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Contract Theory And The Limits Of Reason, Efi Zemach, Omri Ben-Zvi

Tulsa Law Review

It is widely agreed that no theory of contract is fully adequate—all theories face formidable descriptive, normative and conceptual difficulties. Why has contract scholarship failed to produce an acceptable theory of contract law, even after several decades of nuanced and sophisticated theoretical efforts? This Article answers this puzzle by offering a novel meta-theory of contract scholarship that focuses on the aesthetics of various contract theories. An aesthetic commitment, under this understanding, is a pre-theoretical presupposition regarding the form (as opposed to the substance) of legal discourse. The article argues that jurists harbor several different aesthetics and often employ them interchangeably …

Engaging Health Insurers In The War On Prescription Painkillers, Valarie K. Blake

Scholarly Works

While insurers have both the power and the motivation to curb the practice of harmful opioid prescribing, they may go about it in ways that could be counter-productive to larger public health goals. After all, insurers have historically discriminated against addiction like any other condition that leads to costly healthcare consumption. In the past, insurers have avoided enrolling addicted insureds and have limited rehabilitation services. To address this epidemic, insurers might engage in ways that could harm third parties. For example, to the extent they are permitted, insurers might avoid addicted enrollees altogether, or might limit coverage of addiction treatments …

Substantive And Procedural Silence, Erin Sheley

Tennessee Law Review

Empirical work shows that perceptions of the procedural fairness of the criminal justice system turns on whether it gives individuals and communities a "voice," or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases. Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim's silence and the defendant's across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive …

Introduction: A Gun For Every Girl: Girlhood In Contemporary Visual Culture, Jen Kennedy, Trista E. Mallory, Angelique Szymanek

Journal of Feminist Scholarship

No abstract provided.

A “Grand” Unified Negotiation Theory . . . In Context, Adrian Borbély, Noam Ebner, Chris Honeyman, Sanda Kaufman, Andrea Kupfer Schneider

Journal of Dispute Resolution

Negotiation research began in the 20th century and is continuing apace. It is pursued from the perspectives of several disciplines including psychology, organizational behavior, labor relations, decision sciences, game theory, communications, legal studies, international relations, public policy, and others. Added to these are best practices from several fields engaged in intervention in conflicts. By now we have accumulated a considerable volume of wisdom regarding what drives people and entities to negotiate, how they behave when doing so, how they should handle negotiations to obtain specific results, and how to help disputants resolve to come to joint, mutually satisfactory decisions. However, …

The Tax Lives Of Uber Drivers: Evidence From Internet Discussion Forums, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In this Article, we investigate the tax issues and challenges facing Uber and Lyfi drivers by studying their online interactions in three internet discussion forums: Reddit.com, Uberpeople.net, and Intuit TurboTax AnswerXchange. Using descriptive statistics and content analysis, we examine (1) the substantive tax concerns facing forum participants, (2) how taxes affect their driving and profitability decisions, and (3) the degree of user sophistication, accuracy of legal advising, and other cultural features of the forums.

We find that while forum participants displayed generally accurate understandings of tax filing and income inclusion obligations, their approaches to expenses and deductions were less accurate …

Title Ix In The Technological Age - Challenging Rape Culture And Myths Through Fairer Use Of Electronic Communications, Drew Simshaw

Scholarly Works

No abstract provided.

A Transactional Theory Of The Reader In Copyright Law, Zahr K. Said

Articles

Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading—or viewing, or listening—plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a …

Taxing Greed, Genevieve Tokić

Loyola of Los Angeles Law Review

Appeals to greed in support of various tax proposals are often seen in response to populist moods in politics. Such appeals may be used to garner political support for a policy or proposal. However, there has been little academic consideration of the role of greed (or attitudes towards greed) in the law, and in tax law in particular. This Article seeks to fill that gap by taking a close look at the concept of greed. In doing so, the Article first surveys the history of greed and its meaning, and draws on political philosophy and economic literature to provide a …

Encountering Settler Colonialism Through Legal Objects: A Painted Drum And Handwritten Treaty From Manitoulin Island, Ruth Buchanan, Jeffery G. Hewitt

Articles & Book Chapters

The eighteenth and nineteenth centuries generated a trove of objects documenting the encounter between the Anishinaabe of the Great Lakes region and the British. Two such objects, a drum painted with Anishinaabe imagery and a treaty, handwritten by a British treaty commissioner, were created in close proximity in both time and location. This paper explores the encounter between the Anishinaabe and the British through a parallel engagement with both drum and treaty; placing them in conversation with each other. We consider the divergent paths taken by these objects by comparing the material, legal and sensory landscapes in which they were …

Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman

SMU Law Review

This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in which employees may hold an employer accountable for violating federal law prohibiting forms of employment discrimination, in this case, race discrimination, sex discrimination, and sexual harassment. Representative bureaucracy theory suggests passive or symbolic representation when the demographics of public officials should mirror those of the public they serve. Some research suggests …

Balancing Integrity With Privacy Interests: Fighting Cyber-Corruption With Background Checks, Robin J. Kempf, Chelsea Binns

Center for the Advancement of Public Integrity (Inactive)

Cybercrime is a serious threat to the public sector, especially as more of the public’s business is automated. In recent years, malicious actors have successfully infiltrated systems at the U.S. Department of Defense, the Navy, and the Environmental Protection Agency. Yet despite all the media attention on external hackers, especially those coming from foreign countries, employees remain the biggest cyber risk to governments. While background checks may promote employee integrity among those in public service, privacy concerns exist. This brief discusses how background checks are utilized to mitigate employee risk of cybercrime in the financial industry. The practices of this …

A Culture That Is Hard To Defend: Extralegal Factors In Federal Death Penalty Cases, Jon B. Gould, Kenneth S. Leon

Journal of Criminal Law and Criminology

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence. Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory. This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence. Using frequentist and Bayesian methods—supplemented with expert interviews—we empirically …

The Reflection And Reification Of Racialized Language In Popular Media, Kelly E. Wright

Theses and Dissertations--Linguistics

This work highlights specific lexical items that have become racialized in specific contextual applications and tests how these words are cognitively processed. This work presents the results of a visual world (Huettig et al 2011) eye-tracking study designed to determine the perception and application of racialized (Coates 2011) adjectives. To objectively select the racialized adjectives used, I developed a corpus comprised of popular media sources, designed specifically to suit my research question. I collected publications from digital media sources such as Sports Illustrated, USA Today, and Fortune by scraping articles featuring specific search terms from their websites. This experiment seeks …

A Case For Empathy: Immigration In Spanish Contemporary Media, Music, Film, And Novels, Constantin C. Icleanu

Theses and Dissertations--Hispanic Studies

This dissertation analyzes the representations of immigrants from North Africa, Latin America, and Eastern Europe in Spain. As engaged scholarship, it seeks to better the portrayal of immigrants in the mass media through the study of literature, film, and music about immigration spanning from the year 2000 to 2016. Because misconceptions continue to propagate in the media, this dissertation works to counteract anti-immigrant, xenophobic representations as well as balance out overly positive and orientalized portrayal of immigrants with a call to recognize immigrants as human beings who deserve the same respect, dignity, and rights as any other citizen.

Chapter 1 …

Looking Back, Looking Forward: Feminist Legal Scholarship In Sls, Susan B. Boyd, Debra Parkes

All Faculty Publications

This article offers a review of shifts in feminist legal theory since the early 1990s. We first use our respective histories and fields of expertise to provide a brief overview and highlight some key themes within feminist legal theory. We then examine Social & Legal Studies (SLS), asking whether it has met its key goal of integrating feminist analyses at every level. Our review suggests that SLS has offered many important contributions to feminist legal scholarship but has not fulfilled its lofty goal of integrating feminist analyses at every level of scholarship. It features feminist work quite consistently and some …

Use Of Force: A Split-Second Decision, Samantha Mcnulty

Williams Honors College, Honors Research Projects

This paper discusses the compliance and measures taken by Summit County, Ohio police departments in their efforts to meet use of force policy standards set by the Ohio Collaborative Community-Police Advisory Board. This board was established by Kasich's Executive Order 2015-04K to create standards on what the departments' use of force or response to resistance policies should contain and determine the Ohio departments which comply with the certification standards.

Popular Culture And Legal Pluralism: Narrative As Law. By Wendy A. Adams [Book Review], Dana Neacsu

Law Faculty Publications

Wendy Adams’ book is published in Routledge's “Law, Justice, and Power” series, edited by Austin Sarat. Like Sarat, Adams, who teaches law at McGill University, belongs to the school of "cultural studies of law". Thus, her writing is refreshingly cosmopolitan and interdisciplinary. Her project is to build a “legal narrative,” which is a framework for popular culture as law, where illegal acts could easily become re-imagined in an alternative legality. She argues that “legal texts originating with the state may well be of less significance in creating legal meaning in our lives than the representations of law in popular culture.”

