Digital Commons Network^™

Empirical Studies Of Contract, Zev J. Eigen

Faculty Working Papers

Since the mid 2000s, a cottage industry has slowly blossomed of empirical research dedicated to advancing accounts of contracts "on the books"--accounting for what contracts tend to purportedly obligate signers to do, and contracts "in action"--accounting for how contracting parties tend to behave. This article reviews this literature, which spans several disciplines, most notably law, economics, and management, identifying eight categories of empirical questions in common across all disciplines, highlighting key findings, points of consensus, and noting areas most pressingly in need of additional research.

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Why Mortgage "Formalities" Matter, David A. Dana

Faculty Working Papers

This Article argues that adherence to mortgage formalities regarding foreclosure is valuable for expressive reasons and also as a potential deterrent to future undesirable underwriting and securitization practices. The Article reviews how some courts have in effect written procedural requirements for foreclosure out of the law, and asks why these courts have done so and whether lenders' behavior might have been improved during this housing crisis had the state courts uniformly afforded equal respect to the legal rights of homeowners and those of lenders.

The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander

Faculty Working Papers

Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …

Legislating A Family-Friendly Workplace: Should It Be Done In The United States?, Marianne Delpo Kulow

Northwestern Journal of Law & Social Policy

This Article reviews both domestic and international efforts to legislate a more family-friendly workplace, with an eye toward measuring the impact of these various initiatives and predicting both their future success and the likelihood of more widespread adoption. In particular, the Article reviews federal, state, and international legislative efforts to mandate: paid parental leaves; paid sick days; and flexible work arrangements. The Article then attempts to measure the effectiveness of such legislatively required, family-friendly policies by suggesting ways to measure and to predict the impact of U.S. legislative efforts to reconcile the conflicting responsibilities of work and parenthood. The Article …

Improving The Benefit Corporation: How Traditional Governance Mechanisms Can Enhance The Innovative New Business Form, Steven Munch

Northwestern Journal of Law & Social Policy

In recent years, a number of states have offered innovative new business forms to accommodate social enterprises, organizations that pursue both profit and social purpose. These hybrid forms are designed to free socially conscious entrepreneurs from the strict pursuit of shareholder value maximization that often controls in business practice and law, allowing them instead to serve the interests of other company stakeholders or even society. One form, the benefit corporation, has been adopted by seven states and is now under consideration in several more. This Note details the development, provisions, and advantages of the benefit corporation. It also identifies and …

Beyond Procedural Justice: A Dialogic Approach To Legitimacy In Criminal Justice, Anthony Bottoms, Justice Tankebe

Journal of Criminal Law and Criminology

No abstract provided.

Why Do Criminals Obey The Law? The Influence Of Legitimacy And Social Networks On Active Gun Offenders, Andrew V. Papachristos, Tracy L. Meares, Jeffrey Fagan

Journal of Criminal Law and Criminology

No abstract provided.

Prosecutorial Decriminalization, Erik Luna

Journal of Criminal Law and Criminology

No abstract provided.

Prosecution In 3-D, Kay L. Levine, Ronald F. Wright

Journal of Criminal Law and Criminology

No abstract provided.

Religion And Race: The Ministerial Exception Reexamined, Ian Bartrum

NULR Online

No abstract provided.

The Need For A Research Culture In The Forensic Sciences, Jonathan Koehler, Jennifer L. Mnookin, Simon A. Cole, Barry A.J. Fisher, Itiel E. Dror, Max Houck, Kieth Inman, David H. Kaye, Glenn Langenburg, D. Michel Risinger, Norah Rudin, Jay Siegel

Faculty Working Papers

The methods, techniques, and reliability of the forensic sciences in general, and the pattern identification disciplines in particular, have faced significant scrutiny in recent years. Critics have attacked the scientific basis for the assumptions and claims made by forensic scientists both in and out of the courtroom. Defenders have emphasized courts' long-standing acceptance of forensic science evidence, the relative dearth of known errors, and the skill and experience of practitioners. This Article reflects an effort made by a diverse group of participants in these debates, including law professors, academics from several disciplines, and practicing forensic scientists, to find and explore …

Why Jack Balkin Is Disgusting, Andrew Koppelman

Faculty Working Papers

Yale Law Professor Jack Balkin didn't win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn't possibly defend the paradigmatic departure from the Constitution's original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly …

The Limits Of Constructivism: Can Rawls Condemn Female Genital Mutilation?, Andrew Koppelman

Faculty Working Papers

The strategy for coping with value pluralism that Rawls has proposed is to permit political decisions, at least with respect to basic rights, to depend only on those goods that can be inferred from the bare requirements of respectful relations between persons. His account offers such a parsimonious conception of the good that it cannot cognize some atrocities. I focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, it is well established, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A …

The New American Civil Religion: Lesson For Italy, Andrew Koppelman

Faculty Working Papers

American civil religion has been changing, responding to increasing religious plurality by becoming more abstract. The problem of increasing plurality is not only an American one. It is also presented in Italy, where civic identity has been centered around a Catholicism that is no longer universal. Perhaps Italy has, in this respect, an American future.

