Digital Commons Network^™

An Exploration Of "Non-Economic" Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

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Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of …

Who's Afraid Of Good Governance? State Fiscal Crises, Public Pension Underfunding, And The Resistance To Governance Reform, Thomas Fitzpatrick, Amy B. Monahan

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Much attention has been paid to the significant underfunding of many state and local employee pension plans, as well as efforts by states and cities to alleviate that underfunding by modifying the benefits provided to workers. Yet relatively little attention has been paid to the systemic causes of such financial distress — such as chronic underfunding that shifts financial burdens to future taxpayers, and governance rules that may reduce the likelihood that a plan’s trustees will make optimal investment decisions. This article presents the results of a qualitative study of the funding and governance provisions of twelve public pension plans …

Why Crime Rates Are Falling Throughout The Western World, Michael Tonry

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Crime rates have moved in parallel in Western societies since the late Middle Ages. Homicide rates declined from 20 to 100 per 100,000 population in western Europe to one per 100,000 in most Western countries by the beginning of the twentieth century. Crime rates in major cities and in countries fell from the early nineteenth century until the middle of the twentieth. From the 1960s to the 1990s, rates for violent and property crimes rose in all wealthy Western countries. Since then, rates in all have fallen precipitately for homicide, burglary, auto theft, and other property crimes. The patterns appear …

Transparently Opaque: Understanding The Lack Of Transparency In Insurance Consumer Protection, Daniel Schwarcz

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Consumer protection in most domains of financial regulation centers on transparency. Broadly construed, transparency involves making relevant information available to consumers as well as others who might act on their behalf, such as academics, journalists, newspapers, consumer organizations or other market watchdogs. By contrast, command and control regulation that affirmatively limits financial firms’ products or pricing is relatively uncommon. This Article describes a remarkable inversion of this pattern: while state insurance regulation frequently employs aggressive command and control consumer protection regulation, it typically does little or nothing to promote transparent markets. Rather, state lawmakers routinely either completely ignore transparency-oriented reforms …

Machiavellianism In Healthcare Explored: Differences In Aspiring Managers And Patient Care Professionals, Sandra Collins

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Complex economic factors require healthcare professionals to have multiple skills. Although controversial, some characteristics associated with Machiavellianism may be needed in order to maintain organizational solvency. A study was conducted to determine the differences between aspiring healthcare managers and patient care professionals regarding the Machiavellian tendencies. The results of the study indicate a significant mix of Machiavellian traits exist within both groups which need to be both cultivated and controlled. Efforts should be made to increase some Machiavellian tendencies such as risk-risk taking and creative while extinguishing counterproductive traits that lead to unethical decision making.

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

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After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

Phenomenology And Hermeneutic Phenomenology: The Philosophy, The Methodologies And Using Hermeneutic Phenomenology To Investigate Lecturers' Experiences Of Curriculum Design, Arthur Sloan, Brian Bowe

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This article investigates the philosophy of phenomenology, continuing to examine and describe it as a methodology. There are different methods of phenomenology, divided by their different perspectives of what phenomenology is: largely grouped into the two types of descriptive and interpretive phenomenology. The focal methodology is hermeneutic phenomenology – one type of phenomenological methodology among interpretive phenomenological methodologies. The context for phenomenology and the location of hermeneutic phenomenology is explained through its historic antecedents. When using phenomenology as a methodology there are criteria for data gathering and data analysis and examples of these are cited in this paper. Also in …

Cultivating Professional Identity & Creating Community: A Tale Of Two Innovations, Jan L. Jacobowitz

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No abstract provided.

A Qualitative Examination Of Self-Care In Lawyers, Mary E. Wood, Jacklyn E. Nagle, Pamela Bucy Pierson

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It may seem obvious that selfcare is important for wellbeing and success in life However selfcare is not always practiced when work bills and other issues come into play All individuals experience stress in their lives but not all have identified specific strategies to adaptively cope with stress Recent research has established the negative implications of workrelated stress on wellbeing

