Digital Commons Network^™

Detecting Lies Using Demeanor, Bias, And Context, Max J. Minzner

Faculty Scholarship

This article provides a brief discussion of the divide between judges and academics in their opinion of the accuracy of legal credibility decisions and the role of demeanor evidence in making those determinations. Biases about witness credibility and context play a large role in determining whether deception will be caught. The article then examines decisions about deception by juries and by law enforcement regarding cooperating witnesses and situations where the defendant or a suspect is the witness. In conclusion, this article reflects on decisions about deception within the context of social science.

Regulation By Exemption: The Changing Definition Of An Accredited Investor, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Regulation By Exemption: The Changing Definition Of An Accredited Investor, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Sovereignty As Discourse, Robert L. Tsai

Faculty Scholarship

This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.

Recent Case, Ninth Circuit Considers Community's Racial Tension With Police In Finding Illegal Seizure And Lack Of Voluntary Consent. — United States V. Washington, 490 F.3d 765 (9th Cir. 2007), Portia Pedro

Faculty Scholarship

The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. Although the choice of viewpoint is often left out of the story, much also depends on whose perspective — police officers’ or civilians’ — a judge employs for search and seizure determinations. The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. In United States v. Washington, the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, …

Private Investment Funds: Hedge Funds' Regulation By Size, Tamar Frankel

Faculty Scholarship

This Article focuses on hedge funds-a species of private investment funds. These funds appeared in the 1950s and remained active but small. Then, in a fairly short period, they grew enormously to over $1.5 trillion, although the estimates vary.¹ Hedge fund managers engage in more than twenty-five different categories of investment strategies.² Since 2002, the number of hedge funds has more than doubled to an estimated 9,000 funds,³ and their assets have grown by 400% to an estimated $1.4 trillion since 1999.⁴ Other estimates are higher, suggesting current hedge fund assets at $2 trillion and their …

The Virtue Of Judicial Statesmanship, Neil S. Siegel

Faculty Scholarship

Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.

I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself over the long run and with respect to …

Slaves For Rent: Sexual Harassment In Housing As Involuntary Servitude, Aric K. Short

Faculty Scholarship

Recognizing the various shortcomings of the FHA when applied in the context of post-acquisition harassment in general, and sexual harassment in particular, this Article explores an alternative vehicle for victims of such abuse: the Thirteenth Amendment. Ratified in 1865, the Thirteenth Amendment provided a formal legal end to African chattel slavery across the United States. But the Thirteenth Amendment has legal importance beyond the abolition of slavery. The Amendment was and remains both a powerful liberating force and a guarantor of fundamental rights for all Americans. In particular, the text of the Thirteenth Amendment extends its reach beyond slavery to …

Proof Brief Of Professors Of Family Law And Jurisprudence As Amici Curiae In Support Of Plaintiff-Appellee, Joseph M. Barron, Richard T. Greenberg, Shannon Price Minter, Carlos A. Ball, Naomi Cahn, June Carbone, Ann Laquer Estin, Joan Heifetz Hollinger, Angela Onwuachi-Willig, Sarah H. Ramsey, Michael S. Wald

Faculty Scholarship

The plaintiffs in this case met their burden of demonstrating the irrationality of Iowa’s statutory exclusion of same-sex couples from marriage. They did this, in part, by presenting social science research regarding the irrelevance of sexual orientation to parental ability and the psychological and social well-being of children raised by same-sex parents. In addition to arguing that the marriage exclusion is irrational, the plaintiffs also alleged that the exclusion should be subject to heightened scrutiny because it violates the fundamental right to marry and discriminates on the bases of gender and sexual orientation. Amici agree that the exclusion of same-sex …

Health State Valuation In Mild To Moderate Cognitive Impairment: Feasibility Of Computer-Based, Direct Patient Utility Assessment, Neal V. Dawson, Mendel E. Singer, Marian B. Patterson, Susie A. Sami, Iahn Gonsenhouser, Heather A. Lindstrom, Kathleen A. Smyth, Melissa Barber Butson, Peter J. Whitehouse

