Digital Commons Network^™

Virtue Ethics And Efficient Breach, Avery W. Katz

Faculty Scholarship

The concept of "efficient breach" – the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance – is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics – that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee.

This essay argues that …

Trial And Error: Learning From Patterns Of Mistakes, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Eyewitnesses And Exclusion, Brandon L. Garrett

Faculty Scholarship

The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged: it is obvious where the defendant is sitting, and, importantly, the memory of the eyewitness should have been tested before trial using photo arrays or lineups. Such courtroom displays have been accepted for so long that their role in the U.S. Supreme Court’s due process jurisprudence regulating eyewitness identifications has been neglected. The due process test that regulates tens of thousands of eyewitness identifications each year …

Happiness At Work: Rules For Employee Satisfaction And Engagement, Femi Cadmus

Faculty Scholarship

The concept of employee satisfaction and engagement is not new. Quite recently, however, there appears to be renewed interest in positive psychology, tracking what makes for happiness in general, and how this translates in the workplace. Cultivating and maintaining a climate and culture which breeds happy, motivated, and productive employees in a library setting requires hard work. Happiness in the workplace is not unattainable, but it requires a concerted plan of action and consistent effort by managers. Managers also need to take steps to make sure that their own personal and work needs are being taken care off to avert …

The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar

Faculty Scholarship

No abstract provided.

The Development Of Domestic Violence As A Field: Honoring Clare Dalton, Elizabeth Schneider, Cheryl Hanna

Faculty Scholarship

No abstract provided.

Jumpstarting The Stalled Gender Revolution: Justice Ginsburg And Reconstructive Feminism, Joan C. Williams

Faculty Scholarship

No abstract provided.

Developmental Neuroscience, Children's Relationships With Primary Caregivers, And Child Protection Policy Reform, Lois A. Weithorn

Faculty Scholarship

No abstract provided.

The Return Of Biological Race? Regulating Race And Genetics Through Administrative Agency Race Impact Assessments, Osagie K. Obasogie

Faculty Scholarship

No abstract provided.

Lines Of Tribe, Christine Zuni Cruz

Faculty Scholarship

It is important to begin by explaining why I take the title of my essay from the statement in President Barack Obama's 2009 Inaugural Address: "the lines of tribe shall soon dissolve." During the address, his words affected me and they remained with me long afterward. President Obama may very well have meant what he said in a metaphoric or figurative sense; I have certainly been provided with many interpretations and assurances by most that a literal meaning was not his intent and that he instead spoke in a good way of the beneficial melting of divisions between us." It …

A Modest Proposal: The Aged Of Death Row Should Be Deemed Too Old To Execute, Elizabeth Rapaport

Faculty Scholarship

My exploration of the case for an Eighth Amendment bar against executing the long-serving elderly will begin with a review of the representation of the elderly on Americas death rows and a survey of the very limited avenues of relief currently available to them on the basis of age. I will then discuss the attribution problem by asking at whose door should 'fault' for long delays between condemnation and consummation of a capital sentence be laid--the prisoner, the state, or the working through of due process? For many jurists, attribution of fault is critical to resolving the question of whether …

Beyond Best Practices For Legal Education: Reflections On Cultural Awareness - Exploring The Issues In Creating A Law School And Classroom Culture, Antoinette M. Sedillo Lopez

Faculty Scholarship

If law schools are to prepare students for the reality of practice, it is useful to help students become aware of cultural issues that can affect client representation by examining the culture that the law school creates. The culture created by faculty, students, administration, and staff will affect the law student's acculturation as a legal professional as well as the law student's psychological well-being. This issue was addressed briefly in Best Practices for Legal Education (Best Practices), but not developed. This essay explores some of the challenges and opportunities of bringing cross-cultural issues into a law school classroom and some …

Brief For Thirteenth Amendment Scholars, United States V. Hatch As Amicus Curiae, Dawinder S. Sidhu

Faculty Scholarship

Like the district court, we conclude that Congress has power under the Thirteenth Amendment to enact § 249(a)(1). Although the Thirteenth Amendment by its terms applies to slavery and involuntary servitude, Supreme Court precedent confirms Congress’s authority to legislate against slavery’s “badges and incidents” as well. In particular, the Supreme Court held in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)—a case permitting a federal private right of action against private individuals for housing discrimination—that Congress itself has power to determine those badges and incidents.

Tax Compliance And Norm Formation Under High-Penalty Regimes, Susan C. Morse

Faculty Scholarship

No abstract provided.

Denial And Concealment Of Unwanted Pregnancy: "A Film Hollywood Dared Not Do", Susan Ayres, Prema Manjunath

Faculty Scholarship

The actual cases and two films examined in this essay challenge stock narratives of mothers who deny or conceal unwanted pregnancy as a monster, or a victim, and also challenge "legal norms, logic and structures" pertaining to unwanted pregnancy and neonaticide. This essay draws on films because of their influential power to "reach enormous audiences by combining narratives and appealing characters with visual imagery and technological achievement, ... stir deep emotions and leave deep impressions." For these reasons, Orit Kamir asserts that films are more compelling than "theoretical legal texts or even judicial rhetoric."

The two films examined -- Stephanie …

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Faculty Scholarship

With the current political climate regarding racial issues, any positive gains in resolving race discrimination claims in the workplace cannot come from new legislation through the Obama administration. Instead, those gains will have to come from within the workplace. Unions and their employee members must work together and with employers to resolve those disputes. Specifically, in this Article, two high-profile employment discrimination cases decided by the Supreme Court during President Obama's first year in office--Ricci v. DeStefano and Penn Plaza LLC v. Pyett--help identify a framework whereby employees with racial discrimination claims against their employers may work with …

Egypt's Protracted Revolution, Sahar F. Aziz

Faculty Scholarship

Although the current political landscape differs from the day preceding the January 25 revolution, Egypt appears to suffer from a familiar syndrome: for every step taken towards meaningful reform, it falls back two steps due to entrenched counter- revolutionary forces. This began the moment the military took control of the executive branch on February 11, 2011 only to unilaterally replace the 1971 constitution with its own interim Constitutional Declaration on March 30, 2011. This dubious document unilaterally imposed by SCAF barely holds Egypt together as the country faces one legal crisis after another.

Even when Parliament existed, the Constitutional Declaration …

Grey Matters, Lois Schwartz

Faculty Scholarship

No abstract provided.

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S 'Harm Principle,' And American Social Morality, Jedediah S. Britton-Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, we show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing …

Equality Beyond The Three-Part Test: Exploring And Explaining The Invisibility Of Title Ix’S Equal Treatment Requirement, Erin E. Buzuvis, Kristine E. Newhall

Faculty Scholarship

It is clear from the proliferation of cases and complaints challenging programmatic disparities in school and college athletic programs that Title IX’s goal of equal treatment has not been fully realized. As the scholarship addressing equal treatment in athletics has been minimal, this Article is an effort to add to this scholarship in order to provide a greater understanding of equal treatment provisions. It examines why many school officials administer athletic departments in apparent oblivion to Title IX’s equal treatment mandate.

The Article provides the history of Title IX’s equal treatment provisions and their enforcement at the high school and …

Illich, Education, And The Wire, Erin E. Buzuvis

Faculty Scholarship

This Article focuses on two texts—first, Illich’s 1971 "Deschooling Society," which calls for abolishing institutionalized education in favor of decentralized, personalized relationships that promote intentional learning; and second, The Wire’s fourth season, which is particularly focused on the exercise in futility that is the Baltimore public school system. Read together, these texts explore the problem of institutionalized education and the solution Illich proposes of intentional learning communities. But while both texts help us understand the shortfalls of institutionalized education, neither is particularly prescriptive when it comes to undoing the current state of affairs and weaning our society off of institutions, …

Do You Have A Conscience?, Jeremy Bendik-Keymer

Faculty Scholarship

“Do you have a conscience?” There was a time when this would have been a question that was immediately intelligible to people, like asking whether a person holding a ball can throw it. For much of the history of philosophy—that ancient Greek invention—the name for what allows one to stay in touch with moral principles in the midst of particular decisions was “conscience” (Langston 2001). To ask whether I have a conscience was tantamount to asking whether I can keep my decisions moral, whether I was capable of being a mature human being. Since morality is the domain of duties …

The "Silent But Gifted" Law Student: Transforming Anxious Public Speakers Into Well-Rounded Advocates, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Neuroscience And The Child Welfare System, Clare Huntington

Faculty Scholarship

Increasingly, scholars and policymakers are calling for programs that take a preventive approach to child abuse and neglect, rather than our current tendency to respond only after a crisis. There are significant social and economic arguments supporting this shift. The Nurse-Family Partnership, developed by David Olds and discussed in this symposium, illustrates how specific investments in family functioning can lower rates of child abuse and neglect, leading to a host of positive outcomes for children and society, from greater educational attainment to less involvement in the criminal justice system. Thinking about child well-being more broadly, the Nobel laureate James Heckman …

Assessing The Good Will Of Community Users In An Academic Library, Wanda Dole, J.B. Hill

Faculty Scholarship

Purpose – The purpose of this paper is to report the second phase of a study on the impact of one North American academic library extending library privileges gratis to community users.

Design/methodology/approach – The paper reports the results of a web-based survey of community users at the University of Arkansas at Little Rock (UALR), Arkansas, USA. The survey was conducted to obtain information on demographics and community users’ perception of the value of library privileges.

Findings – Community users often have some connection to the university and tend to be satisfied with and value the privileges. Receiving the privileges …

Not This Child: Constitutional Questions In Regulating Non-Invasive Prenatal Genetic Diagnosis And Selective Abortion, Jaime S. King

Faculty Scholarship

No abstract provided.

Perceiving And Reporting Domestic Violence Incidents In Unconventional Settings: A Vignette Survey Study, Hadar Aviram, Annick Persinger

Faculty Scholarship

No abstract provided.

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Faculty Scholarship

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders.

In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only …

From The Oppressed To The Terrorist: Muslim-American Women In The Crosshairs Of Intersectionality, Sahar F. Aziz

Faculty Scholarship

In the post-9/11 era, Muslim women donning a headscarf in America find themselves caught at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women's rights organizations, or civil liberties advocates.

This paper examines how the September 11th attacks adversely impacted the lives of headscarved Muslim women in ways different than Muslim men. Ten years after 9/11, there is a plethora of literature about what has become known as "post-9/11 discrimination." Most of the discussion focuses …

Hitting The Wall As A Legal Writer, Elizabeth Fajans

Faculty Scholarship

No abstract provided.