Digital Commons Network^™

Roger J. Traynor Professorship: John E. Noyes, William J. Aceves

Faculty Scholarship

Introduction to inaugural appointment of John E. Noyes to the Roger J. Traynor Professorship.

Evaluating The Consequences Of Calibrated Sentencing: A Response To Professor Kolber, Miriam H. Baer

Faculty Scholarship

This is a Response to Adam Kolber's essay, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). Kobler criticizes courts for failing to take into account subjective experience of punishment when imposing sentences for criminal conduct. Kolber contends that the failure to calibrate punishment to reflect subjective experience undermines both retributivist and consequentialist arguments for punishment.

This Response grapples with the consequentialist implications of Kolber's argument. Specifically, it argues that calibrated sentencing may be far less desirable than its logical alternative, calibrated policing. Indeed, many would say that we already distribute police resources based on our estimation of …

Governing Corporate Compliance, Miriam H. Baer

Faculty Scholarship

In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number …

Justice Roger Traynor Professorship Acceptance, John E. Noyes

Faculty Scholarship

Acceptance of John Noyes for the inaugural Roger J. Traynor Professor of Law.

Judicial And Arbitral Proceedings And The Outer Limits Of The Continental Shelf, John E. Noyes

Faculty Scholarship

This Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution-the Commission on the Limits of the Continental Shelf-to make recommendations concerning them. Limits set by coastal states "on the basis of" such recommendations "shall be final and binding." Yet the Law of the Sea Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.

International …

Interactive Group Learning In The Legal Writing Classroom: An International Primer On Student Collaboration And Cooperation In Large Classrooms, Roberta K. Thyfault, Kathryn Fehrman

Faculty Scholarship

Research has long shown that students who work in small groups learn and retain more than students who are taught by other techniques. This crucial bit of information has led many scholars and educators to explore a variety of models for supporting and involving students in group learning. Part II of this article will provide an overview of the scholarship of collaborative and cooperative learning and the associated definitions and techniques. Part III discusses the application of collaborative and cooperative learning techniques in the law school classroom and special considerations and suggestions for international and large law school classrooms. Finally, …

The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner

Faculty Scholarship

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise …

Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein

Faculty Scholarship

Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge …

Bargaining Power And Background Law, Nancy Kim

Faculty Scholarship

Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the "background law." The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and …

Clara Shortridge Foltz Professorship Acceptance, Barbara Cox

Faculty Scholarship

No abstract provided.

A Kernel For Open Source Drug Discovery In Tropical Diseases, Leticia Ortı, Rodrigo J. Carbajo, Ursula Pieper, Narayanan Eswar, Stephen M. Maurer, Arti K. Rai, Ginger Taylor, Matthew H. Todd, Antonio Pineda-Lucena, Andrej Sali, Marc A. Marti-Renom

Faculty Scholarship

Open source drug discovery, a promising alternative avenue to conventional patent-based drug development, has so far remained elusive with few exceptions. A major stumbling block has been the absence of a critical mass of preexisting work that volunteers can improve through a series of granular contributions. This paper introduces the results from a newly assembled computational pipeline for identifying protein targets for drug discovery in ten organisms that cause tropical diseases. We have also experimentally tested two promising targets for their binding to commercially available drugs, validating one and invalidating the other. The resulting kernel provides a base of drug …

A Response To The Critics Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

This essay responds to critics of corporate liability and to the claim that elimination or limitation of such liability should be a priority for law reform. It discusses four points. First, imposing criminal liability on corporations makes sense, because corporations are not mere “fictional” entities. Rather, corporations are very real – and enormously powerful – actors whose conduct often causes very significant harms both to individuals and to society as a whole. Second, in evaluating the priorities for law reform it is critical to recognize that most of the problems with corporate liability are endemic to U.S. criminal law, rather …

Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin

Faculty Scholarship

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through …

A Report On Trade Remedies And Rules Of Application, Charles O. Verrill Jr.

Faculty Scholarship

Document presented for discussion at the OECD Directorate for Science Technology & Industry, Steel Committee Meeting, 10-11 December 2009.

The GATT authorizes three trade remedies that can be utilized by members of the WTO to address troublesome imports: antidumping measures and countervailing duties, which are authorized by Article VI, and safeguards which are authorized by Article XIX. Detailed roadmaps for the application of these measures were adopted in the Uruguay Round implementing agreements that each WTO member is required to observe in applying trade measures against imports from other WTO member countries.

This Report summarizes the rules governing application of …

Regulating Complexity In Financial Markets, Steven L. Schwarcz

Faculty Scholarship

As the financial crisis has tragically illustrated, the complexities of modern financial markets and investment securities can trigger systemic market failures. Addressing these complexities, this Article maintains, is perhaps the greatest financial-market challenge of the future. The Article first examines and explains the nature of these complexities. It then analyzes the regulatory and other steps that should be considered to reduce the potential for failure. Because complex financial markets resemble complex engineering systems, and failures in those markets have characteristics of failures in those systems, the Article‟s analysis draws on chaos theory and other approaches used to analyze complex engineering …

Innovation After The Revolution: Foreign Sovereign Bond Contracts Since 2003, Mitu Gulati, Anna Gelpern

Faculty Scholarship

For over a decade, contracts literature has focused on standardization. Scholars asked how terms become standard, and why they change so rarely. This line of inquiry painted a world where a standard term persists until it is dislodged by another standard term, perhaps after a brief window of ferment before the second term takes hold. It also overshadowed the early insights of boilerplate theories, which described contracts as a mix of standard and customized terms, and asked why the mix might be suboptimal. This article brings the focus back to the mix. It examines the development of selected provisions in …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

Growing Pains In The Administrative State: The Patent Office’S Troubled Quest For Managerial Control, Arti K. Rai

Faculty Scholarship

In the last ten years, the workload of the Patent and Trademark Office ("PTO") has increased dramatically. Complaints about the PTO's ability to manage its workload have increased in tandem. Interestingly, although Congress has explicitly given the PTO rulemaking authority over the processing of patent applications, and withheld from it authority over "substantive" patent law, the PTO has arguably enjoyed more success in influencing substantive law than in executing direct efforts to manage its workload. This Article explores the multiple, mutually reinforcing reasons for this anomaly. It argues that although there are good reasons to be frustrated with the PTO's …

Wanting The Truth: Comparing Prosecutions Of Investigative And Institutional Deception, Lisa Kern Griffin

Faculty Scholarship

Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses—including the standards for prosecution, the perceived victim, and the purposes of bringing charges—suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in …

Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …

The Return Of The Rogue, Kimberly D. Krawiec

Faculty Scholarship

The “rogue trader”—a famed figure of the 1990s—recently has returned to prominence due largely to two phenomena. First, recent U.S. mortgage market volatility spilled over into stock, commodity, and derivative markets worldwide, causing large financial institution losses and revealing previously hidden unauthorized positions. Second, the rogue trader has gained importance as banks around the world have focused more attention on operational risk in response to regulatory changes prompted by the Basel II Capital Accord. This Article contends that of the many regulatory options available to the Basel Committee for addressing operational risk it arguably chose the worst: an enforced selfregulatory …

Hugh Henry Brackenridge (1748-1816): Teacher, Military Chaplain, Journalist, Lawyer, Satirist, And Judge, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Best Cass Scenario, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

Who’S Number One? The Most Significant Cases In Environmental Law, James Salzman, J.B. Ruhl

Faculty Scholarship

What do environmental lawyers consider the most significant environmental cases? In 2001, Jim Salzman conducted a survey of the envlawprofs listserve for the "Most Excellent" environmental law cases in the field, tabulating the top cases for law profs and for practicing attorneys. Given the significant decisions over the eight years, we thought it would be useful to conduct the survey again, this time using a dedicated website and surveying both the envlawprofs listserve and members of the ABA's Section on Environment, Energy and Resources. We enjoyed a high level of participation, with over 440 responses from across the nation, from …

The Conscientious Legislator And Public Opinion On Taxes, Lawrence A. Zelenak

Faculty Scholarship

This essay examines some of the difficulties of understanding public opinion on taxes, and offers some suggestions as to how the conscientious legislator might proceed in light of those difficulties. The essay begins by describing two contexts in which public opinion appears to contradict itself, and suggests how the apparent contradictions might be resolved. It then offers three suggestions for the conscientious legislator whose goal is to discern (rather than to manipulate) public opinion on taxes - to be neither unduly optimistic nor despairing about the potential for educating the public on tax policy issues, to understand and guard against …

A Policy Maker’S Guide To Designing Payments For Ecosystem Services, James Salzman

Faculty Scholarship

Over the past five years, there has been increasing interest around the globe in payment schemes for the provision of ecosystem services, such as water purification, carbon sequestration, flood control, etc. Written for an Asian Development Bank project in China, this report provides a user-friendly guide to designing payments for the provision of ecosystem services. Part I explains the different types of ecosystem services, different ways of assessing their value, and why they are traditionally under-protected by law and policy. This is followed by an analysis of when payments for services are a preferable approach to other policy instruments. Part …

Judicial Nullification Of Juries: Use Of Acquitted Conduct At Sentencing, Eang L. Ngov

Faculty Scholarship

At trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than …

Blowing The Whistle On Mandatory Arbitration Unconscionability As A Signaling Device, Charles L. Knapp

Faculty Scholarship

No abstract provided.

Foreword: Entrepreneurism In A Flat, Green, Cash-Strapped World, Eric J. Gouvin

Faculty Scholarship

On October 17, 2008, the Western New England College School of Law and School of Business jointly hosted the third annual Conference on Entrepreneurship and Community Economic Development (Conference). The Conference was sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship (Law and Business Center or Center) as one of its many educational outreach efforts and service projects. This issue of the Western New England Law Review provides a record of the Articles that were presented at the Conference. The Law and Business Center offers students an outstanding opportunity to apply, expand, and refine their …