Digital Commons Network^™

Framing Frivolous Litigation: A Psychological Theory, Chris Guthrie

Vanderbilt Law School Faculty Publications

This Article uses an often-overlooked component of prospect theory to develop a positive theory of frivolous or low-probability litigation. The proposed Frivolous Framing Theory posits that the decision frame in frivolous litigation induces risk-seeking behavior in plaintiffs and risk averse behavior in defendants. Because plaintiffs in frivolous litigation have a greater tolerance for risk than the defendants they have sued, plaintiffs in frivolous litigation have "psychological leverage" in settlement negotiations, which is likely to lead to plaintiff-friendly settlements or bargaining impasse. This in turn, suggests that reformers concerned about frivolous litigation should target reform efforts at plaintiffs' decisionmaking in frivolous …

The First Statewide Study Circles On Education In America: Participant Perceptions Of Study Circles In Two Arkansas Communities, Jo Sykes Chesser

Theses and Dissertations

Parents and other community citizens were empowered in educational change in two Arkansas communities through a process of participative decision making. The study circle, begun at Chautauqua in 1874, proved to be a new communication process for school-to-community relationships. Arkansas Friends for Better Schools, one of two state sponsors of the 1998 'Calling the Roll: Study Circles for Better Schools,' cooperated with Study Circles Resource Center and Southwest Educational Development Laboratory to implement the Study Circles program on education in five Arkansas communities in the fall of 1998. Superintendents and School Boards endorsed the program; community coordinators organized study circle …

Forty Years And Five Nays--The Nays Have It: Morrison's Blurred Political Accountability And The Defeat Of The Civil Rights Provision Of The Violence Against Women Act, Alberto B. Lopez

Articles

No abstract provided.

Assessing The Practicality And Constitutionality Of Alaska's Split-Recovery Punitive Damages Statute, Scott Dodson

Faculty Publications

In 1997, Alaska responded to its reputation for unusually high punitive awardsby amending its punitive damages statuteto require that 50% of any punitive damages award be deposited into the general fund of the state.Such “split-recovery” statutes attempt to reduce some of the plaintiff's windfall by allocating part of the punitive award to the state.Although the plaintiff shares in the award to compensate her for bringing the punitive claim in the first place,the state receives the balance to use for the public benefit.This Note evaluates the practicality and constitutionality of Alaska’s split- recovery statute. Part I reviews the nature and purpose …

Negotiating Gender: A Comparison Of Rape Laws In Canada, Finland, And Pakistan, Danette C. Cashman

Dalhousie Journal of Legal Studies

In this paper, I analyze and compare the definition of rape in three different legal and sexual cultures: Finland, Pakistan, and Canada. Ultimately, it is an attempt to release the current feminist discourse from the straightjacket of theoretical essentialism. In many ways, this work represents three separate undertakings, which are themselves self- contained and self-defining. The common thread that links them, however, is the way in which the law of rape serves as a site of gender negotiation. In each case, the way in which the question of rape is framed, understood, and negotiated is a product of the legal …

A New Conception Of Wilful Blindness: The Supreme Court Of Canada's Decision In R. V. Sansregret, Mark Mcelman

Dalhousie Journal of Legal Studies

This paper will proceed in four parts. Part I will consist of a brief summary of current jurisprudence surrounding the doctrine of mens rea, focusing on the debate concerning whether the imposition of criminal liability requires a subjective or objective model of fault. Part II will present the basic epistemological ideals that will form the basis of subsequent analysis. Part III will bring into focus the epistemological elements of the offence of sexual assault. Part IV will demonstrate how a new doctrine of wilful blindness might be employed by the courts, in cases of sexual assault.

Duty To Rescue Through The Lens Of Multiple-Party Sexual Assault, Renu Mandhane

Dalhousie Journal of Legal Studies

The lack of culpability for bystanders fails to capture the reality of the situation for sexual assault victims. It is probable that the presence of bystanders causes further psychological harm to the victim. Yet, the law allows bystanders to watch as a woman is dehumanized free from any obligation to help the victim. The lack of culpability for voyeurs is morally reprehensible and suggests that traditional sexual assault analysis is inadequate for dealing with cases of multiple-party sexual assault. It is submitted that reform within the Criminal Code is necessary to ensure culpability for such morally repugnant acts. One solution …

Negotiating Gender: A Comparison Of Rape Laws In Canada, Finland, And Pakistan, Danette C. Cashman

Dalhousie Journal of Legal Studies

In this paper, I analyze and compare the definition of rape in three different legal and sexual cultures: Finland, Pakistan, and Canada. Ultimately, it is an attempt to release the current feminist discourse from the straightjacket of theoretical essentialism. In many ways, this work represents three separate undertakings, which are themselves self- contained and self-defining. The common thread that links them, however, is the way in which the law of rape serves as a site of gender negotiation. In each case, the way in which the question of rape is framed, understood, and negotiated is a product of the legal …

A New Conception Of Wilful Blindness: The Supreme Court Of Canada's Decision In R. V. Sansregret, Mark Mcelman

Dalhousie Journal of Legal Studies

This paper will proceed in four parts. Part I will consist of a brief summary of current jurisprudence surrounding the doctrine of mens rea, focusing on the debate concerning whether the imposition of criminal liability requires a subjective or objective model of fault. Part II will present the basic epistemological ideals that will form the basis of subsequent analysis. Part III will bring into focus the epistemological elements of the offence of sexual assault. Part IV will demonstrate how a new doctrine of wilful blindness might be employed by the courts, in cases of sexual assault.

Dc Consortium Of Legal Service Providers: Legal Services 2000 Symposium, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

My main point is to urge you to the see what is possible in the way of what I might call a public health approach to lawyering for the poor. In a public health approach you find something that has polluted the river and you clean it up at its source instead of just treating its victims one by one. In legal and societal terms, when we are discussing why so many children are growing up poor and dying a slow death of disappointment, the challenge is to think about it in a public health way. Of course we cannot …

Social Justice Collaboratives: Multidisciplinary Practices For People, Louise G. Trubek, Jennifer J. Farnham

Clinical Law Review

Multidisciplinary practices (MDPs) are a big item in legal news. State and national professional associations as well as scholars are preoccupied with the challenges to traditional legal practice. The push to revise legal institutions to allow expansion of lawyer-nonlawyer practices stems from the rapid growth and importance of large business consultancies. MDPs, however, are also an important development in reenvisioning legal practice for low and moderate income people. We are in a period of experimentation on how to provide assistance to people in dealing with law and legal institutions. There is a flowering of academic writing, conferences, and practitioner accounts …

Clients Don't Take Sabbaticals: The Indispensable In-House Clinic And The Teaching Of Empathy, Philip M. Genty

Clinical Law Review

After almost 12 years in law teaching, I approached my first sabbatical with a single goal: to free myself from cases. At that time my clinic clients were primarily parents who were involved in family court proceedings in which they were trying to preserve their parental rights and get their children out of the foster care system. Such cases are emotionally draining for both the client and the lawyer. Thus, while I welcomed the chance to have a semester off from teaching and attending faculty and committee meetings, I felt that I needed a break from the demands of lawyering …

When Can A Defendant Challenge His Acca Sentence On The Basis That His Prior State Convictions Were Unconstitutional?, Michael O'Hear

Faculty Publications

No abstract provided.

Course Schedule Spring 2000, William & Mary Law School

Course Information

No abstract provided.

Why Should The Prosecutor Get The Last Word?, John B. Mitchell

Faculty Articles

This article examines reasons the prosecutor should make the closing arguments in the United States. It also examines the importance of closing arguments; the advantages of going first and the scientific bases of primacy; and the advantages of rebuttal.

Silencing Culture And Culturing Silence: A Comparative Experience Of Centrifugal Forces In The Ethnic Studies Curriculum, Steven W. Bender

Faculty Articles

Using the metaphor of silencing, Professor Margaret Montoya documents the irrelevance of race, gender, and socio-historical perspectives both in legal education and, more broadly, in legal discourse. Although others have invoked this metaphor, Professor Montoya's charting of the physical, rather than merely metaphorical, space of silence moves beyond this legal literature in several respects. Viewing silence not just as dead space, Professor Montoya enlivens and colors silence and other nonverbal aspects of communication as positive cultural traits. She demonstrates how silence can be used as a pedagogical tool (a centrifugal force) in the classroom and in client interviews to bring …

Confronting The Limits Of Gay Hate Crimes Activism: A Radical Critique, Dean Spade, Craig Willse

Faculty Articles

Questioning the emancipatory potential of hate crimes activism for sexual and gender non-normative people, this paper outlines the limits of criminal justice remedies to problems of gender, race, economic and sexual subordination. The first section considers some of the positive impacts of hate crimes activism, focusing on the benefits of legal "naming" for disenfranchised constituencies seeking political recognition. In the next section the authors outline the political shortcomings and troubling consequences of hate crimes activism. First, they examine how hate crimes activism is situated within a "mainstream gay agenda," a term they use to designate the set of projects prioritized …

Not In Front Of The Children: Prohibition On Child Custody As Civil Branding For Criminal Activity, Deborah Ahrens

Faculty Articles

This piece identifies and explores a trend in statutes and caselaw towards treating criminal behavior as a per se or presumptive bar to child custody, reading this development through the lens of the modern criminal sanctions literature.

The Importance Of Being Biased, Anthony M. Dillof

Michigan Law Review

The war against bias crimes is far from finished. In contrast, the battle over bias-crime laws is largely over. Bias-crime laws, as commonly formulated, increase the penalties for crimes motivated by bias. The Supreme Court has held that such laws do not violate the First Amendment. Virtually every state has enacted some sort of biascrime law. Even the federal government, which may consider itself without power to enact a general bias-crime law, has made bias a sentence-aggravating factor for the range of federal criminal offenses. Bias-crime laws thus are an established feature of the legal landscape. Against this background, Frederick …

Policing Women: Moral Arguments And The Dilemmas Of Criminalization., Naomi R. Cahn

GW Law Faculty Publications & Other Works

This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of motherhood to the criminalization of prostitution. This policing may be through the criminal law, civil law, or more subtly, through cultural attitudes that devalue women's work yet simultaneously encourage women to do that work. Hence, I argue that in order to sensitize, reform, and change the criminal justice system, it is critical to consider women's needs.

This essay also pays special attention to the impact of the criminal justice system on children. Specifically, I examine the …

Cautious Skepticism About The Benefit Of Adding More Formalities To The Manual For Courts-Martial Rule-Making Process: A Response To Captain Kevin J. Barry, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In Modernizing the Manual for Courts-Martial Rule-Making Process: A Work in Progress, 165 Mil. L. Rev. 237 (2000), Captain Kevin J. Barry, U.S. Coast Guard (Retired), advances seven specific proposals for improving the methods by which the procedural and evidentiary rules for courts-martial are made. This article addresses Captain Barry-s proposals. On the whole, none of the proposals is radical or dangerous. Indeed, each is closely analogous to procedures in the federal civilian criminal justice system. In addition, no insurmountable legal obstacles would prevent their adoption. Yet, closer inspection suggests that, in light of all the progress that already has …

Therapeutic Jurisprudence In The Appellate Arena, David B. Wexler

Seattle University Law Review

In this Introduction, I will briefly summarize Des Rosiers' Court Review article, entitled From Telling to Listening: A Therapeutic Analysis of the Role of Courts in Minority-Majority Conflicts, placing it in a framework that transcends minority-majority conflicts and encourages discussion regarding the use of therapeutic jurisprudence by appellate tribunals. My brief summary is followed by a series of comments that have the potential of launching a refreshing line of inquiry into the appellate process, opinion writing, and the formulation of legal doctrine.

The Ethics Of Advocacy For The Mentally Ill: Philosophic And Ethnographic Considerations, Bruce A. Arrigo, Christopher R. Williams

Seattle University Law Review

In this Article, we critically address several philosophical underpinnings of ethical decision-making that impact persons with psychiatric disorders. We focus our attention, however, upon an admittedly limited target area. Thus, we canvass a select number of significant issues that pose unique problems for humanity. The purpose of these excursions is that of reflection. In brief, we will speculatively examine: (1) the relationship between human rights and the law; (2) the relationship between mental illness and the law (i.e. the rights of the mentally ill); (3) the ethics of involuntary confinement (i.e., taking away and giving back rights to the mentally …

Advocacy Of The Establishment Of Mental Health Specialty Courts In The Provision Of Therapeutic Justice For Mentally Ill Offenders, Leroy L. Kondo

Seattle University Law Review

This Article explores the establishment of mental health courts as a partial solution to the perplexing societal problem that relegates mentally ill offenders to a "revolving door" existence in and out of prisons and jails.This inescapable situation results from a paucity ofeffective humanitarian policies, laws, and procedures for treating such medically disordered defendants. The establishment of mental health specialty courts is investigated as a potential means of addressing the complex legal issues and psycho-sociological problems faced by the judicial system in dealing with mentally ill offenders.

Therapeutic Jurisprudence In The Appellate Arena: Judicial Notice And The Potential Of The Legislative Fact Remand, A.J. Stephani

Seattle University Law Review

This Article begins with a modest objective and ends with an ambitious one. First, it asserts that appellate courts are an appropriate forum for considering the therapeutic impact of the law strand of therapeutic jurisprudence (TJ) scholarship. TJ's character as a "field of social inquiry" is especially suited to the appellate courts' task of formulating new rules of law and choosing among competing policy objectives when resolving opposing normative principles.

A Presumption Of Innocence, Not Of Even Odds, Richard D. Friedman

Articles

Now I know how the Munchkins felt. Here I have been, toiling in the fields of Evidenceland for some years, laboring along with others to show how use of Bayesian probability theory can assist in the analysis and understanding of evidentiary problems.' In doing so, we have had to wage continuous battle against the Bayesioskeptics-the wicked witches who deny much value, even heuristic value, for probability theory in evidentiary analysis.2 Occasionally, I have longed for law-and-economics scholars to help work this field, which should be fertile ground for them.3 So imagine my delight when the virtual personification of law and …

The State Of Utah V. Miguel Gaxiola : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Brief of Appellant

Utah V. Curtis Garfield : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

BRIEF OF APPELLANT Appeal from Judgments of the Fourth Judicial District Court for Utah County, Honorable Maurice Harding and Allen B. Sorensen, Judges

State Of Utah V. Paul Christopher Allen : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from Order denying Defendant's Motion for New Trial entered May 16, 2000, in Second District Court, the Honorable Glen R. Dawson, presiding

State Of Utah V. Lance Michael Weeks : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

REPLY BRIEF OF PETITIONER ON CERTIORARI REVIEW