Faculty Scholarship

Background. Most patients with dementia will, at some point, need a proxy health care decision maker. It is unknown whether persons with various degrees of cognitive impairment can reliably report their health-related preferences. Methods. The authors performed health state valuations (HSVs) of current and hypothetical future health states on 47 pairs of patients with mild to moderate cognitive impairment and their caregivers using computer-based standard gamble, time tradeoff, and rating scale techniques. Results. Patients' mean (SD) age was 74.6 (9.3) years. About half of the patients were women (48%), as were most caregivers (73%), who were on average younger (mean …

Space To Learn And Grow: Assessing The Capacity Of A Regional Early Care And Education System, Robert L. Fischer, Kristen Mikelbank, Claudia J. Coulton

Faculty Scholarship

As communities across the United States work to meet the early care and education needs of young children, more research is needed to inform decision making at many levels. One key dimension of this is having clarity about the relative availability of care in light of demographic trends and geographic dispersion. The present study demonstrates a method to examine the capacity of early care programs to serve the children in a large urban county. The study takes stock of the existing early care system by comparing where the child care slots are and where the demand is—all at the neighborhood …

Incorporating Ethnicity Into Genetic Risk Assessment For Alzheimer Disease: The Reveal Study Experience, Peter J. Whitehouse, Melissa Barber Butson

Faculty Scholarship

PURPOSE: To describe how investigators in a multisite randomized clinical trial addressed scientific and ethical issues involved in creating risk models based on genetic testing for African American participants. METHODS: The following informed our decision whether to stratify risk assessment by ethnicity: evaluation of epidemiological data, appraisal of benefits and risks of incorporating ethnicity into calculations, and feasibility of creating ethnicity-specific risk curves. Once the decision was made, risk curves were created based on data from a large, diverse study of first-degree relatives of patients with Alzheimer disease. RESULTS: Review of epidemiological data suggested notable differences in risk between African …

Creating A Legal Society In The Western Hemisphere To Support The Hague Convention On Civil Aspects Of International Child Abduction, Timothy Arcaro

Faculty Scholarship

No abstract provided.

Corporate Ethics, Agency, And The Theory Of The Firm, Robert J. Rhee

Faculty Scholarship

This conference paper suggests that the problem of corporate ethics cannot be reduced to the autonomous person. Although the greatest influence on action and choice is one's moral constitution, it does not follow that the agent's behavior is the same within or without the firm. Ethics is a function of corporate form. The theory of agency cannot dismiss the firm as a fiction or metaphorical shorthand since that which does not exist should not be able to cause ethical breakdowns in corporate action. Thus, the theory of the firm, which emphasizes profit and wealth maximization, should incorporate a richer, more …

Conversations On "Community Lawyering:" The Newest (Oldest) Wave In Clinical Legal Education, Karen Tokarz, Nancy L. Cook, Susan Brooks, Brenda Bratton Blom

Faculty Scholarship

This Article explores the pedagogical and professional challenges and rewards of community lawyering and clinical legal education. The authors are clinical law faculty who self-identify as community lawyers and teachers of community lawyering clinics. They have gathered in recent years with a larger group of similarly engaged colleagues to discuss what is meant by community lawyering, how it is taught, and how it is practiced. This Article seeks to capture some of those conversations, crystallize some of the ideas that have arisen out of the discussions, and examine the implications of these ruminations for future directions in clinical legal education.

Justifying Motive Analysis In Judicial Review, Gordon G. Young

Faculty Scholarship

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or “designed to strike” at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …

Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin

Faculty Scholarship

The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …

Tort Arbitrage, Robert J. Rhee

Faculty Scholarship

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the operational realities of the dispute resolution process and the negligence standard. Applying a theory of bargaining based on asset pricing principles of financial economics, this Article argues that there is systematic devaluation of tort claims in the civil litigation system. This results because in essence the parties value different tort transactions, even when they are tied together in a common dispute and view the facts and laws similarly. For the party that can mitigate the risk exposure, the discount to value …

When Is A Battered Woman Not A Battered Woman? When She Fights Back, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Achieving Early And Substantial Greenhouse Gas Reductions Under A Post-Kyoto Agreement, John C. Dernbach

Faculty Scholarship

No abstract provided.

Harnessing Individual Behavior To Address Climate Change: Options For Congress, John C. Dernbach

Faculty Scholarship

No abstract provided.

Crime, Legitimacy, And Testilying, Bennett Capers

Faculty Scholarship

No abstract provided.

The Uneasy Relationship Between Science And Law: An Essay And Introduction, Lawrence Solan, Margaret Berger

Faculty Scholarship

No abstract provided.

Scuba Diving Buddies: Rights, Obligations, And Liabilities, Phyllis G. Coleman

Faculty Scholarship

A common misconception is that scuba diving is dangerous; the reality is that divers are more likely to be hurt in their cars driving to the dive site than in an underwater accident. Arguably one reason the sport is so safe is the widespread, and often mandatory, use of the buddy system.

A buddy expects his partner to perform a variety of tasks, which include assisting during an emergency. However, a glaring omission in the legal literature is the important issue of what happens when a diver's failure to act results in his buddy's death or serious injuries. This article …

Emeritus Lawsuits: Much Ado About Nothing?, Robert M. Jarvis

Faculty Scholarship

Robert Jarvis, Emeritus Lawsuits: Much Ado About Nothing?, 9 Nevada Law Journal 63 (2008).

Corporate Policing And Corporate Governance: What Can We Learn From Hewlett-Packard's Pretexting Scandal, Miriam Baer

Faculty Scholarship

No abstract provided.

Asbestos And Mass Torts With Fraudulent Victims, Keith N. Hylton

Faculty Scholarship

Deterrence and compensation goals should be distinguished, and compensation priorities should change in response to the deterrence goal. This has immediate implications for the problem of handling marginal and fraudulent claims in asbestos litigation. Where the deterrence goals come to the forefront, for example in instances of reckless exposure, it may be desirable for courts to require defendants to pay damages that are not transferred to any claimants. Where the deterrence goals are less compelling, as in instances of ordinary negligence, the importance of weeding out marginal and fraudulent claims becomes paramount. I consider optimal penalties for attorneys who bundle …

Corporate Boards Of Directors: Advisors Or Supervisors, Tamar Frankel

Faculty Scholarship

What makes for a well-functioning corporate board? In this Article I argue that one important condition is that board members must understand and agree upon the group's objectives and its roles. If a corporate board of directors (Board) does not agree on what it is supposed to do; or, worse still, if Board members disagree about the Board's mission and its implementation, then the Board is likely to become dysfunctional-inefficient and ineffective. The Board's missions, however, may be mixed and their forms of implementation may conflict. In this case, the balance between the two missions must be established, and it …

Corporate Policing And Corporate Governance: What Can We Learn From Hewlett-Packard's Pretexting Scandal?, Miriam H. Baer

Faculty Scholarship

When Hewlett Packard (HP) announced in September 2006 that its Board Chairman, Patricia Dunn, had authorized HP's security department to investigate a suspected Board-level press leak and that the investigation included tactics such as obtaining HP Board members' and reporters' telephone records through false pretenses (conduct known as "pretexting"), observers vehemently condemned the operation as illegal and outrageous. In congressional testimony, however, Dunn defended the investigation as "old fashioned detective work." Although Dunn would later claim that she was unaware of key aspects of the investigation, her description was not so far off. The police routinely rely on deception to …

Mistakes, Changed Circumstances And Intent, Nancy Kim

Faculty Scholarship

The most common contract defenses are duress, unconscionability, incapacity, fraud, and the basic assumption. defenses4 of mutual mistake, unilateral mistake, impossibility, frustration of purpose and commercial impracticability. In this Article, I limit my discussion to basic assumption defenses. Several prevailing rationales explain why a party should be allowed to escape contractual liability despite the sufficiency of consideration where there has been a failure of a basic assumption material to the transaction. No single rationale or principle, however, unifies all basic assumption defenses. Several commentators have noted that similar fact patterns applying a given doctrine often yield inconsistent results. Parties’ employment …