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The Deterrent Effect Of Death Penalty Eligibility: Evidence From The Adoption Of Child Murder Eligibility Factors, Michael D. Frakes, Matthew Harding Jan 2009

The Deterrent Effect Of Death Penalty Eligibility: Evidence From The Adoption Of Child Murder Eligibility Factors, Michael D. Frakes, Matthew Harding

Faculty Scholarship

We draw on within-state variations in the reach of capital punishment statutes between 1977 and 2004 to identify the deterrent effects associated with capital eligibility. Focusing on the most prevalent eligibility expansion, we estimate that the adoption of a child murder factor is associated with an approximately 20% reduction in the homicide rate of youth victims. Eligibility expansions may enhance deterrence by (1) paving the way for more executions and (2) providing prosecutors with greater leverage to secure enhanced non-capital sentences. While executions themselves are rare, this latter channel is likely to be triggered fairly regularly, providing a reasonable basis …


Ratification: Useful But Uneven, Deborah A. Demott Jan 2009

Ratification: Useful But Uneven, Deborah A. Demott

Faculty Scholarship

Ratification permits a principal to determine to be bound by the legal consequences of action taken by an agent after the fact of the agent’s conduct when the principal would otherwise not be bound. By ratifying a principal may clarify the effects of uncertainty, furnishing reassurance to the agent, the third party with whom the agent dealt, and other parties interested in the status of the transaction. However, at the point the principal decides whether to ratify, the principal knows facts not known to agent and third party at the time of the agent’s unauthorised transaction, in particular subsequent developments …


Prosecuting Alleged Terrorists By Military Commission: A Prudent Option, Scott L. Silliman Jan 2009

Prosecuting Alleged Terrorists By Military Commission: A Prudent Option, Scott L. Silliman

Faculty Scholarship

President Obama has announced that the detention facility at Guantánamo Bay will be closed by January 22, 2010. He has also said that at least some of the detainees facing criminal prosecution will be tried in military commissions. The system of military commissions established by President Bush after the 9/11 attacks, as well as the one which Congress enacted in 2006 following the Supreme Court’s Hamdan decision, were widely criticized as being unproductive and not meeting international legal standards. The Congress has, very recently, revised the rules and procedures for military commissions to make them fair, effective and much more …


Justice On Appeal In Criminal Cases: A Twentieth-Century Perspective, Paul D. Carrington Jan 2009

Justice On Appeal In Criminal Cases: A Twentieth-Century Perspective, Paul D. Carrington

Faculty Scholarship

Criminal appeals was a hot topic in the 1970s, reflecting the politics of the Great Society and the development of the constitutional requirements of due process. There was then widespread agreement that the function of the criminal appeal was to assure that the appropriate judges were giving visible attention to all convictions to assure that they were justified. This paper will pose the question: what has become of that vision of a former generation?


The Second Wave Of Comparative Law And Economics?, Ralf Michaels Jan 2009

The Second Wave Of Comparative Law And Economics?, Ralf Michaels

Faculty Scholarship

Comment on a text by Gillian Hadfield, The Levers of Legal Design: Institutional Determinants of the Quality of Law, 36 Journal of Comparative Economics 43 (2008)


Knowing Law’S Limits: Comments On ‘Forgiveness: Integral To Close Relationships And Inimical To Justice?’, Kathryn Webb Bradley Jan 2009

Knowing Law’S Limits: Comments On ‘Forgiveness: Integral To Close Relationships And Inimical To Justice?’, Kathryn Webb Bradley

Faculty Scholarship

No abstract provided.


Does Intergenerational Justice Require Rising Standards Of Living?, Lawrence A. Zelenak Jan 2009

Does Intergenerational Justice Require Rising Standards Of Living?, Lawrence A. Zelenak

Faculty Scholarship

This essay considers whether it would be morally acceptable for a nation to use massive intergenerational borrowing to pursue a no-growth policy, under which the anticipated standard of living of members of future generations would be no higher than the standard of living of members of the present generation. The essay examines whether justification for such a policy can be found in either the political theory of John Rawls or in the application of utilitarian principles to intergenerational ethics. It concludes that under a Rawlsian analysis there is a strong argument that the current generation has no obligation to strive …


Tax Enforcement For Gamers: High Penalties Or Strict Disclosure Rules?, Lawrence A. Zelenak Jan 2009

Tax Enforcement For Gamers: High Penalties Or Strict Disclosure Rules?, Lawrence A. Zelenak

Faculty Scholarship

This essay responds to Alex Raskolnikov’s proposal to replace the current federal income tax compliance regime with a two-track approach based on taxpayer choice. The “deterrence regime” (DR) would be designed to be chosen by “gamers”, and the “compliance regime” (CR) would be designed to be chosen by all other taxpayers. Penalty rates would be significantly higher in the DR than in the CR. In this response, Lawrence Zelenak notes that the tax shelter disclosure rules of current law can also be viewed as a way of imposing a special compliance regime-featuring high odds of detection rather than high penalty …


Civil Justice Systems In Europe And The United States, Hein Kötz Jan 2009

Civil Justice Systems In Europe And The United States, Hein Kötz

Faculty Scholarship

Professor Kötz delivered the inaugural Herbert L. Bernstein Memorial Lecture in Comparative Law in 2002 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In order to highlight the similarities and differences in legal regimes between Europe and the United States, Professor Hein Kötz analyzes the German and American civil legal systems and, to a minor extent, the British civil legal system. Specifically, Kötz focuses on one of the distinguishing features of the American legal system, the civil jury, and its impact on the …


Reputation As Property In Virtual Economies, Joseph Blocher Jan 2009

Reputation As Property In Virtual Economies, Joseph Blocher

Faculty Scholarship

No abstract provided.


Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher Jan 2009

Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher

Faculty Scholarship

The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend …


Pregnancy And Sex-Role Stereotyping: From ‘Struck’ To ‘Carhart’, Neil S. Siegel, Reva B. Siegel Jan 2009

Pregnancy And Sex-Role Stereotyping: From ‘Struck’ To ‘Carhart’, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …


The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos Jan 2009

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.


Heller’S Problematic Second Amendment Categoricalism, Joseph Blocher Jan 2009

Heller’S Problematic Second Amendment Categoricalism, Joseph Blocher

Faculty Scholarship

No abstract provided.


Book Review, Jennifer L. Behrens Jan 2009

Book Review, Jennifer L. Behrens

Faculty Scholarship

reviewing, Charles J. Ogletree, Jr. & Austin Sarat eds., When Law Fails: Making Sense of Miscarriages of Justice, (2009)


Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges Jan 2009

Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges

Faculty Scholarship

Professor Christian Joerges delivered the Second Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2003 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Professor Joerges puts forth a three part thesis concerning the “Europeanization of Private Law”, the process by which the European Community influences the legal and political policies of its member states within a framework of transnational cooperation. Joerges first establishes the eroding importance of the idea that legal systems operating at the national level fulfill the goals of …


The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival Jan 2009

The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival

Faculty Scholarship

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have become increasingly internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems around the world. The result is the emergence of a set of legal principles and norms regarding the environment, such that one can arguably describe it as a body of law. After exploring the diverse forces that are contributing to the emergence of what we call “global environmental law,” this Article considers …


Agency Accountability Strategies After Liberalization: Universal Service In The United Kingdom, France, And Sweden, Dorit Rubinstein Reiss Jan 2009

Agency Accountability Strategies After Liberalization: Universal Service In The United Kingdom, France, And Sweden, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.


Borders And The Environment, Andrew P. Morriss, Roger E. Meiners Jan 2009

Borders And The Environment, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Despite regular acknowledgement of the interconnectedness of global ecosystems, government policies at the national level focus on environmental problems within their borders. As a result, the level of public and private resources expended on environmental protection in rich and poor countries is dramatically different on both a per capita and an absolute basis. While this outcome is readily explained by the politics of environmental issues, in which voters reward governments for domestic expenditures but are skeptical of expenditures outside the jurisdiction, these differences mean that the total amount of environmental quality purchased across nations is lower than it could be. …


Can A Subsequent Change In Law Void A Marriage That Was Valid At Its Inception? Considering The Legal Effect Of Proposition 8 On California's Existing Same-Sex Marriages, Lois A. Weithorn Jan 2009

Can A Subsequent Change In Law Void A Marriage That Was Valid At Its Inception? Considering The Legal Effect Of Proposition 8 On California's Existing Same-Sex Marriages, Lois A. Weithorn

Faculty Scholarship

No abstract provided.


