Digital Commons Network^™

Foreword To The West Virginia Law Review Appalachian Justice Symposium, Jennifer D. Oliva

Faculty Scholarship

No abstract provided.

Malleable Rationality, Stephanie Plamondon

Faculty Scholarship

In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their article famously proposes a departure from the neoclassical law and economics approach to legal analysis. Breaking from neoclassical law and economics’ rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, …

The Architecture Of Contract Innovation, Matthew Jennejohn

Faculty Scholarship

Contract law and the formal models of contract economics assume that agreements are fully customized. On the other hand, recent legal research highlights the role standardized terms play in contract design. Those lines of research overlook an important class of contracts between those extremes. Many contracts, such as the merger agreements studied here, are complex combinations of customized and standardized terms, and thereby achieve economies of both scale and scope. Such contracts are “mass customized,” to borrow a term from engineering research. This Article introduces a theoretical framework for understanding how mass customization of such complex agreements is achieved. It …

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins

Faculty Scholarship

No abstract provided.

The Empirical Turn In Family Law, Clare Huntington

Faculty Scholarship

No abstract provided.

Brain Development, Social Context And Justice Policy, Elizabeth S. Scott, Natasha Duell, Laurence Steinberg

Faculty Scholarship

This article examines the role played by biological and psychological factors associated with adolescent criminal activity in the context of justice policy reform and its critics. Scott, Duell, and Steinberg assert that risk-taking behavior in adolescence is not solely associated with biological and psychological immaturity, but rather exists as a dynamic interaction between those factors and the individual social context. This interactive model of juvenile offending supports the trend of treating juveniles differently than adults in the criminal justice system and clarifies how correctional programs are crucial in either undermining or promoting healthy development in adolescents.

Critique & Praxis: A Pure Theory Of Illusions, Values, And Tactics, And An Answer To The Question: "What Is To Be Done?", Bernard E. Harcourt

Faculty Scholarship

We are going through an unprecedented period of political instability. With the rise of the alt-right and of xenophobic sentiment, and the fallout of neoliberal government policies, our political future is at stake. These times call for the type of critical theory and praxis that gave rise to the Frankfurt School in the 1920s and to the critical ferment of the 1970s. Yet, in the face of our crises today, contemporary critical theory seems disarmed.

Critical theory is in disarray because of a wave of anti-foundational challenges in the 1960s that shattered the epistemological foundations of the Frankfurt School. The …

The Keys To The Kingdom: Judges, Pre-Hearing Procedure, And Access To Justice, Colleen F. Shanahan

Faculty Scholarship

Judges see themselves as – and many reforming voices urge them to be – facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges …

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez

Faculty Scholarship

Panel moderated by Professor Olatunde Johnson, featuring Professors Monica Bell, Tanya K. Hernández, Solangel Maldonado, and Chantal Thomas. Introduced by Elise Lopez.

The Administrative Evasion Of Procedural Rights, Philip A. Hamburger

Faculty Scholarship

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts …

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

Righting Research Wrongs: An Empirical Study Of How U.S. Institutions Resolve Grievances Involving Human Subjects, Kristen Underhill

Faculty Scholarship

Tens of millions of people enroll in research studies in the United States every year, making human subjects research a multi-billion-dollar industry in the U.S. alone. Research carries risks: although many harms are inevitable, some also arise from errors or mistreatment by researchers, and the history of research ethics is in many ways a history of scandal. Despite regulatory efforts to remedy these abuses, injured subjects nonetheless have little recourse to U.S. courts. In the absence of tort remedies for research-related injuries, the only venue for resolving such disputes is through alternative dispute resolution (ADR) – or more commonly, internal …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Faculty Scholarship

From the moment Donald Trump was elected president, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed – dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, …

Transparency's Ideological Drift, David E. Pozen

Faculty Scholarship

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make …

Counter-Critical Theory: An Intervention In Contemporary Critical Thought And Practice, Bernard E. Harcourt

Faculty Scholarship

Walter Benjamin and Bertolt Brecht's short-lived project for a critical theory journal, Krise und Kritik, foundered in 1931 on the shoals of positivism. Since then, a series of anti-foundational challenges to traditional critical theory has fragmented the landscape of critical theory and, especially, critical praxis, leaving us disarmed today, in these unprecedented times. This essay offers a way forward by means of what it calls “counter-critical theory”: a critical method that indexes the original impulse of critical theory, but liberates it from its foundation in order to allow for a more open-ended and permanent re-examination of how power circulates …

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Faculty Scholarship

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

The Relationship Between Black And Gay Community Involvement And Hiv-Related Risk Behaviors Among Black Men Who Have Sex With Men, Dexter R. Voisin

Faculty Scholarship

Black gay men must navigate identities and stigmas related to being gay and Black, and report higher HIV incidence relative to their White male counterparts although they report lower rates of drug use and risky sexual behaviors. This study examined whether closeness to the gay or Black community correlated with HIV-related risk and protective behaviors. Data were drawn from uConnect, a population-based cohort study of young Black men who have sex with men (YBMSM) on Chicago's South Side. The sample consists of 618 Black MSM ranging in age from 16 to 29. Cross-sectional measures for this study include Black and …

