Digital Commons Network^™

When Men Are Harmed: Feminism, Queer Theory, And Torture At Abu Ghraib, Aziza Ahmed

Faculty Scholarship

In this Article I explore the assertions of "anti-imperialist" feminist scholars who critique "imperial feminism" for its support of the war on terror (WOT). I bring into this analysis the proposition by queer theorists that feminist reliance on male/ female subordination has the potential to not only obscure harm in times of war but also to perpetuate it. As a case study, I focus on the Abu Ghraib prison photos that depict, in part, female soldiers torturing male Iraqi prisoners. In conducting this analysis, I reveal the analytical limitations of dominance and cultural feminists, particularly with regard to male harm …

The Puzzle Of Independent Directors: New Learning, Frederick Tung

Faculty Scholarship

In this symposium paper, I discuss and critique some new empirical learning on independent directors.

The independent director has always offered a sort of magic bullet for corporate governance, representing the idealized monitor of executives’ behavior. Yet we corporate law scholars also harbor some ambivalence about the magic of this bullet. As much as we want to trust in the promise of independent directors, no solid empirical evidence exists to suggest that independent directors add value. Moreover, we have seen spectacular failures in the face of independent boards.

How do we account for this disconnect between our intuitions and best …

Have Truth And Reconciliation Commissions Helped Remediate Human Rights Violations Against Women? An Analysis Of The Past And Formula For The Future, Peggy Maisel

Faculty Scholarship

Truth and Reconciliation Commissions (TRCs) have investigated human rights violations and abuses in a wide range of countries and communities over the last thirty-five years. Created by people who believe finding truth through an examination of the past is necessary to build social and political trust, the goal of these processes has been to make findings and recommendations in order to strengthen or aid the transition to democracy, reduce conflict and create a basis for long term reconciliation, facilitate some form of transitional or restorative justice, and begin the process of change needed to avoid similar human rights violations in …

Criminal Law In The Shadow Of Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Transgender Student-­Athletes And Sex-­Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, Erin E. Buzuvis

Faculty Scholarship

This Article discusses the discrimination of transgender students who may be excluded, discouraged, or simply made to feel uncomfortable participating in athletic programs for their natal sex, by the sex-segregated world of athletics. The Author believes that until sports' governing bodies develop and enforce policies of inclusion, transgender students will continue to be denied access to and the benefits of athletic participation. The Author examines the values that should go into the formation of such policies, including legal, medical and educational concerns. Part I of the Article puts transgender students' athletic participation in context by examining educational athletic's deep and …

Caster Semenya And The Myth Of A Level Playing Field, Erin E. Buzuvis

Faculty Scholarship

In August of 2009, policies and procedures to verify the sex of female athletes were called into question when South African runner Caster Semenya
won the 800 meter event of the World Championships in Berlin. Responding to rumors of gender fraud, and fueled by Semenya’s speed, musculature, and deep voice, the International Association of Athletics Federations (IAAF) requested that Semenya submit to sex verification to confirm her eligibility for the women’s division.

This Article discusses the International Olympic Committee's (IOC) policy on sex testing, the myth of sex-verification testing, and the myth of the level playing field. It concludes with …

Victimized Twice: The Reasonable Efforts Requirement In Child Protection Cases When Parents Have A Mental Illness, Jeanne M. Kaiser

Faculty Scholarship

State child protection agencies are required by federal law to exert reasonable efforts to keep families together before seeking termination of parental rights. Some states, however, have created an exception to this requirement when the parent involved suffers from a chronic mental illness. Moreover, even in those states that enforce the requirement, the reunification services provided to parents with a mental illness often do not meet the needs of those parents.

This Article argues that although parents with a mental illness face serious challenges in caring for their children, they should not be categorically excluded from reunification efforts by means …

The M Word: From Partial Coverture To Skills-Based Fiduciary Duties In Marriage, Jo Carrillo

Faculty Scholarship

No abstract provided.

Lie Detection And The Negotiation Within, Clark Freshman

Faculty Scholarship

No abstract provided.

New Millennium, Same Glass Ceiling? The Impact Of Law Firm Compensation Systems On Women, Joan C. Williams, Veta Richardson

Faculty Scholarship

No abstract provided.

Copyright Backlash, Ben Depoorter, Alain Van Hiel, Sven Vanneste

Faculty Scholarship

No abstract provided.

The Potential Of Shared Decision Making To Reduce Health Disparities, Jaime S. King, Mark H. Eckman, Benjamin W. Moulton

Faculty Scholarship

No abstract provided.

Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon

Faculty Scholarship

The question explored here is whether ADR processes introduced to aid in the development of rule of law to help build legitimacy with legal authorities and institutions could instead work against legitimacy or further undermine it. This article will question whether establishing a new ADR program is advisable in a country with endemic corruption that is struggling to keep, or maintain, a moderately functional legal system. In these countries, the general public may view informal practices that occur in private and without standard rules to be another form of corruption and promoting such practices could reinforce already existing attitudes about …

Joining Or Changing The Conversation - Catholic Social Thought And Intellectual Property, Frank Pasquale

Faculty Scholarship

No abstract provided.

Nonbelievers, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Privacy Rights And Public Families, Khiara Bridges

Faculty Scholarship

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Ethical Issues In Business And The Lawyer's Role, Robert Rhee, Carol Morgan, Tamar Frankel, Mark Fagan

Faculty Scholarship

Q&A with Robert Rhee, Carol Morgan, Tamar Frankel, and Mark Fagan regarding courses focused on business ethics.

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Good afternoon everyone. I am Carol Morgan. I am with the University of Georgia School of Law's Business Law and Ethics program. I'm joined today by very distinguished panelists, Tamar Frankel from Boston University and Robert Rhee from the University of Maryland. You will hear a lot more about them during our program today. I am glad to see this interest in the topic of business ethics. Law schools have not traditionally put a lot of attention or focus on the subject …

Deliverable Male, Katharine B. Silbaugh

Faculty Scholarship

Williams pays particular attention to the way men negotiate a masculine self-image that sits uneasily with the reality of family care. How should this tension be managed? Williams favors some form of preserving masculine self-image by reframing the subject to one of worker empowerment rather than family care. This strategy aims at political efficacy and coalition building. Asking men to imitate women’s successes, it might be argued, is interesting but too threatening to be attractive. This Essay nonetheless leans in that direction.

This Essay will first look at the evidence for the decline in men’s status. Williams investigates the evidence …

The Money Blind: How To Stop Industry Bias In Biomedical Science, Without Violating The First Amendment, Christopher Robertson

Faculty Scholarship

The pharmaceutical and medical device industries use billions of dollars to support the biomedical science that physicians, regulators, and patients use to make healthcare decisions—the decisions that drive an increasingly large portion of the American economy. Compelling evidence suggests that this industry money buys favorable results, biasing the outcomes of scientific research. Current efforts to manage the problem, including disclosure mandates and peer reviews, are ineffective. A blinding mechanism, operating through an intermediary such as the National Institutes of Health, could instead be developed to allow industry support of science without allowing undue influence. If the editors of biomedical journals …

Researchers Without Borders?: Limiting Obligations Of Ancillary Care Through The Rescue Model, Michael Ulrich

Faculty Scholarship

With the expansion of clinical research in developing countries, there is a need to explain obligations that researchers have to their subjects beyond those required by the study protocol. This paper outlines a model founded on the duty to rescue that provides ethical clarification of the obligations of ancillary care.

The Willingness To Pay—Willingness To Accept Gap, The "Endowment Effect," Subject Misconceptions, And Experimental Procedures For Eliciting Valuations: Reply, Charles R. Plott, Kathryn Zeiler

Faculty Scholarship

The purpose of Plott and Zeiler (2005) — henceforth, PZ — was to investigate whether previously published experiments using consumption goods such as mugs and candy bars to measure gaps between willingness to pay (WTP) and willingness- to-accept (WTA) support endowment effect theory (EET). Our results demonstrate that the gap for commodities can be turned on and off by implementing procedures designed to control for subject misconceptions about the value elicitation procedures. Following experiments traditionally used to demonstrate the endowment effect, we used mug valuations to test EET. We used lottery rounds only to provide our subjects with paid practice …

The Consumer Indebtedness Crisis: Law School Clinics As Laboratories For Generating Effective Legal Responses, Peggy Maisel, Natalie Roman

Faculty Scholarship

For the legal system to operate effectively, it must address problems arising from the absence of needed laws, or, if enacted, of laws that have been drafted poorly or are not being implemented in a fair and just manner. Since law schools are generally part of a larger university community, they are uniquely placed to serve as laboratories to find solutions to such problems, perhaps nowhere more so than in their legal clinics. The latter have in fact often played the role of legal innovators, but their contributions to the law and therefore to society at large have been little …

Cultivating Justice For The Working Poor: Clinical Representation Of Unemployment Claimants, Colleen F. Shanahan

Faculty Scholarship

The combination of current economic conditions and recent changes in the United States' welfare system makes representation of unemployment insurance claimants by clinic students a timely learning opportunity. While unemployment insurance claimants often share similarities with student attorneys, they are unable to access justice as easily as student attorneys, and as a result, face the risk of severe poverty. Clinical representation of unemployment claimants is a rich opportunity for students to experience making a difference for a client, and to understand the issues of poverty and justice that these clients experience along the way. These cases reveal that larger lessons …

The Legal Academy As Dinner Party: A (Short) Manifesto On The Necessity Of Inter-Interdisciplinary Legal Scholarship, Paul Stancil

Faculty Scholarship

This Article explores the need for an increase in inter-interdisciplinary legal scholarship, suggesting that legal scholars from different traditions and backgrounds need to sit down at the same table and start talking to one another. The author presents an argument in favor of an integrated model of legal scholarship in which norms of intellectual modesty and cooperation fuel the development of interdisciplinary work. He develops a functional hierarchy which allows scholars to start with the first, threshold question, then work down to the operational details as they carefully consider our accumulated learning about why and how people actually act. After …

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard Harcourt

Faculty Scholarship

In a message to Congress in 1963, President John F. Kennedy outlined a federal program designed to reduce by half the number of persons in custody. The institutions at issue were state hospitals and asylums for the mentally ill, and the number of such persons in custody was staggeringly large, in fact comparable to contemporary levels of mass incarceration in prisons and jails. President Kennedy's message to Congress – the first and perhaps only presidential message to Congress that dealt exclusively with the issue of institutionalization in this country – proposed replacing state mental hospitals with community mental health centers, …

How Constitutional Theory Matters, Jamal Greene

Faculty Scholarship

It is impossible to understand the present moment in progressive constitutionalism without engaging a stock narrative given iconic articulation more than a decade ago by originalist scholar Randy Barnett. According to this narrative, conservatives in the 1980s, prodded by Edwin Meese III's Justice Department, rallied around originalism, and particularly "original intentions" originalism, as a politically congenial and intellectually satisfying approach to constitutional interpretation. They were defeated in the courts of academic and political opinion due in part to a series of unanswerable criticisms from liberal legal scholars such as Paul Brest and H. Jefferson Powell, and in part to the …

Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman

Faculty Scholarship

In the past decade, the United States healthcare system has begun to use mediation to facilitate communication between patients and physicians after an adverse medical event, to ease tensions among members of care-giving teams, to resolve medical malpractice claims, and to help family members and medical professionals make awesome and wrenching decisions at the end of life. Implementation of the Patient Protection and Affordable Care Act of 2010 will produce new controversies and increase the need for mediation. Patients, families, physicians, nurses, other healthcare professionals, and administrators will require help managing the disagreements that arise as they adapt to the …

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed …

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 …

Systemic Risk After Dodd-Frank: Contingent Capital And The Need For Regulatory Strategies Beyond Oversight, John C. Coffee Jr.

Faculty Scholarship

Because the quickest, simplest way for a financial institution to increase its profitability is to increase its leverage, an enduring tension will exist between regulators and systemically significant financial institutions over the issues of risk and leverage. Many have suggested that the 2008 financial crisis erupted because flawed systems of executive compensation induced financial institutions to increase leverage and accept undue risk. But that begs the question why such compensation formulas were adopted. Growing evidence suggests that shareholders favored these formulas to induce managers to accept higher risk and leverage. Shareholder pressure, then, is a factor that could cause the …