Digital Commons Network^™

Belief In A Just World, Blaming The Victim, And Hate Crime Statutes, Dhammika Dharmapala, Nuno Garoupa, Richard H. Mcadams

Faculty Scholarship

The earliest economic theory of discrimination proposed the subsequently neglected idea of a "vicious circle" of discrimination (Myrdal,1944). We draw on psychological evidence (that people derive utility from believing that the world is just) to propose a behavioral economic model in which the vicious circle envisaged by Myrdal can arise. We demonstrate the power of this approach through an application to the issue of whether and how to justify penalty enhancements for hate crimes against members of disfavored groups. The crucial assumption is that individuals engage in biased inference in order to preserve their Belief in a Just World, thus …

Judicial Audiences And Reputation: Perspectives From Comparative Law, Nuno Garoupa, Tom Ginsburg

Faculty Scholarship

Whether judges are motivated to make good law or maximize policy goals, they need to develop and maintain a good reputation with some audience. We distinguish internal and external audiences for individual judicial decision-making: internal audiences are those within the judiciary itself, while external audiences include lawyers, the media or the general public. Different legal systems emphasize different audiences: some rely on external audiences that encourage judges to invest in their individual reputations, while others emphasize internal audiences that facilitate the collective reputation of the judiciary as a whole. The article analyzes the interaction between internal and external audiences over …

Stakeholder Participation In New Governance: Lessons From Chicago, Lisa T. Alexander

Faculty Scholarship

The efficacy of the public-private partnership as a tool for social reform is the subject of continued scholarly and public debate. New governance theory, an increasingly popular form of jurisprudence, constructs an optimistic vision of stakeholder collaboration in public-private partnerships that justifies the use of the public-private partnership in regulatory reform. New governance scholars contend that recent governance trends such as devolution, deregulation, decentralization, and privatization create opportunities for previously marginalized stakeholders to more fully participate in public problem-solving. New governance scholars expect that both public and private stakeholders, with differing interests, skills and objectives, will effectively collaborate to solve …

Fellow-Feeling And Gender In The Law Of Personal Injury, Anita Bernstein

Faculty Scholarship

No abstract provided.

American Moment[S]: When, How, And Why Did Israeli Law Faculties Come To Resemble Elite U.S. Law Schools?, Pnina Lahav

Faculty Scholarship

Following independence in 1948, the Hebrew University of Jerusalem founded a law faculty and modeled it on the European example (Continental and British). Today, the Israeli law faculty is much more similar to the U.S. law school than to institutions of legal education in Europe. This Article traces the history of the changes in Israeli legal education. It argues that the shift began after 1967, faced resistance in the 1980s, and gained momentum in the 1990s. Presently we may be witnessing the beginning of a shift away from U.S. influence and back to Continental Europe or even Asia. The Article …

Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon

Faculty Scholarship

Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs …

Conflicts And Financial Collapse: The Problem Of Secondary-Management Agency Costs, Steven L. Schwarcz

Faculty Scholarship

Corporate governance scholarship has long focused on conflicts of interest between firms and their top executive officers. This Essay contends that increasing leverage and financial complexity make it important for scholars to also focus on conflicts of interest between firms and their secondary managers.

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt

Faculty Scholarship

This chapter presents an authoritative overview of punishment, with particular emphasis on the limits of reason and the virtue of randomization. It includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the Enlightenment ideal of social engineering through punishment and the role of chance in the administration of criminal justice.

Revealing Choices: Using Taxpayer Choice To Target Tax Enforcement, Alex Raskolnikov

Faculty Scholarship

People pay their taxes for many different reasons. Some choose to game the system, paying only when the cost of noncompliance outweighs its benefits. Others comply out of habit, a sense of duty or reciprocity, a desire to avoid feelings of guilt or shame, and for many other reasons. Our tax enforcement system has ignored this variety of taxpaying motivations for decades. It continues to rely primarily on audits and penalties, at least where information reporting and withholding are impossible. Fines and audits deter those rationally playing the tax compliance game, but are wasteful or even counterproductive when applied to …

Decisional Dignity: Teenage Abortion, Bypass Hearings, And The Misuse Of Law, Carol Sanger

Faculty Scholarship

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wadeno longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health …

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …

Intimate Discrimination: The State's Role In The Accidents Of Sex And Love, Elizabeth F. Emens

Faculty Scholarship

This is a challenging moment for the law of discrimination. The state's role in discrimination has largely shifted from requiring discrimination – through official policies such as segregation – to prohibiting discrimination – through federal laws covering areas such as employment, housing, education, and public accommodations. Yet the problem of discrimination persists, often in forms that are hard to regulate or even to recognize.

At this challenging moment, the intimate domain presents a vital terrain for study in two main ways. First, conceptually, studying the intimate domain permits new insights into discrimination and the law's identity categories, because people are …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

The Duty To Avoid Wrongful Convictions: A Thought Experiment In The Regulation Of Prosecutors, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

This Article explores the possible role of the attorney disciplinary process in discouraging prosecutorial conduct that contributes to false convictions. It asks what the impact would be, for better or worse, of disciplining prosecutors for incompetence when they fail to exercise reasonable care to prevent the conviction of the innocent. The inquiry provides a new vehicle for thinking about the nature of the disciplinary process, the work of prosecutors, the challenge of preventing erroneous convictions and, ultimately, the complexities of prosecutorial regulation.

The Article demonstrates that it would be plausible to interpret the attorney competence rule as encompassing prosecutorial negligence …

Reputation, Information And The Organization Of The Judiciary, Nuno Garoupa, Tom Ginsburg

Faculty Scholarship

The reputation of the judiciary, individually or as a whole, determines its status in any given society and its ability to compete effectively for resources. We analyze reputation and make three claims. First, reputation matters. Virtually every theory of judicial power is dependent, ultimately, on perceptions of judges, who famously lack the purse or the sword. Our second claim is that reputation can be divided into individual and collective components. Individual reputation provides information about individual performance whereas collective reputation provides information about the quality of the judiciary in general. We use the economics of team production to analyze the …

Are You A Boy Or A Girl - Show Me Your Real Id, James Mcgrath

Faculty Scholarship

Although many official documents and forms of identification contain a sex or gender identifier, gender, as a category on these documents, is not very helpful in confirming a person's identity. If the purpose of the inclusion of gender on official documents is to accurately identify an individual, technological advances have given us more accurate methods of ensuring a person's identity. Technologies such as fingerprinting, facial recognition and retinal scans are far superior methods of determining whether a person is who they claim to be. The use of gender or sex on identification cards does little to positively identify individuals, and …

Disestablishing Environmentalism, Andrew P. Morriss, Benjamin D. Cramer

Faculty Scholarship

The debate over environmental policy is increasingly conducted in language with strong religious overtones. Both proponents and opponents of various environmental policies appeal to religious doctrine to support their positions: Those who question human-caused global warming are labeled "heretics, " while appeals for environmental "stewardship" echo Biblical texts. Religious groups play an important role in defining environmental policy issues, and both supporters and critics of specific environmental policy views have labeled particular sets of beliefs about the environment a "religion." In this Article we engage in a thought experiment, arguing that there are valuable lessons to be learned from treating …

The Electronic Lawyer, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Trademark Intersectionality , Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only …

Constitutions For The 21st Century: Emerging Patterns-The Eu, Iraq, Afghanistan…, Chibli Mallat

Faculty Scholarship

Professor Mallat delivered the Third Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2004 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Strong moments in constitution-making often result from traumas; the breakthroughs by the European Union and constitutional achievements by both Iraq and Afghanistan stand as modern examples. The traumas of Europe, Afghanistan, and Iraq have been typified by violent conflict over the past century, including two World Wars, the Cold War, and the ‘war on terrorism’. Efforts and successes at …

The Bernstein Memorial Lecture: The First Six Years, Ralf Michaels, Stephen Bornick, Jonathan Dalton White

Faculty Scholarship

CICLOPs, the Center for International & Comparative Law Occasional Papers, could not be launched with a better issue than one dedicated to Duke Law's named lecture series in the field, the Annual Herbert L. Bernstein Memorial Lecture in Comparative Law. Herbert Bernstein was Duke's much-beloved professor of comparative law. The lecture series, established in Prof. Bernstein’s honor after his sudden death in 2001, has drawn leading scholars from all around the world to speak at Duke Law School on comparative law. This first issue of CICLOPs contains the text of the first six lectures, some of them previously published in …

Coping In A Global Marketplace: Survival Strategies For A 75-Year-Old Sec, James D. Cox

Faculty Scholarship

Notwithstanding cynicism to the contrary, data bears witness to the fact that government agencies come and go. There are multiple causes that give rise to their disappearance but among the most powerful is that conditions that first gave rise to the particular agency's creation no longer exist so that the regulatory needs that once prevailed are no longer present or that there is a better governmental response than Congress' earlier embraced when it initially created an independent regulatory agency to address the problems needing to be addressed. Certainly the more rigid the regulatory authority conferred on an agency has much …

Global Legal Pluralism, Ralf Michaels

Faculty Scholarship

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines---comparative law, conflict of laws, public international law, and European Union law---have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism---the definition of law, the role of the …

Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett

Faculty Scholarship

Discrimination in today’s workplace is largely implicit, making it ambiguous and often very difficult to prove. Employment discrimination scholars have proposed reforms of Title VII to make implicit discrimination easier to establish in court and to expand the kinds of situations to which liability attaches. The reform proposals reflect a broad consensus that strong legal norms are crucial to addressing the problem. Yet it is mistaken to assume that strengthening plaintiffs’ hands in implicit discrimination cases will necessarily achieve the long-term goal of reducing its occurrence. This Article brings together several strands of social science research showing that (1) implicit …

No Future Without (Personal) Forgiveness: Re-Examining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Faculty Scholarship

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

Theorizing And Generalizing About Risk Assessment And Regulation Through Comparative Nested Analysis Of Representative Cases, Jonathan B. Wiener, Brendon Swedlow, Denise Kall, Zheng Zhou, James K. Hammitt

Faculty Scholarship

This article provides a framework and offers strategies for theorizing and generalizing about risk assessment and regulation developed in the context of an on-going comparative study of regulatory behavior. Construction of a universe of nearly 3,000 risks and study of a random sample of 100 of these risks allowed us to estimate relative U.S. and European regulatory precaution over a thirty-five-year period. Comparative nested analysis of cases selected from this universe of ecological, health, safety, and other risks or its eighteen categories or ninety-two subcategories of risk sources or causes will allow theory-testing and -building and many further descriptive and …

What Do Federal District Judges Want?: An Analysis Of Publications, Citations, And Reversals, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

We report evidence from a dataset of federal district judges from 2001 to 2002 that district judges adjust their opinion-writing practices to minimize their workload while maximizing their reputation and chance for elevation to a higher court. District judges in circuits with politically uniform circuit judges are better able to predict what opinions will get affirmed by the circuit court, leading to higher publication rates and a higher affirmance rate. In contrast, district judges in circuits with politically diverse circuit judges are less able to predict the preferences of the reviewing circuit court panel, leading district judges to publish fewer …

Presidential Popular Constitutionalism, Jedediah Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …

Describing The Effect Of Adaptation On Settlement, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

No abstract provided.

Narratives Of Oppression, Michael E. Tigar

Faculty Scholarship

No abstract provided.