Digital Commons Network^™

Legal Realism And Legal Doctrine, Brian Leiter

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No abstract provided.

Archetypes Of Faith: How Americans See, And Believe In, Their Constitution, Aliza Plener Cover

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In this Article, I offer a new framework to illuminate how American faith in the Constitution is sustained over time. I build upon the evocative Passover story of the Four Sons—one of whom is wise, one wicked, one simple, and one who does not know how to ask—and argue that these archetypes resonate deeply in the constitutional context. I identify the “wise sons” of the American constitutional community—the legal elites who maintain the vitality of the constitutional faith through a fastidious, intergenerational, yet somewhat detached analysis of the intricacies of law; the “simple sons”—the People writ large, who relate to …

Materiality And A Theory Of Legal Circularity, Wendy Gerwick Couture

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This Article argues that the materiality doctrine, which lies at the heart of securities fraud, has the potential to operate as a self-fulfilling prophecy. This Article labels this phenomenon "legal circularity." In order to place the potential legal circularity of materiality in context among the various other legal doctrines that share this potential, this Article proposes a two part Theory of Legal Circularity. First, this Article proposes the following Legal Circularity Test to identify potentially circular doctrines: A legal doctrine is potentially circular if: (1) the legal doctrine incorporates the behavior or attitude of a population or person, either hypothetical …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

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No abstract provided.

The Law Of Police, Richard H. Mcadams, Dhammika Dharmapala, Nuno Garoupa

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No abstract provided.

Beyond Relational Contracts: Social Capital And Network Governance In Procurement Contracts, Lisa Bernstein

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No abstract provided.

Is Abood Irrelevant?, Daniel Hemel, David Louk

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No abstract provided.

Cost-Benefit Analysis Of Financial Regulations: A Response To Criticisms, Eric A. Posner, E. Glen Weyl

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No abstract provided.

Teaching Unincorporated Business Associations Through A Simulated Start-Up, Brett Mcdonnell

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This paper describes the Unincorporated Business Associations course taught by the author. The course is organized around a simulated start-up LLC. Students are assigned roles as counsel for one of the founders of the simulated LLC. Over a series of four exercises, students negotiate and draft the provisions of an operating agreement. The course both helps develop important practice skills such as negotiating and drafting, but more fundamentally helps students understand the law of business associations through understanding how that law provides background legal rules for drafting the terms of individual agreements.

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

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Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction allocates power between states in a way that can support or undermine regulatory interests, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and …

Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar

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In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence …

Against Immutability, Jessica A. Clarke

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Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and …

The Contribution Of Phonological Knowledge, Memory, And Language Background To Reading Comprehension In Deaf Populations, Elizabeth A. Hirshorn, Matthew W G Dye, Peter Hauser, Ted R. Supalla

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While reading is challenging for many deaf individuals, some become proficient readers. Little is known about the component processes that support reading comprehension in these individuals. Speech-based phonological knowledge is one of the strongest predictors of reading comprehension in hearing individuals, yet its role in deaf readers is controversial. This could reflect the highly varied language backgrounds among deaf readers as well as the difficulty of disentangling the relative contribution of phonological versus orthographic knowledge of spoken language, in our case ‘English,’ in this population. Here we assessed the impact of language experience on reading comprehension in deaf readers by …

Ecological Perspectives And Children’S Use Of The Internet: Exploring Micro To Macro Level Analysis, Brian O'Neill

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Age-old debates on children’s encounters with media technologies reveal a long, fractured and contentious tradition within communication and media studies. Despite the fact there have been studies of e ects of media use by children since the earliest days of broadcasting, the subject remains under-theorised, poorly represented in the literature and not widely understood in media policy debates. Old debates have intensi ed in relation to the study of children and the internet. Pitted between alarmist accounts of risks, excessive use and harmful e ects on the one hand and the many accounts about „digital natives” and the transformational power …

Knowledge Sharing In Organisations: A Bayesian Analysis Of The Role Of Reciprocity And Formal Structure, Alberto Caimo, Alessandro Lomi

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We examine the conditions under which knowledge embedded in advice relations is likely to reach across intraorganizational boundaries and be shared between distant organizational members. We emphasize boundary-crossing relations because activities of knowledge transfer and sharing across subunit boundaries are systematically related to desirable organizational outcomes. Our main objective is to understand how organizational and social processes interact to sustain the transfer of knowledge carried by advice relations. Using original fieldwork and data that we have collected on members of the top management team in a multiunit industrial group, we show that knowledge embedded in task advice relations is unlikely …

Thinking Outside The Box: Promoting Learning Through Emotional And Social Skills Development, Aiden Carthy, Sinead Mcgilloway

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The European Qualifications Framework provides a useful insight into the kinds of outcomes and abiliti es that are promotedacross the EU. However, beyond arguably vague references to concepts such as ‘integrity’ and ‘autonomy’, this frameworkmakes no reference to the development of students’social and emotional competencies. Based on initial research findings inan Irish context, and when considered against the backdrop of a convincing literature on the importance of emotionalintelligence in academic attainment, there would appear to be considerable scope to modify this framework in order to accommodate more specific reference to the development of emotional and social skills. This paper addresses …

