Digital Commons Network^™

Libertarian Paternalism, Path Dependence, And Temporary Law, Tom Ginsburg, Jonathan Masur, Richard H. Mcadams

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No abstract provided.

Sport As Speech, Genevieve Lakier

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No abstract provided.

Dna → Rna: What Do Students Think The Arrow Means?, Leslie Kate Wright, J. Nick Fisk, Dina L. Newman

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The central dogma of molecular biology, a model that has remained intact for decades, describes the transfer of genetic information from DNA to protein though an RNA intermediate. While recent work has illustrated many exceptions to the central dogma, it is still a common model used to describe and study the relationship between genes and protein products. We investigated understanding of central dogma concepts and found that students are not primed to think about information when presented with the canonical figure of the central dogma. We also uncovered conceptual errors in student interpretation of the meaning of the transcription arrow …

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

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No abstract provided.

Street Diversion And Decarceration, Mary Fan

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States seeking more cost-effective approaches than imprisoning drug offenders have explored innovations such as drug courts and deferred prosecution. These treatment-based programs generally involve giving diversion discretion to prosecutors and judges, actors further down the criminal processing chain than police. The important vantage of police at the gateway of entry into the criminal system has been underutilized. [para] The article explores developing the capacity of police to take a public health approach to drug offending by engaging in street diversion to treatment rather than criminal processing. This approach entails giving police therapeutic discretion—the power to sort who gets treatment rather …

Nietzsche, Naturalism And Normativity (Reviewing Christopher Janaway And Simon Robertson (Eds.), Nietzsche, Naturalism And Normativity (2012)), Brian Leiter

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No abstract provided.

The Limits Of Journalism : How Fictional Narrative Compensates For Journalism’S Shortcomings In John Banville’S The Book Of Evidence, Ian Kilroy

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How fictional narrative compensates for journalism’s limitations in John Banville’s novel The Book of Evidence.

Deciphering Irish Catholic Identities: Past And Present, Eamon Maher

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This collection of essays, compiled and edited by Oliver Rafferty, is a significant contribution to making sense of the tangled labyrinth that is Irish Catholic identities. The plural is important here, as there are, in fact, multiple Catholic identities, something that is often forgotten in the rush to blandly link “Irish” and “Catholic”.

Motivations Of Social Entrepreneurs: Blurring The Social Contribution And Profits Dichotomy, Karla Aileen Boluk, Ziene Mottiar

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Research has typically identified social entrepreneurs as characteristically superior to conventional entrepreneurs as they are motivated by making a contribution to society rather than by profits. Yet, few published papers investigate the motives of social entrepreneurs and explore if there are indeed any additional motivations aside from community interests. The aim of this study is to empirically investigate the additional motives, aside from the social interests that motivate social entrepreneurs. This paper does so by using an inductive approach and specifically carrying out a re-examination of two pieces of research examining social entrepreneurship that were carried out independently by the …

Identifying Legal, Ecological And Governance Obstacles, And Opportunities For Adapting To Climate Change, Barbara Cosens

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No abstract provided.

Cold Comfort Food: A Systematic Examination Of The Rituals And Rights Of The Last Meal, Sarah Gerwig-Moore

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Last meals are a resilient ritual accompanying executions in the United States. Yet states vary considerably in the ways they administer last meals. This paper explores the recent decision in Texas to abolish the tradition altogether. It seeks to understand, through consultation of historical and contemporary sources, what the ritual signifies. We then go on to analyze execution procedures in all 35 of the states that allowed executions in 2010, and show that last meal allowances are paradoxically at their most expansive in states traditionally associated with high rates of capital punishment (Texas now being the exception to that rule.) …

Foreword To Reviews (Books On The Law Of Contracts), Lisa Bernstein

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No abstract provided.

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

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The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as …

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 …

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 …

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.

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 …

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 …

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.

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 …