Digital Commons Network^™

Electroconvulsive Therapy Baby Boomers May Be In For The Shock Of Their Lives, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Nonmartial Cohabitation: Social Revolution And Legal Regulation, Marsha Garrison

Faculty Scholarship

No abstract provided.

Brain Images As Legal Evidence, Emily R. Murphy, Teneille R. Brown, Adina Roskies, Walter Sinnott-Armstrong

Faculty Scholarship

No abstract provided.

A Matter Of Fit: The Law Of Discrimination And The Science Of Implicit Bias, David L. Faigman, Nilanjana Dasgupta, Cecilia L. Ridgeway

Faculty Scholarship

No abstract provided.

Duty To The Unborn: A Response To Smolensky, Jaime S. King

Faculty Scholarship

No abstract provided.

Social Reconstruction As A Local Process, Naomi Roht-Arriaza, Laura Arriaza

Faculty Scholarship

No abstract provided.

Retributive Justice, Restorative Justice, And Forgiveness: An Experimental Psychophysiology Analysis, Charlotte Witvliet, Everett L. Worthington, Lindsey M. Root, Amy F. Sato, Thomas E. Ludwig, Julie J. Exline

Faculty Scholarship

This experiment assessed the emotional self-reports and physiology of justice outcomes and forgiveness responses to a common crime, using a three Justice (retributive, restorative, no justice) × 2 Forgiveness (forgiveness, none) repeated-measures design. Participants (27 males, 29 females) imagined their residence was burglarized, followed by six counterbalanced justice–forgiveness outcomes. Imagery of justice—especially restorative—and forgiveness each reduced unforgiving motivations and negative emotion (anger, fear), and increased prosocial and positive emotion (empathy, gratitude). Imagery of granting forgiveness (versus not) was associated with less heart rate reactivity and better recovery; less negative emotion expression at the brow (corrugator EMG); and less aroused …

Family Law Cases As Law Reform Litigation: Unrecognized Parents And The Story Of Alison D. V. Virginia M., Suzanne B. Goldberg

Faculty Scholarship

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking – and disturbing – in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, …

Land Assembly Districts, Michael A. Heller, Rick Hills

Faculty Scholarship

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and …

Experimental Law And Economics, Jennifer Arlen, Eric L. Talley

Faculty Scholarship

This chapter provides a framework for assessing the contributions of experiments in Law and Economics. We identify criteria for determining the validity of an experiment and find that these criteria depend upon both the purpose of the experiment and the theory of behavior implicated by the experiment. While all experiments must satisfy the standard experimental desiderata of control, falsifiability of theory, internal consistency, external consistency and replicability, the question of whether an experiment also must be contextually attentive - in the sense of matching the real world choice being studied - depends on the underlying theory of decision-making being tested …

Legal Accountability In The Service-Based Welfare State: Lessons From Child Welfare Reform, Kathleen G. Noonan, Charles F. Sabel, William H. Simon

Faculty Scholarship

Current trends intensify the longstanding problem of how the rule-of-law should be institutionalized in the welfare state. Welfare programs are being re-designed to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This Article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel …

Intuition, Morals, And The Legal Conversation About Gay Rights, Suzanne B. Goldberg

Faculty Scholarship

When lawyers and judges converse in litigation, factual and legal analysis typically takes center stage. Yet, when the legal conversation turns to the rights of lesbians, gay men, and bisexuals, the ground shifts. Intuition and morals rationales often displace evidence-based reasoning. More specifically, arguments to limit the rights of lesbians and gay men tend to depend explicitly on intuition, and sometimes morality, in ways that contemporary arguments to restrict the rights of other social groups rarely do.

In addressing this dissonance, this essay has two central aims. The first is simply to observe the disproportionate openness to arguments based on …

Climate Change And The Limits Of The Possible, Jedediah S. Purdy

Faculty Scholarship

Climate change looks to be more than just another environmental problem. It threatens to test the limits of our dominant ways of understanding and solving, not just environmental problems, but problems of political economy generally. Climate change has distinctive temporal and spatial features – how long it takes to unfold and the ways in which its effects are distributed across the globe – which may outstrip the capacity of our basic principles of economic and political decision-making. If so, then understanding the issue in a static way may ensure that we expect to fail in addressing it and are inarticulate …

Unsafe At Any Price, Ronald J. Mann

Faculty Scholarship

Making Credit Safer is a fascinating collaboration between two scholars of very different bents. Elizabeth Warren's career rests oil decades of careful empirical research, integrated into trenchant policy analysis, and deeply informed by the cultural and social significance of debt. Oren Bar-Gill, by contrast, is a formally trained economist, who is at the start of his academic career, and has gained wide recognition for his successful application of theories of behavioral economics to the products that dominate the modern credit card industry.

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Children, Kin, And Court: Designing Third Party Custody Policy To Protect Children, Third Parties And Parents, Joshua Gupta-Kagan

Faculty Scholarship

Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful.

