Digital Commons Network^™

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Marketplace Of Memory: What The Brain Fitness Technology Industry Says About Us And How We Can Do Better, Peter J. Whitehouse

Faculty Scholarship

In the therapeutic void created by over 20 failed Alzheimer's disease drugs during the past decade, a new marketplace of "brain fitness" technology products has emerged. Ranging from video games and computer software to mobile phone apps and hand-held devices, these commercial products promise to maintain and enhance the memory, concentration, visual and spatial skills, verbal recall, and executive functions of individual users. It is instructive to view these products as sociocultural objects deeply imbued with the values and ideologies of our age; consequently, this article offers a critique of the brain fitness technology marketplace while identifying limitations in the …

Hip-Hop And Housing: Revisiting Culture, Urban Space, Power, And Law, Lisa T. Alexander

Faculty Scholarship

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based …

Covenants For The Sword, Alice Ristroph

Faculty Scholarship

No abstract provided.

Fiduciary Law In The Twenty-First Century, Tamar Frankel

Faculty Scholarship

How does one embrace the riches of the knowledge presented in this Conference? This Conference’s participants have presented the fiduciary relationship from so many points of view: interdisciplinary perspectives, current issues, and particular fascinating narrower topics. Does this event suggest that critics are correct, and that fiduciary law as a category is incoherent?1 Arguably, fiduciary relationships and the rules that govern them are too varied. Yet I maintain that the variety presented in this Conference leads to the opposite conclusion, and that the papers in this Conference provide support for my claim: that fiduciary law should be viewed and understood …

Toward A Conceptual Model Linking Community Violence Exposure To Hiv-Related Risk Behaviors Among Adolescents: Directions For Research, Dexter R. Voisin

Faculty Scholarship

Purpose: To present a conceptual framework which accounts for the relationship between community violence exposures (CVEs) and youth HIV risk behaviors. Methods: This article provides an overview of existing research on the links between CVE and HIV risk for youth and offers a conceptual framework for clarifying how CVE might contribute to HIV sexual risk behaviors. Results: Increasing empirical findings substantiate that the links between CVE and HIV risk behaviors among youth are mediated by psychological problem behaviors, low school success rates, and negative peer influences. Conclusions: Researchers have identified the behaviors that place teens at risk for becoming infected …

Angels In The Home: Adelicia Acklen's Sculpture Collection At Belmont Mansion, Lauren K. Lessing

Faculty Scholarship

Following the Civil War, the wealthy plantation owner Adelicia Acklen redecorated her villa, Belmont, near Nashville, Tennessee, with white marble ideal sculptures by the American sculptors Randolph Rogers, Chauncey Ives, Joseph Mozier, and William Rinehart. During the war, Acklen had compromised her reputation as a genteel Southern lady by bargaining with Union officers in order to sell her cotton at exorbitant wartime rates. By purchasing and displaying a collection of statues that embodied the ideal of true womanhood, Acklen hoped to publicly redomesticate both her home and herself and to express her affinity for the ideology of the Lost Cause.

Contracts As Organizations, D. Gordon Smith, Brayden G. King

Faculty Scholarship

Empirical studies of contracts have become more common over the past decade, but the range of questions addressed by these studies is narrow, inspired primarily by economic theories that focus on the role of contracts in mitigating ex post opportunism. We contend that these economic theories do not adequately explain many commonly observed features of contracts, and we offer four organizational theories to supplement-and in some instances, perhaps, challenge-the dominant economic accounts. The purpose of this Article is threefold: first, to describe how theoretical perspectives on contracting have motivated empirical work on contracts; second, to highlight the dominant role of …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Faculty Scholarship

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Can Reading Questions Foster Active Learning? A Study Of Six College Courses, Kathryn M. Plank, Tomas M. Koontz

Faculty Scholarship

Many instructors strive to encourage student reading outside of class and active learning in class. One pedagogical tool, structured reading questions, can help do both. Using examples from question sets across six courses, the authors illustrate how reading questions can help students achieve the six active-learning principles described by Svinicki (1991). Qualitative and quantitative assessment data indicate that students often complete readings before class, that they view the questions as very helpful in their learning, and that they use the questions primarily to help understand what information is important and connect it to prior knowledge. Some differences in use are …

Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth

Faculty Scholarship

No abstract provided.

Reparations, Microfinance, And Gender: A Plan, With Strategies For Implementation, Anita Bernstein, Hans D. Siebel

Faculty Scholarship

No abstract provided.

Foundations Of Federal Housing Policy, David Reiss

Faculty Scholarship

No abstract provided.

"We Can Work It Out": Using Cooperative Mediation - A Blend Of Collaborative Law And Traditional Mediation - To Resolve Divorce Disputes, Elena Langan

Faculty Scholarship

Elena Langan, "We Can Work it Out": Using Cooperative Mediation - a Blend of Collaborative Law and Traditional Mediation - to Resolve Divorce Disputes, 30 Review of Litigation 245 (2011). Divorce in modern day America is a product of legislative creation, designed as an adversarial process focused on rights and responsibilities.

Legal Culture, Ralf Michaels

Faculty Scholarship

Written for an encyclopedia on European private law, this brief
article addresses the term legal culture, the relation between law and
culture, the relevance of legal culture, legal culture in the national
and European context, and criticism of the concept.

Firm Survival And Industry Evolution In Vertically Related Populations, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper examines how the density and governance of vertically related populations affect the life chances of organizations. We integrate the literatures on organizational ecology and vertical integration to develop a theory of how 1) specialized upstream industries affect downstream survival rates 2) the prevalence of different governance forms among upstream and downstream organizations moderates this relationship, and 3) different forms of governance exert differential competitive pressures on focal organizations. We find evidence supporting our hypotheses in an empirical examination of the downstream laser printer industry and upstream laser engine industry.

The Functionalism Of Legal Origins, Ralf Michaels

Faculty Scholarship

This article, written on request for the centennial issue of Ius Commune Europaeum, connects the economic literature on legal origins (La Porta et al) and the World Bank's Doing Business reports with discussions in comparative law about the functional method. It finds that a number of parallels and similarities exist, and that much of the criticism that has been voiced against functionalism should apply, mutates mutants, also to these more recent projects. The attraction that these projects have derive not, it is argued, from their methodological sophistication, but instead from "the strange lure of economics" and from the ostentatious objectivity …

The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome

Faculty Scholarship

Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind …

Court-Connected Mediation And Minorities: A Report Card, Sharon Press

Faculty Scholarship

Critical race theorists have raised important concerns about alternative dispute resolution in general and mediation specifically. Many of the critiques were written prior to the ascendency of court-connected mediation. To set the context, Part II of this article begins with a brief history of the court-connected mediation movement in the United States. In Part III, the critiques of mediation, specifically focusing on those related to minorities, are summarized. Part IV identifies some of the flaws in the critiques as related to court-connected mediation. Part V includes actions that court programs can undertake to address the issues raised by the critiques …

Synthetic Hype: A Skeptical View Of The Promise Of Synthetic Biology, Jonathan Kahn

Faculty Scholarship

This article urges a cautious approach to assessing the promises of synthetic biology based on broad political and economic concerns rather than technical ones. Specifically, I mark three related dynamics which place the current buzz around synthetic biology in a broader context. These dynamics are not necessarily distinctive to synthetic biology, but perhaps for that very reason, they may carry added weight. First, is the place of synthetic biology as the latest entry in the procession of what I call the “receding horizons of biotechnological promise.” Second, is the excitement generated by the related promise of finding seemingly direct technological …

The Jurisprudential Turn In Legal Ethics, Kate Kruse

Faculty Scholarship

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

Getting Real About Legal Realism, New Legal Realism And Clinical Legal Education, Kate Kruse

Faculty Scholarship

Jerome Frank’s call for a “clinical lawyer-school” is cited so frequently in clinical scholarship that it borders on the canonical. Like many calls for reform in legal education, Frank’s plea for clinical lawyer-schools was based on a critique of the appellate case method of legal instruction. However, unlike most critiques, the legal realist critique was embedded within a jurisprudential challenge to the meaning of law itself, arising from American Legal Realism. Running through legal realist jurisprudence was a distinction between the “law in books” and the “law in action,” with the idea that law is not found primarily in statutes …

Environmental Crisis And The Paradox Of Organizing, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Kate Kruse

Faculty Scholarship

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality and justice. Unfortunately, the field of theoretical legal ethics has mostly lost track of the thing at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. The field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. This paper, which was delivered at Hofstra Law School as the Lichtenstein Distinguished Professor …

Beyond Individualism In Law And Economics, Robert B. Ahdieh

Faculty Scholarship

The study of law and economics was built upon two pillars. The first is the familiar assumption of individual rationality. The second, less familiar, is the principle of methodological individualism. Over the last twenty years, law and economics has largely internalized behavioral critiques of the rationality assumption. By contrast, the field has failed to appreciate the implications of growing challenges to its methodological individualism. Where social norms shape individual choices, network externalities are strong, coordination is the operative goal, or information is a substantial determinant of value, a methodology strongly oriented to the analysis of individuals overlooks at least as …

The Law And Economics Of Legal Parochialism, Nuno Garoupa

Faculty Scholarship

Law and economics is influential in U.S. legal scholarship, but not as much elsewhere. Different explanations have been suggested for this. In this Article, I argue that the problems faced by law and economics outside of the United States are neither particular to the field nor to the local context. I offer an interpretation based on the similarities between legal parochialism and trade protectionism. A tentative prediction is that globalization in legal markets might change the current patterns.

The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America, Nuno Garoupa, Maria A. Maldonado

Faculty Scholarship

This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary. We discuss political transitions in Europe and Latin American civil law jurisdictions through the lens of our theory. We argue that American constitutional influence plays a critical role. In addition, we provide a detailed analysis of the recent …

The Syndrome Of The Efficiency Of The Common Law, Nuno Garoupa, Carlos Gomez Liguerre

Faculty Scholarship

Our article is a methodological critique of the recent legal origins literature. We start by showing that the legal origins literature cannot easily be based on the efficiency hypothesis of the common law. By debunking the relationship between the efficiency hypothesis and the legal origins literature, we are left with no consistent theory to explain the alleged inferiority of French civil law.

It is clear that the legal origins literature is based on a particular, biased selection of "cherry-picked" legal doctrines. A different selection of "cherry-picked" legal doctrines would produce a different assessment. We discuss examples that look at substantive …

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

Harsanyi 2.0, Matthew D. Adler

Faculty Scholarship

How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” (SWFs) to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately explained the basis for these numbers.

John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful …