Digital Commons Network^™

Just Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Lessons From Sec V. Citigroup: The Optimal Scope For Judicial Review Of Agency Consent Decrees, Dorothy S. Lund

Faculty Scholarship

On November 28, 2011, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York in Manhattan declined to approve a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup. Because Citigroup had not admitted or denied the allegations in the consent decree, Judge Rakoff concluded that he was unable to make an informed judgment about the merits of the settlement. Judge Rakoffs decision has garnered serious criticism from legal observers and rekindled discussion about the scope of judicial review of agency consent decrees, which have become a valuable agency enforcement tool. …

Judging Similarity, Shyamkrishna Balganesh, Irina D. Manta, Tess Wilkinson-Ryan

Faculty Scholarship

Copyright law’s requirement of substantial similarity requires a court to satisfy itself that a defendant’s copying, even when shown to exist as a factual matter, is quantitatively and qualitatively enough to render it actionable as infringement. By the time a jury reaches the question of substantial similarity, however, the court has usually heard and analyzed a good deal of evidence about: the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s …

The Language Of Mens Rea, Kenneth Simons, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie

Faculty Scholarship

This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely influential Model Penal Code (MPC) assumes? Second: If not, what can be done about it?

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioner, Ernest A. Young, Nita Farahany, Gail Heriot, Ilya Somin

Faculty Scholarship

No abstract provided.

Hits, Misses, And False Alarms In Blind And Sequential Administration Of Lineups, Roger C. Park

Faculty Scholarship

No abstract provided.

Group To Individual (G2i) Inference In Scientific Expert Testimony, David L. Faigman, John Monahan, Christopher Slobogin

Faculty Scholarship

No abstract provided.

Law And Neuroscience Recommendations Submitted To The President's Bioethics Commission, David L. Faigman, Jones D. Owen, Richard J. Bonnie, B.J. Casey

Faculty Scholarship

No abstract provided.

Monitoring The Monitors How Social Factors Influence Supply Chain Auditors, Jodi L. Short, Michael W. Toffel, Andrea R. Huguill

Faculty Scholarship

No abstract provided.

Intellectual Property Infringements & 3d Printing Decentralized Piracy, Ben Depoorter

Faculty Scholarship

No abstract provided.

International Criminal Trials And The Disqualification Of Judges On The Basis Of Nationality, Milan Markovic

Faculty Scholarship

Judges who sit on the International Criminal Court (“ICC”) and other international criminal tribunals (“ICTs”) are nationals of particular states and are elected to serve largely on the basis of nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judge’s performance of his or her duties.

This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their …

Double Jeopardy? An Empirical Study With Implications For The Debates Over Implicit Bias And Intersectionality,, Joan C. Williams

Faculty Scholarship

No abstract provided.

(Anti)Canonizing Courts, Jamal Greene

Faculty Scholarship

Within U.S. constitutional culture, courts stand curiously apart from the society in which they sit. Among the many purposes this process of alienation serves is to “neutralize” the cognitive dissonance produced by Americans’ current self-conception and the role our forebears’ social and political culture played in producing historic injustice. The legal culture establishes such dissonance in part by structuring American constitutional argument around anticanonical cases: most especially “Dred Scott v. Sandford,” “Plessy v. Ferguson,” and “Lochner v. New York.” The widely held view that these decisions were “wrong the day they were decided” emphasizes the role of independent courts in …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Faculty Scholarship

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.

The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. …

Energy Versus Property, Michael Pappas

Faculty Scholarship

This article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing (“fracking”), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The article then applies this insight to current disputes pitting aggressive renewable energy policies— such as nuisance immunity or mandatory installations on private property— against fundamental property expectations— the right to exclude and the right to …

Facilitating Successful Failures, Michelle M. Harner, Jamie Marincic Griffin

Faculty Scholarship

Approximately 80,000 businesses fail each year in the United States. This article presents an original empirical study of over 400 business restructuring professionals focused on a critical, arguably contributing factor to these failures—the conduct of boards of directors and management. Anecdotal evidence suggests that management of distressed companies often bury their heads in the sand until it is too late to remedy the companies’ problems, a phenomenon commonly called “ostrich syndrome.” The data confirm this behavior, show a prevalent use of loss framing, and suggest trends consistent with prospect theory. The article draws on these data and behavioral economics to …

Assessing The Optimism Of Payday Loan Borrowers, Ronald J. Mann

Faculty Scholarship

This Article compares the results from a survey administered to payday loan borrowers at the time of their loans to subsequent borrowing and repayment behavior. It thus presents the first direct evidence of the accuracy of payday loan borrowers’ understanding of how the product will be used. The data show, among other things, that about 60 percent of borrowers accurately predict how long it will take them finally to repay their payday loans. The evidence directly contradicts the oft-stated view that substantially all extended use of payday loans is the product of lender misrepresentation or borrower self-deception about how the …

Contract Theory – Who Needs It?, Avery W. Katz

Faculty Scholarship

Philosophy is perfectly right in saying that life must be understood backward. But then one forgets the other clause – that it must be lived forward.
Soren Kierkegaard

Both law students and law teachers have traditionally been drawn to conceptual projects that attempt to systematize the field of contract law. The reasons for this are easy to see: the field is doctrinally complex, few beginning students have any substantial experience with the kinds of fact patterns that arise in the cases, and the law is a locus of contestation over fundamental issues of economic liberalism that go to the heart …

