Jurisprudence Commons^™

Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing, Josephine Sandler Nelson

J.S. Nelson

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.

Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools to combat corporate conspiracy. The most ...

An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development.

By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace ...

Federal Enforcement Of Police Reform, Stephen Rushin

Stephen Rushin

Congress passed 42 U.S.C. § 14141 in an effort to combat police misconduct and incentivize proactive reform in local law enforcement agencies. The statute gives the Attorney General the power to initiate structural reform litigation against local police departments engaged in a pattern or practice of unconstitutional behavior. While academics initially praised the law’s passage, many have since worried that the Department of Justice (DOJ) has not effectively administered the measure. No research has empirically analyzed how the DOJ has used its authority to initiate structural police reform. Using a combination of qualitative and quantitative methods, I fill ...

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple ...

What Is The Right To Privacy?, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

A philosophical account of the right to privacy should explain what is the distinct interest that the right is there to protect, what it takes to secure it, and what would count as a violation of the right. In this paper I argue that the right to privacy is grounded on people’s interest in having a reasonable measure of control over ways in which they present themselves (and what is theirs) to others; I argue that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information ...

Proactive Gatekeepers: The Jurisprudence Of The Icc’S Pre-Trial Chambers, Christodoulos Kaoutzanis, Jocelyn Joan Courtney

Christodoulos Kaoutzanis

Due to the fairly recent inception of the International Criminal Court (“ICC), its

Pre-Trial Chambers has been the only judicial body at the ICC thus far to be exposed to

a wide variety of cases. In the seven years since Pre-Trial Chamber I held the

proceedings against the confirmation of charges against Thomas Lubanga Dyilo, the

ICC’s two Pre-Trial Chambers have conducted hearings and determined the charges

against 14 individuals for crimes allegedly committed in four Situations. This article

systematically classifies the jurisprudence of the Pre-Trial Chambers in an attempt to

identify the trends that cut across the Pre-Trial ...

Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson

Matthew J. Peterson

Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay

Abstract:

The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.

Lowering the standard of review ...

The Practice Of Promise And Contract, Liam B. Murphy

New York University Public Law and Legal Theory Working Papers

This chapter defends an instrumental justification of contract law. The reason to have contract law is to make possible socially beneficial transactions that otherwise would not occur. The chapter thus rejects corrective justice accounts of contract (whether grounded in promisees’ expectation or reliance interests) and the idea that the point of contract law is to enforce the moral obligations of promisors. A strong connection between contract and promise is nonetheless defended. The basic role of contract law is to support the practice of the making and keeping of promises and agreements, and encourage its use. This makes performance or something ...

Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw

Boston College Law Review

The Supreme Court’s increasing use of science and social science in its decision making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay—defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or ...

Furman, After Four Decades, J. Thomas Sullivan

University of Massachusetts Law Review

Problems of racial discrimination in the imposition of capital sentences, disclosure of misconduct by prosecutors and police, inconsistency in the quality of defense afforded capital defendants, exoneration of death row inmates due to newly available DNA testing, and, most recently controversies surrounding the potential for cruelty in the execution process itself continue to complicate views about the morality, legality, and practicality of reliance on capital punishment to address even the most heinous of homicide offenses. Despite repeated efforts by the Supreme Court to craft a capital sentencing framework that ensures that death sentences be imposed fairly in light of the ...

Catalogs, Gideon Parchomovsky, Alex Stein

Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become ...

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Darren L Hutchinson

Abstract

Preventing Balkanization or Facilitating Racial Domination: A Critique of the

New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights ...

The Decker Forestry Pollution Case: Constitutional Risks When Courts Use Auer Deference To Bypass Regulatory Protections, Michael Tierney

Boston College Environmental Affairs Law Review

In Decker v. Northwest Environmental Defense Center, the Supreme Court upheld the EPA’s interpretation of the agency’s own regulation regarding exemption of channeled stormwater discharges from National Pollutant Discharge Elimination System permit requirements under the Clean Water Act. The Court deferred to the EPA’s interpretation under the Auer doctrine, which dictates that an administrative agency’s interpretation of its own regulation is entitled to deference unless the interpretation is plainly erroneous or inconsistent with the regulation. This Comment argues that Auer deference violates foundational separation of powers principles by allowing a governmental agency to both write and ...

The Scarlet Letter: Why Courts’ Reliance On Recidivist Statutes During Sentence Enhancement Hearings May Create Fifth And Eighth Amendment Violations, Jesse S. Weinstein

Jesse Weinstein

No abstract provided.

Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Asymmetric Empirical Similarity, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson

Jeffery L Johnson

Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from ...

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge ...

The Prisoner's Dilemma And The Coase Theorem, F.E. Guerra-Pujol

F.E. Guerra-Pujol

Two of the most important ideas in economics and law are the “Coase Theorem” and the “Prisoner’s Dilemma.” In this paper, we explore the relation between these two influential models through a creative thought-experiment. Specifically, we present a pure Coasean version of the Prisoner’s Dilemma, one in which property rights are well-defined and transactions costs are zero (i.e. the prisoners are allowed to openly communicate and bargain with each other), in order to test the truth value of the Coase Theorem. In addition, we explore what effect (a) uncertainty, (b) exponential discounting, (c) and elasticity have on ...