Feeling Another's Pain: Sympathy And Psychology Saga Style, William I. Miller

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Progress is hardly a given in the humanities or the suspect sciences. In many ways we are not quite as astute as our grandparents, and they not as much as theirs, and so forth in an infinite entropic regress. Would I trade Montaigne or Stendhal’s psychological acumen for even the best work that comes from social psychology departments? In this short essay I want to show just how good some medieval people, medieval Icelanders to be exact, were at understanding the mental and emotional states of others, and if of others then presumably, though not necessarily, also of themselves. And …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

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Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

Effects Of Clergy Reporting Laws On Child Maltreatment Report Rates, Frank E. Vandervort, Vincent J. Palusci

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Child maltreatment (CM) reporting laws and policies have an important role in the identification, treatment, and prevention of CM in the United States (U.S. Department of Health and Human Services [US DHHS], 2012). Abuse by a member of the clergy “is not only a personal and emotional betrayal, but [also] a spiritual betrayal, with secrecy amplified by the unprecedented and systemic cover-up committed by the Church hierarchy” (Coyne, 2011, p. 15). Recent controversies have resulted in the consideration of changes in mandated U.S. reporting laws that include increasing requirements for clergy and extension to additional professions (Freeh, Sporkin, & Sullivan, …

Family Courts Are Here To Stay, So Let's Improve Them, Barbara A. Babb

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The article presents a commentary in response to the White Paper of the Institute for the Advancement of the American Legal System's Honoring Families Initiative on the court and separating and divorcing families. Topics include the mission, function and structure of family courts, therapeutic jurisprudence, and the design of a unified family court. It also discusses the ecology of human development.

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

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No abstract provided.

The Mold That Shapes Hearsay Law, Richard D. Friedman

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In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

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This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

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The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

Citizen Participation: Appraising The Saiban’In System, Daniel H. Foote

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Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban'in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the …

Scholarship With Purpose: The View From A Mission-Driven School, Christine N. Cimini

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This essay explores the ways that a law school’s unique culture impacts the role of the Associate Dean for Scholarship. Written by the first person to hold this position at Vermont Law School (VLS), this essay focuses specifically on how the Associate Dean for Scholarship supports VLS’s commitment “to developing a generation of leaders who use the power of the law to make a difference in our communities and the world.” This vision of the role, as implemented at VLS, includes: providing support to all faculty, regardless of status; supporting faculty who speak to broad audiences; and embracing a broad …

The Sneetches As An Allegory For The Gay Rights Struggle: Three Prisms, Peter Nicolas

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In this essay, I invoke both versions of Dr. Seuss's The Sneetches as an allegory for the modern struggle for gay rights in the United States viewed through three different prisms. The first and most obvious of these prisms is the battle between the heterosexual majority and the gay minority represented by the two groups of Sneetches. Members of the majority seek to distinguish themselves with markers of social acceptance such as marriage, parenting, and military service, as well as access to certain other markers of social acceptance, including the ability to donate blood and become members in private organizations …

Straddling The Columbia: A Constitutional Law Professor's Musings On Circumventing Washington State's Criminal Prohibition On Compensated Surrogacy, Peter Nicolas

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In this Article, I recount—through both the prisms of an intended parent and a constitutional law scholar—my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State's criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization.

Part …

The Long-Term Tort: In Search Of A New Causation Framework For Natural Resources Damages, Sanne H. Knudsen

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Recent scientific evidence is proving that toxic releases have long-term, unintended, and harmful consequences for the marine environment. Though a new paradigm is emerging in the scientific literature--one demonstrating that long-term impacts from oil spills are more significant than previously thought--legal scholars, regulators, and courts have yet to consider the law's ability to remedy long-term ecological harms.

While scholars have exhaustively debated causation questions related to latent injuries for toxic torts, they have overlooked the equally important and conceptually similar causation problems of long-term damages in the natural resource context. Likewise, only a few courts have considered the standards of …

Code, Nudge, Or Notice?, Ryan Calo

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Regulators are increasingly turning to means other than law to influence citizen behavior. This Essay compares three methods that have particularly captured the imagination of scholars and officials in recent years. Much has been written about each method in isolation. This Essay considers them together for the first time in order to generate a novel normative insight about the nature of regulatory choice.

