Digital Commons Network^™

Edwin S. Cohen, Michael J. Graetz

Faculty Scholarship

This is not the first time I have spoken to honor Edwin S. Cohen. I spoke at two of his retirements – at least – and in the Rotunda at both his 75th and 80th birthday celebrations. Each time, and on many other occasions over the years when I have spoken about tax law or policy in his presence, I would always steal a glance at Eddie, looking for that twinkle in his eyes, hoping to bring a smile to his face, or even an outright giggle. Today, I know I will still look, as I will for years to …

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 …

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 Failure Of The Rule Of Law In Cyberspace: Reorienting The Normative Debate On Borders And Territorial Sovereignty, H. Brian Holland

Faculty Scholarship

The ultimate goal of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace.

Between 1996 and 2002, over the course of several law review articles, professors David R. Johnson, David Post, and Jack L. Goldsmith engaged in a highly influential debate addressing the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. At bottom, it was a contest between internal or indigenous regulation and the imposition of existing external regimes. At its heart lay two overarching areas of disagreement: First, descriptively, whether and to what extent the …

The Ad Hoc International Criminal Tribunals And A Jurisprudence Of The Deviant, Maya Steinitz

Faculty Scholarship

This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda.

The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination …

Thou Shalt Not Kill As Defeasible Heuristic: Law And Economics And The Debate Over Assisted Suicide, Daniel J. Gilman

Faculty Scholarship

Although the literature addressing medical decisions at the end of life is vast, surprisingly little of it has come from the perspective of law and economics. This article begins with a critical account of one of the very few law and economics-based discussions of physician-assisted suicide (PAS), that developed by Judge Richard Posner in his book, Aging and Old Age. Central to Judge Posner's account is a model of PAS as a sort of technological innovation. What this particular innovation is supposed to bring is a radical reduction in certain critical information costs attending end-of-life decision making. It is …

Law Firm General Counsel As Sherpa: Challenges Facing The In-Firm Lawyer's Lawyer, Susan Saab Fortney

Faculty Scholarship

This article addresses the increasing trend in law firms appointing general counsel. Part I of this article provides an overview of the frequency of law firms employing the services of general counsel and the different roles general counsel may assume in law firms. Part II outlines the duties of general counsel in advising the firm on matters related to firm structure. Part III observes that general counsel may play an important role in helping law firms choose the most appropriate method to compensate its lawyers to achieve the desired results. Part IV stresses the importance of the preventative measures general …

Law And Public Health: Beyond Emergency Preparedness, Wendy K. Mariner

Faculty Scholarship

This Article examines three questions: What is public health? What is public health law? What roles can lawyers play in public health? It first describes the breadth of public health, highlighting six trends shaping its future: social determinants of health; synergy between medicine and public health; shifts in focus from external (e.g., environmental and social) to internal (behavioral) risks to health; federalization of public health law; globalization of health risks and responses; and bioterrorism. Because the domains of law that apply to public health are equally broad, the Article next offers a conceptual framework for identifying the types of laws …

Relational Contracting In A Digital Age, Franklin G. Snyder

Faculty Scholarship

If, as it has sometimes been argued, changes in contract rules and theory are strongly affected by changes in economic conditions, we should note that the world has changed a good deal since the early 1960s when relational contract theory began to bloom. The economic world of 2004 is very different from the world of 1964. Modern relational contract theory was born about the same time as its great theoretical competitor, the rational choice approach of the legal economists. It came before the vast changes wrought by the information revolution and the increased globalization of the economy. What has relational …

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

The Section 5 Power And The Rational Basis Standard Of Equal Protection, William D. Araiza

Faculty Scholarship

No abstract provided.

Differentiating Types Of Domestic Violence: Implications For Child Custody, Nancy Ver Steegh

Faculty Scholarship

This article examines child custody determinations through the lens of a domestic violence typology. The resulting analysis (1) reconciles competing viewpoints and contradictory evidence about domestic violence; (2) matches families with appropriate child custody court procedures and services such as parent education, mediation, supervised visitation and parent coordination; and (3) exposes serious deficiencies in current domestic violence childcustody statutes.

Justification, Legitimacy, And Administrative Governance, Matthew D. Adler

Faculty Scholarship

Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that …

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

Faculty Scholarship

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Is Public Health Paternalism Really Never Justified? A Response To Joel Feinberg, Thaddeus Mason Pope

Faculty Scholarship

n the preeminent scholarly legal treatise on paternalism, The Moral Limits of the Criminal Law: Harm to Self, Joel Feinberg argues that hard paternalism is never justified because it is superfluous; all reasonable restriction of self-regarding conduct can be justified on (more palatable) soft paternalistic grounds.

In this article, I argue that Feinberg's strategy seems to work only because he "stretches" soft paternalism to justify liberty limitation that is properly described as hard paternalism. I expose Feinberg's strained appeals, and argue for honesty and transparency regarding the bases for paternalistic liberty limitation. If the rationale for public health restrictions on …

The Closely Held Business Through The Entity-Aggregate Prism, Daniel S. Kleinberger

Faculty Scholarship

When the law conceptualizes the legal form that houses a closely held business, does it matter whether the law envisages that form as an entity separate from, rather than an aggregate of, the several owners of the business? At one time, this question was at the conceptual core of the law of general partnerships, but the Revised Uniform Partnership Act supposedly put the issue to rest. Moreover, the closely held corporation is emphatically an entity, as is the predominant form of unincorporated organization - the limited liability company. Today, the entity-aggregate question might seem a mere relic of a discarded …

Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal

Faculty Scholarship

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the …

Harry Potter And The Law, Jeffrey E. Thomas, James Charles Smith, Danaya Wright, Benjamin H. Barton

Faculty Scholarship

The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories.

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Faculty Scholarship

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Foreign Law And The Denominator Problem, Ernest A. Young

Faculty Scholarship

No abstract provided.

Captured By Evil: The Idea Of Corruption In Law, Laura S. Underkuffler

Faculty Scholarship

Corruption is one of the most powerful words in the English language. When it comes to the treatment of corruption by law, however, corruption is a troubled concept. With increasing recognition of the costs of corruption for economic development, democratic governance, international aid programs, and other world goals, attempts to articulate what this destructive force is have led to an avalanche of theoretical writing. In the last fifteen years, corruption has been variously defined as the violation of law, a public servant's breach of public duty, an agent's betrayal of a principal's interests, the pursuit of secrecy, the denial of …

Precautionary Regulation In Europe And The United States: A Quantitative Comparison, Jonathan B. Wiener, James K. Hammitt, Brendon Swedlow, Denise Kall, Zheng Zhou

Faculty Scholarship

Much attention has been addressed to the question of whether Europe or the United States adopts a more precautionary stance to the regulation of potential environmental, health, and safety risks. Some commentators suggest that Europe is more risk-averse and precautionary, whereas the US is seen as more risk-taking and optimistic about the prospects for new technology. Others suggest that the US is more precautionary because its regulatory process is more legalistic and adversarial, while Europe is more lax and corporatist in its regulations. The flip-flop hypothesis claims that the US was more precautionary than Europe in the 1970s and early …

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

Religious Experience In The Age Of Digital Reproduction, Frederick Mark Gedicks, Roger Hendrix

Faculty Scholarship

A religious experience is an extraordinary event that occurs against the backdrop of ordinary life, infusing that life with a meaning it would not otherwise have. Mass culture is now replete with portrayals of such experiences. Spiritually-themed television shows, movies, books, music, and fashion are now common and even popular. This is not necessarily good news for religion and religious experience. What mass culture portrays as sacred may be merely an imitation, resembling more the ubiquitous feel-good self-affirmance of popular psychology than authentic communion with the divine.

On the other hand, the appropriation and portrayal of religious experience by mass …

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …

On Collaboration, Organizations, And Conciliation In The General Theory Of Contract, Ethan J. Leib

Faculty Scholarship

Daniel Markovits's Contract and Collaboration is a thought-provoking and ground-breaking inquiry into the ethics of contract. It argues that the philosophical foundation of contract may be found in what Markovits calls the collaborative view: a principle of forming respectful communities of collaboration where contractors treat each other as ends in themselves and refrain from treating each other as mere instrumentalities. Markovits acknowledges that there are three prototypical forms of contracts: (1) person-to-person; (2) person-to-organization; and (3) organization-to-organization. He is refreshingly honest in arguing that his theory of contract only addresses Type (1) contracts. I wish to argue here that this …

The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels

Faculty Scholarship

Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses This paper does not set out its …

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …