Digital Commons Network^™

The Economists' New Arguments, Brett Mcdonnell

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Adam and Max, two law professors and longtime friends, have just run into each other at an Association of American Law Schools (AALS) meeting. Adam has long been a zealous partisan of the law and economics approach to legal analysis. Max, though he has some training in economics, is more skeptical about that approach. The two old friends have discussed various aspects of this subject over the years, and in this meeting they renew their discussion. The topic this time: Fairness Versus Welfare, 1 the new book (formerly a mammoth article in the Harvard Law Review) 2 by two leading …

State Interest And Marriage--The Theoretical Perspective, Brian H. Bix

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By the conference description, we are to consider "the relationship of marriage and self-government." 2 It is hard to analyze the relationship of these two, because they are "moving targets." Everyone thinks they know what is meant by "marriage," but as the debate ensues about the extension (e.g., to same-sex couples) and modification (e.g., for covenant marriage rules) of marriage, and our social norms about the roles of parents (married or not) and spouses change, one might wonder how much is certain and agreed upon and how much is fluid and up for review and revision. 3

Teaching Adr In The Workplace Once And Again: A Pedagogical History, Laura J. Cooper

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During the summer there was a conference in Ann Arbor, sponsored by the Association of American Law Schools, to address whether law schools could better prepare students to represent the interests of employees and employ- ers. The conference planners took care to include as participants notjust law school teachers, but also practitioners who could more accurately describe the role of attorneys in representing worker and employer interests and how students could best be educated to serve those roles. Conference participants concluded that current law school courses were inappropriately focused on the adversarial role of lawyers in litigation. They decided that …

Competence, Culpability, And Punishment: Implications Of Atkins For Executing And Sentencing Adolescents, Barry C. Feld

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The Supreme Court has explored the issues of culpability, proportionality, and deserved punishment most fully in the context of capital punishment. In death penalty decisions addressing developmental impairments and culpability, the Court has considered the cases of defendants with mental retardation and older adolescents, and has created an anomalous inconsistency by reaching opposite conclusions about the deserved punishment for each group of defendants. Recently, in Atkins v. Virginia, the Court relied on both empirical and normative justifications to categorically prohibit states from executing defendants with mental retardation. Atkins reasoned that mentally retarded offenders lacked the reasoning, judgment, and impulse control …

Eminent Domain Economics: Should ‘Just Compensation’ Be Abolished, And Would ‘Takings Insurance’ Work Instead?, Steve Calandrillo

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In a defeat for staunch property rights advocates, the Supreme Court ruled this spring that a prohibition on land development in the Tahoe basin did not amount to a de facto taking of land such that the constitutional mandate of just compensation was triggered. The Tahoe decision highlights the struggle in eminent domain jurisprudence over the proper treatment of so-called regulatory takings. It has long been taken for granted that when the government exercises its power of eminent domain to take private property in the name of the public good, it must reimburse displaced landowners. While compensation for physical takings …

What They Say At The End: Capital Victims' Families And The Press, Samuel R. Gross, Daniel J. Matheson

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Perhaps the most common complaint by American crime victims and their families is that they are ignored-by the police, by the prosecutors, by the courts and by the press. However true that may be for capital cases in general, there is at least one consistent exception: the great majority of newspaper accounts of executions include at least some description of the reactions of the victims' families and of any surviving victims. It seems to have become an item on the checklist, part of the "who, what, where, when, why, and how" of execution stories. When no family members are available, …

Gender, Human Rights, And Peace Agreements, Christine M. Chinkin

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I would first like to thank the organizers for the very great honor of being asked to present the annual Schwartz Lecture in 2002. It is especially apposite to discuss issues of international peace agreements in Ohio, not far from Dayton which is famous as the location of the process that brought an end to the war in Bosnia-Herzegovina. However this lecture is going to examine issues that were not explored at Dayton, that is, some relationships between gender, peace agreements, and international human rights. In addition, because the function of peace agreements in today's world has become the broader …

