Digital Commons Network^™

Is There A "Mulatto Escape Hatch" Out Of Racism?: A Reflection On Multiracial Exceptionalism During A Time Of #Blacklivesmatter, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Metaphors Of International Law, Harlan G. Cohen

Faculty Scholarship

This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.

International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at …

Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent

Faculty Scholarship

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties …

Obsolescence: The Intractable Production Problem In Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence” – the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial …

Ideology And Institutions In The Evolution Of Capital, Katharina Pistor

Faculty Scholarship

In Capital and Ideology, Thomas Piketty poses the intriguing thesis that ideology, or ideas about how society should be governed, is a powerful determinant for how society will be governed-as long as we take advantage of historical switch points. In this review essay I challenge this thesis by pointing out that many powerful ideas have run aground because of countervailing institutional arrangements. Oftentimes, they are leftovers from earlier times that precede the change and are now strategically employed for reconstituting private wealth. Clearly, ideology and institutions are deeply intertwined. I credit Piketty for putting ideology on the map of …

Improving The Credibility Of Empirical Legal Research: Practical Suggestions For Researchers, Journals, And Law Schools, Jason Chin, Alexander Dehaven, Tobias Heycke, Alexander Holcombe, David Mellor, Justin Pickett, Crystal Steltenpohl, Simine Vazire, Kathryn Zeiler

Faculty Scholarship

Fields closely related to empirical legal research are enhancing their methods to improve the credibility of their findings. This includes making data, analysis code, and other materials openly available, and preregistering studies. Empirical legal research appears to be lagging behind other fields. This may be due, in part, to a lack of meta-research and guidance on empirical legal studies. The authors seek to fill that gap by evaluating some indicators of credibility in empirical legal research, including a review of guidelines at legal journals. They then provide both general recommendations for researchers, and more specific recommendations aimed at three commonly …

The Transient And The Permanent In Arbitration, William W. Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.

Hidden Bias In Empirical Textualism, Matthew C. Jennejohn, D. Carolina Nunez, Samuel Nelson

Faculty Scholarship

A new interpretive technique called “corpus linguistics” has exploded in use over the past five years from state supreme courts and federal courts of appeals to the U.S. Supreme Court. Corpus linguistics involves searching a large database, or corpus, of text to identify patterns in the way in which a certain term is used in context. Proponents of the method argue that it is a more “empirical” approach than referencing dictionaries to determine a word’s public meaning, which is a touchstone in originalist approaches to legal interpretation.

This Article identifies an important concern about the use of corpus linguistics in …

The Color Line: A Review And Reflection For Antiracist Scholars, Jasmine Gonzales Rose

Faculty Scholarship

In The Color Line: A Short Introduction, David Lyons provides a valuable service to students and academics in law, social sciences, and humanities by providing a concise history of the development and maintenance of race and racial order through law, policy, and discrimination in the United States. Lyons effectively outlines how race and racism were developed through these mechanisms in an effort to facilitate and maintain white supremacy.

Intellectual Property And Ethnography: A Qualitative Research Approach, Jessica Silbey

Faculty Scholarship

This chapter describes the processes of and justifications for qualitative empirical research in intellectual property (IP) as compared to other research methods, such as quantitative empirical approaches and theoretical economic analyses of law. It provides examples of these research methods, explains the reasons for pursuing a qualitative approach, and details a qualitative research agenda in the context of intellectual property law, as well as a step-by-step method of data collection and data analysis.

Congress's Power Over Militay Offices, Zachary S. Price

Faculty Scholarship

Although scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, parallel questions regarding military office-holding have received insufficient attention. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President, as Commander in Chief, holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers. This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the …

Symmetry’S Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Faculty Scholarship

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

Teaching English As A Foreign Language: A Case Study From Poland, Jaroslaw Richard Romaniuk, Kathleen J. Farkas

Faculty Scholarship

This article presents a detailed history of the development of a particular immersion program to teach English to young Polish students. The program draws support from two organizations, the Kościuszko Foundation and the Polish Scouting Organization. Kościuszko Foundation is dedicated to strengthening the ties between the United States and Poland as well as to increase knowledge of Poland’s history and culture in the United States. The cooperation of these two organizations developed an experience of immersion in language and cultural exchange. Both the teachers and the students in this program benefited from the opportunity to engage in a number of …

Fun With Reverse Ejusdem Generis, Jay D. Wexler

Faculty Scholarship

In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. The canon of ejusdem generis has a long and storied history in the law, has been used by judges in countless cases, and has been the subject of a large body of scholarly …

Postmodern Violent Conditions In Loher's Innocence, Peter Yang

Faculty Scholarship

Despite its theatrical success, Dea Loher's Innocence faces a heated debate among German theatre and literary critics. Some regard it as a neorealist drama that has reached the highest level of the theatre, but others denounce it as a diffuse, kitschy portrayal of violence. The goal of this paper is to explore themes of the play to negotiate—against the claims of its existing theatre and literary criticism—more accurate critical guidelines of evaluating this theatrical work. The results of this study are expected to contribute to a better understanding of postmodernism and postdramatic theatre in general and of this postdramatic writing …

Cultural Adaptation And Content Validity Of A Chinese Translation Of The 'Person-Centered Primary Care Measure': Findings From Cognitive Debriefing, Stephen J. Zyzanski, Kurt C. Stange

Faculty Scholarship

Objectives To develop an equivalent Chinese translation of the Person-Centered Primary Care Measure (PCPCM) and to establish its cultural adaptability and content validity through cognitive debriefing. Design The original English PCPCM was first translated into Chinese by double forward-translation by professional translators. The reconciliated Chinese version was then doubly back-translated into English by two other professional translators blinded to the forward-translation. On affirmation on its linguistic equivalence with the developers of the original English PCPCM, the reconciliated Chinese PCPCM was sent for cognitive debriefing with 20 Chinese-speaking primary care subjects by a trained interviewer using structured probing questions to collect …

Fatca, The U.S. Congressional Black Caucus, And The Oecd Blacklist, Steven Dean

Faculty Scholarship

It may no longer be fashionable to refer to the United States as a melting pot, but it remains an incredibly heterogenous country. Both in terms of the race of those born there and the national origin of its immigrants, the United States has long enjoyed the benefits and burdens that come with diversity.¹ Its diversity can make even a seemingly simple story complicated, producing unexpected twists and surprise endings. This article tells a tale in which diversity helped change the face of international tax policy.

The United States has long wielded great power in international taxation. From the …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Faculty Scholarship

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on …

The Cultural (Re)Turn: The Case For Teaching Culturally Responsive Lawyering, Danielle L. Tully

Faculty Scholarship

No abstract provided.

Themes From Fallon On Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Law and Legitimacy in the Supreme Court by Professor Richard Fallon explores the relationship between normative legitimacy and the Supreme Court’s role in constitutional interpretation and construction. This essay interrogates Fallon’s ideas in the context of the great debate between originalism and living constitutionalism via the development of the themes. The first theme focuses on the relationship between Fallon’s views and the originalist claim that constitutional interpretation and construction should be constrained by the original public meaning of the constitutional text. The second theme focuses on Fallon’s development of the idea of reflective equilibrium as a method for constitutional theory …

Civil Procedure As A Critical Discussion, Susan Provenzano, Brian N. Larson

Faculty Scholarship

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and …

Involving Anthroponomy In The Anthropocene: On Decoloniality, Jeremy Bendik-Keymer

Faculty Scholarship

This book introduces the idea of anthroponomy – the organization of humankind to support autonomous life – as a response to the problems of today’s purported "Anthropocene" age. It argues for a specific form of accountability for the redressing of planetary-scaled environmental problems. The concept of anthroponomy helps confront geopolitical history shaped by the social processes of capitalism, colonialism, and industrialism, which have resulted in our planetary situation. Involving Anthroponomy in the Anthropocene: On Decoloniality explores how mobilizing our engagement with the politics of our planetary situation can come from moral relations. This book focuses on the anti-imperial work of …

Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework For The Public-Law Puzzle Of Subdelegation, Gary S. Lawson

Faculty Scholarship

In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of …

Revisiting A Classic Problem In Statutory Interpretation: Is A Minister A Laborer?, Lawrence Solan, Tammy Gales

Faculty Scholarship

No abstract provided.

The Cognitive And Psychological Effects Of Youtube Video Captions And Subtitles On Higher-Level German Language Learners, Peter Yang

Faculty Scholarship

This study reviews the psychological and cognitive role of using videos, YouTube videos and modes of text support in foreign language learning, with a focus on the effect that captioning and subtitling YouTube videos have on intermediate-high and advanced German language learners. The results of the study found that enhanced captioning plays a more positive role on the intermediate-high and advanced German learners’ motivation likely due to more efficient language processing; more specifically the videos are able to provide linguistic integrity, which allows the language learners to focus their incidental attention effectively. The findings provide useful insights into and enthusiasm …

Apology And Restitution: The Psychophysiology Of Forgiveness After Accountable Relational Repair Responses, Charlotte Witvliet, Lindsey M. Root Luna, Everett L. Worthington Jr., Jo-Ann Tsang

Faculty Scholarship

Apology and restitution each represents wrongdoers’ accountable repair responses that have promoted victims’ self-reported empathy and forgiveness in crime scenario research. The current study measured emotional and stress-related dependent variables including physiological measures, to illuminate the links between predictors of forgiveness and health-relevant side effects. Specifically, we tested the independent and interactive effects of apology and restitution on forgiveness, emotion self-reports, and facial responses, as well as cardiac measures associated with stress in 32 males and 29 females. Apology and restitution each independently increased empathy, forgiveness, gratitude, and positive emotions, while reducing unforgiveness, negative emotion, and muscle activity above the …

Gallucci's Commentary On Dürer’S 'Four Books On Human Proportion': Renaissance Proportion Theory, James Hutson

Faculty Scholarship

In 1591, Giovanni Paolo Gallucci published his Della simmetria dei corpi humani, an Italian translation of Albrecht Dürer’s Four Books on Human Proportion. While Dürer’s treatise had been translated earlier in the sixteenth-century into French and Latin, it was Gallucci’s Italian translation that endured in popularity as the most cited version of the text in later Baroque treatises, covering topics that were seen as central to arts education, connoisseurship, patronage, and the wider appreciation of the studia humanitatis in general.

The text centres on the relationships between beauty and proportion, macrocosm and microcosm: relationships that were not only essential to …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Putting The Notice Back Into Pleading, Robin Effron

Faculty Scholarship

No abstract provided.

Get With The Pronoun, Heidi K. Brown

Faculty Scholarship

No abstract provided.