Digital Commons Network^™

Preparing Students To Be Ethical Decision Makers, Sheila Strider, Lazo Alexandre

Faculty Articles

ethics, academia, corporate social responsibility, decision making, leadership, stakeholder interest, financial misconduct.

Pancasila: Roadblock Or Pathway To Economic Development, Marcus Marktanner, Maureen Wilson

Faculty Articles

When Sukarno (1901-1970) led Indonesia towards independence from the Dutch, he rallied his supporters behind the vision of Pancasila (five principles). And although Sukarno used different wordings on different occasions and ranked the five principles differently in different speeches, Pancasila entered Indonesia’s constitution as follows: (1) Belief in one God, (2) Just and civilized humanity, (3) Indonesian unity, (4) Democracy under the wise guidance of representative consultations, (5) Social justice for all the peoples of Indonesia (Pancasila, 2013).

Pancasila is a normative value system. This requires that a Pancasila economic framework must be the means towards the realization of this …

An Increasing Usefulness For Managerial Communication Research On The Main Topics Of Management, Reginald L. Bell, Deborah Roebuck

Faculty Articles

Effective communication is necessary across all management tiers and functions. In addition, it is an integral part of managerial decision-making. Over the last 10 years, interest in the nuances of communication as related to management has intensified. These studies have fostered diverse approaches to linking management and communication. Our investigation, using 2x5 and 2x4 factorial ANOVAs, reveals that differences exist among the means of five professional communication fields. Numerous articles published between 2004 and 2013 were examined, and we found an increasing usefulness for managerial communication research on the main topic of management.

Credit Cards, Financial Responsibility, And College Students: An Experimental Study, Lucy F. Ackert, Bryan K. Church

Faculty Articles

Policymakers are concerned about the limited financial expertise of young adults because their naiveté leaves them vulnerable to the perils of excess debt. We report the results of three experiments designed to investigate college students' mental representations of credit cards, focusing on linkages to financial responsibility. Students complete an inferential reasoning task in which they assess conditional relations to provide evidence on their rudimentary understanding of what credit card ownership entails. The findings suggest that students readily associate credit card ownership with the need to exercise financial responsibility. Yet, they have difficulty correctly assessing conditional relations. While these young adults …

Should The Law Care Why Intellectual Property Rights Have Been Asserted?, Jeanne C. Fromer

Faculty Articles

The American legal system has standard justification stories for our intellectual property systems. Copyright law exists to stimulate the creation and dissemination of creative and artistic works valued by society. Patent law does the same for scientific and technological inventions. These laws offer to creators time-limited exclusive rights to foster these valuable creations without imposing too much cost on society’s use of these creations. The intellectual property laws do so by affording rightsholders an opportunity to vindicate certain interests in their covered works—that are directly related to these laws’ purpose—vis-à-vis third parties. Yet a not insignificant number of assertions of …

Towards A Universal Field Theory Of National Private Rights And Federalism, Roderick M. Hills Jr.

Faculty Articles

What I want to talk about is what I think is a misunderstood relationship between national rights that protect private organizations and private entities; and subnational governments’ powers, which I will call federalism. I think there is a misunderstood relationship between national private rights and federalism. They are considered to be not only different, but opposed to each other.

Ballot Bedlam, Samuel Issacharoff

Faculty Articles

In both law and public scrutiny, renewed attention is being given to the simple act of casting a ballot. At a time when the formal act of voting has been relaxed, and more than a third of Americans cast their ballots in a manner other than voting at the polls on Election Day, there is a decided pushback. In some sense this is hardly novel; questions of ballot integrity and ballot access have been recurring issues in the United States from Reconstruction to the Civil Rights Era. In both of these previous eras, enfranchisement and disenfranchisement had a partisan edge, …

The Strange Persistence Of Affirmative Action Under Title Vii, Deborah Malamud

Faculty Articles

I argue in Part II that affirmative action was understood by the Court in Weber and Johnson to be remedial in nature: It was aimed at remedying an imbalance caused by race or gender discrimination in labor markets. I show in Part III that the diversity rationale that dominates corporate affirmative-action advocacy today does not appear to be remedial in this sense. Its benchmark is the global marketplace—not the local labor market. Part III closely examines opinions by Justice Sandra Day O’Connor (the author of Grutter v. Bollinger) and concludes that it is not safe to read Grutter as an …

Accommodating Nonmarriage, Melissa Murray

Faculty Articles

Regardless of why it occurred, the conflation of nonmarital relationships with marriages in Elane Photography and Masterpiece Cakeshop is meaningful. As I explain in this Symposium Article, the conflation of these relationships with marriages reflects the broader elision—and erasure—of nonmarriage in our law and culture. To this end, the marital discourse that pervades these cases makes clear that the debate over religious exemptions and same-sex marriage is not exclusively about religious liberty—to what extent can we balance our commitments to free exercise of religion and equal protection of the laws for all citizens? Instead, this issue also raises broader questions …