How Primary Care Can Contribute To Good Mental Health In Adults, Kurt C. Stange

Faculty Scholarship

The need for support for good mental health is enormous. General support for good mental health is needed for 100% of the population, and at all stages of life, from early childhood to end of life. Focused support is needed for the 17.6% of adults who have a mental disorder at any time, including those who also have a mental health problem amongst the 30% who report having a long-term condition of some kind. All sectors of society and all parts of the NHS need to play their part. Primary care cannot do this on its own. This paper describes …

Ai And Jobs: The Role Of Demand, James Bessen

Faculty Scholarship

In manufacturing, technology has sharply reduced jobs in recent decades. But before that, for over a century, employment grew, even in industries experiencing rapid technological change. What changed? Demand was highly elastic at first and then became inelastic. The effect of artificial intelligence (AI) on jobs will similarly depend critically on the nature of demand. This paper presents a simple model of demand that accurately predicts the rise and fall of employment in the textile, steel, and automotive industries. This model provides a useful framework for exploring how AI is likely to affect jobs over the next 10 or 20 …

Pathways To Delinquency And Substance Use Among African American Youth: Does Future Orientation Mediate The Effects Of Peer Norms And Parental Monitoring?, Dexter R. Voisin

Faculty Scholarship

The following study assessed whether future orientation mediated the effects of peer norms and parental monitoring on delinquency and substance use among 549 African American adolescents. Structural equation modeling computed direct and indirect (meditational) relationships between parental monitoring and peer norms through future orientation. Parental monitoring significantly correlated with lower delinquency through future orientation (B = −.05, standard deviation =.01, p <.01). Future orientation mediated more than quarter (27.70%) of the total effect of parental monitoring on delinquency. Overall findings underscore the importance of strengthening resilience factors for African American youth, especially those who live in low-income communities.

Introduction: Perceived Legitimacy And The State Judiciary, G. Alexander Nunn

Faculty Scholarship

Professor Nunn provides an introduction for the Symposium: The Least Understood Branch: The Demands and Challenges of the State Judiciary.

Project Ngage: Results Of A Randomized Controlled Trial Of A Dyadic Network Support Intervention To Retain Young Black Men Who Have Sex With Men In Hiv Care, Dexter R. Voisin

Faculty Scholarship

HIV-positive young black MSM (YBMSM) experience poor outcomes along the HIV care continuum, yet few interventions have been developed expressly for YBMSM retention in care. Project nGage was a randomized controlled trial conducted across five Chicago clinics with 98 HIV-positive YBMSM aged 16–29 between 2012 and 2015. The intervention used a social network elicitation approach with index YBMSM (n = 45) to identify and recruit a support confidant (SC) to the study. Each index-SC dyad met with a social worker to improve HIV-care knowledge, activate dyadic social support, and develop a retention in care plan. Each index and SC also …

Healing Journey: A Qualitative Analysis Of The Healing Experiences Of Americans Suffering From Trauma And Illness, Kurt C. Stange

Faculty Scholarship

Objectives To elucidate pathways to healing for people having suffered injury to the integrity of their function as a human being. Methods A team of physician-analysts conducted thematic analyses of in-depth interviews of 23 patients who experienced healing, as identified by six primary care physicians purposefully selected as exemplary healers. Results People in the sample experienced healing journeys that spanned a spectrum from overcoming unspeakable trauma and then becoming healers themselves to everyday heroes functioning well despite ongoing serious health challenges. The degree and quality of suffering experienced by each individual is framed by contextual factors that include personal characteristics, …

Complex Multimorbidity And Health Outcomes In Older Adult Cancer Survivors, Nicholas K. Schiltz, Kurt C. Stange, Cynthia Owusu, Nathan A. Berger, Siran M. Koroukian

Faculty Scholarship

Objective: To characterize complex multimorbidity among cancer survivors and evaluate the association between cancer survivorship, time since cancer diagnosis, and self-reported fair/poor health, self-rated worse health in 2 years, and 2-year mortality. Methods: We used the 2010-2012 Health and Retirement Study. Cancer survivors were individuals who reported a (nonskin) cancer diagnosis 2 years or more before the interview. We defined complex multimorbidity as the co-occurrence of chronic conditions, functional limitations, and/or geriatric syndromes. In addition to descriptive analyses, we used logistic regression to evaluate the independent association between cancer survivor status and health outcomes. We also examined whether cancer survivorship …

Redefining Parental Rights: The Case Of Corporal Punishment, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Gender As A Variable In Natural-Language Processing: Ethical Considerations, Brian N. Larson

Faculty Scholarship

Researchers and practitioners in naturallanguage processing (NLP) and related fields should attend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This paper discusses theoretical and ethical frameworks for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes

Faculty Scholarship

The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had …

A Longitudinal Analysis Of Antiretroviral Adherence Among Young Black Men Who Have Sex With Men, Dexter R. Voisin

Faculty Scholarship

Purpose: Young black men who have sex with men (YBMSM) experience poorer antiretroviral therapy (ART) medication adherence relative to their white counterparts. However, few studies have longitudinally examined factors that may correlate with various classifications of ART adherence among this population, which was the primary aim of this study. Methods: Project nGage was a randomized controlled trial conducted across five Chicago clinics from 2012 to 2015. Survey and medical records data were collected at baseline and 3- and 12-month periods to assess whether psychological distress, HIV stigma, substance use, family acceptance, social support, and self-efficacy predicted ART medication adherence among …