Reconstructive Feminism: Changing The Way We Talk About Gender And Work Thirty Years After The Pda, Joan C. Williams Jan 2009

Reconstructive Feminism: Changing The Way We Talk About Gender And Work Thirty Years After The Pda, Joan C. Williams

Faculty Scholarship

No abstract provided.


Burning Shoes And The Spirit World: The Charade Of Neutrality, Frank H. Wu Jan 2009

Burning Shoes And The Spirit World: The Charade Of Neutrality, Frank H. Wu

Faculty Scholarship

No abstract provided.


Not The City Of God: The Multiplicity Of Wrongs And Rules, Geoffrey C. Hazard Jr. Jan 2009

Not The City Of God: The Multiplicity Of Wrongs And Rules, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.


The Myth Of Economic Interdependence, Joel R. Paul Jan 2009

The Myth Of Economic Interdependence, Joel R. Paul

Faculty Scholarship

We often hear that the world is becoming more economically interdependent. This observation is so universally shared as to go virtually unquestioned. Economists, legal scholars, government officials, journalists, and business leaders frequently assert that, whether states want to integrate economically or not, increasing economic interdependence is happening, and countries simply must accommodate that reality, or they risk becoming economic relics. The global financial crisis of 2008 is a vivid example, if one were needed, of the extent to which our economies have grown interdependent with good and bad consequences. The theory that international capital markets has become "de-linked" from one …


Israel's Invasion Of Gaza In International Law, George Bisharat, Timothy Crawley, Sar Elturk, Carey James, Rose Mishaan, Akila Radhakrishnan, Anna Sanders Jan 2009

Israel's Invasion Of Gaza In International Law, George Bisharat, Timothy Crawley, Sar Elturk, Carey James, Rose Mishaan, Akila Radhakrishnan, Anna Sanders

Faculty Scholarship

No abstract provided.


Checking In On Check The Box, Heather M. Field Jan 2009

Checking In On Check The Box, Heather M. Field

Faculty Scholarship

No abstract provided.


Tailored Participation: Modernizing The Apa Rulemaking Procedures, Dorit Rubinstein Reiss Jan 2009

Tailored Participation: Modernizing The Apa Rulemaking Procedures, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.


Inequitable Enforcement: Introducing The Concept Of Equity Into Constitutional Review Of Law Enforcement, Hadar Aviram, Daniel L. Portman Jan 2009

Inequitable Enforcement: Introducing The Concept Of Equity Into Constitutional Review Of Law Enforcement, Hadar Aviram, Daniel L. Portman

Faculty Scholarship

No abstract provided.


Hitting The Sweet Spot By Accident: How Recent Lower Court Cases Help Realign Incentives In The Credit Rating Industry, John Crawford Jan 2009

Hitting The Sweet Spot By Accident: How Recent Lower Court Cases Help Realign Incentives In The Credit Rating Industry, John Crawford

Faculty Scholarship

No abstract provided.


Death Penalty For Women In North Carolina, Elizabeth Rapaport, Victor Streib Jan 2009

Death Penalty For Women In North Carolina, Elizabeth Rapaport, Victor Streib

Faculty Scholarship

Is Justice Marshall right? Have women received "favored treatment" under our death penalty laws and procedures? The national data might lead to such a presumption, given that over 99% of the people executed in the United States are men, but the analyses and explanations are far from simple. The authors have written about this national phenomenon for the past two decades, sharing a strong interest in the issue but not always agreeing in their explanations. Now we examine the North Carolina experience within the national context. This article reports the results of that examination, beginning with North Carolina's history of …