The first alternative method, known colloquially as architecture or “code,” occurs when regulators change a physical or digital environment to make undesirable conduct difficult. Speed bumps provide a classic example. The second method, libertarian paternalism or “nudging,” …

Digital Market Manipulation, Ryan Calo

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In 1999, Jon Hanson and Douglas Kysar coined the term “market manipulation” to describe how companies exploit the cognitive limitations of consumers. For example, everything costs $9.99 because consumers see the price as closer to $9 than $10. Although widely cited by academics, the concept of market manipulation has had only a modest impact on consumer protection law.

This Article demonstrates that the concept of market manipulation is descriptively and theoretically incomplete, and updates the framework of the theory to account for the realities of a marketplace that is mediated by technology. Today’s companies fastidiously study consumers and, increasingly, personalize …

Racial Profiling As Collective Definition, Trevor G. Gardner

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Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice.

However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In this article, I review the literature on group distinction to …

Disability, Repressive Regimes, And Health Disparity: Assessing Country Conditions In North Korea, Jae-Chun Won, Janet E. Lord, Michael Ashley Stein, Yosung Song

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This article examines the potential of international human rights standards to account for heightened risk and vulnerability to human rights abuses for persons with disabilities in politically repressive environments. We offer a preliminary assessment of whether and how a disability-cognizant accounting of human rights in repressive regimes can lead to a more credible and comprehensive understanding of disability in such contexts. In so doing, we make the case for a more thorough and thoughtful application of international disability rights standards to better inform human rights investigations, transitional justice approaches, and international criminal law proceedings. To illustrate this methodology, we analyze …

A Review Of Psychometric Data Analysis And Applications In Modelling Of Academic Achievement In Tertiary Education, Geraldine Gray, Colm Mcguinness, Philip Owende, Aiden Carthy

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Increasing college participation rates, and diversity in student population, is posing a challenge to colleges in their attempts to facilitate learners achieve their full academic potential. Learning analytics is an evolving discipline with capability for educational data analysis that could enable better understanding of learning process, and therefore mitigate these challenges. The outcome from such data analysis will be dependent on the range, type, and quality of available data and the type of analysis performed. This study reviewed factors that could be used to predict academic performance, but which are currently not systematically measured in tertiary education. It focused on …

Socioeconomic Differentials In The Immediate Mortality Effects Of The National Irish Smoking Ban, Patrick J. Goodman, Sericea Stallings-Smith, Ariana Zeka, Z. Kabir, Luke Clancy

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Background: Consistent evidence has demonstrated that smoking ban policies save lives, but impacts on health inequalities are uncertain as few studies have assessed post-ban effects by socioeconomic status (SES) and findings have been inconsistent. The aim of this study was to assess the effects of the national Irish smoking ban on ischemic heart disease (IHD), stroke, and chronic obstructive pulmonary disease (COPD) mortality by discrete and composite SES indicators to determine impacts on inequalities. Methods: Census data were used to assign frequencies of structural and material SES indicators to 34 local authorities across Ireland with a 2000–2010 study period. Discrete …

Children’S Rights Online: Challenges, Dilemmas And Emerging Directions, Sonia Livingstone, Brian O'Neill

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Although it is widely held that a more inclusive and trusted internet can support a competitive knowledge economy, a digitally skilled labour force, civic participation and a pluralistic media sector, governments and regulators have tended to avoid intervening directly to achieve these aims, believing that industry is best positioned to respond to the fast pace of change in information and communication technologies (ICT).This reflects a wider policy shift away from top-down government measures towards flexible, dispersed and indirect forms of governance, encompassing industry self-regulation as well as elements of cooperation or co-regulation with relevant state agencies.

Offering Minority Communities Equal Opportunities Through Entrepreneurship, Thomas M. Cooney

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A substantial body of research has been undertaken in recent years giving prominence to the additional and distinctive challenges faced by female entrepreneurs and by ethnic entrepreneurs. However, other groups of minority entrepreneurs have received relatively little attention and so remain underexplored within entrepreneurship literature. This article introduces some of these minority communities (Ex–Prisoners, Disabled People, Travellers/Gypsies, Grey and Gay) and highlights the research opportunities that exist for entrepreneurship academics who might wish to analyse such ‘silent’ minorities. These communities are all relatively large in terms of population numbers, require tailored support to overcome distinctive economic, social and personal obstacles, …