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Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr. Jan 2007

Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr.

Faculty Scholarship

No abstract provided.


Challenging Direct Democracy, Erwin Chemerinsky Jan 2007

Challenging Direct Democracy, Erwin Chemerinsky

Faculty Scholarship

I want to argue today that direct democracy is undesirable and unconstitutional. I want to argue to you that the Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. So I want to make two points. First, I am going to argue that direct democracy is undesirable. This is a normative argument; it’s not an argument about constitutional doctrine. Second, I want to argue that direct democracy is unconstitutional, and make a series of different arguments as to why.


Where Have All The Parties Gone? Fraenkel And Grofman On The Alternative Vote - Yet Again, Donald L. Horowitz Jan 2007

Where Have All The Parties Gone? Fraenkel And Grofman On The Alternative Vote - Yet Again, Donald L. Horowitz

Faculty Scholarship

The alternative vote (AV) is a preferential electoral system that tends to reward political moderation and compromise. Fraenkel and Grofman have repeatedly attempted to show that AV is not conducive to inter-ethnic moderation in severely divided societies. In this response to their latest attempt,the author points out that neither political party coordination of the vote nor strategic voting plays any part in their analysis. In contrast, he explains how moderate parties of one ethnic group are able to induce their supporters to cast ballots for moderate parties supported by voters of another ethnic group. Prof. Horowitz also explains why the …


Injunctions In Defamation Cases, Erwin Chemerinsky Jan 2007

Injunctions In Defamation Cases, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Rediscovering Brandeis’S Right To Privacy, Erwin Chemerinsky Jan 2007

Rediscovering Brandeis’S Right To Privacy, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi Jan 2007

Ranking Judges According To Citation Bias, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

In our Essay, we put forward a methodology to assess the amount of political bias that affects judges based on the decisions judges make on whom to cite in their opinions. Unlike prior studies looking at judicial bias that focus on judicial voting outcomes, our study of bias in citation practices is aimed at uncovering more subtle forms of bias. Judges may shy away from acting overly biased when making a highly visible decision such as voting in a particular case, but instead seek to shift the law more subtly through their reasoning and citation patterns in the opinion, thereby …


The Many Uses Of Federalism, Donald L. Horowitz Jan 2007

The Many Uses Of Federalism, Donald L. Horowitz

Faculty Scholarship

This paper forms part of a symposium on Sanford Levinson's Our Undemocratic Constitution. It points out that although almost no large state that is governed democratically is not a federation, there are only about 24 federations in the world and all but four of these antedate the Third Wave of Democratization, which began in 1974. Most new democracies have not found federalism attractive. Yet, for many such countries, devolution (or scaling-down) federalism, in contrast to the scaling-up federalism originally devised in 1787, has great potential to alleviate conflicts in severely divided societies. Many of these are small or medium-sized states. …


Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young Jan 2007

Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young

Faculty Scholarship

Symposium dedicated to the work of Professor Paul J. Mishkin. This essay explores the Mishkin's theory of protective jurisdiction and applyies it to contemporary controversies.


The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman Jan 2007

The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman

Faculty Scholarship

No abstract provided.


Writing Other Peoples’ Constitutions, Paul D. Carrington Jan 2007

Writing Other Peoples’ Constitutions, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Compelled Cooperation And The New Corporate Criminal Procedure, Lisa Kern Griffin Jan 2007

Compelled Cooperation And The New Corporate Criminal Procedure, Lisa Kern Griffin

Faculty Scholarship

In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to investigate and prosecute corporate crimes. This Article examines the use of stringent cooperation requirements and deferred prosecution agreements, pursuant to which corporate internal investigations have become extensions of government enforcement efforts. At the same time, liability has shifted markedly to the employee level: Over one thousand individuals have been indicted and convicted since the July 2002 creation of the Corporate Fraud Task Force, while few corporations have been charged. The convergence of corporate cooperation doctrine with the focus on individual targets results …


Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne Jan 2007

Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne

Faculty Scholarship

This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.


Appellate Courts, Michael E. Tigar Jan 2007

Appellate Courts, Michael E. Tigar

Faculty Scholarship

No abstract provided.


What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2007

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.


The Dual Path Initiative Framework, Elizabeth Garrett, Mathew D. Mccubbins Jan 2007

The Dual Path Initiative Framework, Elizabeth Garrett, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.


On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco Jan 2007

On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.


Angelina And Madonna: Why All The Fuss? An Exploration Of The Rights Of The Child And Intercountry Adoption Within African Nations, Veronica S. Root Jan 2007

Angelina And Madonna: Why All The Fuss? An Exploration Of The Rights Of The Child And Intercountry Adoption Within African Nations, Veronica S. Root

Faculty Scholarship

No abstract provided.


On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara Sternberg Greene, Keith Swisher, Meghan H. Grabel Jan 2007

On The Validity And Vitality Of Arizona’S Judicial Merit Selection System: Past, Present, And Future, Mark I. Harrison, Sara Sternberg Greene, Keith Swisher, Meghan H. Grabel

Faculty Scholarship

This Article demonstrates that merit selection is functioning commendably in Arizona and, for the most part, provides the public with a judicial selection process far more informative and generally superior to “traditional elections.” Part I of this Article sketches the history of Arizona’s merit selection of judges and its previous state-wide judicial election system. Part II discusses and analyzes attacks on merit selection and, in addition, assesses the effect of the Judicial Performance Review program initiated in 1992 to enhance the efficacy of the merit selection system. Finally, largely through extensive interviews of many participants in Arizona’s merit selection system, …


Aggregation In Criminal Law, Brandon L. Garrett Jan 2007

Aggregation In Criminal Law, Brandon L. Garrett

Faculty Scholarship

This Article considers aggregation in criminal law. In criminal law, fundamental constitutional rights to an individual day in court sharply limit the occurrence of procedural aggregation, such as joinder, during trials. By way of contrast, in civil cases, courts permit a range of aggregate litigation, including consolidation and class actions. Nevertheless, the boundaries between civil and criminal law approaches to aggregation are more permeable than conventionally understood. Courts now aggregate criminal cases, and they do so without violating constitutional rights, by joining cases only before trial and during appeals. I present five case studies examining novel aggregative procedures that courts …


Structural Reform Prosecution, Brandon L. Garrett Jan 2007

Structural Reform Prosecution, Brandon L. Garrett

Faculty Scholarship

In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors adopted a bold new prosecutorial strategy under which dozens of leading corporations entered into demanding settlements, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co, Monsanto, and Time Warner. To situate the DOJ's latest strategy, I frame alternatives to the pursuit of structural reform remedies …


Book Review, Jennifer L. Behrens Jan 2007

Book Review, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.


Classified Boards And Firm Value, Michael D. Frakes Jan 2007

Classified Boards And Firm Value, Michael D. Frakes

Faculty Scholarship

Classified boards constitute one of the most potent takeover defenses for U.S. firms today. However, as with takeover defenses more generally, economic theory offers an ambiguous prediction as to the effect that classified boards have on bottom-line firm value. A resolution of this ambiguity will require sound and convincing empirical methodology. In an effort to address limitations in the existing empirical literature, this article approaches the relationship between corporate governance and firm value while taking various measures to account for unobserved sources of heterogeneity across firms. Using the instrumental variables model developed by Hausman and Taylor, I find evidence of …


Access To Scientific And Technological Knowledge: Unesco's Past, Present And Future Roles, Jerome H. Reichman, Paul F. Uhlir, Heather J. Ritch Jan 2007

Access To Scientific And Technological Knowledge: Unesco's Past, Present And Future Roles, Jerome H. Reichman, Paul F. Uhlir, Heather J. Ritch

Faculty Scholarship

No abstract provided.


Open Source And Private Ordering: A Commentary On Dusollier, Arti K. Rai Jan 2007

Open Source And Private Ordering: A Commentary On Dusollier, Arti K. Rai

Faculty Scholarship

No abstract provided.


Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami Jan 2007

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …


Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman Jan 2007

Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper integrates and extends the literatures on industry evolution and dominant firms to develop a dynamic theory of dominant and fringe competitive interaction in a segmented industry. It argues that a dominant firm, seeing contraction of growth in its current segment(s), enters new segments in which it can exploit its technological strengths, but that are sufficiently distant to avoid cannibalization. The dominant firm acts as a low-cost Stackelberg leader, driving down prices and triggering a sales takeoff in the new segment. We identify a “churn” effect associated with dominant firm entry: fringe firms that precede the dominant firm into …


The Federal Judicial Power And The International Legal Order, Curtis A. Bradley Jan 2007

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Beware The ‘Monological Imperatives’: Scholarly Writing For The Reader, Joan A. Magat Jan 2007

Beware The ‘Monological Imperatives’: Scholarly Writing For The Reader, Joan A. Magat

Faculty Scholarship

This article describes principles of effective academic writing - offered not as edicts, but as guidelines - for legal scholars in particular. The overall focus is style, but the discussion begins with observations of format. These are followed by a few stylistic principles that govern clear and effective writing. None of these principles is a revelation to the student of method or to the accomplished writer. But for the academic writer less focused on or less familiar with such principles, being aware of and practicing them can clear the fog from syntax, illuminate the writer's thesis and its development, and …


Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami Jan 2007

Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami

Faculty Scholarship

An earlier draft of this Article was presented at a faculty workshop at the University of Illinois College of Law. (Author's Manuscript, March 2005) This analysis of how civil society can contribute to a better system of global governance draws on the political philosophy of civil society and the comparative law of democracy. Its first part describes the civil society phenomenon in three different international organizations: the World Bank, the World Trade Organization, and the European Union. Part Two puts forward the moral principle upon which my argument rests: liberal democracy. The next part sets the stage for the discussion …


The Military Commissions Act, Habeas Corpus, And The Geneva Conventions, Curtis A. Bradley Jan 2007

The Military Commissions Act, Habeas Corpus, And The Geneva Conventions, Curtis A. Bradley

Faculty Scholarship

No abstract provided.