Digital Commons Network^™

Habermas's Sociological And Normative Theory Of Law And Democracy: A Reply To Wirts, Flynn, And Zurn, Hugh Baxter

Faculty Scholarship

In "Between Facts and Norms" (1996) Habermas presents the more straightforward normative discourse theory of law and democracy, in terms of contemporary legal orders, and then examines, in terms of social theory, whether the theory is plausible, given the complex nature of today’s conditions. The following article focuses in particular on Habermas’ social theory. It is critical of Habermas’ idea of ‘the lifeworld’ and discusses whether the circulation-of-power model might be mapped onto the system – lifeworld model.

Forrest Gerard’S Legacy Is Self-Determination For Tribes, Kevin Washburn

Faculty Scholarship

The passing of Albuquerque resident and former Assistant Secretary of Indian Affairs, Forrest J. Gerard, on Dec. 28 provides an opportunity to take stock of the important federal Indian policies he championed and his contributions to Native Americans across the country deserve to be celebrated.

Special Kids, Special Parents, Special Education, Karen Syma Czapanskiy

Faculty Scholarship

Many parents are raising children whose mental, physical, cognitive, emotional, or developmental issues diminish their capacity to be educated in the same ways as other children. Over six million of these children receive special education services under mandates of the Individuals with Disabilities Education Act, called the IDEA. Once largely excluded from public education, these children are now entitled to a free appropriate education. In this article, I argue that the special education system must begin to pay attention to the needs of parents if it is going to fully serve the children. In particular, the system needs to support …

Criminalizing Revenge Porn, Danielle Keats Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Big Data's Other Privacy Problem, James Grimmelmann

Faculty Scholarship

Big Data has not one privacy problem, but two. We are accustomed to talking about surveillance of data subjects. But Big Data also enables disconcertingly close surveillance of its users. The questions we ask of Big Data can be intensely revealing, but, paradoxically, protecting subjects' privacy can require spying on users. Big Data is an ideology of technology, used to justify the centralization of information and power in data barons, pushing both subjects and users into a kind of feudal subordination. This short and polemical essay uses the Bloomberg Terminal scandal as a window to illuminate Big Data's other privacy …

Junk Justice: A Statistical Analysis Of 4,400 Lawsuits Filed By Debt Buyers, Peter A. Holland

Faculty Scholarship

Debt buyers have flooded courts nationwide with collection lawsuits against consumers. This article reports the findings from the broadest in-depth study of debt buyer litigation outcomes yet undertaken. The study demonstrates that in debt buyer cases, (1) the vast majority of consumers lose the vast majority of cases by default the vast majority of the time; (2) consumers had no lawyer in ninety-eight percent of the cases; and (3) those who filed a notice that they intended to defend themselves without an attorney fared poorly, both in court and in out of court settlements.

This study challenges the notion that …

You Can't Handle The Truth! Trial Juries And Credibility, Renée M. Hutchins

Faculty Scholarship

Every now and again, we get a look, usually no more than a glimpse, at how the justice system really works. What we see—before the sanitizing curtain is drawn abruptly down—is a process full of human fallibility and error, sometimes noble, more often unfair, rarely evil but frequently unequal.

The central question, vital to our adjudicative model, is: How well can we expect a jury to determine credibility through the ordinary adversary processes of live testimony and vigorous impeachment? The answer, from all I have been able to see is: not very well.

Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky

Faculty Scholarship

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.

The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber

Faculty Scholarship

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …

Beard And Uber-Beard, Mark A. Graber

Faculty Scholarship

No abstract provided.

On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.

One Small Step For Legal Writing, One Giant Leap For Legal Education: Making The Case For More Writing Opportunities In The "Practice-Ready" Law School Curriculum, Sherri Lee Keene

Faculty Scholarship

Legal writing is more than an isolated practical skill or a law school course; it is a valuable tool for broadening and deepening law students’ and new attorneys’ knowledge and understanding of the law. If experienced legal professionals, both professors and practitioners alike, take a hard look back at their careers, many will no doubt remember how their work on significant legal writing projects advanced their own knowledge of the law and enhanced their professional competence. Legal writing practice helps the writer to gain expertise in a number of ways: first, the act of writing itself promotes learning; second, close …

A Christian On Listening With Jewish Ears And Hearing With The Heart Of God, Randy Lee

Faculty Scholarship

No abstract provided.

The Trustee Fought Law (With Equity) And Law Won: The U.S. Supreme Court’S Recent Decision In Law V. Siegel, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

A National Mineral Policy As An International Investment Law Stratagem: The Case Of Tajikistan's Gold Reserves, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

"So Help Me?": Religious Expression And Artifacts In The Oath Of Office And The Courtroom Oath, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Critiquing Modern-Day U.S. Legal Education With Rhetoric: Frank's Plea And The Scholar Model Of The Law Professor Persona, Carlo A. Pedrioli

Faculty Scholarship

This article explains how, from 1920 to 1960, the role, or persona, of the law professor in the United States remained the situs of considerable rhetorical controversy that the role had been in the fifty years before 1920. On one hand, lawyers used rhetoric to promote a persona, that of a scholar, appropriate for the law professor situated within the university, a context suitable for the professionalization of law. On the other hand, different lawyers like Judge Jerome Frank used rhetoric to critique, often in a scathing manner, the scholar persona and put forth their own persona, that of a …

Enforcing Equality: Statutory Injunctions, Equitable Balancing Under Ebay, And The Civil Rights Act Of 1964, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Unpacking Mooc Scholarly Discourse: A Review Of Nascent Mooc Scholarship, Maureen Ebben, Julien Murphy

Faculty Scholarship

The rapid rise of MOOCs (Massive Open Online Courses) signals a shift in the ways in which digital teaching and learning are engaged in and understood. Drawing upon a comprehensive search of nine leading academic databases, this paper examines the initial phase of MOOC scholarship (2009–2013), and offers an analysis of these empirical studies that conceptualizes themes in MOOC scholarship and locates them within a chronological framework. Two key phases of scholarship about MOOCs are identified, each with associated research imperatives and themes.

Wrap Contract Morass, Nancy Kim

Faculty Scholarship

No abstract provided.

Liability And Admission Of Wrongdoing In Public Enforcement Of Law, Samuel W. Buell

Faculty Scholarship

Some judges and scholars have questioned the social value of the standard form in which the Securities and Exchange Commission settles its corporate enforcement actions, including the agency’s use of essentially unreviewed consent decrees that include no admission of liability or wrongdoing. This essay for a symposium on SEC enforcement provides an analysis of the deterrent effects of the three main components of settlements in public enforcement of law: liability, admission, and remedy. The conclusions are the following. All three components have beneficial deterrent effects. Cost considerations nonetheless justify some settlements that dispense with liability or admission, or even both. …

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

Hawking Hyphens In Compound Modifiers, Joan Ames Magat

Faculty Scholarship

The first principle of legal writing is surely its clarity — visible actors (unless the action matters more), uncluttered syntax, and, of course, logical structure. But the little things can matter to clarity, too — such as deliberate punctuation that signifies. In the language of law, in which compound nouns are rife, the reader can feel adrift as to where modifiers end and the noun begins. (Consider government-subsidized health flexible-spending arrangement without those hyphens.) Hyphens help. Whether an author cares to hyphenate the noun is his call; but hyphenating compound modifiers (also called phrasal adjectives, though they may include adverbs …

Swords, Shields, And Shackles: Human And Corporate "Persons" Under The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Faculty Scholarship

No abstract provided.

The Problem Of Risk In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Inclusion Of Pregnant Women In Clinical Research, Barbara A. Noah

Faculty Scholarship

In the past three decades, there has been unprecedented growth in medical research utilizing human subjects, with much promise for new treatments that extend life, improve quality of life, and prevent disease and disability. Safe prescribing of drug therapies requires that researchers design clinical trials to test products for the benefit of all persons who are likely to utilize them, not just a limited population. For this reason, it is essential that clinical trials include women, pregnant women, children, and racial minorities, as appropriate, because these populations sometimes exhibit different patterns of response or adverse reactions.

Despite some significant progress …

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Protecting Reliance, Victor P. Goldberg

Faculty Scholarship

Reliance plays a central role in contract law and scholarship. One party relies on the other's promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing about what we should do about it. The focus of this Essay is on the many ways that parties choose to protect reliance. The relationship between what parties do and what contract doctrine cares about is tenuous at best. Contract performance takes place over time, and the nature of the parties 'future obligations can be deferred to take into account changing circumstances. Reliance matters …

The Case For An Unbiased Takeover Law (With An Application To The European Union), Luca Enriques, Ronald J. Gilson, Alessio M. Pacces

Faculty Scholarship

Takeover regulation should neither hamper nor promote takeovers, but instead allow individual companies to decide the contestability of their control. Based on this premise, we advocate a takeover law exclusively made of default and menu rules supporting an effective choice of the takeover regime at the company level. For political economy reasons, we argue that different default rules should apply to newly public companies and companies that are already public when the new regime is introduced. Newly public companies should be governed by default rules that favor the interests of (minority) shareholders over those of management and controlling shareholders, because …