Digital Commons Network^™

The Widening Maturity Gap: Trying And Punishing Juveniles As Adults In An Era Of Extended Adolescence, David Pimentel

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No abstract provided.

Improvidently Granted: Why The En Banc Federal Circuit Chose The Wrong Claim Construction Issue, Greg Reilly

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No abstract provided.

Self-Regulation For The Mortgage Industry, M. Todd Henderson

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No abstract provided.

Behavioral Finance Before Kahneman, Richard A. Posner

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No abstract provided.

International Paretianism: A Defense, David A. Weisbach, Eric A. Posner

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A treaty satisfies what we call International Paretianism (P) if it advances the interests of all states that join it, so that no state is made worse off The principle might seem obvious, but it rules out nearly all the major proposals for a climate treaty, including proposals advanced by academics and by government officials. We defend IP, and for that reason urge commentators in the debate over climate justice to abandon efforts to right past wrongs, redistribute wealth, and achieve other abstract ideals through a climate treaty. Instead, the goal should be to develop a feasible treaty that states …

Harmonization, Preferences, And The Calculus Of Consent In Commercial And Other Law, Saul Levmore

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No abstract provided.

Harmonization, Heterogeneity And Regulation: Cesl, The Lost Opportunity For Constructive Harmonization, Richard A. Epstein

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No abstract provided.

How Business Fares In The Supreme Court, Richard A. Posner, Lee Epstein, William M. Landes

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No abstract provided.

On The Interpretability Of Law: Lessons From The Decoding Of National Constitutions, Tom Ginsburg, James Melton, Zachary Elkins, Kalev Leetaru

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No abstract provided.

Regulatory Techniques In Consumer Protection: A Critique Of European Consumer Contract Law, Omri Ben-Shahar, Oren Bar-Gill

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No abstract provided.

Children, Violence, Community And The Physical Environment: Foreword To The Special Issue, Kevin Lalor

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No abstract provided.

The Servicescape As An Antecedent To Service Quality And Behavioral Intentions, Daire Hooper, Joseph Coughlan, Michael Mullen

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Purpose: The purpose of this paper is to examine whether the servicescape should be subsumed as a dimension within service quality conceptualizations or whether it is a unique construct in itself which precedes service quality evaluations and behavioral intentions. We both propose and operationalize this model and in doing so make a theoretical contribution by demonstrating how a delineation between these two constructs is necessary in order for theory to progress in this area.

Design/methodology/approach: A total of 355 customers were intercepted as they exited a retail store and surveyed using a structured questionnaire. The data was then analyzed using …

A Look Inside The Butler’S Cupboard: Fiction Writers’ Insights On How The External World Reveals Internal State Of Mind In Appellate Briefs, Cathren Page

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By studying the scene through the eyes of the client and the witnesses, the attorney can not only evoke this psychological subtext, but can also weave relevant and probative details into the statement of facts and the argument and elicit such detail at trial. For instance, in a case involving a car accident, the weather, the temperature, the time of day, the traffic on the road, and the color of the cars, signs, and traffic lights can be relevant as to the degree that a driver was negligent. Similarly, in a case involving child neglect, the smell of a home, …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein

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In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Removal As A Political Question, Aziz Huq

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When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision's linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies' organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, …

Sworn To Fun, Loyal To None: Time Inconsistent Preferences In Investment Banking, Richard W. Painter

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No abstract provided.

Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy

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I devoted a great deal of my teaching energy during the last ten years of my tenure at the University of Minnesota Law School to a course I called the Sentencing Workshop. The Workshop provided a unique opportunity for law students and judges to learn from each other about the intricacies, the successes and failures of the American criminal justice sentencing structure and practice. I will describe it in three phases: initially, to give some context, I will report a dramatic Workshop discussion which occurred the fth or sixth year the course was o ered. A short summary of the …

Designing Countercyclical Capital Buffers, Brett Mcdonnell

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This essay explores the new countercyclical capital buffer requirement that is a part of both the Basel III and Dodd-Frank rulemaking efforts following the financial crisis. The new buffer will require banks to hold higher levels of capital reserves during times that regulators determine capital markets have created excessive levels of debt. This essay briefly explores why financial regulation tends to be procyclical, how the new capital buffer attempts to address that tendency, and how well the attempt is likely to work. The verdict is mixed. The new countercyclical buffer may do some good. However, some features in its design …

Boilerplate, Freedom Of Contract, And "Democratic Degradation", Brian H. Bix

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In Margaret Jane Radin's provocative new book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, 1 the author offers scathing observations regarding the motivation and effects of the terms placed in consumer and employee form contracts and on-line agreements. She argues that the current contracting practices make a mockery of consent, and undermine the rule of law. 2 Boilerplate's essential claim is that for many contracting parties, freedom of contract is less an ideal than a sham. 3 The book properly criticizes theories of contract law (and courses in contract law) that largely ignore boilerplate and its …

Cyber-Conflict, Cyber-Crime, And Cyber-Espionage, David Weissbrodt

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Computers and the Internet have changed and are continuing to change the way governments, militaries, businesses, and other organs of society manage their activities. While computers can improve efficiency, they are vulnerable to cyber-attack, cyber-crime, and cyber-espionage. 1 The international community, states, and businesses are still adapting to the unique set of challenges posed by cyber-attack, cyber-crime, and cyber-espionage. States are creating military operations that specialize in cyber-attack and defense to adapt to these relatively new threats to national security operations. 2

Behind Closed Doors: What Really Happens When Cops Question Kids, Barry C. Feld

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Police interrogation raises difficult legal, normative, and policy questions because of the State's need to solve crimes and obligation to protect citizens' rights. These issues become even more problematic when police question juveniles. For more than a century, justice policies have reflected two competing visions of youth: vulnerable and immature versus responsible and adult-like. A century ago, Progressive reformers emphasized youths' immaturity and created a separate juvenile court to shield children from criminal trials and punishment. 2 By the end of the twentieth century, lawmakers adopted "get tough" policies, which equated adolescents with adults and punished youths more severely. 3 …

Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld

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The Supreme Court in Roper v. Simmons 1 prohibited states from executing offenders for murders committed when younger than eighteen years of age. Roper found a national consensus existed against executing adolescents based on state statutes and jury practices. 2 The Justices also conducted an independent proportionality analysis and concluded that youths' immature judgment, susceptibility to negative peer influences, and transitory personality development reduced their culpability and precluded the most severe sentence. 3

The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time, Barry C. Feld

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In a trilogy of cases, the Supreme Court applied the Eighth Amendment to the entire category of juvenile offenders, repudiated its “death is different” jurisprudence, and required states to consider youthfulness as a mitigating factor in sentencing. Roper v. Simmons prohibited states from executing offenders for murder they committed when younger than eighteen years of age.1 Roper reasoned that immature judgment, susceptibility to negative influences, and transitory personalities reduced youths’ culpability and barred the most severe sentence.2 Graham v. Florida extended Roper’s diminished responsibility rationale and prohibited states from imposing life without parole (LWOP) sentences on youths convicted of nonhomicide …

Dampening Financial Regulatory Cycles, Brett Mcdonnell

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No abstract provided.

Numerical Half Truths, Human Lies, And Other Distortions Of Truth, Richard W. Painter

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Inferring Desire, Jessica A. Clarke

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In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results. This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …

Jury Size And The Hung-Jury Paradox, Francesco Parisi, Barbara Luppi

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Juries are a fundamental element of the criminal justice system. In this article, we model jury decision making as a function of two institutional variables: jury size and voting requirement. We expose the critical interdependence of these two elements in minimizing the probabilities of wrongful convictions, of wrongful acquittals, and of hung juries. We find that the use of either large nonunanimous juries or small unanimous juries offers alternative ways to maximize the accuracy of verdicts while preserving the functionality of juries. Our framework, which lends support to the elimination of the unanimity requirement in the presence of large juries, …

Data Mining And Machine Learning Techniques For Extracting Patterns In Students’ Evaluations Of Instructors, Ernest Fokoue, Necla Gündüz

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No abstract provided.

Neuroscience, Mental Privacy, And The Law, Francis X. Shen

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Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching. Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But …

The Gender/Class Divide: Reproduction, Privilege, And The Workplace, June Carbone, Naomi Cahn

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This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different …