Digital Commons Network^™

Getting Real About Legal Realism, New Legal Realism And Clinical Legal Education, Kate Kruse

Faculty Scholarship

Jerome Frank’s call for a “clinical lawyer-school” is cited so frequently in clinical scholarship that it borders on the canonical. Like many calls for reform in legal education, Frank’s plea for clinical lawyer-schools was based on a critique of the appellate case method of legal instruction. However, unlike most critiques, the legal realist critique was embedded within a jurisprudential challenge to the meaning of law itself, arising from American Legal Realism. Running through legal realist jurisprudence was a distinction between the “law in books” and the “law in action,” with the idea that law is not found primarily in statutes …

Statutory Interpretation, Morality, And The Text, Lawrence Solan

Faculty Scholarship

No abstract provided.

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Kate Kruse

Faculty Scholarship

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality and justice. Unfortunately, the field of theoretical legal ethics has mostly lost track of the thing at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. The field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. This paper, which was delivered at Hofstra Law School as the Lichtenstein Distinguished Professor …

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Faculty Scholarship

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer …

Patenting Genes And Genetic Methods: What’S At Stake?, Eileen M. Kane

Faculty Scholarship

The emergence of genetic medicine following decades of molecular biology research has been accompanied by the procurement of patent rights to many medically significant genes and methods for their use. The intellectual force of reductionism in the life sciences – to explain biological phenomena with molecular precision – generates direct conflicts with patent law’s exclusion of basic knowledge from patenting: laws of nature, natural phenomena, and abstract ideas must remain in the public domain. This is a period of renewed attention to the issue of patentable subject matter in the life sciences, with a particular focus on genetic patenting. Patents …

Justice Stevens And The Obligations Of Judgment, David Pozen

Faculty Scholarship

How to sum up a corpus of opinions that spans dozens of legal fields and four decades on the bench? How to make the most sense of a jurisprudence that has always been resistant to classification, by a jurist widely believed to have "no discernible judicial philosophy"? These questions have stirred Justice Stevens' former clerks in recent months. Since his retirement, many of us have been trying to capture in some meaningful if partial way what we found vital and praiseworthy in his approach to the law. There may be something paradoxical about the attempt to encapsulate in a formula …

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural issue of the Columbia …

Purple Haze, Clare Huntington

Faculty Scholarship

It takes only a glance at the headlines every political season – with battles over issues ranging from abortion and abstinence-only education to same-sex marriage and single parenthood – to see that the culture wars have become a fixed feature of the American political landscape. The real puzzle is why these divides continue to resonate so powerfully. In Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone offer an ambitious addition to our understanding of this puzzle, illustrating pointedly why it is so hard to talk across the political divide. In a …

Does Critical Mass Matter? Views From The Board Room, Lissa Lamkin Broome, John M. Conley, Kimberly D. Krawiec

Faculty Scholarship

In this Article, we report and analyze the results of forty-six wide-ranging interviews with corporate directors and other relevant insiders on the general topic of whether and how the racial, ethnic, and gender composition of corporate boards matters. In particular, we explore their views on the concept of “critical mass” — that is, the theory that women and racial or ethnic minorities are unlikely to have an impact in the boardroom until they grow from a few tokens into a considerable minority of the board.

In contrast to other recent qualitative research on corporate boards, we find more limited support …

Ten Lectures On Mind And Language, Mark Bernard Turner

Faculty Scholarship

Ten Lectures on Mind and Language By Mark Turner
/="/">马克·特纳 心智与语言十讲
/="/">Copyright © Mark Turner 2009
/="/">These lectures were delivered by Mark Turner in May 2009, when he was the forum speaker for the Seventh China International Forum on Cognitive Linguistics. They were originally published as a book in the Eminent Linguists Lecture Series, 世界著名语言学家系列讲座。It includes the slideshows and handouts from the talks.

Contents 目录
/="/">Summaries of the lectures in Chinese 汉语导读
/="/">Lecture One: Human Meaning 人类的意义
/="/">Lecture Two: Conceptual Integration 概念整合
/="/">Lecture Three: Double-Scope Cognition 双域认知
/="/">Lecture Four: Mental Packing and …

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Faculty Scholarship

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …

Nonbelievers, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Can Havruta Style Learning Be A Best Practice In Law School?, Barbara P. Blumenfeld

Faculty Scholarship

Havruta is a traditional Jewish method that seems compatible with legal education because of its focus on process, and so adaptable to law school training in legal reasoning, and because it is based upon dispute and resolution, another aspect that corresponds with the study of law. A unique form of collaborative student centered learning involving pairs of students, this article considers the application of Havruta to the law school setting and whether it should be incorporated into the law school curriculum.

Responding To Our Own Transgressions: An Experimental Writing Study Of Repentance, Offense Rumination, Self-Justification, And Distraction, Charlotte Witvliet, Nova G. Hinman, Julie J. Exline, Timothy Brandt

Faculty Scholarship

This between-subjects experiment focused on offender responses to their past interpersonal transgressions in self-identified Christian undergraduates (55 M, 85 F). Participants completed pre-post measures for one of four randomly assigned 20-minute writing conditions: repentance (i.e., writing about constructive sorrow, apology, restitution, behavior change), offense rumination (i.e., negative wallowing), self-justification (i.e., externalizing blame, minimizing costs), or distraction (i.e., daily details). Offense rumination and repentance writing included the most cost-oriented language; rumination had the most negative emotion language. Mixed within (pre vs. post) X between group ANOVA interactions yielded theoretically meaningful results. Repentance reduced self-condemnation and regret while increasing conciliatory motivations toward …

Statutory Meanings: Deriving Interpretive Principles From A Theory Of Communication And Lawmaking, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

The Paradox Of Law Enforcement In Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety?, David Kirk, Andrew V. Papachristos, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Frustrated by federal inaction on immigration reform, several U.S. states in recent years have proposed or enacted laws designed to stem the flow of illegal immigrants into the U.S. and to facilitate their removal. An underappreciated implication of these laws is the potential alienation of immigrant communities – even law abiding, cooperative individuals – from the criminal justice system. The ability of the criminal justice system to detect and sanction criminal behavior is dependent upon the cooperation of the general public, including acts such as the reporting of crime and identifying suspects. Cooperation is enhanced when local residents believe that …

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

This Article identifies and appraises the two most promising alternatives to the "command-and-control" style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor The first – minimalism – emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second – experimentalism – emphasizes interventions in which the central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. Minimalism has been prominent in legal scholarship and in the policy …

Privileges Or Immunities, Philip A. Hamburger

Faculty Scholarship

What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute about …

Greek Debt: The Endgame Scenarios, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

Perhaps Greece -- a country with a debt to GDP already approaching 150 percent and set to move even higher -- avoids a debt restructuring. Perhaps not.

What are the possible scenarios if Greece cannot return to the capital markets to refinance this gargantuan debt stock once its EU/IMF bailout package expires in two years time? What would a Greek debt restructuring look like after mid-2013? And (sharp intake of breath here) what would happen if such a debt restructuring were undertaken before that point?

Between Liberalism And Theocracy, John D. Inazu

Faculty Scholarship

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to …

States And Networks In The Formation Of International Law, Moria Paz

Faculty Scholarship

No abstract provided.

The Complexity Of Jurisdictional Clarity, Scott Dodson

Faculty Scholarship

No abstract provided.

Arbitration’S Suspect Status, Hiro Aragaki

Faculty Scholarship

No abstract provided.

Can Tax Expenditure Analysis Be Divorced From A Normative Tax Base?: A Critique Of The 'New Paradigm' And Its Denouement, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

Tax expenditure analysis (TEA) requires a baseline for identifying tax provisions that provide subsidies or incentives instead of serving to define the tax base and to implement the tax. With respect to the federal income tax, the baseline historically has been the Schanz-Haig-Simons (SHS) definition of income with a few modifications. Critics have continuously and strongly attacked TEA by characterizing the SHS baseline as unprincipled, imprecise, and insufficiently related to our hybrid income/consumption tax system as it actually exists. Since the baseline is hopelessly defective, so the critics argue, TEA is fatally dysfunctional and the results of its application to …

A Small Nation Goes To War: Israel's Cabinet Authorization Of The 1956 War, Pnina Lahav

Faculty Scholarship

The Suez War had long term ramifications for Israel's status in the Middle East and for its relations with the U.S., Europe, and the USSR. This article is a first segment in the examination of the interplay between military and diplomatic means deployed by Israel in its quest to consolidate the gains of the 1948 war and secure its sovereignty. It provides a detailed analysis of the Israeli cabinet deliberations as it reached the decision to authorize war. The article examines the cabinet's opinions on the language of the motion to go to war, the list of casus belli offered, …

Compassion-Focused Reappraisal, Benefit-Focused Reappraisal, And Rumination After An Interpersonal Offense: Emotion-Regulation Implications For Subjective Emotion, Linguistic Responses, And Physiology, Charlotte Witvliet, Ross W. Knoll, Nova G. Hinman, Paul Deyoung

Faculty Scholarship

This repeated measures psychophysiology experiment studied three responses to a past interpersonal offense (38 females and 33 males). We compared rumination with two offense reappraisal strategies. Compassion-focused reappraisal emphasized the offender's humanity, and interpreted the transgression as evidence of the offender's need for positive transformation. Benefit-focused reappraisal emphasized insights gained or strengths shown in facing the offense. Supporting the manipulations, compassion-focused reappraisal stimulated the most empathy and forgiveness, whereas benefit-focused reappraisal prompted the most benefit language and gratitude. Both reappraisals decreased aroused, negative emotion, and related facial muscle tension at the brow (corrugator). Both reappraisals increased happiness and positive emotion …

How To Use A Tube Top And A Dress Code To Demystify The Predictive Writing Process And Build A Framework Of Hope During The First Weeks Of Class, Camille Lamar

Faculty Scholarship

No abstract provided.

Report & Recommendations Legal Scholar Team, Margaret E. Montoya, Tucker Culbertson, Marc-Tizoc González

Faculty Scholarship

The Report’s Recommendations for next steps reflect and incorporate the multiple experiences, false starts, insights, frustrations and new beginnings that represent the various ways that diversity works within the different sectors of the legal profession. We have included Recommendations that are already being used as well as some that are ambitious and aspirational. Within each of the four sectors of the profession, the recommendations are broadly categorized, but not prioritized. We recognize that every individual or organization will have its own priorities based on its unique circumstances. We do encourage the Report’s users to select and prioritize recommendations for next …

The Responsibility To Protect And The Decline Of Sovereignty: Free Speech Protection Under International Law, William Magnuson

Faculty Scholarship

State sovereignty has long held a revered post in international law, but it received a blow in the aftermath of World War II, when the world realized the full extent of atrocities perpetrated by the Nazis on their own citizens. In the postwar period, the idea that individuals possessed rights independent of their own states gained a foothold in world discussions, and a proliferation of human rights treaties guaranteeing fundamental rights followed. These rights were, for the most part, unenforceable, though, and in the 1990s, a number of humanitarian catastrophes (in Kosovo, Rwanda, and Somalia) galvanized the international community to …

End The Failed Chevron Experiment Now: How Chevron Has Failed And Why It Can And Should Be Overruled, Jack M. Beermann

Faculty Scholarship

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron …