Digital Commons Network^™

Lift Not The Painted Veil! To Whom Are Directors’ Duties Really Owed?, Martin Gelter, Geneviève Helleringer

Faculty Scholarship

In this article, we identify a fundamental contradiction in the law of fiduciary duty of corporate directors across jurisdictions, namely the tension between the uniformity of directors’ duties and the heterogeneity of directors themselves. American scholars tend to think of the board as a group of individuals elected by shareholders, even though it is widely acknowledged (and criticized) that the board is often a largely self-perpetuating body whose inside members dominate the selection of their future colleagues and eventual successors. However, this characterization is far from universally true internationally, and it tends to be increasingly less true even in the …

Mediation And Access To Justice In Africa: Perspectives From Ghana, Jacqueline Nolan-Haley

Faculty Scholarship

Mediation and other ADR processes have been promoted vigorously in developing countries under the banner of access to justice. As a result, many African countries are experiencing a transformation of their civil justice systems with modern dispute resolution gaining a strong foothold throughout the African continent. Influenced by promises of increased flexibility and efficiency in resolving disputes, greater access to justice, and in some cases, promotion of foreign investment, legislators and policy-makers have become active both in promoting and in privatizing modern dispute resolution processes.

There is nothing new about the use of informal and non-adversarial dispute resolution processes in …

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Children’S Health In A Legal Framework, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Local Judges And Local Government, Ethan J. Leib

Faculty Scholarship

This interview-based empirical study explores how local judges view themselves and their crosscutting roles in local and state government. In particular, it considers local judges’ relationships with the public that elects them, the executive and legislative branches of their localities, and the larger statewide judicial bureaucracy of which they are a very large but somewhat disconnected part. The Article reports on the results of interviews with local judges at the county, town, and village levels — and suggests some broader lessons for scholars, officials, and policymakers interested and active in local government law and politics. Those who study local government …

Disruptive Pedagogy: Incorporating Critical Theory In Business Law Clinics, Alina S. Ball

Faculty Scholarship

No abstract provided.

Unavoidable Aesthetic Judgments In Copyright Law: A Community Of Practice Standard, Ben Depoorter, Robert Kirk Walker

Faculty Scholarship

No abstract provided.

Wargaming Financial Crises: The Problem Of (In)Experience And Regulator Expertise, John Crawford

Faculty Scholarship

No abstract provided.

How (Not) To Regulate Assisted Reproductive Technology: Lessons From "Octomom", Radhika Rao

Faculty Scholarship

No abstract provided.

Moneyball Sentencing, Dawinder S. Sidhu

Faculty Scholarship

Sentencing is a backward- and forward-looking enterprise. That is, sen-tencing is informed by an individual’s past conduct as well as by the criminal jus-tice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statisti-cal technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of …

The Law Of Police, Richard H. Mcadams, Dhammika Dharmapala, Nuno Garoupa

Faculty Scholarship

Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how "police are different," focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one's threshold of doubt --the perceived probability of guilt at which …

The Blinding Color Of Race: Elections And Democracy In The Post-Shelby County Era, Sahar F. Aziz

Faculty Scholarship

Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same.

Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, …

Coercing Assimilation: The Case Of Muslim Women Of Color, Sahar F. Aziz

Faculty Scholarship

Today, I have been asked to address the domestic context of civil rights issues facing Muslim women in the United States. Admittedly, examining the experiences of Muslim American women is a risky endeavor because they are such a diverse group of women ethnically, racially, socio-economically, and religiously in terms of their levels of religiosity. Hence, I acknowledge the risk of essentializing, despite my best efforts to recognize the individual agency of each Muslim woman.

This lecture is based on a larger project that examines the myriad ways Muslim women are adversely affected by their intersectional identities, and how it impacts …

Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu

Faculty Scholarship

As an introduction to a special issue on intellectual property philosophy, this article focuses on insights from Asian thought. Such a focus is needed not only to provide balance within this special issue, which includes articles focusing primarily on Western philosophy, but also to highlight the compatibility between Asian philosophy and the notion of intellectual property rights. More importantly, this article aims to demonstrate that Asian philosophy may suggest new ways to address the ongoing and highly complex intellectual property challenges confronting emerging economies and the digital environment.

This article begins by providing a brief discussion of the many different …

The Unconstitutional Use Of Restraints In Removal Proceedings, Fatma E. Marouf

Faculty Scholarship

Although ICE's shackling practices vary across the country, in at least some jurisdictions ICE has exercised its authority under the 1988 Memorandum to indiscriminately shackle all detainees. The exact extent of this practice is unknown, but recent litigation suggests that it is not uncommon. In fact, such litigation indicates that ICE has indiscriminately shackled detainees even in courtrooms located outside of detention facilities, such as the San Francisco Immigration Court. Consequently, detained noncitizens frequently appear in immigration court looking like criminals, wearing orange jumpsuits, handcuffs, leg irons, and belly chains, even though there has been no individualized determination that they …

The Duty To Manage Risk, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Global Medical Education Partnerships To Expand Specialty Expertise: A Case Report On Building Neurology Clinical And Research Capacity, Marco A. Costa, Anthony Furlan, Chris T. Longenecker, Shirley Moore, Svetlana Pundik, Daniel I. Smith, Kathleen A. Smyth, Martha Sajatovic