Squeezing Daubert Out Of The Picture, Richard D. Friedman

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In this essay, I will offer some thoughts on how we might reframe the issues governing the admissibility of expert evidence. My principal focus is not on any particular type of expert evidence but on broader questions: the extent to which we ought to rely on rulings of admissibility, the standards that should govern admissibility rulings, and the role of the trial and appellate courts in making those rulings. To some extent, I will concentrate on the context of criminal cases, but for the most part my conclusions apply in both civil and criminal litigation. Here are my conclusions: First, …

Minimizing The Jury Over-Valuation Concern (Visions Of Rationality In Evidence Law Symposium), Richard D. Friedman

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A great deal of the rhetoric of evidence discourse concerns the supposed cognitive inadequacies of the jury. In various contexts we are told that although an item of evidence is probative, it must be excluded because the jury will give it too much weight. I believe this approach has played far too great a role in evidentiary law, and that it is an interesting project to see whether we can construct a satisfactory body of law without relying at all on the cognitive inadequacy argument. I think that, at least to a large extent, we can. In some settings, where …

Behavioral Economics And The Sec, Stephen J. Choi, Adam C. Pritchard

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Not all investors are rational. Quite apart from the obvious examples of credulity in the face of the latest Ponzi scheme, there is no shortage of evidence that many investors' decisions are influenced by systematic biases that impair their abilities to maximize their investment returns. For example, investors will often hold onto poorly performing stocks longer than warranted, hoping to recoup their losses. Other investors will engage in speculative trading, dissipating their returns by paying larger commissions than more passive investors. And we are not just talking about widows and orphans here. There is evidence that supposedly sophisticated institutional investors-mutual …

Retrying Race, Anthony V. Alfieri

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No abstract provided.

O Constitucionalismo Americano Confronta O Novo Paradigma Constitucional De Denninger, Michel Rosenfeld

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No abstract provided.

Legal Transitions, Rational Expectations, And Legal Progress, Kyle D. Logue

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In the literature on legal transitions, the term "transition policy" is generally understood to mean a rule or norm that influences policymakers' decisions concerning the extent to which legal change should be accompanied by transition relief, whether in the form of grandfathering or phase-ins or direct compensation. Legal change within this literature is defined broadly, and somewhat counter-intuitively, to include any resolution of the uncertainty regarding what the law will be in the future or how the law will be applied to future circumstances. Thus, a legal change would obviously include an unexpected repeal of a tax provision, such as …

Why Theories Of Law Have Little Or Nothing To Do With Judicial Restraint, Philip E. Soper

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The question I explore here, stated in its broadest form, is this: What is the connection between theory and practice between academic claims about how judges should decide cases and the actual behavior of judges as revealed in the opinions they write? More particularly, do theories about the nature of law have any implications for the question whether a judge should adopt an "activist" or a "restrained" approach to deciding cases? As you might infer from my title, I defend here what I call "the skeptical thesis" in answer to both the general and particular questions. Judges pay little or …

A Resident Of Evidenceland Defends His Turf, Richard D. Friedman

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A few years ago, I wrote an essay welcoming Judge Richard Posner down from a star to Evidenceland, the sometimes obscure province occupied by evidence scholars.1 Although I criticized one of the points of his article on the economics of evidence law, I expressed the hope that he would remain in Evidenceland for an extended stay.2 I should have known that if he did so he would tell us long-term inhabitants what we have been doing wrong.

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

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Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …

Strangers And Brothers: A Homily On Transracial Adoption, Carl E. Schneider

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The common law speaks to us in parables. Ours is Drummond v. Fulton County Department of Family and Children's Services. Just before Christmas 1973, a boy named Timmy was born to a white mother and a black father. A month later, his mother was declared unfit, and the Department of Family and Children Services placed Timmy with white foster parents - Robert and Mildred Drummond. The Drummonds were "excellent" and "loving" parents, and Timmy grew into "an extremely bright, highly verbal, outgoing 15-month baby boy." Then the Drummonds asked to adopt Timmy. The Department's reviews of the Drummonds' devotion …

How Much Do We Really Know About Race And Juries? A Review Of Social Science Theory And Research, Samuel R. Sommers, Phoebe C. Ellsworth

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The past decade has witnessed numerous high-profile criminal trials in which controversial verdicts have been attributed to racethe race of the defendant, the racial composition of a jury, an attorney "playing the race card," and so on. A predominantly Black jury's acquittal of O.J. Simpson and White jurors' leniency in the police brutality cases of Rodney King and Amadou Diallo not only sparked public debate, but also led to rioting and violence. In the wake of trials such as these, many have questioned the viability of the American jury system.' More specific questions regarding the influence of race on jury …

On Researching Music In Everyday Life:Assessing The Musician As Producer Of Commercialised Music, Alan Bradshaw, Roger Sherlock, Pierre Mcdonagh

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Adorno & Horkheimer (1998) argue that the Culture Industry generates cultural artefacts that fail to develop human consciousness and hence support the domination of the capitalist system. Steinert (2003) states that the pressures facing musicians to negotiate between the demands of the culture industry and the traditional role of the artist generates a fundamental contradiction within art which is symbolically enacted through artistic production. This study, which draws on on-going postgraduate research aims to develop a research framework that investigates how musicians negotiate this contradiction. The study considers if a more reflexive approach to art exists, typified by the Pop …

Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo

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John Rawls has been called the most significant and influential moral philosopher of the twentieth century, and his ideas have deeply influenced discussions of social, political, and economic justice across disciplines including law, philosophy, and political science. Given his preeminence, does Rawls's theory of justice as fairness fail in either of the two ways described above or is it a promising analysis for achieving justice for people with disabilities?

In its most recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act of 1990 (the ADA). In several significant decisions, it has grappled with …

Free Speech As Risk Analysis: Heuristics, Biases, And Institutions In The First Amendment, Paul Horwitz

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What does behavioral analysis of law have to offer First Amendment doctrine This Article offers some tentative answers to that question A great deal of First Amendment law asks whether the risk of harm stemming from particular speech acts can justify the regulation of that speech We may in short think of First Amendment law as a species of risk analysis Looking at free speech issues through the lens of behavioral analysis of law may help us to better understand evaluate and improve the courts approach to recurring problems in the First Amendment This Article focuses on two such issues …

Revisiting The Black Hole Of Workplace Regulation: A Historical And Comparative Perspective Of Contingent Work, Stephen F. Befort

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A dramatic shift in the nature of work relationships in the United States has occurred during the past two decades. Long-term employment constituted the predominant model of structuring work relationships well into the 1970s. Since then, American firms increasingly have resorted to a variety of non-traditional work arrangements. These new workers, frequently denominated the "contingent workforce," tend to have a weaker workplace affiliation and a lower expectation of long-term employment.'

Trials And Tribulations: Science In The Law, Susan Haack

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No abstract provided.

The Capital Jury And Empathy: The Problem Of Worthy And Unworthy Victims, Scott E. Sundby

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No abstract provided.

The Office Of The Oath, Patrick O. Gudridge

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No abstract provided.

Risk Management And Organizational Governance: The Case Of Enron, Robert Eli Rosen

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No abstract provided.

Children's Rights In Israel: An End To Corporal Punishment, Tamar Ezer

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No abstract provided.

Addressing Domestic Violence Through A Strategy Of Economic Rights, Donna Coker

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No abstract provided.

Shareholder Value And Auditor Independence, William Wilson Bratton

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This Article questions the practice of framing problems concerning auditors' professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal's control and cannot act independently. For the same reason, auditors' duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …

Race, Politics, And Juvenile Justice: The Warren Court And The Conservative "Backlash", Barry C. Feld

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A century ago, the Progressive reformers who created the juvenile court embraced a particular ideological construction of childhood as one of innocence and vulnerability. They also adopted a scientific conception of social control - positive criminology - that attempted to identify the causes of criminality and purported to treat, rather than to punish, offenders. The juvenile court combined the new conception of childhood with the new strategies of positive criminology to create a judicial-welfare alternative to the adult criminal process for juveniles. The juvenile court affirmed the responsibility of families to raise their children while expanding the state's prerogative to …