Digital Commons Network^™

Canaries In The Mine: Work/Family Conflict And The Law, Joan C. Williams

Faculty Scholarship

No abstract provided.

Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.

Faculty Scholarship

What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.

Positionality, Epistemology, And Social Justice In The Classroom, David Takacs

Faculty Scholarship

No abstract provided.

Adapting Meditation To Promote Negotiation Success A Guide To Varieties And Scientific Support, Clark Freshman, Adele M. Hayes, Greg C. Feldman

Faculty Scholarship

No abstract provided.

Tweaking The Market For Autonomy A Problem Solving Perspective To Informed Consent In Arbitration, Clark Freshman

Faculty Scholarship

No abstract provided.

Cloning And Federalism, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Educating Citizens, Peter L. Strauss

Faculty Scholarship

Socrates and his followers, the Cynics among them, put great store in educating the youths who would become the leaders of the Athenian republic. The Athenians agreed that education of their youth was of the utmost importance for their state, and executed Soc-rates for corrupting them. As I thought about how these concluding remarks could do more than cast a pale reflection of the extraordinary learning and thought that have preceded them, talking about education leapt to mind.

Something To Remember, Something To Celebrate: Women At Columbia Law School In, Barbara Aronstein Black

Faculty Scholarship

In this issue the Columbia Law Review joins in the celebration the 75th anniversary of the admission of women to the Columbia Law School. I am grateful to the editors of the Review for inviting me to contribute, and for the open-endedness of the invitation (or, in other words, what follows is my fault, not theirs). This has been an opportunity for me to do some research, some recalling and some reflection (and to tell a few stories). My research is incomplete, one might say sketchy, but I trust reliable as far as it goes. My recollections may well not …

Natural Law And Public Reasons, Kent Greenawalt

Faculty Scholarship

In this Lecture I shall discuss the reasons that officials and citizens should rely upon in American politics. In recent years, various theorists have claimed that people in liberal democracies should rely in politics on "public reasons," reasons that are accessible to all citizens. Others have objected that such a counsel is unreasonable, if not incomprehensible. I shall concentrate on two facets of this issue. First, does the law exemplify a structure of public reasons – that is, do judges deciding cases draw on a stock of public reasons that is narrower than all the reasons one might give for …

Owen Fiss, Equality Theory, And Judicial Role, Susan P. Sturm

Faculty Scholarship

This essay uses Owen Fiss’ treatment of equality doctrine in “Groups and the Equal Protection Clause” to demonstrate the influence of judicial role conceptions on equality jurisprudence. Fiss’ conception of the judiciary’s role in elaborating and enforcing public norms profoundly shapes his articulation of the anti-subordination principle. More specifically, Fiss looks to the federal judiciary unilaterally to declare public law truths and to impose those truths on noncompliant bureaucrats. This static, almost imperial role places great pressure on the judiciary to adopt unitary equality norms that can be implemented, at least in theory, through top-down imposition. Fiss’ commitment to a …

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited …

Marital Commitment And The Legal Regulation Of Divorce, Elizabeth S. Scott

Faculty Scholarship

The question of the appropriate role of law in regulating marriage and divorce is the subject of much controversy in the United States – a raging battle of the “Culture Wars” (Hunter, 1991). On one side are social conservatives, who view divorce and family instability as an important source of societal decline. These advocates of “family values” adopt a somewhat punitive tone, arguing that the family can be saved only if the government restricts divorce, by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. Liberals tend to oppose all restrictions on divorce, partly on the …

Facing The Urban Future After September 11, 2001, Richard Briffault

Faculty Scholarship

In this essay I would like to address briefly four issues of importance to local governments raised by the September 11 attack and its aftermath. These issues are the role of local governments in addressing questions of public safety and preparedness; the relations among local governments within a region in responding to terrorism; the role of the federal government in the local response to terrorism; and the implications of September 11 for the structures and functions of local government. These issues are interconnected. Certainly, an effective local response to the public safety challenge posed by terrorism will require more coordinated …

Policing Disorder: Can We Reduce Serious Crime By Punishing Petty Offenses?, Bernard E. Harcourt

Faculty Scholarship

Punishment in these late modem times is marked by two striking developments. The first is a stunning increase in the number of persons incarcerated. Federal and state prison populations nationwide have increased from less than 200,000 in 1970 to more than 1,300,000 in 2000, with another 600,000 persons held in local jails.1 Today, approximately 2 million men and women are incarcerated in prisons and jails in this country.The intellectual rationale for this increase is provided by "incapacitation theory''-the idea that a hardcore 6 percent of youths and young adults are responsible for the majority of crime and that locking up …

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."

Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

The Belated Decline Of Literalism In Professional Responsibility Doctrine: Soft Deception And The Rule Of Law, William H. Simon

Faculty Scholarship

Literalism is the doctrine that a facially accurate but knowingly deceptive statement does not violate prohibitions of falsehood and misrepresentation. This essay argues that Literalism has had greater legitimacy in professional responsibility than in other areas of law, but that it seems to be in terminal decline. It surveys the arguments for and against Literalism and concludes that its impending demise should be welcomed.

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

Thirteen Ways Of Looking At The Law, Bert I. Huang

Faculty Scholarship

I was of three minds
Like a tree
In which there are three blackbirds.

The emergence of external disciplines within legal scholarship seems to have fractured its intellectual focus. Technical and specialized academic writing, moreover, appears to be drifting ever farther from the theaters of legal action. Judge Richard Posner's latest book of essays, Frontiers of Legal Theory, challenges such perceptions: Even as it celebrates the breadth of interdisciplinary legal scholarship, it seeks coherence among myriad methodologies. Even as it delights in the abstract constructs of social science, it emphasizes their practical impact. And as one might expect of Judge …

The Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, Clark Freshman, Adele Hayes, Greg Feldman

Faculty Scholarship

No abstract provided.

Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins

Faculty Scholarship

Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to "break[] down old patterns of segregation and hierarchy," the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …

Lawyers, Non-Lawyers And Mediation: Rethinking The Professional Monopoly From A Problem-Solving Perspective , Jacqueline Nolan-Haley

Faculty Scholarship

Mediation is a big business today that is practiced by lawyers and non-lawyers, and is closely related to the business of law. Lawyers have a long-standing monopoly on the law business and do not look favorably on sharing their power with nonlawyers. This phenomenon is odd because it occurs at the same time that the legal profession is beginning to embrace a new ethic of problem-solving that honors the values of collaboration and power-sharing among professionals in multiple disciplines. Lawyers protect their professional monopoly through the unauthorized practice of law ("UPL") doctrine that limits the practice of law to licensed …

Comparative Judging Of Civil Rights: A Transnational Critical Race Theory Approach, Tanya K. Hernandez

Faculty Scholarship

Studies consistently demonstrate that the act of judging is influenced by judges personal perspectives and experiences. For instance, research has demonstrated that empirically U.S. Supreme Court justices' behavior is motivated, in large part, by their individual attitudes or judicial philosophies.' In addition, research on the U.S. chief justice's distribution of opinion assignments also suggests that ideology plays a role inasmuch as those justices whose preferences are more closely aligned with the chief justice will be assigned to author opinions. Furthermore, empirical research indicates that the influence of ideology on judges also extends to federal appellate court judges in race relations …

Deal Protection Provisions In The Last Period Of Play , Sean J. Griffith

Faculty Scholarship

The ability to protect mergers is important to both targets and acquirors. A series of recent Chancery Court decisions, however, challenges the validity of deal protection provisions in merger agreements and threatens the stability of Delaware's established change of control paradigm. This article argues that last period concerns animate the Chancery Court's decisions and finds, in the last period problem, a theoretical principle capable of harmonizing these decisions with existing jurisprudence and providing a coherent approach to the practical problems raised by deal protection provisions.

Crime And Consciousness: Science And Involuntary Acts , Deborah W. Denno

Faculty Scholarship

This Article confronts this clash between legal and scientific perspectives on consciousness by proposing new ways to structure the voluntary act requirement so that it incorporates the insights of modern science on the human mind. Part I examines the criminal law's voluntary act requirement, particularly in the context of the MPC's influential provision, which reflects the law and psychology of the era in which the MPC was originally developed--the 1950s. Part II analyzes the new science of “consciousness,” a term that typically refers to the sum of a person's thoughts, feelings, and sensations, as well as the everyday circumstances and …

Recognizing The Interdependence Of Rights In The Antidiscrimination Context Through The World Conference Against Racism , Catherine Powell, Jennifer H. Lee

Faculty Scholarship

This background paper assesses the importance of integrating gender into efforts to address racial discrimination and related intolerance in the WCAR process. While this background paper primarily focuses on racial discrimination, the analysis may be applied to xenophobia and related intolerance where these experiences are "raced" experiences. Addressing these forms of intolerance in a comprehensive manner requires unmasking the ways in which race intersects with gender and other status. A gender analysis is needed to make racism more fully visible, because "racial discrimination does not always affect men and women equally or in the same way." Women often experience compounded …

Don't Believe Everything You Think: Cognitive Bias In Legal Decision Making, Ian Weinstein

Faculty Scholarship

This article discusses the role of cognitive bias in legal decision making. Drawing on research in cognitive science and law, it explores the impact of cognitive bias on both lawyers and clients. These often subtle mental biases can lead to pervasive errors in decision making by causing us to ignore important information and make inaccurate predictions. They may lead a client to underestimate the risk of litigation. They may also lead a lawyer to miscategorize a client's value choice as a misjudgement of fact. The article offers illustrative stories of the impact of bias on both client and lawyer and …

On The Path To Inclusion, John D. Feerick

Faculty Scholarship

It is an honor for me to be invited to address you at this Annual Luncheon. You have worked hard to bring opportunities to members of the minority community. You have made possible the realization of many aspirations while continuing the struggle toward equal opportunity for all people.* Thirty-nine years ago, Martin Luther King, Jr., spoke to the soul of the nation, sharing his vision of an America that would "one day...rise up and live out the true meaning of its creed-'We hold these truths to be self evident, that all [persons] are created equal." His idea and the opportunity …

An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements - Part One, Susan Saab Fortney

Faculty Scholarship

This article considers billing practices, the effects of hourly billing pressure, and firm culture as reflected in a survey of associates in Texas law firms. Part I of this article reports the empirical information from the survey. This information includes insight into the toll an increase in billable hour requirements has taken on legal practitioners and the consequent affect on the legal field. Part II discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.