Disability And The Persistence Of Poverty: Reconstructing Disability Allowances, Sagit Mor

Northwestern Journal of Law & Social Policy

Focusing on the construction and negation of disability allowances, this Article identifies and traces the roots of a fundamental tension that underlies disability politics with regard to disability allowances: are cash benefits an archaic and outdated form of assistance to disabled people, or are they still a relevant mode of response to their systematic marginalization and exclusion? Based on a field study of the Israeli disability community, the Article shows that while disability rights advocates tend to reject disability allowances as fundamentally wrong and to support the transformation of society's social structures, welfare activists tend to view disability allowances as …

Misconstructing Sexuality In Same-Sex Marriage Jurisprudence, Jeffrey Kosbie

Northwestern Journal of Law & Social Policy

Drawing on sociology, queer studies, and legal scholarship, this Comment develops a textual methodology to study sexuality in court opinions. In particular, this methodology uses inconsistencies between opinions to highlight how courts rely on cultural assumptions. This Comment applies this methodology to eighteen state same-sex marriage cases, identifying four analytic models of sexuality: sexuality consists only of behaviors; sexuality belongs to lesbians and gays; society should regulate sexuality; and marriage forms a normatively desirable model for sexuality. These models contribute significantly to public discourse over the meaning of sexuality. Applying sociological insights to narrow judicial models of sexuality suggests that …

Constitutional Othering: Citizenship And The Insufficiency Of Negative Rights-Based Challenges To Anti-Homeless Systems, Kathryn Hansel

Northwestern Journal of Law & Social Policy

Homelessness is a perennial problem in the United States and has been analyzed using many theoretical frameworks. The issue has also been a contentious one for courts and continues to be the subject of numerous suits today. Many jurisdictions in the United States have enacted laws that prevent homeless people from legally existing within those jurisdictions; these laws effectively criminalize being homeless. These statutes have spawned lawsuits alleging violations of homeless people's rights. This Comment examines homelessness and its interaction with the law through the lens of citizenship. It argues that the legal paradigm in the United States denies homeless …

Social And Biological Constructions Of Youth: Implications For Juvenile Justice And Racial Equity, Patricia Soung

Northwestern Journal of Law & Social Policy

No abstract provided.

Understanding The Antecedents Of The “School-To-Jail” Link: The Relationship Between Race And School Discipline, Michael Rocque, Raymond Paternoster

Journal of Criminal Law and Criminology

No abstract provided.

The Search For Rapists’ “Real” Motives, David P. Bryden, Maren M. Grier

Journal of Criminal Law and Criminology

No abstract provided.

Deviance, Risk, And Law: Reflections On The Demand For The Preventive Detention Of Suspected Terrorists, Joseph Margulies

Journal of Criminal Law and Criminology

No abstract provided.

Mental Disorder And Criminal Law, Stephen J. Morse

Journal of Criminal Law and Criminology

No abstract provided.

Sex Trafficking And The Sex Industry: The Need For Evidence-Based Theory And Legislation, Ronald Weitzer

Journal of Criminal Law and Criminology

No abstract provided.

Risky Business: The Credit Crisis And Failure (Part I), Olufunmilayo B. Arewa

NULR Online

No abstract provided.

Symposium: The Future Of Law And Development, Part V, John Ohnesorge, Veronica L. Taylor

NULR Online

There are enough questions on the table to get us going, so I’ll focus on responding to some of them. First, to an issue raised by Salil Mehra and Tom Ginsburg, I generally follow the approach taken by Trubek and Santos in The New Law and Economic Development. Their approach defines the field (“doctrine”) of Law and Development to encompass the activities of legal assistance providers, as well as the ideas about law, and about development economics, that animate their work. There are different strategies for studying the providers’ activities, and Terence Halliday and Bruce Carruthers’s research for their …

Taxing Housework, Nancy Staudt

Faculty Working Papers

This article examines the tax policy rationale for excluding non-market household labor from the tax base and argues that the conventional rationals no longer withstand scrutiny. The article goes on to argue that it is possible to include non-market household labor into the tax base, while at the same time avoiding the imposition of costs upon the (mostly) women who supply the labor. Moreover, and mort important, tax policy reform along these line would increase householder laborers' access to public retirement benefits and signal the important of the work to society generally.

How Shall I Praise Thee? Brian Leiter On Respect For Religion, Andrew Koppelman

Faculty Working Papers

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the "thick" sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter's analysis.

No Respect: Brian Leiter On Religion, Andrew Koppelman

Faculty Working Papers

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the "thick" sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter's analysis.

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …