Digital Commons Network^™

The Boom And Bust Of American Imprisonment, Brandon L. Garrett

Faculty Scholarship

We are teetering at the edge of a mass incarceration binge. Lawmakers are reconsidering overly harsh criminal punishments. At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis. Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals. Second, I discuss law professor Sam Buell's "Capital Offenses," …

The Financial Crisis And Credit Unavailability: Cause Or Effect?, Steven L. Schwarcz

Faculty Scholarship

Although the relationship between credit availability and financial decline leading to the global financial crisis was somewhat interactive, a loss of credit availability appears to have caused the financial crisis more than the reverse. The potential for credit unavailability to cause a financial crisis suggests at least three lessons: (i) because credit availability is dependent on financial markets as well as banks, regulation should protect the viability of both credit sources; (ii) diversifying sources of credit might increase financial stability if each credit source is robust and does not create a liquidity glut or inappropriately weaken central bank control; and …

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear under-standing of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …

Repugnance Management And Transactions In The Body, Kieran Healy, Kimberly D. Krawiec

Faculty Scholarship

Researchers have made progress in understanding the role of repugnance in transactions involving the human body. Yet, often, the focus remains on exchange between individuals and how they mentally cope (or not) with repugnance. But these exchanges also entail a “vertical” dimension in which organizational and state actors both directly manage repugnance and also limit the repugnance management tools available to the marketplace. Analyzing repugnance and its management as an organizational and regulatory problem, in addition to an individual one, suggests that a single, harmonized system of exchange in bodily goods is unlikely to emerge with the passage of time.

Feminism And Economic Inequality, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Not So Very Bad Beginnings: What Fiction Can Teach Lawyers About Beginning A Persuasive Legal Narrative Before A Court, Cathren Koehlert-Page

Faculty Scholarship

No abstract provided.

Procedural Due Process And Intramural Hospital Dispute Resolution Mechanisms: The Texas Advance Directives Act, Thaddeus Pope

Faculty Scholarship

Increasingly, clinicians and commentators have been calling for the establishment of special adjudicatory dispute resolution mechanisms to resolve intractable medical futility disputes. As a leading model to follow, policymakers both around the United States and around the world have been looking to the conflict resolution provisions in the 1999 Texas Advance Directives Act (TADA).

In this article, I provide a complete and thorough review of the purpose, history, and operation of TADA. I conclude that TADA is a commendable attempt to balance the competing goals of efficiency and fairness in the resolution of these time-sensitive, life-and-death conflicts. But TADA is …

Reconceptualizing The Whistleblower’S Dilemma, Miriam H. Baer

Faculty Scholarship

Since its inception in August 2011, the SEC’s whistleblowing program has received over 18,000 tips and has distributed over thirty awards. The Commission’s Enforcement Division has lauded the program, emphasizing its recoveries (over $500 million in the aggregate) as well as its generous bounties (over $100 million total). Nevertheless, an agency focused on deterrence must pay attention to the volume of credible reports it receives from insiders, particularly because deterrence has been shown to rest so strongly on the putative wrongdoer’s perceived probability of detection. From that perspective, the program’s success is more ambiguous: twenty-six covered actions (some involving more …

Sexual Misconduct In Prison: What Factors Affect Whether Incarcerated Women Will Report Abuses Committed By Prison Staff?, Sheryl Pimlott Kubiak, Hannah Brenner, Deborah Bybee, Rebecca Campbell, Cristy E. Cummings, Kathleen M. Darcy, Gina Fedock, Rachael Goodman-Williams

Faculty Scholarship

No abstract provided.

Sexual Violence As An Occupational Hazard And Condition Of Confinement In The Closed Institutional Systems Of The Military And Detention, Hannah Brenner, Kathleen Darcy, Sheryl Kubiak

Faculty Scholarship

Women in the military are more likely to be raped by other service members than to be killed in combat. Female prisoners internalize rape by corrections officers as an inherent part of their sentence. Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases. This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military. The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization …

The Gmo/Ge Debate, Joanna K. Sax

Faculty Scholarship

The scientific community and the public sphere are having different debates about the application of genetic engineering to improve our food supply. Many that are deeply steeped in the science view genetically engineered food as a more precise way to accomplish what we have been doing for centuries, which is genetically modifying our food supply. Some members of the public view genetically engineered food with skepticism especially as it relates to health, safety and the environment. A disconnect between the scientific consensus and public perception is not a new phenomenon. This Article attempts to bridge this gap by explaining what …

From Visualization To Legal Design: A Collaborative And Creative Process, Gerlinde Berger-Walliser, Thomas D. Barton, Helena Haapio

Faculty Scholarship

The digital revolution has prompted a strong and accelerating interest in "visualization"-the use of images, photos, icons, diagrams, charts, or videos to enhance or supplant printed language. Although the law remains predominately focused on the written word, the appeal of images to clarify and persuade suggests that legal visualization will be increasingly explored in research and legal practice in coming years. As Michael D. Murray writes, "socio-epistemic and law and society studies affirm that as modern culture becomes increasingly visual, discourse of every kind must follow suit."

Pioneering visualization studies have been groundbreaking and expansive. Murray provides a helpful overview …

The Role Of The State Towards The Grey Zone Of Employment: Eyes On Canada And The United States, Susan Bisom-Rapp, Urwana Coiquaud

Faculty Scholarship

In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the …

The Commodification Of Trademarks: Some Final Thoughts On Trademark Dilution, Kenneth L. Port

Faculty Scholarship

This article is an explication of the trend toward commodification of famous or putatively famous trademarks and the resultant urging that the FTDA be repealed. This article starts with a literature review showing that the vast majority of commentators have been severely critical of the FTDA. This has been ignored by Congress. The article next pursues Congress's blind support of the FTDA and suggests that more thought and analysis from Congress is still required. The article next explains the data regarding FTDA claims. All reported cases from 1996 through 2015 are coded and examined. The conclusion, looking at the data, …

Blurred Lines—Intersexuality And The Law: An Annotated Bibliography, Pat Newcombe

Faculty Scholarship

This Bibliography gathers, organizes, and annotates relevant law review articles (and one monograph) dealing with legal issues concerning intersexuality. Articles are included to introduce researchers to the intricacies involved in the discussion of intersexuality, to examine issues of medical interventions, and to explore possibilities of judicial relief within the existing framework.

Assessing Law Students As Reflective Practitioners, Jodi Balsam, Susan L. Brooks, Margaret Reuter

Faculty Scholarship

No abstract provided.

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum

Faculty Scholarship

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows:

(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.

(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Faculty Scholarship

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton

Faculty Scholarship

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs—the last will of Dr. Jekyll. This will so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that he is impelled to seek the truth behind his friend’s relationship to Hyde. …

Teaching Public Policy Drafting In Law School: One Professor's Approach, Lisa A. Rich

Faculty Scholarship

This article provides an overview of the Drafting for Public Policy course offered at the Texas A&M University School of Law. The article addresses the theoretical and pedagogical underpinnings of the course, including how such a course easily encompasses the teaching of cultural context and awareness, as well as professional identity, and encourages students to engage deeply in the policymaking process. It also explores the continued relevance of the work of Harold D. Lasswell, as well as that of Myres McDougal and Anthony Kronman. These works, from 1943 and 1993 respectively, resonate now because they called on law schools to …

Hypothesis Testing In Law And Forensic Science: A Memorandum, David H. Kaye

Faculty Scholarship

The Organization of Scientific Area Committees for Forensic Science (OSAC), was established to promote and develop forensic-science standards based on sound scientific principles. One of the first standards to be approved deals with declaring fragments of glass to be either distinguishable or indistinguishable in their chemical composition. This determination is important when it is suspected that small fragments associated with a defendant came from the scene of a crime involving broken glass. Because of instrumental measurement error, even fragments with identical elemental concentrations will display some differences. To account for measurement error, the standard uses statistical hypothesis tests that presume …

Money Norms, Julia Y. Lee

Faculty Scholarship

Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as a medium of exchange or as a tool for altering the payoffs of different actions. When used to make good behavior less costly and undesirable behavior more costly, money functions to incentivize, sanction, and deter. Although a rich literature on the expressive function of law exists, …

Jerry L. Mashaw And The Public Law Curriculum, Peter L. Strauss

Faculty Scholarship

Jerry L. Mashaw’s magisterial account of the first one hundred years of Administrative law sharply distinguishes between internal and external administrative law – between those contributions to the regularity and legality of agency behavior that emerge from its own institutions and practices, and the constraints imposed by external actors – legislative, executive, and judicial. The “systems of internal control and audit” he found common to nineteenth-century governance are subordinated, if not suppressed in today’s thinking about administrative law.

In our world of multiple transsubstantive statutes and ubiquitous judicial review, we tend to think of our administrative constitution as a set …

On Normative Effects Of Immigration Law, Emily Ryo

Faculty Scholarship

Can laws shape and mold our attitudes, values, and social norms, and if so, how do immigration laws affect our attitudes or views toward minority groups? I explore these questions through a randomized laboratory experiment that examines whether and to what extent short-term exposures to anti-immigration and pro-immigration laws affect people's implicit and explicit attitudes toward Latinos. My analysis shows that exposure to an anti-immigration law is associated with increased perceptions among study participants that Latinos are unintelligent and law-breaking. In contrast, Ifind no evidence that exposure to pro-immigration laws promotes positive attitudes toward Latinos. Taken together, these results suggest …

Actual Innocence And Wrongful Convictions, Brandon L. Garrett

Faculty Scholarship

In response to wrongful convictions, there has been a revolution in criminal procedure and in research in law and science. Scholars have increasingly studied the characteristics of known wrongful conviction cases and they have conducted interdisciplinary research designed to assess potential changes to procedures used in criminal cases. Scientific bodies have made important recommendations based on this research, and in response, a wide range of jurisdictions have adopted noteworthy changes designed to safeguard crucial types of evidence, such as confession, forensic, and eyewitness evidence, during police investigations and at trial. As a result, both law and science have come together …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

N.C. Medicaid Reform: A Bipartisan Path Forward, Barak D. Richman, Allison Rice

Faculty Scholarship

The North Carolina Medicaid program currently constitutes 32% of the state budget and provides insurance coverage to 18% of the state’s population. At the same time, 13% of North Carolinians remain uninsured, and even among the insured, significant health disparities persist across income, geography, education, and race.

The Duke University Bass Connections Medicaid Reform project gathered to consider how North Carolina could use its limited Medicaid dollars more effectively to reduce the incidence of poor health, improve access to healthcare, and reduce budgetary pressures on the state’s taxpayers.

This report is submitted to North Carolina’s policymakers and citizens. It assesses …

Aggressive Encounters & White Fragility: Deconstructing The Trope Of The Angry Black Woman, Trina Jones, Kimberly Jade Norwood

Faculty Scholarship

Black women in the United States are the frequent targets of bias-filled interactions in which aggressors: (1) denigrate Black women; and (2) blame those women who elect to challenge the aggressor’s acts and the bias that fuels them. This Article seeks to raise awareness of these “aggressive encounters” and to challenge a prevailing narrative about Black women and anger. It examines the myriad circumstances (both professional and social) in which aggressive encounters occur and the ways in which these encounters expose gender and racial hierarchies. It then explores how the intersectional nature of Black women’s identities triggers a particularized stereotype …

"Cybervandalism" Or "Digital Act Of War?" America's Muddled Approach To Cyber Incidents Will Not Deter More Crises, Charles J. Dunlap Jr.

Faculty Scholarship

If experts say a "malicious [cyber] code"' has "similar effects" to a "physical bomb,"' and that code actually causes "a stunning breach of global internet stability," is it really accurate to call that event merely an instance of a "cyber attack"?

Moreover, can you really expect to deter state and non-state actors from employing such code and similarly hostile cyber methodologies if all they think that they are risking is being labeled as a cyber-vandal subject only to law enforcement measures? Or might they act differently if it were made clear to them that such activity is considered an "armed …