Digital Commons Network^™

Cultural Cognition And The Thoughtful Judge, Jack H.L. Whiteley

Articles

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Tonry’S Blueprint For The Comparative Study Of Sentencing Law And Policy, Kevin R. Reitz

Articles

This essay explores Michael Tonry’s treatment of sentencing law and policy within the U.S. as an inherently comparative project. The essay draws from Tonry’s “early period” in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system. Tonry classified the several models of “sentencing reform” that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as “laboratories” whose …

Lawyers’ And Law Professors’ Experience With Worker Governance, Brett H. Mcdonnell

Articles

Part I surveys some of the leading arguments concerning the benefits and costs of worker governance. It also describes some of the ways in which those benefits and costs can evolve along with the growth, or lack thereof, of companies with worker governance. Part II looks at governance in law firms. It considers how the explanations for the adoption of worker governance fare with respect to law firms, notes the limited, elitist nature of worker governance within law firms, and considers the consequences of that real but elitist worker governance for the understanding of lawyers. Part III considers the same …

Presidential Control And Administrative Capacity, Nicholas Bednar

Articles

Presidential control is the power to direct administrative capacity toward the President’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. First, the President must have the ability to set the agency’s policymaking agenda and direct the day-to-day activities of its leadership and career employees. Second, the agency needs a well-managed team of policymakers with expertise and experience in both the substantive policy area and the policymaking process. Yet scholars have long assumed—without much empirical testing—that the administrative state has sufficient capacity to implement the President’s agenda. Not so.

This Article argues that …

Ai Assistance In Legal Analysis: An Empirical Study, Jonathan H. Choi, Daniel Benjamin Schwarcz

Articles

No abstract provided.

In Memoriam: Robert D. Cooter, Francesco Parisi

Articles

The International Review of Law & Economics is publishing these notes in memory and celebration of Robert D. Cooter—its Editor from 1988 to 2004—offering brief reflections on him as teacher, scholar, and exemplar. A giant of law and economics, Robert D. Cooter combined breadth with creative insight: he helped build a systematic economic understanding of torts, contracts, and property, a novel approach to public law and Constitutional design, and opened new frontiers on the interaction between law and social norms and on the expressive power of law. His humanity and scholarly ethos—curiosity, humor, and intellectual honesty—left a lasting mark on …

The First Thing We Do Is Kill All The Lawsuits, Kenneth S. Klein

Faculty Scholarship

As insurance premiums spike across the Nation, insurers are (yet again) pointing the finger at lawyers and lawsuits as an explanation. This Article offers new and important data on whether, in fact, currently there is a crisis of litigation in the United States. Neither the assertion of a litigation crisis, nor legislatures adopting systemic reform in response to the perception of one, is anything new. For almost two hundred years, there have been recurring cycles of complaints about lawyers, lawsuits, and their impact on society. Yet each time independent researchers have looked at the assertion, they have found the data …

Navigating Wastewater: Minnesota Mining Wastewater Permit Challenges And Evolving Compliance Standards, Madelaine Adamich

Journal of Earth and Life Science

February of 2021 marked the beginning of Minnesota clearly establishing that groundwater qualifies as a Class 1 water in a legal battle involving United States Steel, the Minnesota Pollution Control Agency, WaterLegacy, Fond du Lac Band of Lake Superior Chippewa, the Minnesota Court of Appeals, and eventually the Minnesota Supreme Court (MNSC). Minnesota has a water classification system, as required by the federal Clean Water Act, with 7 classes of use. Class 1 waters are waters used for domestic consumption (MPCA 4, n.d.). According to Minnesota Statute § 7050.0220, the acceptable level for sulfate is 250 mg/L in Class 1 …

Don’T Trust The Vibes: A Better Test For Pop Music Copyright Infringement, Lauryn M. Sparger

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Delays, Disruptions, And Diminished Margins: Reassessing Loss Claims In Indian Construction Law, Gautam Mohanty Mr, Gaurav Rai

National Law School of India Review

Loss of Profit claims by a contractor are premised on the assertion that the contractor has incurred financial losses due to the act of illegal and premature termination of the contract by the employer. Loss of profitability, on the other hand, is a claim made by the contractor of a decrease in the profit percentage in a contract on account of delays and disruptions in the work due to the actions attributable to the employer. Due to the homonymic nature of the terms, several judgments in India confuse one with the other and misunderstand the underlying principles of law applicable …

Informative Jury Disagreement, Roy Baharad

Coase-Sandor Institute for Law & Economics Research Paper Series

The article introduces a counterintuitive argument, contending that jury disagreement on the defendant’s guilt—a nonunanimous conviction—may well provide a more informative signal, compared to consensus. Because stronger consensus implies higher likelihood of herding, it is shown that beyond some threshold, further accumulation of votes to convict would carry negligible epistemic contribution, barely enhancing the posterior probability of guilt. On the other hand, while dissenting votes provide a direct signal of innocence, they indicate that herding has not been involved in the decision-making process, hence increase the epistemic contribution of any vote generated by said process— including votes to convict—and may …

Can Ai Hold Office Hours?, Lisa Larrimore Ouellette, Amy R. Motomura, Jason Reinecke, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

Rapid improvements in AI tools offer transformative opportunities in legal education, including the possibility of students using AI tools to answer questions that students might otherwise ask during office hours. But a critical challenge is the accuracy of these tools’ responses. Both general-purpose and law-specific AI models have been shown to “hallucinate” incorrect responses to a range of legal questions. Here, we evaluate the current capabilities of AI models when given the more constrained task of answering questions about a specific legal text. We provided three AI tools—OpenAI’s GPT-4o, Anthropic’s Claude 3.5 Sonnet, and Google’s NotebookLM—with the text of Masur …

Smart Contracts Are Neither Smart Nor A Contract: The Case Against Smart Contract Utilization In Everyday Consumer Or Commercial Transactions, Jim Moye

Catholic University Journal of Law and Technology

No doubt, most of us have gone into a local electronics store or ordered a new gadget from an online provider. After purchasing the gadget, we are eager to start operating the new purchase. Before fully utilizing the gadget, however, there are a series of screens requiring the user to read, acknowledge, and consent to, various clauses. If this process is not completed, the user is denied full access to the gadget. Thereafter, entry is granted, and the user is free to utilize the electronic device. This is a prime example of utilizing technology to automate a process that would …

Family Violence And Child Support: Abuse, Shared Parenting, And Special Expenses, Joanna Radbord

Canadian Journal of Family Law

This article addresses specific sections of the Federal Child Support Guidelines which are particularly problematic for survivors of family violence: (a) section 9 in relation to child support in circumstances of shared parenting time, and (b) section 7 dealing with special or extraordinary expenses. Child support in Canada currently functions as an application-based system within an adversarial context, which creates significant barriers to child support for victims of abuse. In relation to shared parenting, a presumptive reduction in the quantum of child support is likely to exacerbate systemic inequalities and further disadvantage survivors of family violence—disproportionately women and children. This …

Proposed Rule 3b-16: The Sec's Attempt To Change Definition Of "Exchange" Under The Exchange Act Of 1934 Provides Lessons For A New Era Of Crypto Regulation, Gwyneth Tefft

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The First Prison, William Gillis

Seattle Journal for Social Justice

No abstract provided.

Institutionalized Ostracism, Danieli Evans

Michigan Journal of Race and Law

Belonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.

Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe …

Criminal Defenses In The Age Of Ai: An Examination Of How Technological Advancements Are Challenging Traditional Duress And Mistake Of Fact Defenses, Lauren Lepage

Honors Undergraduate Theses

AI has rapidly evolved into a defining force of modern life, transforming industries by automating tasks, streamlining workflows, and enhancing everyday experiences. However, the same advancements, especially in deepfakes, now enable highly convincing manipulation of audio, images, and video, blurring the line between truth and fabrication. As these technologies grow more accessible, they not only reshape digital interactions but also challenge core principles of criminal law and culpability. This research examines the rapid advancement of Artificial Intelligence (AI) and deepfake technology and analyzes the challenges they pose to traditional criminal defenses. Employing a doctrinal legal research approach, it evaluates statutory …

Finance For The Common Good, Adriana Z. Robertson

The University of Chicago Business Law Review

The Capital Market doesn’t get much love these days. It is viewed with suspicion in many quarters, and graduates who take jobs related to finance are described as “selling out.” Rather than defending them on their own terms, many seem to think that they are valuable as a means to achieve other—largely unrelated—social goals. This Article, adapted from a pair of lectures in the first quarter of 2024, pushes back against these perceptions. It explains the vital role that the capital market plays in our society and cautions against grafting on secondary objectives. Rather, efforts to regulate the capital market …

An Ecofeminist Approach To Climate Risks, Angela Hefti

Michigan Journal of International Law

Climate change poses significant risks to the human right to life. However, international adjudicators have either neglected to examine right to life claims in the context of climate risks or dismissed them as prospective and speculative. International human rights bodies have long applied the standard of imminence to determine whether a threat to the right to life exists and the extent to which it constitutes a violation. In climate change cases, this standard has hardened, requiring a tight temporal connection between climate risks and a violation of the right to life. This article argues that failing to recognize the impact …

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Michigan Journal of International Law

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

Why We Need A Merger Cap: An Antitrust Lesson From General Electric, Carl T. Bogus

Journal of Legislation

This Article makes a modest proposal from a radical perspective. The proposal is this: Once a firm reaches a certain size, it should be prohibited from growing larger through mergers or acquisitions. The radical perspective is that antitrust law should be concerned with corporate size. It was a century ago that Louis D. Brandeis coined the term “curse of bigness,” and his concern about the social and political consequences of corporate size has long since fallen out of favor. Today, the consensus view is that antitrust should be concerned exclusively with economics. Current doctrine allows corporations to merge, provided only …

Volume 51, Issue I - Full Combined Issue

Journal of Legislation

No abstract provided.

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

Adaptation For Whom? Understanding The Impacts Of Dyke Policies On Small-Scale Farmers In Ca Mau Province Of Vietnam, Nguyen Minh Quang, Nguyen Van Minh, Nguyen Vo Chau Ngan, Martha B. Lerski

Publications and Research

Low-lying deltas worldwide are extremely vulnerable to sea-level rise. As the risks of climate-induced flooding become increasingly clear, the thirst for infrastructure-driven adaptation increases. This highlights a patent need to understand the impacts of engineering adaptation solutions, especially those targeting built structures such as dykes and sluices, on farmers from a bottom-up, farmer-centred perspective. The study addresses this call by examining cases where dyke policies, while successful in some dimensions, have undermined small-scale farmer livelihoods in Ca Mau ― Vietnam’s southernmost rural province. It identifies areas in need of attention and adds empirical data related to this group of farmers. …

Identifying Intangible And Biocultural Heritage Elements Toward Environmental Understanding: Engaging Stakeholders Through Art, Martha B. Lerski

Publications and Research

Grounded in a case study in Barbuda in the Caribbean, this research examines sustainability from the perspective of what arts and heritage can contribute to community engagement and local and broader understandings about the environment. This article documents a growing body of literature recognizing the role of arts and culture, including local knowledge and traditional ecological knowledge (TEK), in climate change endeavors. Art and TEK present expansive world views. Contextual information situates research done on the island of Barbuda pre- and post-Hurricane Irma. Visual arts workshops engaged community members in mixed methods research. Results documented cultural elements, particularly intangible and …

Benched Judges, Anna Roberts

Faculty Scholarship

No abstract provided.

The Value Of A Statistical Life: From Skin In The Game To Vision Zero, Michael C. Duff

Saint Louis University Law Journal

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. Economists claim that this figure does not “really” represent an attempt to value any particular life. But the obvious purpose of even calculating the number is to provide a statistical justification for saying “no” to rules requiring safer work.

The moral-ethical dilemma of work related injury and death remains a central …

Humanizing The Law: Building Better Lawyers Through Mediation Coursework, Simone A. Haberstock

Saint Louis University Law Journal

Many students enter law school with the goal of helping others. Traditional law school classes do not help students develop empathy and an understanding of client needs and interests. This paper argues that mediation training in law school helps students improve their understanding of the human experience of litigants involved in legal disputes and builds important empathic, relational, conflict resolution, and problem-solving skills. These skills not only help students connect with and understand their clients better but can promote the self-awareness and self-care necessary for students to become healthier and happier practicing attorneys. This results in students who are more …

Cultural Cognition And The Thoughtful Judge, Jack Whiteley

Indiana Law Journal

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …