Digital Commons Network^™

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber

Faculty Scholarship

No abstract provided.

A Liberal Challenge To Behavioral Economics: The Case Of Probability, Alex Stein

Faculty Scholarship

No abstract provided.

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

A Moratorium On Intersex Surgeries?: Law, Science, Identity, And Bioethics At The Crossroads, Laura Hermer

Faculty Scholarship

Should the law prevent all parents and guardians from requesting and consenting to cosmetic genital surgeries on children with certain intersex conditions before the children are mature enough to decide the matter for themselves? While such surgeries ought not to be encouraged, banning the surgeries altogether, as some advocate, would hobble, if not eliminate, the burgeoning scientific investigation of the best treatment practices for different intersex conditions. It would also remove a surgical option that, according to data in a number of studies, has resulted in subjectively satisfactory outcomes for many patients.

The Constitution In A Postmodern Age, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

Faculty Scholarship

This article attempts to explain empirically the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as "transaction cost engineers" and "reputational intermediaries." This new model not only helps inform contract theory but also reveals a profoundly different vision than those of existing models for the future of legal education and the profession.

Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper integrates and extends the literatures on industry evolution and dominant firms to develop a dynamic theory of dominant and fringe competitive interaction in a segmented industry. It argues that a dominant firm, seeing contraction of growth in its current segment(s), enters new segments in which it can exploit its technological strengths, but that are sufficiently distant to avoid cannibalization. The dominant firm acts as a low-cost Stackelberg leader, driving down prices and triggering a sales takeoff in the new segment. We identify a “churn” effect associated with dominant firm entry: fringe firms that precede the dominant firm into …

Palmore Comes Of Age: The Place Of Race In The Placement Of Children, David D. Meyer

Faculty Scholarship

No abstract provided.

Uncivil Religion: Judeo-Christianity And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix

Faculty Scholarship

In the recent Decalogue Cases, Justice Scalia argued that when it comes to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A civil religion is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond.

The most recent incarnation of American civil …

A Social Defense Of Sarbanes-Oxley, James A. Fanto

Faculty Scholarship

No abstract provided.

Lng Facility Siting And Environmental (In)Justice: Is It Time For A National Siting Scheme?, Eileen Gauna

Faculty Scholarship

This Article examines the distributional and other environmental justice issues arising from the current initiative to rapidly site multiple LNG import facilities in order to increase the supply of natural gas into the continental United States. This Article further examines the necessity of creating a national siting scheme to avoid exacerbating existing racial disparities in risk-producing land use practices.

Unpacking Pandora's Box: Innovative Techniques For Effectively Counseling Asylum Applicants Suffering From Post-Traumatic Stress Disorder, Carol M. Suzuki

Faculty Scholarship

Many asylum seekers are denied relief in the United States because the asylum officer or immigration judge evaluating the case does not believe the asylum applicant is telling the truth. The applicant may appear not to be credible because his story of persecution lacks sufficient detail and is inconsistent. A victim of severe and often prolonged trauma may develop post-traumatic stress disorder (PTSD), which profoundly affects his ability to tell a consistent and detailed story of past persecution. Thus, an asylum seeker suffering from PTSD as a result of traumatic experiences, desperately in need of a safe haven, may be …

Mind Games: Rethinking Bapcpa's Debtor Education Provisions, Nathalie Martin, Ocean Tama Y Sweet

Faculty Scholarship

This Essay provides some initial ideas about how one might redesign an appropriate course for bankruptcy debtors.

The Politics Of Risk: Pre-Litigation Site Assessment In Houston, Texas, Gregg P. Macey

Faculty Scholarship

No abstract provided.

