Digital Commons Network^™

Atkins, Adolescence, And The Maturity Heuristic: Rationales For A Categorical Exemption For Juveniles From Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

In Atkins v. Virginia, the U.S. Supreme Court voted six to three to bar further use of the death penalty for mentally retarded offenders. The Court offered three reasons for banning the execution of the retarded. First, citing a shift in public opinion over the thirteen years since Penry v. Lynaugh, the Court in Atkins ruled that the execution of the mentally retarded is "cruel and unusual punishment" prohibited by the Eighth Amendment. Second, the Court concluded that retaining the death penalty for the mentally retarded would not serve the interest in retribution or deterrence that is essential to capital …

Law, Share Price Accuracy And Economic Performance: The New Evidence, Merritt B. Fox, Randall Morck, Bernard Yeung, Artyom Durnev

Faculty Scholarship

Mandatory disclosure has been at the core of U.S. securities regulation since its adoption in the early 1930s. For many decades, this fixture of our financial system was accepted with little examination. Over the last twenty years, however, mandatory disclosure has been subject to intensifying intellectual crosscurrents. Some commentators hold out the U.S. system as the standard for the world. They argue that adoption by other countries of a U.S.-styled system, with its greater corporate transparency, would enhance their economic performance. Other commentators, in contrast, insist that the U.S. mandatory disclosure regime represents a mistake, not a model. These crosscurrents …

What Caused Enron? A Capsule Social And Economic History Of The 1990s, John C. Coffee Jr.

Faculty Scholarship

The sudden explosion of corporate accounting scandals and related financial irregularities that burst over the financial markets between late 2001 and the first half of 2002 e.g., Enron, WorldCom, Tyco, Adelphia, and others-raises an obvious question: why now? What explains the sudden concentration of financial scandals at this moment in time? Much commentary has rounded up the usual suspects and blamed the scandals on a decline in business morality, “infectious greed,” and similar subjective trends that cannot be reliably measured.

Remarks From The 75th Anniversary Luncheon, Barbara Aronstein Black

Faculty Scholarship

I will try to make this reasonably brief, though not as brief as a commencement address I was once asked to give. The invitation stated that I was to speak on any topic of my choice. Anything at all. For five minutes. Reporting this to one of my sons – I can't remember which one – I said, "They say it has to be no longer than five minutes. What can I possibly say in five minutes that's worth saying?" To which my son replied, "Did they say it has to be worth saying?"

Well, I'd like to say something …

The Fragile Promise Of Provisionality, James S. Liebman, Charles F. Sabel

Faculty Scholarship

It is a pleasure to address such well-informed, insightful and well-intentioned responses to our Article. Intellectual predispositions and differing assessments of the prospects of reform aside, it is striking that so many participants have firsthand experience of the new model school, the new politics in all their mystery, and even non-court-centric judicial review. It is clear that something is afoot, and not just in academic circles, when observers as different as Diane Ravitch, the critic of Deweyan latitudinarianism, and Gordon Whitman, the community organizer, are both surprised to discover that standardized testing can go hand in hand with individualized education …

The Child Citizenship Act And The Family Reunification Act: Valuing The Citizen Child As Well As The Citizen Parent, Victor C. Romero

Faculty Scholarship

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. …

Why The Model Penal Code's Sexual Offense Provisions Should Be Pulled And Replaced, Deborah W. Denno

Faculty Scholarship

By all accounts, the Model Penal Code is enormously respected and influential. Yet, relatively soon after the Code's 1962 publication, the Code's sexual offense provisions and even its 1980 revised Commentaries were already considered outdated. The rapid onslaught of the sexual and feminist revolutions of the 1960s and 1970s brought an intense momentum to change rape laws that the Code had, in part, either mirrored or inspired. Only because of the passage of time, the Code's sexual offense provisions and Commentaries now misrepresent the progressive thinking of the Code's reporters. For these reasons, I think the Model Penal Code's sexual …

A Mind To Blame: New Views On Involuntary Acts, Deborah W. Denno

Faculty Scholarship

This article examines the legal implications linked to recent scientific research on human consciousness. The article contends that groundbreaking revelations about consciousness expose the frailties of the criminal law's traditional dual dichotomies of conscious versus unconscious thought processes and voluntary versus involuntary acts. These binary doctrines have no valid scientific foundation and clash with other key criminal law defenses, primarily insanity. As a result, courts may adjudicate like individuals very differently based upon their (often unclear) understanding of these doctrines and the science that underlies them. This article proposes a compromise approach by recommending that the criminal law's concept of …

