Digital Commons Network^™

Right-Skilling: Rabbis And The Rabbinic Role For A New Century, Barak D. Richman, Daniel Libenson

Faculty Scholarship

This chapter applies Clayton Christensen's model of organizational innovation to Jewish contexts. It observes a parallel between the many challenges that currently confront U.S. healthcare and American Jewry: a mismatch in the skills acquired by professionals and the needs expressed by the broader public; expensive institutions with high fixed costs that are struggling to provide value and maintain sustainable revenues; a failure to respect individual autonomy and cultural mores; and a disenfranchised public that suffers from high costs and unmet demand for meaningful services. It then applies Christensen's adapted model for the healthcare sector to American Jewish institutions, suggesting reforms …

An Exploration Of “Non-Economic” Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

Faculty Scholarship

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of …

Immigration's Family Values, Kerry Abrams, R. Kent Piacenti

Faculty Scholarship

No abstract provided.

In Pursuit Of Calmer Waters: Managing The Impact Of Trauma Exposure On Immigration Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

Crimes And Medical Care On Board Cruise Ships: Do The Statistics Fit The Crimes?, Leticia M. Diaz, Barry H. Dubner, Nicole Mckee

Faculty Scholarship

No abstract provided.

Confronting The Two Faces Of Corporate Fraud, Miriam H. Baer

Faculty Scholarship

Some criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self.

Although the law and …

The Constitutional Standing Of Corporations, Brandon L. Garrett

Faculty Scholarship

Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such …

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

The Bankruptcy-Law Safe Harbor For Derivatives: A Path-Dependence Analysis, Steven L. Schwarcz, Ori Sharon

Faculty Scholarship

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative steps, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; and thus regulators, legislators, and other policymakers—whether in the United States or abroad—should not automatically assume, based on its …

Objectivity: A Feminist Revisit, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Swords, Shields, And Shackles: Human And Corporate "Persons" Under The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Faculty Scholarship

No abstract provided.

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James Coben

Faculty Scholarship

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.

The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and …

Twenty-Five Years Of Law And Religion Scholarship: Some Reflections, Marie Failinger

Faculty Scholarship

In this address, the author describes some of the significant movements in law and religion scholarship over the past twenty-five years, including the dialogue between traditional church-state and international human rights scholars and outside scholars, including those writing from within American minority faith traditions.

The Hanging Judge By Michael A. Ponsor -- A Book Review: Capital Punishment -- Is The Death Penalty Worth The Price?, Beth D. Cohen, Pat K. Newcombe

Faculty Scholarship

In 2000-2001, Judge Ponsor presided over the first death penalty case in Massachusetts in nearly 50 years, United States v. Gilbert. Gilbert’s trial marked only the third time that a federal capital case had gone to trial in a state without the death penalty. According to Ponsor, he felt a particularly heavy responsibility to ensure that both the government and the defense got a fair trial. In fact, in 2001, after the conclusion of the trial, Ponsor did something somewhat unusual for a judge; he wrote a lengthy editorial about the death penalty. He wrote: “[t]he simple question - not …

Amicus Brief Of Labor Relations And Research Center, U. Mass., Amherst In Browning-Ferris, Nlrb Rc-109684, Harris Freeman, George Gonos

Faculty Scholarship

Amicus brief submitted by the Labor Relations and Research Center, University of Massachusetts, to the National Labor Relations Board in the representation case of Brown-Ferris Industries, Leadpoint Business Services and Local 350, Teamsters, RC-109684. The brief provides a socio-legal argument for the joint-employer status of the temporary staffing agency and its user clients under federal labor law and the duty of both employers to bargain with joint-employed temp workers who seek union representation and a collective bargaining agreement.

Confronting The Two Faces Of Corporate Fraud, Miriam H. Baer

Faculty Scholarship

No abstract provided.

International Criminal Trials And The Disqualification Of Judges On The Basis Of Nationality, Milan Markovic

Faculty Scholarship

Judges who sit on the International Criminal Court (“ICC”) and other international criminal tribunals (“ICTs”) are nationals of particular states and are elected to serve largely on the basis of nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judge’s performance of his or her duties.

This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their …

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

Public And Private In International Investment Law: An Integrated Systems Approach, Julie A. Maupin

Faculty Scholarship

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private …

Do Kinship Networks Strengthen Private Property? Evidence From Rural China, Taisu Zhang, Xiaoxue Zhao

Faculty Scholarship

This paper finds that the existence of strong kinship networks tends to limit state interference with private property use in rural China by protecting villagers against unwanted government land takings. It then distinguishes kinship networks from other kinds of social networks by showing that their deterrence effect against coercive takings is far more significant and resilient under conditions of prevalent rural-urban migration than deterrence by neighborhood cooperatives and religious groups. Finally, the paper attempts to identify and differentiate between various possible mechanisms behind these effects: It argues that kinship networks protect private property usage mainly through encouraging social reciprocity between …

“Robbing Peter To Pay Paul”: Economic And Cultural Explanations For How Lower-Income Families Manage Debt, Laura M. Tach, Sara Sternberg Greene

Faculty Scholarship

This article builds upon classic economic perspectives of financial behavior by applying the narrative identity perspective of cultural sociology to explain how lower-income families respond to indebtedness. Drawing on in-depth qualitative interviews with 194 lower-income household heads, we show that debt management strategies are influenced by a desire to promote a financially responsible, self-sufficient social identity. Families are reluctant to ask for assistance when faced with economic hardship because it undermines this identity. Because the need to pay on debts is less acute than the need to pay for regular monthly expenses like rent or groceries, debts receive a lower …

Hiv Infrastructure Study Columbia, Sc, Susan S. Reif, Elena Wilson, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.

Moral Judgments, Expressive Functions, And Bias In Immigration Law, Emily Ryo

Faculty Scholarship

In a lucid and trenchant style characteristic of Professor Hiroshi Motomura's writing, Immigration Outside the Law offers rich descriptive and prescriptive analyses of three major themes underlying debates about unauthorized migration: the meaning of unlawful presence, state and local involvement in the regulation of unauthorized migration, and the integration of unauthorized migrants into American society. This review advances several ideas that I argue are important to understanding these key themes. In brief, I suggest that a more comprehensive understanding of public debates about unauthorized migration requires examining lay moral judgments about unlawful presence, the expressive functions of immigration law, and …

Keep Calm And Carry On, René Reich-Graefe

Faculty Scholarship

This Essay examines some of the hard data available for today’s legal market and develops very basic forecasts and hypotheses about what the future will bring for the U.S. legal profession during the next decades. In conclusion, it projects that recent law school graduates and current and future law students are standing at the threshold of the most robust legal market that ever existed in this country—a legal market which will grow, exist for, and coincide with, their entire professional careers. Using admittedly back-of-the-envelope math based on current trends affecting the legal market (in particular, lawyer retirements, population growth, and …

Support For Sister-Affiliated Ministries During Challenging Times: Understanding A Foundation Initiative In Two Regions, Robert L. Fischer

Faculty Scholarship

This article describes the efforts of two foundations to sustain the ministries of Catholic sisters in two regions: northeast Ohio and South Carolina. Spanning more than 10 years, the initiative has drawn on multiple strategies – including convening, grantmaking, communicating, and research – in partnership with sisters themselves to sustain a diverse set of ministries. The work informs foundation practice by illuminating an approach to capacity development in very different regional contexts. Key lessons include being sensitive to the context, paying attention to both individual and organizational capacity, and the need for data.

Just Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

Redescribing Health Privacy: The Importance Of Information Policy, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Hidden Costs Of Health Care Cost-Cutting: Toward A Postneoliberal Health-Reform Agenda, Frank Pasquale

Faculty Scholarship

No abstract provided.

“Exploitation Creep” And Development: A Response To Janie Chuang, Aziza Ahmed

Faculty Scholarship

In her article Exploitation Creep and the Unmaking of Human Trafficking Law, Janie Chuang insightfully describes transformations in the discourse on trafficking as it shifted from sex trafficking to human trafficking, and as human trafficking came to be understood as forced labor, and now modern day slavery. With each of these transformations, the United States government, self-anointed “global sheriff” of anti-trafficking efforts, deepened its emphasis on a prosecution-oriented strategy focused on individual perpetrator accountability. As an alternative trajectory, Chuang identifies and convincingly argues for a labor-rights approach that takes into consideration the structural causes of exploitation in the labor market, …

Single And Childfree! Reassessing Parental And Marital Status Discrimination, Trina Jones

Faculty Scholarship

No abstract provided.