Digital Commons Network^™

The Hollow Truth Of Ockham's Razor, Jeffrey C. Goodman

Faculty Scholarship

When considering what sorts of entities we ought to believe in and what sorts of principles should guide those beliefs, a lot of attention gets paid to Ockham’s Razor.  The Razor can be formulated in a number of different ways, but it is often given as the following slogan: ‘Do not multiply entities beyond necessity.’ Alex Oliver has remarked that this “Ockhamite prohibition against an overly generous ontology…seems to boil down to the rather banal exhortation not to believe in the existence of anything unless one has a reason to so believe.”  I am not concerned with whether or not …

Shortchanging The Joint Fight? An Airman’S Assessment Of Fm 3-24 And The Case For Developing Truly Joint Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Faculty Scholarship

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it cannot realize directly. In this article I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but …

Before You Log-On: Incorporating The Free Web In Your Legal Research Strategy, Lauren M. Collins

Faculty Scholarship

No abstract provided.

Hedonic Adaptation And The Settlement Of Civil Lawsuits, John Bronsteen, Christopher J, Buccafusco, Jonathan S. Masur

Faculty Scholarship

This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that …

The State Of Public Access To Federal Government Databases Detailed In Recommended New Book, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Curricula And Complacency: A Response To Professor Levinson, Ernest A. Young

Faculty Scholarship

No abstract provided.

Beyond Cost-Benefit Analysis: A Pragmatic Reorientation, Sidney A. Shapiro, Christopher H. Schroeder

Faculty Scholarship

The weaknesses of cost-benefit analysis (CBA) are apparent for all to see. The theoretical underpinnings of positivism and rational choice methodologies have been dealt a significant blow in the post-positivist literature in science, political science and policy studies. Likewise, the performance of CBA itself has been the subject of a significant and persuasive challenge in the legal literature. This article critiques specifically the current federal form of regulatory impact analysis (RIA), centered institutionally in OIRA and centered methodologically in CBA. One of reasons for the continuing dominance of a CBA-centered RIA is the success of its proponents in maintaining that …

Terror And The Law: The Limits Of Judicial Reasoning In The Post-9/11 World (Review Essay), Curtis A. Bradley

Faculty Scholarship

reviewing, Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (2008)

Markets, Systemic Risk, And The Subprime Mortgage Crisis, Steven L. Schwarcz

Faculty Scholarship

The recent subprime mortgage meltdown is undermining financial market stability and has the potential to cause a true systemic breakdown, collapsing the world's financial systems like a row of dominoes. This essay uses the subprime crisis to demonstrate that existing protections against systemic risk, which focus on banks and largely ignore financial markets, are anachronistic and misguided. Because companies increasingly access financial markets without going through banks, an effective framework for containing systemic risk must focus on markets.

Time For A Twenty-First Century Justice Department, Samuel W. Buell

Faculty Scholarship

This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season. The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools of …

Intellectual Property And Alternatives: Strategies For Green Innovation, Jerome H. Reichman, Arti K. Rai, Richard G. Newell, Jonathan B. Wiener

Faculty Scholarship

This report provides an analysis of how intellectual property rights (IPRs), and alternatives to IPRs, might operate in green innovation. Part I of the paper discusses the economics of green innovation, including the important role that will need to be played by the private sector. Part II discusses the IPR issues, principally involving patents, that may arise if and when GHG externalities are addressed through the appropriate pricing of greenhouse gases. Part III addresses alternatives to traditional patents and exclusive licenses, including patent pools, liability rules, and prizes.

The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer

Faculty Scholarship

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …

The Price Of Fame: Brown As Celebrity, Mark A. Graber

Faculty Scholarship

This essay examines the history of Brown I, Brown II, and Bolling in the Supreme Court of the United States. Enduring precedents, the analysis suggests, go through three stages. In the first stage, they fight for survival. This describes Brown during the first decade after that decision was handed down. No Supreme Court Justice asserted, “Brown should be overruled,” but many citations to Brown came in the context of political efforts to reverse or marginalize that decision. In the second stage, precedents fight for extension. This describes Brown in the later Warren and Burger years. Civil rights activists insisted …

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

Fixing The Fatal Flaws In Oui Implied Consent Laws, Tina Wescott Cafaro

Faculty Scholarship

This Article explores the use of implied consent laws as a method of deterring and punishing alcohol-impaired driving. Part I introduces the history and purpose of implied consent laws. Part II discusses the inadequacies of current statutory implied consent provisions and their failure to effectively attain their designed purpose. This section also highlights two particularly detrimental aspects of the law as currently implemented: (1) the lack of uniformity in the application of the laws by individual states; and (2) the disparate treatment of persons who refuse to submit to BAC testing, both in terms of consequences of refusal to submit …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

Early Resident Experiences At A New Mixed-Income Development In Chicago, Mark L. Joseph

Faculty Scholarship

Mixed-income development is an increasingly popular poverty deconcentration strategy in the United States but there have been few in-depth studies about the experiences of residents once they move in to the new housing developments. This article explores the early experiences of residents of all income levels who have moved into a new mixed-income development on the south side of Chicago. In-depth interviews have been conducted with 46 residents of the development, including 23 former public housing residents. Interviews were also conducted with a comparison group of 69 public housing residents who did not move to the development. I find that …

Collateral Consequences Of Criminal Convictions To Noncitizens, Fernando A. Nuñez

Faculty Scholarship

The criminal defense attorney's intuitive pursuit of freedom for a client is almost always the best approach in the representation of individuals charged with a crime. When representing noncitizens, however, the prudent practice is to deemphasize immediate freedom and instead to focus on the collateral consequences the conviction will have on the noncitizen's immigration status.

Conflicts Of Interest And Disclosures: Are We Making A Mountain Out Of A Molehill, David Allen Larson

Faculty Scholarship

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; …

Reclaiming Egalitarianism In The Political Theory Of Campaign Finance Reform, Frank Pasquale

Faculty Scholarship

No abstract provided.

Gonzalez V. Carhart And The Hazards Of Muddled Scrutiny, David D. Meyer

Faculty Scholarship

No abstract provided.

Cross Dressing And The Criminal, Bennett Capers

Faculty Scholarship

No abstract provided.

The Role Of Financial Regulation In Private Financial Firms: Risk Management And The Limitations Of The Market Model, James A. Fanto

Faculty Scholarship

No abstract provided.

The Continuing Need For Broker-Dealer Professionalism In Ipos, James A. Fanto

Faculty Scholarship

No abstract provided.

Legal Writing Beyond Memos And Briefs: An Annotated Bibliography, Carrie Teitcher

Faculty Scholarship

No abstract provided.

Excluding Religion, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Pick A Card, Any Card, Ronald J. Mann

Faculty Scholarship

At the heart of all serious thought about consumer financial products is the difficulty of understanding the mental processes by which consumers evaluate, compare, and use those products. Usury proposals from scholars and policy makers depend on explicit or implicit assumptions about how interest-rate caps will affect the mix of products available in the marketplace and the choices that consumers make among them. Legislators and lobbyists that decry a torrent of consumer bankruptcy filings rely explicitly on the claim that consumers abuse credit products. Proposals to outlaw products like payday loans assume that those who use the products are so …

The American Law Institute Goes Global: The Restatement Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, namely the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet, already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALI Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …