Digital Commons Network^™

Empire Before Nationhood, Christina D. Ponsa-Kraus

Faculty Scholarship

One of the challenges of reviewing Eliga Gould’s international history of the American Revolution, Among the Powers of the Earth, is that the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there.

Taking Stock And Moving Forward To Improve Prison Visitation Practices: A Response To Prison Visitation Policies: A Fifty-State Survey, Philip Genty

Faculty Scholarship

Prison Visitation Policies: A Fifty-State Survey' is a wonderful resource. The authors' painstaking research has resulted in a dataset of immense importance. In addition, the authors have gone beyond simply describing their findings and have highlighted some of the issues they believe to be most significant. The authors express the hope that their work will both provide a useful body of information and be a catalyst for the research of others. An additional goal, already accomplished to some extent, is that the compilation and presentation of information from all of the states and the Federal Bureau of Prisons will encourage …

The Kiobel Presumption And Extraterritoriality, Sarah H. Cleveland

Faculty Scholarship

With its modem rebirth in Filartiga v. Pena-Irala, the Alien Tort Statute (ATS) held out a potentially transformative promise. By establishing a forum in the United States for a victim of torture that had occurred at the hands of a Paraguayan police inspector in Paraguay, the ATS offered to emancipate the state-centered Westphalian system from a narrow focus on territorial sovereignty, and move toward a more globalized community focused on the protection of universal values. The ATS recognized that modem human rights perpetrators, victims, and violations move easily across borders, and that transnational accountability for such violations is in the …

Four Questions About Fracking, Thomas W. Merrill

Faculty Scholarship

It is difficult to think of a more timely or important topic than horizontal hydraulic fracturing and its impact on the environment. It is especially useful to have an exchange of views on this subject now, before the statutes, regulations, and court decisions start to roll in. Law professors – I cannot speak for anyone else – have a strong proclivity for backward-looking analysis, dissecting what should have been done after the basic direction of the law is set and the courts have spoken. It is much more useful to weigh the pros and cons of different approaches at an …

The Returns To Criminal Capital, Thomas Loughran, Holly Nguyen, Alex R. Piquero, Jeffrey Fagan

Faculty Scholarship

Human capital theory (Becker 1962; Mincer 1958; Schultz 1960; 1961) posits that individuals can increase their labor market returns through investments in education and training. This concept has been studied extensively across several disciplines. An analog concept of criminal capital, while the focus of speculation and limited empirical study, remains considerably less developed theoretically and methodologically. This paper offers a formal theoretical model of criminal capital indicators and tests for greater illegal wage returns using a sample of serious adolescent offenders, many of whom participate in illegal income-generating activities. Our results reveal that, consistent with human capital theory, there are …

(Crime) School Is In Session: Mapping Illegal Earnings To Institutional Placement, Holly Nguyen, Thomas Loughran, Ray Paternoster, Jeffrey Fagan

Faculty Scholarship

A growing consensus suggests that incarcerating offenders tends to have either null or criminogenic effects at both the individual and neighborhood levels. There is also further evidence that there are unintended consequences of incarcerating juvenile offenders such as delayed psychosocial development and school dropout. The current study considers a much less examined hypothesis — that correctional environments can facilitate the accumulation of “criminal capital” and might actually encourage offending by serving as a school of crime. Using unique panel data from a sample of serious juvenile offenders, we are able to identify the criminal capital effect by considering illegal earnings …

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population …

The Pre-Session Recess, Peter L. Strauss

Faculty Scholarship

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to …

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful …

Fee Effects, Kathryn Judge

Faculty Scholarship

Intermediaries are a pervasive feature of modern economies. This article draws attention to an under-theorized cost arising from the use of specialized intermediaries – a systematic shift in the mix of transactions consummated. The interests of intermediaries are imperfectly aligned with the parties to a transaction. Intermediaries seek to maximize their fees, a transaction cost from the perspective of the parties. Numerous factors, including the requirement that a transaction create value in excess of the associated fees to proceed and an intermediary’s interest in maintaining a good reputation, constrain an intermediary’s tendency to use its influence in a self-serving manner. …

Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi

Faculty Scholarship

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House.

To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for …

Response To The European Commission's Report On The Application Of The Takeover Bids Directive, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch

Faculty Scholarship

This paper contains the European Company Law Experts' response to the report of the European Commission of 28 June 2012 on the application of the Takeover Bids Directive of 2004 and the reform initiatives announced. For evaluating these initiatives the rationale of the mandatory bid rule is relevant (exit rationale, control premium rationale and undistorted choice rationale). On this basis the paper discusses each of the concerns raised by the European Commission: 1) The concept of "acting in concert": The ECLE are of the opinion that a uniform concept for the Takeover Bids Directive, the Transparency Directive and the Acquisition …

Making Corporate Governance Codes More Effective: A Response To The European Commission's Action Plan Of December 2012, Peter Böckli, Paul L. Davies, Eilis Ferran, Guido Ferrarini, José M. Garrido Garcia, Klaus J. Hopt, Alain Pietrancosta, Katharina Pistor, Markus Roth, Rolf Skog, Stanislaw Soltysinski, Jaap W. Winter, Eddy Wymeersch

Faculty Scholarship

This paper contains the European Company Law Experts' response to one of the main issues raised in the European Commission’s Action Plan of 12 December 2012, namely how to make corporate governance codes more effective. The concept of “codes’ effectiveness” has two meanings: effectiveness of the comply-explain mechanism (disclosure effectiveness) and level of adoption of the codes’ recommendations themselves (substantive effectiveness). The ECLE believes that it is of crucial importance to keep the advantages of regulation by codes while finding adequate improvements of the quality of the reports and the explanations. The relationship between the content of corporate governance codes …

New Modes Of Pluralist Global Governance, Gráinne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This paper describes three modes of pluralist global governance. Mode One refers to the creation and proliferation of comprehensive, integrated international regimes on a variety of issues. Mode Two describes the emergence of diverse forms and sites of cross-national decision making by multiple actors, public and private as well as local, regional and global, forming governance networks and “regime complexes,” including the orchestration of new forms of authority by international actors and organizations. Mode Three, which is the main focus of the paper, describes the gradual institutionalization of practices involving continual updating and revision, open participation, an agreed understanding of …

Economics Of Bankruptcy – Introduction, Edward R. Morrison

Faculty Scholarship

This essay surveys important contributions to the economics of bankruptcy. It is an introductory chapter for a forthcoming volume (from Edward Elgar Press) that compiles the work of legal scholars as well as economists working in the field of corporate finance. The essay begins with the foundational theories of Baird, Jackson, and Rea and then collects scholarly work extending, testing, or revising those theories. At various points I identify questions that merit further study, particularly empirical testing.

The Domagala Dilemma-Domagala V. Rolland, Michael K. Steenson

Faculty Scholarship

In Domagala v. Rolland, the Minnesota Supreme Court granted review in a personal injury case that was dominated by duty and special relationship issues, even though the parties agreed that there was no special relationship between them. The case, straddling the misfeasance/nonfeasance line, was complicated by the defense theory (that the lack of a special relationship meant that the defendant owed no duty to protect or warn the plaintiff), and the plaintiff’s theory (that the defendant owed a duty of reasonable care to the plaintiff because he acted affirmatively, even if the risk to the plaintiff did not become apparent …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …

An Empirical Analysis Of The Use Of The Intent Test To Determine Parentage In Assisted Reproductive Technology Cases, Mary P. Byrn, Lisa Giddings

Faculty Scholarship

States have been slow to adopt model acts regarding assisted reproductive technology (ART), or to draft ART legislation of their own, leaving most parents of ART children without a clear path to obtain legal parentage. As a result, when a child conceived via ART is born, the adults involved must turn to the courts to make a determination as to legal parentage. These courts have used a variety of approaches to determine legal parentage in ART cases, which along with the inherent discretion involved in judicial decisions absent clear precedent or statute has led to unpredictable, and sometimes inequitable, findings …

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

Taxing Anxiety, Morgan Holcomb

Faculty Scholarship

In this article, I argue for a statutory change to the disparity in the taxation of damages. I submit that nearly all damages, including damages received on account of physical injury, ought to be taxable, and that juries must be apprised of tax consequences so that they can make proper adjustments to take account of these tax consequences. I will refer to this as the full inclusion proposal with jury awareness - for ease, the full inclusion proposal.

My proposed change is the more sound solution for several reasons. Full inclusion creates certainty and avoids wasteful tax gamesmanship. Furthermore, assuming …

Legal Education And Professional Skills: Myths And Misconceptions About Theory And Practice, Kate Kruse

Faculty Scholarship

Current critiques of legal education push law schools toward seemingly contradictory goals: (1) provide more practical training to a greater number of students; and (2) lower operational costs. This article addresses those who have a sincere desire to meet both goals. Although it offers a proposal for restructuring legal education, its primary focuses is on the mental and psychological barriers — the mistakes in thinking — that prevent law faculties from engaging in substantial. At the deepest level is a basic myth: that professional education can meaningfully separate theory from practice. This myth divides legal education into a series of …

Market Forces And The College Classroom: Losing Sovereignty, Michael Stein, Christopher Scribner, David Brown

Faculty Scholarship

This essay’s focus is local and anecdotal. Using concrete examples from our own university we consider incremental changes, driven largely by concerns over external assessment and accreditation, that have altered the sovereignty professors once had in the classroom. At the same time, this turn of events is clearly more than local, and the anecdotes we offer are hardly confined to our institution alone. Thus, prior to “entering the college classroom,” we must give consideration to market forces and such attendant issues as competition, standardization, bureaucracy, mass production, and technology. Although globalization did not create these forces, it has accelerated and …

Hierarchies Of Discrimination In Baby Making? A Response To Professor Carroll, Radhika Rao

Faculty Scholarship

No abstract provided.

The Failed Promise Of Language Rights: A Critique Of The International Language Rights Regime, Moria Paz

Faculty Scholarship

Major international legal instruments commit international law to protect language rights absolutely, irrespective of counter-pressures toward linguistic uniformity. This unconditional commitment to language rights is echoed in the writings of prominent human rights scholars, who argue that language is a constitutive element of cultural identity. This article contrasts the ideals of language rights with the actual record of their enforcement. It presents a detailed analysis of the 133 cases that have come before the European Court of Human Rights, the U.N. Human Rights Committee, and the Inter-American Court of Human Rights dealing with language issues as they arise in (i) …

Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In Mdl Aggregate Settlements, Morris A. Ratner

Faculty Scholarship

No abstract provided.

Forest Carbon (Redd+), Repairing International Trust, And Reciprocal Contractual Sovereignty, David Takacs

Faculty Scholarship

No abstract provided.

Lindsay's Legacy: The Tragedy That Triggered Law Reform To Prevent Teen Dating Violence, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Parsing Judicial Activism, Scott Dodson

Faculty Scholarship

No abstract provided.

Sensibilities For Social Justice Lawyers, Ascanio Piomelli

Faculty Scholarship

No abstract provided.