Digital Commons Network^™

Judicial Transparency In An Age Of Prediction, Adam M. Samaha

Articles

The Empirical Legal Studies (ELS) movement is making strides toward understanding judicial behavior, and ELS models could become the foundation for more accurate prediction of judicial decisions. This essay raises two questions. First, what would an age of predictable judicial behavior look like? Second, would satisfying the informational needs of ELS prediction models also exhaust the demands for 'judicial transparency"? The essay concludes that a state of predictable judicial behavior, if somehow stable, would leave almost no litigation to observe; and that a prediction-oriented information policy would nearly meet the demands of today's transparency advocates. One shortfall involves the intrinsic …

The Many Faces Of Fault In Contract Law: Or How To Do Economics Right, Without Really Trying, Richard A. Epstein

Articles

Modern law often rests on the assumption that a uniform cost-benefit formula is the proper way to determine fault in ordinary contract disputes. This Article disputes that vision by defending the view that different standards of fault are appropriate in different contexts. The central distinction is one that holds parties in gratuitous transactions only to the standard of care that they bring to their own affairs, while insisting on the higher objective standard of ordinary care in commercial transactions. That bifurcation leads to efficient searches. Persons who hold themselves out in particular lines of business in effect warrant their ability …

Combating The Color-Coded Confinement Of Kids: An Equal Protection Remedy, Perry L. Moriearty

Articles

This Article considers the viability of a constitutional challenge to the disproportionate confinement of juveniles of color – a phenomenon known as “disproportionate minority contact” or “DMC.” Specifically, I ask whether, in the wake of McCleskey v. Kemp and its progeny, it is possible bring an Equal Protection claim based on statistical evidence that juveniles of color are significantly more likely to be detained by juvenile court judges than similarly-situated white youth. I argue that the nature of the juvenile detention decision places it squarely within the contours of the types of administrative decisions for which the Supreme Court has …

Learning From The Limitations Of Deterrence Research, Michael Tonry

Articles

No abstract provided.

A Slower Form Of Death: Implications Of Roper V. Simmons For Juveniles Sentenced To Life Without Parole, Barry C. Feld

Articles

The Supreme Court in Roper v. Simmons 1 interpreted the Eighth Amendment to prohibit states from executing offenders for crimes they committed when younger than eighteen years of age. The Court relied on objective indicators of "evolving standards of decency," such as state statutes and jury decisions to support its judgment that a national consensus existed against executing adolescents. The Justices also conducted an independent proportionality analysis of youths' criminal responsibility and concluded that their reduced culpability warranted a categorical prohibition of execution. Juveniles' immature judgment, susceptibility to negative peer influences, and transitory personality development diminished their criminal responsibility. Because …

Lawmakers As Norms Entrepreneurs, Emanuela Carbonara, Francesco Parisi, Georg Von Wangenheim

Articles

In this paper we consider the role of lawmakers as norm entrepreneurs. Drawing from expressive law theories and social response theories, we shed light on the role of law in shaping social values and norms, and on the ability of the law to produce social norms where they did not exist before. Furthermore, we unveil a possible undesirable effect of legal intervention, where a legal innovation can cause social divide and possible conflicts.

Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill

Articles

Legal scholarship has long concerned itself with race, gender, and other core identities. Economics, and law and economics, is now turning its attention to other dimensions of identity. What is identity? Identity is "a person's sense of self."' Identity has genetic, cultural and neural bases grounded in an evolutionary process.' Identity helps individuals make sense of themselves and provides a feeling of grounding or belonging. There are many potential identity dimensions, including gender, facial features, and height, as well as religion, ethnicity, social-group affiliation, sports-team loyalty, family, profession, artistic preferences, culinary preferences, and place of origin. The significance of different …

The Myth Of Discovery, Claire Hill

Articles

This review essay of Barry Schwartz’s Paradox of Choice discusses how Schwartz’s thesis that more choice is not always better should inform economists’ increasing acknowledgment that preferences are constructed, not fixed. In this companion piece to my more detailed consideration of the subject of constructed preferences, I argue that what makes the assumption of fixed preferences possible is a myth, the myth of discovery - that preferences exist to be discovered. Once we acknowledge that preferences are as much made as found, and that the raw materials from which they are made are scarcely stable, the assumption of fixed preferences …

The Rationality Of Preference Construction (And The Irrationality Of Rational Choice), Claire Hill

Articles

Economists typically assume that preferences are fixed - that people know what they like and how much they like it relative to all other things, and that this rank-ordering is stable over time. But this assumption has never been accepted by any other discipline. Economists are increasingly having difficulty arguing that the assumption is true enough to generate useful predictions and explanations. Indeed, law and economics scholars increasingly acknowledge that preferences are constructed, and that the law itself can help construct preferences. Still, fixed preferences are often treated as a normative ideal: Even if people don't have fixed preferences, they …

