Digital Commons Network^™

The Integration Of Tax And Spending Programs, David A. Weisbach, Jacob Nussim

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No abstract provided.

The Perils Of Posnerian Pragmatism, Richard A. Epstein

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No abstract provided.

In Defense Of The 'Old' Public Health: The Legal Framework For The Regulation Of Public Health, Richard A. Epstein

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The traditional forms of public health law were directed largely toward communicable diseases and other externalities, such as pollution, with negative health impacts. The more modern view treats any health issue as one of public health so long as it affects large numbers of individuals, and this definition includes such matters as obesity and diabetes. This paper examines the historical and constitutional evolution of the public health principle as it moved from the narrower to the broader conception. It then argues that the narrower principle better defines the appropriate scope of coercive government intervention than the broader definition, which could …

Skepticism And Freedom: The Intellectual Foundations Of Our Constitutional Order, Richard A. Epstein

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No abstract provided.

On Gun Registration, The Nra, Adolf Hitler, And Nazi Gun Laws: Exploding The Gun Culture Wars (A Call To Historians), Bernard E. Harcourt

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No abstract provided.

Corporate Heroin: A Defense Of Perks, Executive Loans, And Conspicuous Consumption, M. Todd Henderson, James C. Spindler

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We argue that firms undertake to reduce employee savings in order to avoid final period problems that occur when employees accumulate enough wealth to retire and leave the industry. Normally, reputation constrains employee behavior, since an employee who "cheats" at one firm will then find herself unable to get a job at another However, employees who have saved such that they no longer care about continued employment will act opportunistically in the final periods of employment, which can destroy much or all of the surplus otherwise created by the employment relationship. We believe that this sort of final period cheating …

Child Sexual Abuse In Tanzania And Kenya, Kevin Lalor

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Objective. Most research on child abuse in Tanzania and Kenya is unpublished in the international literature. The purpose of this paper is to examine the various commentaries and reports extant, towards an overview of the nature and frequency of child sexual abuse in Tanzania and Kenya. Methods. Contacts were made with academics, government departments, NGOs and UN agencies. This was followed by a field trip in the summer of 2001 where all available reports were examined and a wide range of interviews conducted. Results. Little empirical data exist on child sexual abuse in Tanzania. It is widely perceived that it …

Evaluation Of Ten Psychometric Criteria For Circumplex Structure, G. Scott Acton, William Revelle

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This study tested for sensitivity to circumplex structure in six existing and four new psychometric criteria that assess the circumplex properties of interstitiality, equal spacing, constant radius, and no preferred rotation. Simulations showed one criterion to be sensitive to equal versus unequal axes(Fisher Test) and four to be sensitive to interstitiality versus simple structure (Gap Test, Variance Test 2, Rotation Test, and Minkowski Test). Five criteria were ineffective (Squared Loadings Index, Gap* Test, Gap Difference Test, Cosine Difference Test, and Variance Test 1). Deviation scoring improved the effectiveness of most criteria and is thus recommended for assessing circumplex structure. This …

Remarks On Case-Management Criminal Mediation, Maureen Laflin

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No abstract provided.

Ideological Voting On Federal Courts Of Appeals: A Preliminary Investigation, Cass R. Sunstein, Lisa Michelle Ellman, David Schkade

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No abstract provided.

Liberty After Lawrence, Cass R. Sunstein

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No abstract provided.

Lives, Life-Years, And Willingness To Pay, Cass R. Sunstein

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In protecting safety, health, and the environment, government has increasingly relied on cost-benefit analysis. In undertaking cost-benefit analysis, the government has monetized risks of death through the idea of the value of a statistical life (VSL), currently assessed at about $6.1 million. But the government should rely instead on the value of a statistical life-year (VSLY), in a way that would likely result in lower benefits calculations for elderly people, and higher benefits calculations for children. The hard question involves not whether to undertake this shift, but how to monetize life-years, and here willingness to pay (WTP) is generally the …

Market Efficiency And Rationality: The Peculiar Case Of Baseball 2004 Survey Of Books Relating To The Law, Cass R. Sunstein, Richard H. Thaler

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No abstract provided.

Properties Of Marriage, Carolyn J. Frantz, Hanoch Dagan

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In this Article, Professors Frantz and Dagan articulate and examine one ideal for the institution of marriage-marriage as an egalitarian liberal community. Under this vision, a commitment to marital community, where spouses share with each other without reference to individual desert, is combined with a concern for non-subordination and the protection of individual autonomy through, primarily, free exit. Professors Frantz and Dagan argue that, contrary to the common assumption that these goals are incompatible, they can be accommodated to a remarkable degree. They then trace the implications of this vision of marriage for marital property law, and use it to …

Varieties Of Youth Justice, Anthony Doob, Michael Tonry

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No abstract provided.

The Process For Becoming A Law School Professor In The United States, Daniel H. Foote

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As the process of legal education reform in Japan, centered on the establishment of a new tier of professional graduate schools in law, moves forward, one issue that has arisen is how law professors will be trained in coming years. In that connection, I am frequently asked what the typical route is for training law school professors in the US. Based in part on an examination of the backgrounds prior to entering law teaching for over 500 law professors at eight US law schools and on personal experiences (including serving for three years on the appointments committee at the University …

Capitalism And Freedom -- For Whom? Feminist Legal Theory And Progressive Corporate Law,, Kellye Y. Testy

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Beginning at least in the 1980s, the version of corporate law and governance prevailing in the U.S. (as well as widely exported to other nations) was a radically privatized one, treating the corporation as a contractual arrangement for maximizing shortterm share price in a laissez faire global marketplace. Though many robust and varied social movements, many of which were bolstered by the 1999 WTO protests in Seattle, have been and are engaged in challenging this hegemony from many angles, few have found their way into corporate law reform. That is not to say, however, that there are no progressive legal …

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

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As I will argue, the Court's consent-to-search cases are driven by this patriarchal ideology to maintain social structures of power disparities and to perpetuate the subordination of women, minorities, and other disempowered members of society.