Market Efficiency After The Financial Crisis: It's Still A Matter Of Information Costs, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Contrary to the views of many commentators, the Efficient Capital Market Hypothesis ("ECMH"), as originally framed in financial economics, was not "disproven" by the Subprime Crisis of 2007-2008, nor has it been shown to be irrelevant to the project of regulatory reform of financial markets. To the contrary, the ECMH points to commonsense reforms in the wake of the Crisis, some of which have already been adopted. The Crisis created a lot of losers – from individual investors to pension funds and German Landesbanken – who purchased mortgage-backed securities that they did not, and perhaps could not, understand, and it …

The Age Of Consent, Philip Chase Bobbitt

Faculty Scholarship

On three October afternoons in the fall of 1974, Grant Gilmore, a Sterling Professor of Law at Yale, delivered his Storrs Lectures, the lecture series at Yale Law School whose speakers had included Roscoe Pound, Lon Fuller, and Benjamin Cardozo. Gilmore was a magisterial scholar: the author of a prize-winning treatise, Security Interests in Personal Property, and what remains the leading treatise on admiralty law; he was the Chief Reporter and draftsman for Article 9 of the Uniform Commercial Code; and his PhD on French poet and critic Stéphane Mallarmé had led to an appointment at Yale College before …

What Is Philosophy Of Criminal Law?, Review Of The Oxford Handbook Of Philosophy Of Criminal Law By John Deigh & David Dolinko, Eds., Youngjae Lee

Faculty Scholarship

No abstract provided.

Escaping From The Standard Story: Why The Conventional Wisdom On Prison Growth Is Wrong, And Where We Can Go From Here, John F. Pfaff

Faculty Scholarship

Whether as a result of low crime rates, the financial pressures of the 2008 credit crunch, or other factors, policymakers on both sides of the aisle are trying to rein or even reduce the US incarceration rate after an unprecedented forty-year expansion. Unfortunately, reforms are hampered by the fact that we do not have a solid empirical understanding of what caused the explosion in the first place. In fact, the "Standard Story" of prison growth generally overemphasizes less important factors and overlooks more important ones. This essay thus does two things. First, it points out the flaws in five key …

What Cornell Veterinary School Taught Me About Legal Education, Tina Stark

Faculty Scholarship

No abstract provided.

Pooling Clauses And Statutes, Gina S. Warren

Faculty Scholarship

Pooling is a tool used to bring together small or irregular tracts of land or mineral interests to form one drilling unit for the purposes of oil or gas production. In general, pooling can be accomplished in a variety of ways, including separate pooling agreements, community leases, voluntary pooling clauses within leases, and compulsory pooling statutes.

This article will focus on voluntary pooling lease clauses and compulsory pooling statutes. This article will discuss the requirements for valid pooling under a voluntary lease provision and look at the remedies available for invalid or improper pooling. It will analyze the effect of …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Faculty Scholarship

Should employees have the legal right to "be themselves" at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee's gender, race, or religion? And what if the basis for the employer's workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

What’S Love Got To Do With Lawyers? Thoughts On Relationality, Love, And Lawyers’ Work, Eli Wald, Russell G. Pearce

Faculty Scholarship

In a new and provocative book, Rob Vischer has challenged the neutral partisan conception of the lawyer and the legal profession’s reductive presumption that all clients wish to pursue atomistic self-interest irrespective of the consequences to others. Vischer’s use of the teachings of Martin Luther King, Jr. and of Christian theology as a foundation for an alternative, and richly relational, account of law practice is both inspiring and effective.

To debunk the presumption that clients seek narrow self-interest, which the book argues is a powerful component of the neutral partisan conception, Vischer compellingly asserts that clients are relational beings often …

One Path For ‘Post-Racial’ Employment Discrimination Cases—The Implicit Association Test Research As Social Framework Evidence, Tanya K. Hernandez

Faculty Scholarship

Today’s legal civil rights struggle is in large measure the effort to retain the foundational premise that racial discrimination is still a pervasive and problematic dynamic that law should be engaged in addressing. Within the employment discrimination context the attempt to salvage anti-discrimination law doctrine has been lodged on several fronts. Of particular note has been the effort to incorporate “social framework” evidence. Yet, given the powerful societal conviction in a “post-racial” American narrative of discrimination as an exceptionally rare event caused by aberrant malicious individuals, general social framework evidence alone will be unlikely to assist most plaintiffs present a …

Preparing Law Students To Become Litigators In The New Legal Landscape, Paul Radvany

Faculty Scholarship

The legal world has undergone rapid change over the past few years and law schools and law students are in the midst of adjusting to this new legal landscape. Employers increasingly want to hire students who are ready to practice. As a law student, I participated in an externship, simulation classes, and an in-house, live-client litigation clinic; as a professor, I have taught all three types of classes. 1 My experience, first as a law student, then as a litigator, and now as a professor, has taught me the importance and educational value of experiential learning in helping law students …

Neoliberal Political Law, Zephyr Teachout

Faculty Scholarship

No abstract provided.

The Costs Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

This isn’t quite a draft yet – it’s a concept paper. You’ll see after the first 10 pages a good bit of text in brackets, which are primarily notes for me, but it’ll give you a sense of the content of those sections. I’d like to talk through the concept – the “duty” to mitigate emotional distress damages and how courts have struggled with it, as a foray into a broader dichotomy that I see in a number of areas of law that suggest an implicit value in “cognitive liberty.” This is a smaller version of a broader book project …