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

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This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

Characteristics Of Attorneys Representing Children In Child Welfare Cases, Britany Orlebeke, Andrew Zinn, Xiaomeng Zhou, Donald N. Duquette

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Every day in state and local courts throughout the United States, judges are called upon to decide who should have the responsibility for the immediate and long-term care of neglected and abused children. Federal recognition of the right to independent advocacy for children subject to these proceedings originates with the 1974 Federal Child Abuse Prevention and Treatment Act (CAPTA). As a condition of receiving federal funds for child abuse prevention services through CAPTA, states must provide for the appointment of an appropriately trained guardian ad litem (GAL) for every child whose case results in a judicial proceeding. A guardian ad …

Peacebuilding And Reintegrating Ex-Combatants With Disabilities, Janet E. Lord, Michael Ashley Stein

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There is a significant gap in post-conflict reintegration processes when it comes to ex-combatants with disabilities, notwithstanding an apparent acknowledgement that physical and mental trauma impact civilians and ex-combatants alike in large numbers and that social reintegration is vital to peaceful transitions. Moreover, processes aimed to reintegrate ex-combatants are typically disconnected from broader efforts to build and sustain the legal institutions that support the rights of the most marginalised groups in conflict affected countries. We examine the implications of this marginalisation of ex-combatants with disabilities and set our analysis within the framework of the Convention on the Rights of Persons …

Student Attitudes To An Online, Peer-Instruction, Revision Aid In Science Education, Barry Ryan, Aaron Mac Raighne, Morag Casey, Robert Howard

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Peer instruction has been shown to have a positive effect on students’ engagement and learning. However, many of the techniques designed to incorporate peer instruction into the student experience are very heavy on resources. PeerWise is a free, low-maintenance, web-tool designed to allow peer instruction between students within a large class group. Students can write, answer and discuss Multiple Choice Questions (MCQs) based on their work in-class.

In this study, we introduce PeerWise to a wide and varied cohort of science students (N=509) across different disciplines, undergraduate years, levels (certificate to honours degree) and institutes. The attitudes of the students …

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia Narine

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No abstract provided.

Fundamental Rights Of States In International Law And The Right To Peaceful Nuclear Energy Ii. Case Studies, Daniel H. Joyner

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This article first discusses the overall theme of this special issue of the Cambridge Journal of International and Comparative Law from a legal theoretical perspective, namely, the concept of the fundamental rights of states in international law. It concludes that fundamental rights of states exist in international law as autonomous juridical principles. The article then proceeds to discuss one such asserted fundamental right of states: the right to peaceful nuclear energy, as codified in the 1968 Nuclear Non-proliferation Treaty. It argues that the right to peaceful nuclear energy is indeed a fundamental right of states, and that it has juridical …

The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green

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Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

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This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.

Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach …

Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield

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It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …

‘Truth And Reconciliation’: A Critical Step Toward Eliminating Race And Gender Violations In Tenure Wars, Tamara F. Lawson, Angela Mae Kupenda

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“All is fair in love and war,” and . . . tenure battles? However, even in war there are rules of engagement. In “tenure wars” rules apply too. The American Bar Association requires law schools to employ clear rules of engagement in “tenure wars,” akin to how the United Nations collectively proscribes rules of war between nation states as well as punishes violations committed on the battlefield. When innocent nations are attacked by illegal acts of aggression, a coalition of the willing allies within the United Nations defends against the aggression.

Even if all is fair in love, war, and …

Economic Migration Gone Wrong: Trafficking In Persons Through The Lens Of Gender, Labor, And Globalization, Dana Raigrodski

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This Article argues for an economic analysis of human trafficking which primarily looks at globalization, trade liberalization, and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.

Part I briefly examines the prevailing criminal law enforcement framework regarding human trafficking—both at the international level and in the United States—which stems out of viewing human trafficking as primarily a threat to global security and an underground industry of transnational criminal enterprises. It argues that while criminalization no doubt helped bring much needed attention (and resources) to human trafficking, the narrow criminal law …

Can Americans Resist Surveillance?, Ryan Calo

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This Essay analyzes the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technologies, and put market pressure on companies not to cooperate with law enforcement.

In practice, however, many of these avenues are limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn citizens into targets. Citizens can extract promises from companies to push back against …

Beyond Respectability: Dismantling The Harms Of "Illegality", Angélica Cházaro

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Current pro-immigrant reform efforts focus on legalization. Proposals seek to place as many of the eleven million undocumented people in the United States as possible on a “path to earned citizenship.” However, these reform efforts suffer from a significant and underappreciated blind spot: the strategies used to advocate legalization harm those to whom the path to citizenship is barred—such as those with prior deportation orders, prior criminal convictions, and those who have yet to arrive. The problem begins with rhetoric: in making the push for legalization, immigrant rights groups have deployed imagery of the undocumented as law-abiding, hard-working, and family-oriented—the …

Making "Smart Growth" Smarter, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

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The “smart growth” movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies.

This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political …