Restructuring Clemency: The Cost Of Ignoring Clemency And A Plan For Renewal, Rachel E. Barkow, Mark Osler

Faculty Articles

The use of the pardon power is a necessary element in a fully functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as many have sought to expand the power of the office in other ways. This Essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it. Specifically, we advocate for the creation of a clemency commission with a standing, diverse membership. While this commission should have representation from the DOJ and take the views of prosecutors seriously, the commission itself should exist outside the …

Political Entrenchment And Public Law, Daryl J. Levinson, Benjamin I. Sachs

Faculty Articles

Courts and legal scholars have long been concerned with the problem of "entrenchment" - the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the …

The Actavis Interference: Theory And Practice, Aaron Edlin, C. Scott Hemphill, Herbert Hovenkamp, Carl Shapiro

Faculty Articles

In FTC v. Actavis, Inc., the Supreme Court considered “reverse payment” settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition. This paper is an effort to assist courts …

A Defense Of Source Rules In International Taxation, Mitchell A. Kane

Faculty Articles

The concept of "source" is central to the functioning of the current international tax system. To the extent the "source" ofincome is meant to reflect the spatial location of income; however, many academic commentators have come to regard the concept as completely incoherent. Further, that incoherence is viewed as a partial explanation of the perceived artificiality and frailties of current instantiations of source rules. In this Paper I make three basic claims. First, it is in fact coherent to conceive ofthe source concept in terms ofthe spatial location of income. Second, most of the problems with current instantiations of source …

Youth Matters: The Need To Treat Children Like Children, Vincent M. Southerland

Faculty Articles

In 2012, the United States Supreme Court's decisions in Miller v. Alabama and Jackson v. Hobbs marked a sea change in the sentencing of children convicted of serious offenses. Miller ended mandatory life without parole sentences for youth who committed crimes when they were under the age of 18. The Court looked to the fundamental distinction between youth and adults to impose a categorical bar on mandatory life without parole sentences for adolescents. This article surveys the state of juvenile sentencing two decades before Miller emerged. In the early 1990s, racial stereotypes about the perceived typical juvenile criminal transformed the …

Taxing Compensatory Stock Rights Transferred In Divorce, Gregg Polsky, Kathleen Delaney Thomas

Faculty Articles

Stock-based compensation has become increasingly prevalent in recent years. As a result, many high net worth divorces now result in the transfer of compensatory stock rights from the employee spouse to the nonemployee spouse as part of the marital settlement. Despite this growing trend, the tax consequences of these transfers have not yet been explored fully. This Article endeavors to fill this void and explain both the planning opportunities and potential pitfalls in transferring compensatory stock rights in divorce. These transfers can shift ordinary income from a high-bracket spouse to a lower-bracket spouse, creating a tax surplus that enlarges the …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

The Bundling Problem In Takings Law: Where The Exaction Process Goes Off The Rails, Richard A. Epstein

Faculty Articles

Thank you very much for having me speak at this conference, and congratulations to you, Michael, for having done so much work in this area for the past forty years. My job on this occasion is to explain why it is necessary to examine the exaction question from the ground up in order to reach a principled solution to what has become a confused body of legal doctrine about an ever-more common legal practice. I take this view because what is striking about virtually all of the Supreme Court decisions in this area is that they assume a legal universe …

Ending Lochner Lite, Burt Neuborne

Faculty Articles

In Part I, I attribute the cyclical reappearance of contracts imposing unfair terms on economically weaker parties to our failure to confront a radical disconnect in our contracts jurisprudence. On the one hand, the notion of “consent” remains the principal moral justification for deploying state power to enforce privately minted contractual norms. On the other hand, genuine consent is lacking in most contracts of adhesion, either because the provision in question was buried in the fine print, or because the weaker party lacked the ability to bargain over it, or both. I explore the anomaly of invoking a fictive consent …

Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock

Faculty Articles

In this contribution to a symposium on “Legal Realism and Legal Doctrine,” I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism. Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason M. Schultz

Faculty Articles

The article looks at the copy ownership and its functions in the copyright system to construct a workable notion of consumer property rights in digital media in the U.S. Topics discussed include relationship between intellectual and personal property; the erosion of the notion of consumer ownership; and the opinion of an American court in "Parton v. Prang" case.

How The Workplace Constitution Ties Liberals And Conservatives In Knots: The Workplace Consitution From The New Deal To The New Right, Cynthia Estlund

Faculty Articles

Book review of The Workplace Constitution from the New Deal to the New Right by Sophia Z. Lee. Cambridge University Press, 2014.

Still Fighting After All These Years: Minority Voting Rights 50 Years After The March On Washington, Deborah N. Archer

Faculty Articles

In August 2013, we celebrated the 50th Anniversary of the March on Washington and Dr. Martin Luther King, Jr.’s “I Have A Dream” speech. On August 28, 1963, over 250,000 people converged on the National Mall to fight for “jobs and freedom.” A central demand of the marchers was the passage of meaningful civil rights legislation, including laws to end discrimination in voting and to free African Americans from the chains of “political and economic slavery.” The march culminated with Dr. King’s “I Have A Dream” speech in which he pronounced: “[w]e cannot be satisfied as long as the Negro …

If The Pope Is Infallible, Why Does He Need Lawyers?, Bill Piatt

Faculty Articles

One of the most widely misunderstood teachings of the Catholic Church involves the doctrine of papal infallibility. As a theological matter, papal infallibility is quite narrow. However, the widespread misconception that all Catholics must believe their Pope cannot make mistakes helped create resentment against Catholics for centuries, which has taken the form of physical attacks, political exclusion, and virulent anti-Catholic propaganda.

While the Catholic Church is no longer under direct physical attack, contemporaneous efforts seek to hold the Pope and the Church civilly and criminally liable in various contexts. In some instances, the Pope, acting as the head of the …

International Financial Law: The Case Against Close-Out Netting, Vincent R. Johnson

Faculty Articles

In financial transactions today, a practice called “close-out netting” plays a key role in controlling and allocating risks. If anchored in the parties’ chosen contractual language and recognized by law, close-out netting can circumvent normal bankruptcy processes by providing for the acceleration of mutual obligations and the efficient calculations and settlement of the net balance. When correctly implemented, close-out netting can eliminate the risk that arises under ordinary bankruptcy principles.

Despite the support for close-out netting by lenders, scholars, regulators, and policy makers, a few attentive observers of financial law argue that close-out netting is unsound, and the argument against …

Paint Chip Indians, M. Alexander Pearl

Faculty Articles

This essay is a follow up to a previous article “How to Be an Authentic Indian” published in November of 2014 in the California Law Review Circuit. (M. Alexander Pearl, How to Be an Authentic Indian, 5 Cal. L. Rev. Circuit 392 (November 2014). This essay continues the satiric tone of my previous article and focuses on a single nationally relevant issue. With the current media emphasis on the controversy over recent representations of Indians in television and film (such as Netflix’s Unbreakable Kimmy Schmidt and the Adam Sandler written/directed Ridiculous Six), the essay is topical and examines the critiques …

Cognitive Cleansing: Experimental Psychology And The Exclusionary Rule, Avani Mehta Sood

Faculty Articles

The exclusionary rule generally bars the use of illegally obtained evidence in a criminal case, regardless of the defendant's crime. However, using a combination of doctrinal analysis, social psychology theory, and original experimental data, this Article proposes a more cognitively complicated picture of how the rule may actually operate. In cases of egregious crime that people are highly motivated to punish, the exclusionary rule and its continually expanding exceptions present a fertile entry point for "motivated cognition," a psychological process through which decision makers unknowingly reason toward their desired outcomes, seemingly within the constraints of the law. In this series …

Are Unions A Constitutional Anomaly?, Cynthia Estlund

Faculty Articles

This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …

Voting Rights At 50, Samuel Issacharoff

Faculty Articles

The fiftieth anniversary of the Voting Rights Act comes at a difficult juncture. The Supreme Court’s decision in Shelby County dismantled the core preclearance provisions of what had been the most successful civil rights law in American history. At the same time, the right to cast a ballot free of unnecessary legal encumbrances is more contested than it has been in generations. Yet, the story is more complex. The landscape of voter discrimination today bears little resemblance to the formalized Jim Crow barriers to the black franchise. Even before Shelby County, the Voting Rights Act struggled to keep up with …

Death And Paperwork Reduction, Adam M. Samaha

Faculty Articles

How does government value people’s time? Often the valuation is implicit, even mysterious. But in patches of the federal administrative state, paperwork burdens are quantified in hours and often monetized. When agencies do monetize, they look to how the labor market values the time of the people faced with paperwork. The result is that some people’s time is valued over ten times more than other people’s time. In contrast, when agencies monetize the value of statistical life for cost-benefit analysis, they look to how people faced with a risk of death subjectively value its reduction. In practice, agencies assign the …

Overlooking Equality On The Road To Griswold, Melissa Murray

Faculty Articles

This year marks the fiftieth anniversary of Griswold v. Connecticut, the Supreme Court decision that famously articulated a right to privacy. As we celebrate Griswold, it is easy to overlook what preceded it—and what was surrendered in Griswold’s embrace of the right to privacy. In 1960, five years before Griswold reached the Supreme Court, Yale law professor Fowler V. Harper and civil rights attorney Catherine Roraback launched a series of federal challenges to Connecticut’s ban on contraceptive use and counseling. Like Griswold, these cases, Poe v. Ullman and Trubek v. Ullman, eventually reached the United States Supreme Court. The Court, …