Theories Of Distributive Justice And Limitations On Taxation: What Rawls Demands From Tax Systems Symposium - Rawls And The Law: Panel Vi: Property, Taxation, And Distributive Justice, Linda Sugin

Faculty Scholarship

This Essay attempts to map out how such an inquiry would be conducted in light of Rawls. Rather than searching in theories of justice for required precepts of taxation, we might more fruitfully ask what constraints, if any, a particular theory of justice imposes on the tax system. Application of such an approach to Rawls's theory of justice may explain his apparent preference for a flat consumptionbased tax. This preference is otherwise quite puzzling in light of much of what Rawls wrote about economic justice, and might lead us to expect him to endorse a progressive income tax. If Rawls's …

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Faculty Scholarship

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

Mixing Metaphors: Voting, Dollars, And Campaign Finance Reform (Review Essay), Guy-Uriel Charles

Faculty Scholarship

Reviewing, Bruce Ackerman & Ian Ayers, Voting with Dollars: A New Paradigm for Campaign Finance (2002)

Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Who Is Andrea Yates? A Short Story About Insanity, Deborah W. Denno

Faculty Scholarship

On June 20, 2001, Andrea Yates drowned her four children in a bathtub. At Andrea’s trial, in Harris County, Texas, the prosecution’s star expert, Patrick Dietz, appeared particularly adept at persuading the jury to accept the prosecution’s assertion that Andrea was sane and acting intentionally when she killed her children. This Article analyzes the problematic aspects of Dietz's testimony in an effort to contribute some balance to the Andrea Yates story. Despite the long history of expert witnesses in criminal trials, the justice system should question the fairness and efficacy of such an unregulated storytelling process. Part I of this …

Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition Symposium, Jacqueline Nolan-Haley, Bronagh Hinds

Faculty Scholarship

This paper is part of a Symposium that considered the relevance of domestic conflict resolution theories in broader cultural contexts. The Northern Ireland Women's Coalition (Women's Coalition) participated in the negotiations leading up to the 1998 Good Friday/Belfast Agreement. Members of the Woman's Coalition responded to thirty years of sectarian violence with a negotiation process based on accommodation, inclusion, and relationship building, concepts that resonate with American-style problem-solving negotiation. Using the Women's Coalition as a case study, this Article suggests that there are procedural aspects of problem-solving negotiation theory that may work across domains, specifically in multi-party, intractable conflict situations, …

New Problem-Solving Scholarship: An Historical Tale With A Happy Ending, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

The Mechanisms Of Market Efficiency Twenty Years Later: The Hindsight Bias, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Twenty years ago we published a paper, "The Mechanisms of Market Efficiency," that sought to describe the institutional underpinnings of price formation in the securities market. Since that time, financial economics has moved forward on many fronts. The sub-discipline of behavioral finance has struggled to bring yet more descriptive realism to the study of financial markets. Two important questions are (1) how much has this new discipline changed our understanding of the efficiency and nature of the institutional mechanisms that set price in financial markets; and (2) how far does this discipline carry novel implications for the regulation of financial …

For Eugene Rostow, Philip Chase Bobbitt

Faculty Scholarship

The two-handed saw is a foresters’ instrument that two men use, one at each end, sawing in reciprocating rhythm. The blade of the best two-handed saws balances a sharpened stiffness with a shimmering flexion; its use requires individual strength and skill at cooperation. Because Gene Rostow too combined these opposing qualities – indeed had them in abundance – it is especially noteworthy that one day, using such a saw as a young man in New England, he severely injured his back, keeping him out of active service in World War II and causing recurrent difficulties throughout his gallant life.

Was …

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt

Faculty Scholarship

The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science, is …

Criminal Defenders And Community Justice: The Drug Court Example, William H. Simon

Faculty Scholarship

The Community Justice idea and its core institution – the Community Court – is an ambitious innovation intended to generate new solutions and practices. It thus inevitably calls for adaptation of the established roles associated with the court system, and especially the criminal justice system. It asks practitioners to learn new skills, to accept new conventions, and to participate in the elaboration of a rapidly evolving experiment.