Faculty Scholarship

Background: Neurological disorders are a common cause of morbidity and mortality in sub-Saharan African, but resources for their management are scarce. Collaborations between training institutions in developed and resource-limited countries can be a successful model for supporting specialty medical education and increasing clinical and research capacity. Case report: This report describes a US National Institutes of Health (NIH) funded Medical Education Partnership Initiative (MEPI) to enhance expertise in neurology, developed between Makerere University College of Health Sciences in Kampala, Uganda, and Case Western Reserve University School of Medicine in Cleveland, OH, USA. This collaborative model is based on a successful …

A Randomized Noninferiority Trial Of Condensed Protocols For Genetic Risk Disclosure Of Alzheimer's Disease, Peter J. Whitehouse, Melissa Barber Butson

Faculty Scholarship

Introduction Conventional multisession genetic counseling is currently recommended when disclosing apolipoprotein E (APOE) genotype for the risk of Alzheimer's disease (AD) in cognitively normal individuals. The objective of this study was to evaluate the safety of brief disclosure protocols for disclosing APOE genotype for the risk of AD. Methods A randomized, multicenter noninferiority trial was conducted at four sites. Participants were asymptomatic adults having a first-degree relative with AD. A standard disclosure protocol by genetic counselors (SP-GC) was compared with condensed protocols, with disclosures by genetic counselors (CP-GC) and by physicians (CP-MD). Preplanned co-primary outcomes were anxiety and depression scales …

Windsor, Surrogacy, And Race, Khiara Bridges

Faculty Scholarship

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. In …

Nonprofit Executive Pay As An Agency Problem: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker

Faculty Scholarship

We analyze the determinants of the compensation of private college and university presidents from 1999 through 2007. We find that the fraction of institutional revenue derived from current donations is negatively associated with compensation and that presidents of religiously-affiliated institutions receive lower levels of compensation. Looking at the determinants of contributions, we find a negative association between presidential pay and subsequent donations. We interpret these results as consistent with the hypotheses that donors to nonprofits are sensitive to executive pay and that stakeholder outrage plays a role in constraining that pay. We discuss the implications of these findings for the …

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

Probability, Professionalism, And Protecting Taxpayers, Bradley T. Borden, Dennis J. Ventry, Jr.

Faculty Scholarship

No abstract provided.

Lost In The Weeds Of Pot Law: The Role Of Ethics In The Movement To Legalize Marijuana, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Billionaires, Birds, And Environmental Brawls: Reconceptualizing Energy Easements, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Probability, Professionalism, And Protecting Taxpayers, Bradley T. Borden, Dennis J. Ventry

Faculty Scholarship

No abstract provided.

The Role Of Ethics Audits In Improving Management Systems And Practices: An Empirical Examination Of Management-Based Regulation Of Law Firms, Susan Saab Fortney

Faculty Scholarship

For decades, legal malpractice experts have urged lawyers to implement risk management measures. To assist law firms in doing so, legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm's compliance with ten objectives of sound law practice. Using management-based principles, this Article discusses steps to take to encourage ethics audits "to merge good ethics and good business" in the U.S.

Interview On The Black Box Society, Lawrence Joseph, Frank A. Pasquale

Faculty Scholarship

Hidden algorithms drive decisions at major Silicon Valley and Wall Street firms. Thanks to automation, those firms can approve credit, rank websites, and make myriad other decisions instantaneously. But what are the costs of their methods? And what exactly are they doing with their digital profiles of us?

Leaks, whistleblowers, and legal disputes have shed new light on corporate surveillance and the automated judgments it enables. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only …

A Randomized Experiment Of The Split Benefit Health Insurance Reform To Reduce High-Cost, Low-Value Consumption, Christopher Robertson, David V. Yokum, Nimish Sheth, Keith A. Joiner

Faculty Scholarship

Traditional cost sharing for health care is stymied by limited patient wealth. The “split benefit” is a new way to reduce consumption of high-cost, low-value treatments for which the risk/benefit ratio is uncertain. When a physician prescribes a costly unproven procedure, the insurer could pay a portion of the benefit directly to the patient, creating a decision opportunity for the patient. The insurer saves the remainder, unless the patient consumes. In this paper, a vignette-based randomized controlled experiment with 1,800 respondents sought to test the potential efficacy of the split benefit. The intervention reduced the odds of consumption by about …

Fairness, Equity, And A Level Playing Field: Development Goals For The Resilient City, Christopher K. Odinet

Faculty Scholarship

In the wake of the Great Recession and in the midst of a political climate that endorses the devolution of governmental power to more localized levels there has been a resurgence in recent years of the idea of the city as the center of American life. Competition between cities in capturing economic development projects has become palpable. Success can lead to job creation and growth, private investment, and, importantly, increased tax revenues. Cities often compete with one another by each offering their own package of public incentives. In the waning hours of negotiations hundreds of millions of public dollars can …

On The Effectiveness Of Private Security Guards On Board Merchant Ships Off The Coast Of Somalia -- Where Is The Piracy? What Are The Legal Ramifications?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.