The International Criminal Tribunal For Rwanda As The Theater: The Social Negotiation Of The Moral Authority Of International Law, Maya Steinitz

Faculty Scholarship

The international criminal courts (ICCs) - the ad hoc International Criminal Tribunals for the Former-Yugoslavia and for Rwanda, the recently-established permanent International Criminal Court, and hybrid internationalized tribunals such as the Special Court for Sierra Leone - are the international community's attempt to address the worst of the criminal manifestations of racism, nationalism and large-scale xenophobia. Based on five months of ethnographic research at the international criminal tribunal for Rwanda (ICTR), analyzed using Erving Goffman's dramaturgical framework, this article examines the means through which moral authority is constructed and communicated by the ICTR. Specifically, the article advances the argument that …

Foreword: The Politics Of Health Law: Any Tipping Points In View?, Frances H. Miller

Faculty Scholarship

Malcolm Gladwell explored the way certain ideas and behaviors can proliferate "just like viruses do" once they achieve a critical mass in The Tipping Point,' his best-seller about the sorts of widespread and rapidly adopted social phenomena he labels epidemics. Gladwell's subtitle, "How Little Things Can Make a Big Difference," indicates that he thinks it need not take much to get one of these social epidemics rolling. He does believe, however, that three factors are essential: getting "people with a particular and rare set of social gifts" involved,² packaging the ideas so they are "irresistible" under the circumstances, ^{3 …}

The Supreme Court And Abortion Rights, George J. Annas

Faculty Scholarship

Since the Supreme Court's landmark 1973 abortion-rights decision in Roe v. Wade, the law has taken the lead in defining the contours of the continuing public debate over reproductive liberty. Ever since then, abortion opponents have tried to make abortion more burdensome by limiting Roe, and these continuing challenges are the reason there have been so many Supreme Court decisions about abortion, including the Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which unexpectedly reaffirmed the core of Roe.

Physicians And Torture: Lessons From The Nazi Doctors, Michael Grodin, George J. Annas

Faculty Scholarship

How is it possible? What are the personal, professional and political contexts that allow physicians to use their skills to torture and kill rather than heal? What are the psychological characteristics and the social, cultural and political factors that predispose physicians to participate in human rights abuses? What can be done to recognize at-risk situations and attempt to provide corrective or preventive strategies? This article examines case studies from Nazi Germany in an attempt to answer these questions. Subjects discussed include the psychology of the individual perpetrator, dehumanization, numbing, splitting, omnipotence, medicalization, group dynamics, obedience to authority, diffusion of responsibility, …

Mr. Prinzo's Breakthrough And The Limits Of Confidentiality, Nancy J. Moore

Faculty Scholarship

Engaging students in the required Professional Responsibility course is not always easy. There are many ways we attempt to overcome this resistance, including bringing in current events, emphasizing remedies other than lawyer discipline, and making use of a number of currently available audio-visual aids, including clips from movies and television shows. In this article, the author describes her use of Mr. Prinzo's Breakthrough, an absurd, black humor short story by Bruce Jay Friedman, to teach the limits of the obligation of confidentiality.

The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, Robert D. Sloane

Faculty Scholarship

Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the …

Women's Place: Urban Planning, Housing Design, And Work-Family Balance, Katharine B. Silbaugh

Faculty Scholarship

In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead …

Prologue To A Voluntarist War Convention, Robert D. Sloane

Faculty Scholarship

This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse …

Reading The Pink Locker Room On Football Culture And Title Ix, Erin E. Buzuvis

Faculty Scholarship

This Article examines the public controversy that erupted after local media reported on a comment the Author made about the University of Iowa's decision to renovate the football stadium's visiting team locker room entirely in pink. The Author submitted a statement in response to the University Steering Committee on NCAA Certification's request for feedback on a draft report and suggested that the "joke" behind the pink decor traded in sexist and homophobic values. As such, the Author concluded that it belonged in the comprehensive analysis of gender equity that the committee was preparing. The Author immediately received hundreds of hateful …

Market Fragmenting Regulation - Why Gasoline Costs So Much (And Why It's Going To Cost More), Andrew P. Morriss, Nathaniel Stewart

Faculty Scholarship

Virtually everyone holds an opinion on what is wrong with gasoline markets. Some critics argue that gasoline costs too much, fattening greedy oil barons at the expense of consumers. Some link reducing oil producers' profits to stopping terrorism. Others contend that gasoline costs too little, subsidizing suburban sprawl and gas-guzzling SUVs at the expense of the environment. Web sites track gasoline prices and grocery stores sell low-cost fuel to lure shoppers. Policy makers debate whether gas taxes should be cut to lower the cost of living; need to be increased to make drivers pay the full cost of their behavior; …

The Architecture Of Inclusion: Interdisciplinary Insights On Pursuing Institutional Citizenship, Susan Sturm

Faculty Scholarship

Structural inequality has captured the attention of academics, policymakers, and activists. This structural reorientation is occurring at a time of judicial retrenchment and political backlash against affirmative action. These developments have placed in sharp relief the mismatch between structural diagnoses and the dominant legal frameworks for addressing inequality. Scholars, policymakers, and activists are faced with the pressing question of what to do now. They share a need for new frameworks and strategies, growing out of a better understanding of institutional and cultural change.

I am honored that the Harvard Journal of Law & Gender has used the publication of The …

The Empire Of Illness: Competence And Coercion In Health-Care Decision Making, Marsha Garrison

Faculty Scholarship

No abstract provided.

Laws Against Bubbles: An Experimental-Asset-Market Approach To Analyzing Financial Regulation, Erik F. Gerding

Faculty Scholarship

This article analyzes the effectiveness of proposed and actual securities, financial, and tax laws designed to prevent, or dampen the severity of asset price bubbles, including laws designed to mitigate excessive speculation. The article employs experimental asset market research to measure the effectiveness of these anti-bubble laws in correcting mispricings. Experimental asset markets represent complex simulations of stock markets in which subjects trade securities over a computer network. These markets allow scholars to test causal links between legal policies and market effects in ways that empirical research alone cannot. With these virtual markets, researchers can identify asset price bubbles-when prices …

Framing Family Court Through The Lens Of Accountability, Jane M. Spinak

Faculty Scholarship

Abolish Family Court. Merge it. Restructure it. Give it more power; give it less. Whatever recommendations were made during the two-day conference, not a single participant said that the current Court functioned well. That's hardly surprising. Barely twenty-five years after the first juvenile court was created, some of its chief protagonists expressed alarm about the Court's functioning. Those concerns are eerily similar to some of the current critiques that surfaced at the conference: insufficient resources, inadequate preventive services to keep children out of court, an overwhelmed probation service, judges without ample understanding of the complexities of families' lives, intervening in …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

I am delighted to be here today.

I am delighted to be at The Ohio State University, which has not only built a truly extraordinary criminal law and procedure faculty, including Professor Joshua Dressler, Alan Michaels, Sharon Davies, and Douglas Berman, but has also accumulated a large number of alumni of my home institution, Columbia Law School, including my former students, Professor Edward Foley and the aforesaid Professors Davies and Michaels, as well as Professor Deborah Jones Merritt, who is quite literally a daughter of Columbia, where her father is a distinguished emeritus member of the faculty, my esteemed senior …

When Did Lawyers For Children Stop Reading Goldstein, Freud And Solnit? Lessons From The Twentieth Century On Best Interests And The Role Of The Child Advocate, Jane M. Spinak

Faculty Scholarship

Between 1973 and 1986, Joseph Goldstein, Anna Freud, and Albert Solnit published three influential but controversial books on the best interests of the child that had an enormous impact on state decisions to intervene in family life and direct the placement of children. During the same period, children in child welfare proceedings were increasingly represented by lawyers or guardians ad litem whose advocacy included understanding and interpreting the meaning of best interests. This article begins by tracing a conversation of sorts that occurs between the authors and other scholars and practitioners as their ideas begin to influence decision-making in child …