It is thus not surprising that many lawyers are anxious about the system. It remains an interesting question, however, whether their anxiety represents something more than the discomfort that change and challenge typically …

Who Needs The Bar?: Professionalism Without Monopoly, William H. Simon

Faculty Scholarship

Professionalism has an idealistic dimension and an institutional one. The idealistic dimension is the notion of voluntary commitment to both client interests and public values. The institutional dimension is the ideal of self-regulation by the bar.

The idealistic dimension remains powerful. However disappointed we are by the distance between the profession's ideals and its members' practices, these ideals continue to inspire valuable efforts. Various professional organizations are making admirable contributions through pro bono representation of disadvantaged people, public education, and disinterested law reform efforts in a range of areas, such as litigation procedure, prisons, and judicial selection. Moreover, the bar's …

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

Learning From Conflict: Reflections On Teaching About Race And Gender, Susan Sturm, Lani Guinier

Faculty Scholarship

In 1992 had been teaching for four years at the University of Pennsylvania Law School. I taught voting rights and criminal procedure, subjects related to what I had done as a litigator. Preparing for class meant reading many of the same cases I had read preparing for trial. Some were even cases I had tried. Teaching offered me a fresh chance to read those cases with new interest. I could see the subtle linkages between cases that I had not previously noticed. From the distance of the academy, I observed the evolution of the doctrine without feeling overcome by the …

Where Will Women Lawyers Be In 25 Years?, Frances E. Bivens, Joan Guggenheimer, Nancy Northrup, Susan Sturm, Judith Reinhardt Thoyer

Faculty Scholarship

Barbara Black said in her unbelievably moving remarks that Columbia has opened up its institutional heart to women. I thought that was a wonderful expression and, as a relative newcomer to Columbia, I have to agree. What does this mean? It means that women have become part of the cultural fabric of the Columbia Law School. We are not an accent. We are not an accessory. We are woven into the day-to-day fabric of the school. And this means being able both to participate in the old traditions and to reshape them to make some new traditions and then have …

Contract Theory And The Limits Of Contract Law, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be. These gaps are unsurprising given the traditional definition of contract as embracing all promises that the law will enforce. Even a theory of contract law that focuses only on the enforcement of bargains must still consider the entire continuum from standard form contracts between firms and consumers to commercial contracts among businesses. No descriptive theory has yet explained a law of contract that comprehends such a broad domain. Normative theories that are grounded in a single …

Network Effects And Legal Citation: How Antitrust Theory Predicts Who Will Build A Better Bluebook Mousetrap In The Age Of Electronic Mice, A. Christine Hurt

Faculty Scholarship

No abstract provided.

The First "Establishment" Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.

Market Failure And Intellectual Property: A Response To Professor Lunney, Wendy J. Gordon

Faculty Scholarship

Professor Lunney's piece in this volume is interesting enough that I forgive him for misportraying my own work. In this short reply I will clarify my position, and then examine both the place of my market failure argument and the place of some of Professor Lunney's arguments within the future of Intellectual Property scholarship as a whole.

Convictions Of Innocent Persons In Massachusetts: An Overview, Stanley Z. Fisher

Faculty Scholarship

Scholars documenting the incidence and causes of wrongful convictions in the United States have focused on cases arising all across the country. Because reform of the practices that lead to such errors of justice must largely take place on the state level, there is value in examining wrongful convictions in particular jurisdictions. This article attempts to identify and briefly describe all known cases of conviction of innocent persons in Massachusetts from 1800 to the present time. Part I discusses the criteria for identifying "the innocent." For the purpose of gaining support for needed reforms in the law, the most persuasive …

A Three-Dimensional Model For The Use Of Expert Psychiatric And Psychological Evidence In False Confession Defenses Before The Trier Of Fact, Joshua E. Kastenberg

Faculty Scholarship

Part I of this Article delineates a defendant's right to present voluntariness and credibility evidence against his or her confession. This section analyzes the basic constitutional framework of how a defendant can present this evidence and describes the traditional safeguards against false confessions. This background information provides a context for the overarching issue of expert testimony admissibility. Part II provides a basic understanding of differences between the psychiatric (medical model) and psychological (social model) approach to false confessions. It then examines the types of false confession defenses used by defendants and the interrogation techniques challenged by defendants. Part III reviews …

The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, Cynthia Alkon

Faculty Scholarship

Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the "Cookie Cutter Syndrome" describes the standard approach Western nations developed to assist legal reform in the former Communist world.' Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on …