States currently have …

Pick A Card, Any Card, Ronald J. Mann

Faculty Scholarship

At the heart of all serious thought about consumer financial products is the difficulty of understanding the mental processes by which consumers evaluate, compare, and use those products. Usury proposals from scholars and policy makers depend on explicit or implicit assumptions about how interest-rate caps will affect the mix of products available in the marketplace and the choices that consumers make among them. Legislators and lobbyists that decry a torrent of consumer bankruptcy filings rely explicitly on the claim that consumers abuse credit products. Proposals to outlaw products like payday loans assume that those who use the products are so …

Homes With Tails: What If You Could Own Your Internet Connection?, Tim Wu, Derek Slater

Faculty Scholarship

America's communications infrastructure is stuck at a copper wall. For the vast majority of homes, copper wires remain the principal means of getting broadband services. The deployment of fiber optic connections to the home would enable exponentially faster connections, and few dispute that upgrading to more robust infrastructure is essential to America's economic growth. However, the costs of such an upgrade are daunting for private sector firms and even for governments. These facts add up to a public policy challenge.

Our intuition is that an innovative model holds unrealized promise: household investments in fiber. Consumers may one day purchase and …

Preventive Law: A Strategy For Internal Corporate Lawyers To Advise Managers Of Their Ethical Obligations, Z. Jill Barclift

Faculty Scholarship

This article examines the efficacy of Preventive Law jurisprudence to internal corporate law practice. The article compares internal corporate law practice to the practice approach of Preventive Law. The article explores the benefits of Preventive Law jurisprudence to internal corporate law practice. Part I discusses the history and various vectors of Preventive Law. Part II examines the responsibilities of corporate law departments. Part III compares Preventive Law practice skills to internal corporate law practice, and explores the utility of Barton’s problem solving approaches to internal corporate law practice. Finally, the article concludes arguing internal corporate law practice is Preventive Law …

Flies On The Wall Or In The Ointment? Some Thoughts On The Role Of Clinical Supervisors At Initial Client Interviews, Carolyn Grose

Faculty Scholarship

This article uses the question of whether or not supervisors attend initial client interviews with their students as a lens through which to explore other questions about supervision theory, clinical pedagogy and professional responsibility. This analysis appears to create dichotomous positions concerning how students learn best and how clients are served best. The article attempts to deconstruct these dichotomies by proposing a different way to think about these issues. Grounded in theories about adult learning, critical reflection, and role assumption and modeling, the article concludes that the decision about whether to attend client interviews can be one that the supervisor …

Involuntary Passive Euthanasia In U.S. Courts: Reassessing The Judicial Treatment Of Medical Futility Cases, Thaddeus Mason Pope

Faculty Scholarship

Over the past twenty-five years, a significant number of surrogate decision makers have demanded that a health care provider use medical technology to prolong a patient's life beyond the point thought medically appropriate. These surrogates want to continue life-sustaining medical treatment (LSMT) that providers want to stop. While most of these futility disputes are resolved informally inside the hospital, dozens have now been litigated in U.S. courts. Because the judicial treatment of these disputes casts a long, dark shadow on the informal resolution of all the others, it is important to ascertain exactly what guidance these court cases provide.

In …

A Truly Good Work: Turning To Restorative Justice For Answers To The Welfare-To-Work Dilemma, Marie Failinger

Faculty Scholarship

U.S. welfare programs have traditionally come with strings attached: recipients must work for their benefits. I argue that there is a more practical and less morally repugnant way to marry work and welfare if proponents of work as well as their opponents would be willing to give up the unrealistic expectations they have placed on state-run public assistance programs, and define a clear and limited relationship between work and need for economically vulnerable people. Just as it has offered an alternative to both the pure retributivist and rehabilitation models in the area of criminal corrections, the principles and practices of …

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias In Employer-Defendants, Jessica Fink

Faculty Scholarship

This Article examines the extent to which employment discrimination litigation conducted under the current legal framework increases the biases of those involved in this process, particularly defendant-employers. It examines whether discrimination litigation enhances and exacerbates the negative views that these defendants may have toward not just the plaintiff who initiated the litigation, but also toward the broader protected class to which the plaintiff belongs.

Part I of this Article briefly expands upon the different types of bias that can infect employers' decisions, from the blatant discrimination that largely has disappeared from American society, to intentional discrimination that employers strategically hide …

Family Court Reform And Adr: Shifting Values And Expectations Transform The Divorce Process, Nancy Ver Steegh

Faculty Scholarship

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.

Admissibility Regimes The Opinion Rule And Other Oddities And Exceptions To Scientific Evidence The Scientific Revolution And Common Sense, David L. Faigman

Faculty Scholarship

No abstract provided.

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero

Faculty Scholarship

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

Romancing The Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts, created at the end of the 20th century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through …

Repairing Family Law, Clare Huntington

Faculty Scholarship

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void — and inaugurate a larger debate about the central role of emotion in family law — by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and …

Contractual Enforcement Institutions And The Structure Of Information, Avery W. Katz

Faculty Scholarship

Many economic writers on contract theory have assumed that legal institutions are simply unable to do the job of enforcement, and have thus attempted to devise arrangements that motivate the parties to keep their commitments even though a government tribunal would be unable to tell whether they had performed. But non-legal enforcement mechanisms operate both as substitutes and complements for legal mechanisms (and as substitutes and complements for each other). This essay sketches how parties should choose among available enforcement mechanisms, based on the costs of information and other transaction costs.