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Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy Jan 2013

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

Articles

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 …


Saving Small-Employer Health Insurance, Amy B. Monahan, Daniel Schwarcz Jan 2013

Saving Small-Employer Health Insurance, Amy B. Monahan, Daniel Schwarcz

Articles

No abstract provided.


Rethinking The Law Firm Organizational Form And Capitalization Structure, Edward S. Adams Jan 2013

Rethinking The Law Firm Organizational Form And Capitalization Structure, Edward S. Adams

Articles

The goal of this Article is to examine the partnership model and advocate for a change in the Model Rules that would allow for public ownership of law firms, and to make disclosure of firm financials a mandatory requirement for all firms with over 100 lawyers. Part II explores the history and evolution of limited liability and law firm structures in the United States. Part III discusses incorporated law firms and MDPs and how they might benefit U.S. law firms. Part IV looks at the developments in the United Kingdom and Australia and the forces of globalization that have an …


Designing Countercyclical Capital Buffers, Brett Mcdonnell Jan 2013

Designing Countercyclical Capital Buffers, Brett Mcdonnell

Articles

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 …


Reconsidering Board Oversight Duties After The Financial Crisis, Claire Hill, Brett Mcdonnell Jan 2013

Reconsidering Board Oversight Duties After The Financial Crisis, Claire Hill, Brett Mcdonnell

Articles

The financial crisis has yielded significant losses for shareholders, and for the greater society. Shareholder suits arguing that boards should have been more active monitors have failed. We argue here for an expansion of board monitoring duties. The crisis suggests that corporations may sometimes abuse the privilege of limited liability. Boards should be charged with monitoring for risks arising from corporations' operations and procedures (including their compensation practices) that might significantly harm both shareholders and society at large.


Boilerplate, Freedom Of Contract, And "Democratic Degradation", Brian H. Bix Jan 2013

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

Articles

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 …


Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix Jan 2013

Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix

Articles

Lawrence Cunningham's Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases--in summary form or in longer excerpts--are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.


Cyber-Conflict, Cyber-Crime, And Cyber-Espionage, David Weissbrodt Jan 2013

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

Articles

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


Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain Jan 2013

Individual Responsibility For Mass Atrocity: In Search Of A Concept Of Perpetration, Neha Jain

Articles

International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. In this paper, I draw on the insights of comparative law and methodology to propose a new doctrine of perpetration that reflects the role and function of high level participants in mass atrocity while …


Behind Closed Doors: What Really Happens When Cops Question Kids, Barry C. Feld Jan 2013

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

Articles

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 Jan 2013

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

Articles

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 Jan 2013

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

Articles

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 …


Unpacking The Force Of Law, Kristin Hickman Jan 2013

Unpacking The Force Of Law, Kristin Hickman

Articles

No abstract provided.


America's Racially Diverse Suburbs: Opportunities And Challenges, Myron Orfield, Thomas F. Luce Jan 2013

America's Racially Diverse Suburbs: Opportunities And Challenges, Myron Orfield, Thomas F. Luce

Articles

No abstract provided.


Dampening Financial Regulatory Cycles, Brett Mcdonnell Jan 2013

Dampening Financial Regulatory Cycles, Brett Mcdonnell

Articles

No abstract provided.


A History Of Legal History Courses Offered In American Law Schools, Joan Howland Jan 2013

A History Of Legal History Courses Offered In American Law Schools, Joan Howland

Articles

No abstract provided.


Numerical Half Truths, Human Lies, And Other Distortions Of Truth, Richard W. Painter Jan 2013

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

Articles

No abstract provided.


Law Schools And The Continuing Growth Of The Legal Profession, Herbert M. Kritzer Jan 2013

Law Schools And The Continuing Growth Of The Legal Profession, Herbert M. Kritzer

Articles

In most countries for which data are available, the size of the legal profession has continued to grow over the last 40 plus years. This continued growth reflects the perceived attractiveness of a career as a legal professional (i.e., the demand) and the incentives of the institutions that provide legal education, and hence serve as primary gatekeepers, to maintain or increase the number of students they enroll. In some countries, perhaps most prominently the United States, structural changes in the opportunities for careers in the legal profession are likely to put pressure on law schools that could result in changes …


"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin Jan 2013

"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin

Articles

Reviewing Thomas U. Berger, War Guilt, and World Politics After World War II (2012), Larry May, After War Ends: A Philosophical Perspective (2012), and Kimberly Theidon, Intimate Enemies: Violence and Reconciliation in Peru (2012).


Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin Jan 2013

Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin

Articles

Transitional Justice as a motif, a discourse and a practice continues to entice analysis from scholars, practitioners and policy makers. It is a field that has rapidly expanded, and that has both the fortune and disadvantage of being termed an "industry." The growth of transitional justice is both an opportunity and a warning, as the challenges raised by massive human rights violations and transitions from violence to peace or from repressive regimes to more liberal ones continue to preoccupy scholars and practitioners. Each new country specific context facilitates revisiting old trade-offs and concepts revealing new elements to transitional dilemmas.


Situating Women In Counterterrorism Discourses: Undulating Masculinities And Liminal Femininities, Fionnuala Ní Aoláin Jan 2013

Situating Women In Counterterrorism Discourses: Undulating Masculinities And Liminal Femininities, Fionnuala Ní Aoláin

Articles

The preoccupation with the challenges posed by violent actors has long existed for many states, whether such actors are characterized as terrorists or insurgents, nonstate or paramilitary actors. The events of September 11, 2001, brought a new urgency and vibrancy to state action in the realm of counterterrorism, illustrated by both the response of national legal systems as well as more concerted efforts to achieve multilateral and multilevel counterterrorism reactions on the international plane.1 From a feminist perspective, it is notable that terrorism and counterterrorism have long been of marginal interest to mainstream feminist legal theorizing.2 This is partly because …


Tax Benefits, Property Rights, And Mandates: Considering The Future Of Government Support For Renewable Energy, Alexandra Klass Jan 2013

Tax Benefits, Property Rights, And Mandates: Considering The Future Of Government Support For Renewable Energy, Alexandra Klass

Articles

This essay explores the history of tax benefits, property rights benefits, and mandates for energy development for the purpose of gaining insights on how such incentives can best be used to encourage the development of renewable energy. Part I describes some of the tax preferences and other financial incentives the U.S. government has historically provided to the energy sector, including to fossil fuel development, renewable fuels (particularly ethanol), and renewable electricity sources. It compares and contrasts the varying types and levels of support for these energy sectors, and concludes that the tax preferences and other financial support provided to date …


The Law Of Friction, William Mcgeveran Jan 2013

The Law Of Friction, William Mcgeveran

Articles

“Frictionless sharing” became a Silicon Valley catchphrase in 2011. It refers to platforms such as Spotify or the Washington Post Social Reader that automatically publicize users’ activities in social networks like Facebook, rather than waiting for approval of each individual disclosure. This article carefully analyzes the benefits and drawbacks of frictionless sharing. Social media confers considerable advantages on individuals, their friends, and of course intermediaries like Spotify and Facebook. But many implementations of frictionless architecture have gone too far, potentially invading privacy and drowning useful information in a tide of meaningless spam. The article also dismantles the rhetoric of frictionless …


Who Must Presume Whom To Be Innocent Of What?, Antony Duff Jan 2013

Who Must Presume Whom To Be Innocent Of What?, Antony Duff

Articles

This paper considers the roles that may be played by a “presumption of innocence” outside the criminal trial — a presumption that reflects a general principle of civic trust. We can understand the significance of this presumption, and the ways in which it can be qualified (without being defeated) by attending to some of the normative roles that citizens might take on, or have imposed on them, in relation to the criminal law, and the responsibilities or duties that attach to those roles. Particular attention is paid to the distinctive roles of “defendant” and of “ex-offender”, and to the question …


Private Enforcement, Steven B. Burbank, Sean Farhang, Herbert M. Kritzer Jan 2013

Private Enforcement, Steven B. Burbank, Sean Farhang, Herbert M. Kritzer

Articles

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …


It's The Law Schools Stupid! Explaining The Continuing Increase In The Number Of Lawyers, Herbert M. Kritzer Jan 2013

It's The Law Schools Stupid! Explaining The Continuing Increase In The Number Of Lawyers, Herbert M. Kritzer

Articles

Many countries around the world have experienced sharp increases in the number of legal professionals over the last 40 to 50 years. In this paper, I focus on the role of the gatekeepers which in most countries today are the institutions that provide education and training for those hoping to enter the profession. I argue that while the profession may have an incentive to control the “production of producers,” the educational institutions do not share this incentive. While this argument has been made previously, in this paper I seek to draw out the implications of the institutional incentives, both with …


The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer Jan 2013

The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer

Articles

This paper was prepared for the 2012 Clifford Symposium honoring Marc Galanter which was held at DePaul Law School. One aspect of Galanter’s recent work is on the phenomenon he labeled the “vanishing trial.” In this paper I examine the problems that arise when one seeks to count the number of trials. I show that the definition of a trial, other than a jury trial, is highly ambiguous. There are many trial-like events taking place in venues we do not label “courts.” Even in the court setting, and even for jury trials, there are vast differences in when a trial …


Takings And Transmission, Alexandra B. Klass Jan 2013

Takings And Transmission, Alexandra B. Klass

Articles

Ever since the Supreme Court's controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in Kelo. By contrast, until recently, there has been little change in law or public opinion with regard to takings involving publicly owned projects such as schools, post offices, and other government buildings, or “use by the public” takings that condemn land for railroad lines, electric transmission lines, or other infrastructure projects. However, …


Inferring Desire, Jessica A. Clarke Jan 2013

Inferring Desire, Jessica A. Clarke

Articles

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 …


Erie's Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen Jan 2013

Erie's Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen

Articles

This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence. 2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its progeny. Decades …