We need to acknowledge the power and submission paradigm that underlies police-citizen encounters and to scrutinize the entire notion of consent. In order to confront both power and consent, I will turn to feminist critique of consent, particularly in the area of rape, and to feminist writings about choice and agency. Based on these writings I will argue that by distinguishing coerced consent to a …

Cash For Kidneys? Utilizing Incentives To End America's Organ Shortage, Steve P. Calandrillo

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This article addresses the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the worsening crisis.

Part I details the law governing human organ donation. Under both the Uniform Anatomical Gift Act (“UAGA”) and the National Organ Transplant Act (“NOTA”), no donor of a human organ may receive “valuable consideration” for providing it. Congress’ intention was simply that the organ recipient be given the “gift” of life—not one which she had to purchase on the market. In reality, the consequences of the Act bear little resemblance to its …

Obvious To Whom? Evaluating Inventions From The Perspective Of Phosita, Rebecca S. Eisenberg

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In this Article, I consider the possibility of giving the USPTO input from currently active technological practitioners in evaluating the obviousness of claimed inventions. Such input could potentially serve three useful functions. First, it could improve the accuracy of USPTO decisionmaking by providing access to the perspective of actual practitioners as to the obviousness of inventions from the perspective of the hypothetical PHOSITA. Second, it could help the USPTO document the evidentiary basis for rejections that rest in part upon tacit knowledge within technological communities. Third, it could provide a quality control mechanism that would improve the credibility of USPTO …

Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar

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As my colleague James Boyd White has observed, It may look as though we are all doing the same thing, as we huddle over our typewriters or computers, producing work called articles or books, but we are in fact often doing very different things, and I think it is important to recognize and value these differences, in ourselves and in others. There are not only differences in what we write but in whom it is that we write for. Unlike Professor White,2 I usually write as professional to professional. Again, unlike Professor White,3 I am fairly comfortable with "the voice …

The Future Of Sustainable Development: A European Perspective, Ruth Kelly

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We are living in times of turbulence and complex changes without precedent in history. It is becoming increasingly evident that humans are an intrinsic component of nature in that their actions affect both the biotic and abiotic environments, and are in turn affected by everything that shapes those environments. In evolutionary terms, population growth, societal restructuring, exhaustion of natural resources and technological advancements have usually been so slow as to be indiscernible during an individual lifetime. However, in the past two centuries the global economy has shown exponential growth, transforming the character of the planet and especially of human life …

Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah

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No abstract provided.

Truth And Illusion, Suzanne Last Stone

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No abstract provided.

Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon

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The 1993 amendments to Rule 11 of the Federal Rules of Civil Procedure successfully reduced both the number of sanctions motions and the chilling effect on meritorious claims, contrary to initial concerns that weaker sanctions would increase frivolous filings. By introducing a safe harbor provision and altering the timing of Rule 11 motions, the amendments mitigated hindsight bias and encouraged the withdrawal of non-meritorious claims without penalty. Empirical evidence, including judicial surveys and a decline in sanctions motions, confirms the amendments' effectiveness in balancing deterrence of frivolous litigation with protection of legitimate claims.

The Meaning Of Probability Judgments: An Essay On The Use And Misuse Of Behavioral Economics, Charles M. Yablon

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In this essay, Professor Yablon challenges the assumption that behavioral heuristics-such as the availability heuristic -constitute "biases" that necessarily lead to errors in probability judgments. He notes that there are many different concepts of probability and, in many contexts, no agreed-upon method for determining the correctness of inconsistent probability judgments. Yet many legal academics and policymakers ignore these complex aspects of probability theory, assuming that statistical or frequentist probabilities are always to be preferred over subjective judgments of probability.

Professor Yablon argues that choosing between frequentist and subjective approaches to probability judgments in policymaking can only be done with great …

A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem

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This Article tells the story of our effort to establish an interdisciplinary law and social work program at Cardozo Bet Tzedek Legal Services (“CBT”), a law clinic at Benjamin N. Cardozo School of Law. The program is predicated on the belief that law and social work collaboration will benefit clients as well as students. The Article is primarily descriptive—telling what we did, why we did it, why we were disappointed with it, and how we changed the program. The Article also attempts to continue a constructive critique, on the assumption that even if something is not broken, it can be …

The Generalized Interpersonal Theory Of Personality And Psychopathology, G. Scott Acton

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No abstract provided.

Where Is The "There" In Health Law? Can It Become A Coherent Field?, Mark A. Hall, Carl E. Schneider

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Gerturde Stein complained of Oakland, "There is no there there." Churchill complained of his pudding that "it has no theme." And everybody complains of health law that it lacks an organizing principle. Health law scholars bemoan the "pathologies" of health law and its contradictory and competing "paradigms'. which form a "chaotic, dysfunctional patchwork." But it should not surprise us that any field which grows by accretion lacks a unifying idea or animating concern. And health law certainly grew by accretion. It began in the 1960s, when the Law-Medicine Center was established, concerned with medical proof in litigation, physicians' malpractice, and …

Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White

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This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most completely the human capacity for finding and expressing meaning? How does our own world of public speech measure up to that standard? How, indeed, does our own talk in the law measure up, especially our …