war). Legal realism proposed radical new methods of legal interpretation to try to meet the challenges of global depression and global war. The new legal methods proposed by realism at first seemed to indicate a new legal order. In fact, they only preserved the old order, protecting it from fundamental change. Thus, the same problem, cyclical economic downturn triggering war for resources and market share recurred in Vietnam. Just as the depression and …
A Theory Of Adjudication: Law As Magic, Jessie Allen
A Theory Of Adjudication: Law As Magic, Jessie Allen
Articles
This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as "magic solving words" and "word ritual." Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of …
Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz
Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz
School of Law Faculty Publications
This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow
Donald J. Kochan
Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …
The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois
The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois
Goutam U Jois
Class action litigation presents a common problem that has received little discussion in the academic literature. In almost every case, the plaintiff class’s recovery is not fully distributed. For example, all possible plaintiffs may not come forward with their claims, the plaintiffs may not be ascertainable, or claims may not be timely submitted. Administrators are regularly posed with the problem of what to do with these residual funds. Currently, courts are free to do virtually anything with such funds. The system is ad hoc, unpredictable, and unguided by any normative principle. In these cases, I propose that the funds should …