Multivoiced Authors, Lior Zemer

Cardozo Arts & Entertainment Law Journal

From many sources we have inherited a rich panoply of images about the "good author." The prevalent image of the good author as a unique individual who deserves a right in the works he creates and recognition for his contribution to the common stock of knowledge, occupies contemporary legal scholarship on copyright. Scholars argue that the law privileges owners with entitlements incompatible with the social nature of the creative act, and in this way disturbs the expectation that copyright law will "promote the Progress of Science and the useful Arts." In their arguments they claim that authorship is less an …

Networking The Rule Of Law: The Canadian Bar Association’S Abandoned Intervention In Chevron V Yaiguaje, Rebecca Jaremko Bromwich

Journal of Law and Social Policy

This article looks at public debates surrounding how a network of Canadian lawyers disrupted an amicus curiae intervention in the recent Supreme Court of Canada case of Chevron Corp. v Yaiguaje. Analysis of this case study troubles assumptions about where and how law is made and suggests possibilities for successful activist engagement. Working together on a variety of points on a spectrum as advocates, counsel, interveners, and activists, lawyers leveraged their professional networks to influence and govern a multinational corporation by affecting what arguments were raised inside the court. I analyze the public debate about intervention in the Yaiguaje case …

Moore’S Potential, June Carbone, Naomi Cahn

Articles

No abstract provided.

Moore's Potential, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article was written as a contribution to the Fordham Law Review Symposium entitled Moore Kinship. It examines the various Supreme Court opinions in Moore v. City of East Cleveland to show how they foreshadow the tension between the growing desire of individuals to define “family” in terms of their own choosing and the state’s power to define what constitutes a legitimate family form and, thus, to decide who is entitled to state support. As the article notes, Moore is a methodologically conservative opinion that celebrates the traditional institution of the family through the vehicle of a grandmother-headed extended family. …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

SMU Law Review

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination …

Wisdom And Reason In Law, Steven D. Smith

University of Colorado Law Review

No abstract provided.

The Commercial Appropriation Of Frame: A Cultural Analysis Of Right Of Publicity And Passing Off, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Over several centuries, the rhetoric of 'gap filling' has often been invoked to naturalise expansions of intellectual property ("IP") rights-copyright term extension, the patenting of life forms, trademark disparagement, and so forth. The ready pragmatism of the phrase has definite audience appeal, making big changes sound like straightforward responses to external conditions-rather than choices about how to draw the line between private ownership and public discourse. We know, however, that once filled, 'gaps' tend to stay filled. Retrospective debates about the wisdom of such decisions tend to be (both literally and figuratively) of merely academic interest. So what is most …

Sexual Violence As The Language Of Border Control: Protecting Exceptional Difference, Miriam Ticktin

Publications and Research

When I first arrived in the Paris region in 1999 to do research on the struggle by undocumented immigrants (les sans papiers) for basic human rights, discussions of violence against women were remarkably absent from the public arena. Nongovernmental organizations and researchers had begun to broach the topic, but with little public visibility. However, this changed in late 2000, with a media explosion on the issue of les tournantes, or the gang rapes committed in the banlieues of Paris. Such tournantes involve boys »taking turns« with their friends’ girlfriends, both parties usually being of Maghrebian or North …

Introduction, Antonio Medina-Rivera, Lee F. Wilberschied Ph.D.

Cultural Encounters, Conflicts, and Resolutions

No abstract provided.

American Muslims: How The “American Creed” Fosters Assimilation And Pluralism, James R. Moore

Cultural Encounters, Conflicts, and Resolutions

This article examines the status of American Muslims in the United States in relationship to other cultural groups and some of the widespread stereotypes that plague Muslims in contemporary society. Much has been written about the discrimination faced by Muslims, particularly after the September 11, 2001 attacks, spawned by religious, racial, and ethnic bigotry. Some polls show many Americans harbor some prejudices against Muslims, but these prejudices have not resulted in widespread violence or discrimination; although there has been some violence and discrimination experienced by some Muslims, the empirical data show that the majority of American Muslims are very successful …

Table Of Contents, Antonio Medina-Rivera, Lee F. Wilberschied Ph.D.

Cultural Encounters, Conflicts, and Resolutions

No abstract provided.

Hannah Arendt And Natives As Extras: Towards An Ontology Of Palestinian Presence?, Francesco Melfi

Cultural Encounters, Conflicts, and Resolutions

The essay grew out of Hannah Arendt’s reflection on the roles and uses of the mask, a meditation on the ontology of the transient public figure or persona vs. one that restitutes the person to the unadulterated Selbstdenken dimension of the Epicurean philosopher-in-hiding. The author individuates in the resulting caesura between the donning and the taking off of the mask the primal source of that paradox in Hanna Arendt’s political behavior that alternately compelled her to confront the ontological presence of the Palestinian people, and made her withdraw into philosophical hiding without ever really coming to terms with it. In …