Digital Commons Network^™

The How And Why Of The New Public Corporation Tax Shelter Compliance Norm, Susan C. Morse

Faculty Scholarship

No abstract provided.

Conflict At End Of Life: A Growing Need For Dispute Resolution Practices, Debra Gerardi, Jacquelin N. Font-Guzman

Faculty Scholarship

No abstract provided.

Brief Of Constitutional Law Professors David L. Faigman And Ashutosh A. Bhagwat, Et Al., As Amici Curiae In Support Of Respondents In Gonzales V. Carhart And Gonzales V. Planned Parenthood, Nos. 05€€Œ830, 05€€Œ1382 (Introduction And Published Brief To United States Supreme Court), Ashutosh Bhagwat, David L. Faigman, Kathryn M. Davis

Faculty Scholarship

No abstract provided.

Horizontal Political Externalities The Supply And Demand Of Disaster Management, Ben Depoorter

Faculty Scholarship

No abstract provided.

Waging War Against Terror: An Essay For Sandy Levinson, Philip Chase Bobbitt

Faculty Scholarship

Wars are acts of State, and therefore there has never been a "war on terror." Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states – including virtual states like al Qaeda's global ummah – whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state's control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states …

The Promise (And Limits) Of Neuroeconomics, Jedediah S. Purdy

Faculty Scholarship

Neuroeconomics — the study of brain activity in people engaged in tasks of reasoning and choice — looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This Article explains what is most exciting about the new field and lays out some specific research tasks for it.

History, Human Nature, And Property Regimes: Filling In The Civilizing Argument, Jedediah S. Purdy

Faculty Scholarship

Carol Rose’s paper exemplifies qualities I have admired in Carol’s work since I first read her in 1999 and 2000. It also raises questions about her work and that of anyone who tries to follow in her footsteps. Because I am one of those chasers after methodological Rose petals, I am (at least) doubly interested in these questions.

Federal Sentencing Under "Advisory" Guidelines: Observations By District Judges, Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerard E. Lynch, Gregory A. Presnell, Daniel J. Capra

Faculty Scholarship

Good evening. This is the Philip Reed program. It is part of the Centennial Celebration of Fordham Law School. The topic tonight is entitled "Federal Sentencing Under 'Advisory' Guidelines."

There are approximately ten district judges who have written what I would refer to as challenging and influential opinions on how federal courts should approach sentencing under advisory Guidelines. We have five of them on this panel.

Our format tonight is to take short opening statements from the judges and then to discuss some particular issues of controversy in sentencing after Booker. I plan to open it up to questions and …

Public Preferences For Rehabilitation Versus Incarceration Of Juvenile Offenders: Evidence From A Contingent Valuation Survey, Daniel S. Nagin, Alex R. Piquero, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Research Summary:
Accurately gauging the public's support for alternative responses to juvenile offending is important, because policy makers often justify expenditures for punitive juvenile justice reforms on the basis of popular demand for tougher policies. In this study, we assess public support for both punitively and nonpunitively oriented juvenile justice policies by measuring respondents' willingness to pay for various policy proposals. We employ a methodology known as "contingent valuation" (CV) that permits the comparison of respondents' willingness to pay (WTP) for competing policy alternatives. Specifically, we compare CV-based estimates for the public's WTP for two distinctively different responses to serious …

Public Attitudes About The Culpability And Punishment Of Young Offenders, Elizabeth S. Scott, N. Dickon Reppucci, Jill Antonishak, Jennifer T. Degennaro

Faculty Scholarship

Conventional wisdom holds that the public supports harsh punishment of juvenile offenders, and politicians often argue that the public demands tough policies. But public opinion is usually gauged through simplistic polls, often conducted in the wake of highly publicized violent crimes by juveniles. This study seeks to probe public opinion about the culpability of young offenders as compared to adult counterparts through more nuanced and comprehensive measures in a neutral setting (i.e. not in response to a high profile crime or during a political campaign when the media focuses on the issue). The opinions of 788 community adults were individually …

The Politics Of Same-Sex Marriage Politics, Katherine M. Franke

Faculty Scholarship

In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and …

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Adolescence And The Regulation Of Youth Crime, Elizabeth S. Scott

Faculty Scholarship

I am delighted to be a part of this Symposium on Law and Adolescence. My talk today is about adolescent development and juvenile justice policy. Specifically, I will focus on why a legal regime that is grounded in scientific knowledge about adolescence and the role of criminal activity during this developmental period is better for young offenders and for society than the contemporary policy, which often pays little attention to differences between adolescents and adults.

My talk is based on a book on juvenile justice policy I am currently writing with Larry Steinberg, a developmental psychologist who is a leading …

Optimizing Consumer Credit Markets And Bankruptcy Policy, Ronald J. Mann

Faculty Scholarship

This Article explores the relationship between consumer credit markets and bankruptcy policy. In general, I argue that the causative relationships running between borrowing and bankruptcy compel a new strategy for policing the conduct of lenders and borrowers in modern consumer credit markets. The strategy must be sensitive to the role of the credit card in lending markets and must recognize that both issuers and cardholders are well placed to respond to the increased levels of spending and indebtedness. In the latter parts of the Article, I recommend mandatory minimum payment requirements, a tax on distressed credit card debt, and the …

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use …

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Faculty Scholarship

Unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants' efforts to fight their executions. For example, genetics evidence can help validate some traditionally accepted mitigating factors (such as certain psychiatric or behavioral disorders) that can otherwise be difficult for defendants to prove. By imposing unreasonable limitations on genetics arguments, the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve. Part II of this article briefly reviews the facts and legal arguments in Mobley v. State. Part III addresses the primary …

Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt

Faculty Scholarship

Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.

As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist …

Credit Cards, Consumer Credit, And Bankruptcy, Ronald J. Mann

Faculty Scholarship

This paper analyzes the effects of credit card use on broader economic indicators, specifically consumer credit, and consumer bankruptcy filings. Using aggregate nation-level data from Australia, Canada, Japan, the United Kingdom, and the United States, I find that credit card spending, lagged by 1-2 years, has a strong positive effect on consumer credit. Finally, I find a strong relation between credit card debt, lagged by 1-2 years, and bankruptcy, and a weaker relation between consumer credit, lagged by 1-2 years, and bankruptcy. The relations are robust across a variety of different lags and models that account for problems of multicollinearity …

A Historical Guide To The Future Of Marriage For Same-Sex Couples, Suzanne B. Goldberg

Faculty Scholarship

History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. According to advocates of "traditional marriage," same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships.

However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can …

Rational Choice And Developmental Influences On Recidivism Among Adolescent Felony Offenders, Jeffrey Fagan, Alex R. Piquero

Faculty Scholarship

Recent law and scholarship has claimed that the developmental limitations of adolescents affect their capacity for control and decision making with respect to crime, diminishing their culpability and reducing their exposure to punishment. Social science has focused on two concurrent adolescent developmental influence: the internalization of legal rules and norms that regulate social and antisocial behaviors, and the development of rational thought to frame behavioral choices and decisions. The interaction of these two developmental processes, and the identification of one domain of socialization and development as the primary source of motivation or restraint in adolescence, is the focus of this …

Social Contagion Of Violence, Jeffrey Fagan, Deanna L. Wilkinson, Garth Davies

Faculty Scholarship

Since 1968, violence and other crimes in New York City have followed a pattern of recurring epidemics. There have been three consecutive and contiguous cycles characterized by sharp increases in homicides and assaults to an elevated rate followed by equally steep declines to levels near the previous starting point. The most recent epidemic, from 1985-96, had the sharpest rise and steepest decline of the three epidemics. Popular explanations of the current epidemic fail to account for both the rise and fall of the decline, or for the repetitive pattern of these epidemics. In this article, we use public health data …

Friendship & The Law, Ethan J. Leib

Faculty Scholarship

This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses--family and special professional relationships are obvious ones--but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril. I highlight how the law already finds friendship relevant in …

Disclosure And Fair Resolution Of Adverse Events, Carol B. Liebman, Chris Stern Hyman

Faculty Scholarship

The health care system in the United States is in turmoil. Patients are being harmed by too many, often fatal, mistakes. At the same time, physicians and hospitals are trying to cope with a costly medical malpractice crisis. These two crises create a vicious cycle. When something goes wrong in patient care, physicians and hospitals withhold apologies and offer as little information as possible for fear that anything they say may be used against them should patients or family members sue. Family members, in many cases, sue not only to receive compensation for injuries, but also in search of answers …

Objections In Conscience To Medical Procedures: Does Religion Make A Difference Lecture?, Kent Greenawalt

Faculty Scholarship

How should the government res pond if people refuse standard medical treatment? What should the government do if people refuse medical treatment for their children, and what autonomy should teenagers be given in making such choices? Is religion a proper basis for refusing such medical treatment? Furthermore, should medical practitioners have a privilege not to render services that they object to in conscience? This article analyzes such questions and proposes that the most sensible answers depend on context. Legislatures should sometimes create no exemptions, should sometimes create exemptions based on nonreligious criteria, and should sometimes use criteria framed in terms …

The Limits Of Courage And Principle, Jedediah S. Purdy

Faculty Scholarship

Michael Ignatieff, the director of the Carr Center for Human Rights at Harvard's Kennedy School of Government, is not a lawyer. His work, however, treats issues of core concern to lawyers: nation-building, human rights, the ethics of warfare, and now, in his latest book, the proper relationship between liberty and security. The Lesser Evil is, in part, a book a legal scholar might have written: a normative framework for lawmaking in the face of the terror threat. It is also something more unusual: an exercise in an older type of jurisprudence. Ignatieff discusses law in the light of moral psychology …

Clark's Treatise On Corporate Law: Filling Manning's Empty Towers, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Almost 45 years ago, in an elegantly depressive account of the then current state of corporate law scholarship, Bayless Manning announced the death of corporation law "as a field of intellectual effort." Manning left us with an affecting image of a once grand field long past its prime, rigid with formalism and empty of content:

When American law ceased to take the "corporation" seriously, the entire body of law that had been built upon that intellectual construct slowly perforated and rotted away. We have nothing left but our great empty corporate statutes towering skyscrapers of rusted girders, internally welded together …

The Exit Structure Of Venture Capital, D. Gordon Smith

Faculty Scholarship

Venture capital contracts contain extensive provisions regulating exit by the venture capitalists. In this Article, Professor Smith employs financial contracting theory in conjunction with original data collected from 367 venture-backed companies to analyze these exit provisions. He concludes that the combination of exit provisions in a typical venture capital relationship serves to lock venture capitalists into the investment during the initial stage. In later stages of the relationship, the venture capitalists acquire increasing control over exit by securing additional seats on the board of directors and by obtaining contractual exit rights. The result is a sophisticated transfer of control from …

Moral Hazard And The Initial Public Offering, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

Book Review: Transitional Justice Comes Of Age: Enduring Lessons And Challenges, Chandra Lekha Sriram

Faculty Scholarship

This review article considers recent developments in transitional justice through an examination of two recent works on transitional justice, one dealing with "reparative" justice and the other seeking to offer an historical perspective on transitional justice generally. Through a consideration of the virtues and vices of each volume, the article also discusses some lessons learned and continuing challenges from a field of study and practice that is, at about a quarter-century, relatively young but maturing.