Employee Primacy, Or Economics Meets Civic Republicanism At Work, Brett Mcdonnell

Articles

This paper argues for employee primacy in corporate governance. "Employee primacy" has two elements: ultimate employee control over the corporation, and an objective function of maximizing employee welfare. In methodology, the argument draws upon both economics, but understood more broadly than in most corporate law scholarship, and upon civic republican ideas. The paper presents four different arguments favoring employee primacy. (1) Employee primacy is likely to create the most surplus within the corporation due to incentive effects and the wealth of information that employees possess. (2) Corporations characterized by employee primacy are more likely to be socially responsible, and hence …

Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger

Articles

The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost- rather than liabilityminimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as …

Frequency And Predictors Of False Conviction: Why We Know So Little, And New Data On Capital Cases, Samuel R. Gross, Barbara O'Brien

Articles

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases …

The Human Rights Quagmire Of 'Human Trafficking', James C. Hathaway

Articles

Support for the international fight against "human trafficking" evolved quickly and comprehensively. The campaign launched by the UN General Assembly in December 19981 led to adoption just two years later of the Trafficking Protocol to the UN Convention against Organized Crime.2 U.S. President George W. Bush was among those particularly committed to the cause, calling for collective effort to eradicate the "special evil" of human trafficking, said by him to have become a "humanitarian crisis."3 One hundred and twenty-two countries have now ratified the Trafficking Protocol, agreeing in particular to criminalize trafficking and to cooperate in investigating and prosecuting allegations …

The Impact Of Traumatic Stress And Alcohol Exposure On Youth: Implications For Lawyers, Judges, And Courts, Frank E. Vandervort

Articles

Since its inception in the late nineteenth century, the juvenile court has been concerned with the legal problems of children and their families. From the court’s earliest days, it has sought to address child abuse and neglect and juvenile delinquency as social problems that result from familial and community breakdown. Over the decades, researchers from various disciplines have provided varying explanations of how and why family systems break down, why some parents fail to nurture their children, why some physically or sexually abuse their children, and why some children become delinquent.

Exploring Paradox In Marketing Strategy: Managing Ambiguity Towards Synthesis, Aidan O'Driscoll

Articles

The objective of this paper is to explain a conceptual framework of paradox and marketing. The paper adopts a theoretical approach. It outlines marketing’s current and limited interest in the notion of paradox and highlights the difference between a classic paradox, the tension between transactional and relational marketing, and the Contemporary Marketing Practice (CMP) research program. A future research agenda for paradox and marketing is speculated on, addressing issues such as likely domains for exploration, methodology, as well as the type of organizational structures and marketing leadership required. Finally, there is reflection on how paradox engineers a strong bridge between …

Business As Usual: The Roberts Court's Continued Neglect Of Adequacy And Equity Concerns In American Education, Osamudia R. James

Articles

No abstract provided.

Structural Equation Modelling: Guidelines For Determining Model Fit, Daire Hooper, Joseph Coughlan, Michael Mullen

Articles

The following paper presents current thinking and research on fit indices for structural equation modelling. The paper presents a selection of fit indices that are widely regarded as the most informative indices available to researchers. As well as outlining each of these indices, guidelines are presented on their use. The paper also provides reporting strategies of these indices and concludes with a discussion on the future of fit indices.

Kiddie Law Is Growing Up: Board Certification In Child Welfare Law, Donald N. Duquette

Articles

Few areas of the law are as personally rewarding as child welfarethat is, representing children, parents, or a government agency in cases of alleged child abuse and neglect. Few areas of the law provide a greater opportunity to make a tremendous difference in the lives of individuals. Few areas of the law are as intellectually challenging, fast developing, and dynamic as child welfare. Until recently the child welfare field was demeaned as "kiddie law"-not worthy of the intellectual and advocacy talents of the best of America's lawyers. The field is steadily being transformed, however, from a sleepy, assembly-line processing of …

Establishing Relations Between Law And Other Forms Of Thought And Language, James Boyd White

Articles

The law does not, and could not, exist in an intellectual or linguistic vacuum. No one believes that the law is or should be impervious to other languages, other bodies of knowledge. In this sense the argument about the 'autonomy' of law is an empty one: law cannot be, should not be, perfectly autonomous, unconnected with any other system of thought and expression; yet it plainly has it own identity as a discourse, it own intellectual and linguistic habits, which it is our task as lawyers to understand and develop. It follows that an essential topic of legal thought is …

Pharma's Nonobvious Problem, Rebecca S. Eisenberg

Articles

This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit's nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible …

History And Symptoms Of Psychology, Peter Hauser

Articles

The History and Systems of Psychology course provides background to the development of current psychological perspectives. It examines beliefs, practices, achievements and limitations of various systems of psychology from Greek times through to the late 20th century.

Hearts, Minds, Hands: A Dream Team For Mental Health, Julianne Gold Brunson, Judy Molner, Miriam Nathan Lerner

Articles

Interpreting in a mental health setting with hearing staff members and deaf clientele, the ethical situations fly fast and furious, providing the interpreter with a wealth of war stories with which to regale neophyte students of this dynamic profession. Much has been written to improve the many and varied mental health services being extended to deaf populations. The most commonly described dyads are that of hearing therapist and deaf patient. However, consider the case of a deaf psychologist treating hearing clients. In this instance, the interpreter becomes the liaison between the deaf professional and the hearing patient. When an interpreter …

Jagannath's Saligram: On Bruno Latour And Literary Critique After Postcoloniality, Amit Ray, Evan Selinger

Articles

Bruno Latour has turned to Indian vernacular fiction to illustrate the limits of ideology critique. In examining the method of literary analysis that underlies his appropriation of postcolonial history and culture, we appeal to Edward Said's notion of "traveling theory" in order to discuss critically the aesthetic as well as political stakes of using the technology of the modern novel for the allegorical purposes that Latour has in mind. We argue that Latourian analysis fails to uphold its own rigorous aspirations when it reduces complex literary and cultural representation to universal allegory.

Reviewing The Author-Function In The Age Of Wikipedia, Amit Ray, Erhardt Graeff

Articles

In "Reviewing the Author-Function in the Age of Wikipedia," Amit Ray and Erhardt Graeff examine how wiki technology challenges traditional concepts of authorship and authority in knowledge production. The authors build on poststructuralist theory, particularly Roland Barthes's "Death of the Author" and Michel Foucault's concept of the "author-function," to analyze how wikis destabilize individual authorship in favor of collaborative, community-driven content creation.

The essay argues that wikis represent a fundamental shift from the Romantic notion of the solitary author-genius to what they term the "wiki writing process"—a dynamic system where traditional roles of reader, writer, and editor blur into a …

Sociolegal Islands?, Daniel H. Foote

Articles

In 1992, in an address at the American Society of Comparative Law annual meeting, Professor Mary Ann Glendon of Harvard Law School bemoaned the state of comparative legal studies in the United States. Many scholars specialized in comparative law, she observed. But at Harvard and other law schools, they were like islands; they conducted research and teaching largely in isolation, having little contact with the core curriculum or other faculty. From the many nods of agreement. it was evident she had voiced a common concern.

Primarily due to increased globalization, the situation has changed. At many law schools comparative perspectives …

“Whites Only Tree,” Hanging Nooses, No Crime?: Limiting The Prosecutorial Veto For Hate Crimes In Louisiana And Across America, Tamara F. Lawson

Articles

News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent …

Jacobus Tenbroek, Participatory Justice, And The Un Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord

Articles

No abstract provided.

Multi-Algorithmic Cryptography Using Deterministic Chaos With Applications To Mobile Communications, Jonathan Blackledge

Articles

In this extended paper, we present an overview of the principal issues associated with cryptography, providing historically significant examples for illustrative purposes as part of a short tutorial for readers that are not familiar with the subject matter. This is used to introduce the role that nonlinear dynamics and chaos play in the design of encryption engines which utilize different types of Iteration Function Systems (IFS). The design of such encryption engines requires that they conform to the principles associated with diffusion and confusion for generating ciphers that are of a maximum entropy type. For this reason, the role of …

Extending The Reach Of The State Into The Post-Sentence Period: Section 26 Of The Criminal Justice Act 2007, Mary Rogan

Articles

The Criminal Justice Act 2007 heralded a plethora of changes to Irish criminal law and procedure. The law on sentencing was also affected by its provisions. The focus of this article is on section 26 of that Act which introduces a general power on a court to make an order while passing sentence which will take effect on the expiration of a sentence of imprisonment. Under section 26 a court can impose two such orders, the “monitoring” order and the “protection of persons” order. The author assesses the background to the introduction of these dispositions and the potential application and …

Digital Radio Policy In Canada: From Analog Replacement To Multimedia Convergence, Brian O'Neill

Articles

Digital radio policy in Canada has moved from a position of seeking to migrate all radio broadcasting onto a single digital transmission system (Eureka-147) to a multi-platform, cross-media and multimedia approach. The most recent digital radio policy of 2006 suggests a range of new possibilities for radio broadcasting, including multimedia broadcasting, but as a result has compromised the early adoption of the Eureka-147 standard. This paper contrasts the different policy contexts of 1995 and 2006 and argues that the competing technological options for digital audio delivery now pose significant dilemmas for broadcasters and policy makers.