Digital Commons Network^™

New Rules For Promissory Fraud, Gregory Klass, Ian Ayres

Georgetown Law Faculty Publications and Other Works

This article summarizes the authors’ recommended reforms to the law of promissory fraud. These recommendations are presented as a Draft Prestatement of the Law of Insincere Promising. The basic propositions of the Prestatement are taken, with some modification, from the authors’ book, Insincere Promises: The Law of Misrepresented Intent (2005). This article adds extensive comments, in the style of the Restatements, and a prose introduction identifying three reforms we deem most important. First, courts should drop their insistence that every promise represents an intent to perform, and treat that representation instead as a default. Second, courts faced with claims of …

Reflections On Scienter (And The Securities Fraud Case Against Martha Stewart That Never Happened), Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This paper considers what research in cognitive psychology and behavioral economics has to say about one of the basic "state of mind" constructs in the law of fraud: scienter. It takes a clinical approach, examining the securities fraud case that never happened against Martha Stewart. In granting a judgment of acquittal in Stewart's favor on the securities fraud charge, the court seemingly misunderstood the law of scienter, which turns on awareness rather than purpose. But that simply provides an opportunity to think about what awareness means in the context of financial transactions. From publicly available sources, interesting inferences can be …

Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law's "Duty Of Care As Responsibility For Systems", Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Revisiting section 3.4.2 of Clark's Corporate Law ('Duty of Care as Responsibility for Systems") reminds us, however, that the internal controls story actually goes back many decades, and that many of the strategic issues that are at the heart of section 404 have long been contentious. My Article will briefly update Clark's account through the late 1980s and 1990s before returning to Sarbanes-Oxley and rulemaking thereunder by the SEC and the newly created Public Company Accounting Oversight Board ("PCAOB"). My main point builds on one of Clark's but digs deeper. Internal controls requirements, whether federal or state, are incoherent unless …

Unitariness And Myopia: The Executive Branch, Legal Process And Torture, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

What promotes legality on the part of government under strain? This Article looks to the role of intra-executive processes in facilitating well-reasoned, legitimate conclusions on questions like the one addressed in this symposium: What are the legal authorities and limits governing coercive interrogation tactics? Admittedly, even the best legal processes are no guarantee of good substantive outcomes. Many critics would disagree with the substance of the executive's August 1, 2002, legal position on coercive interrogation no matter how it was derived. And even were all the best processes faithfully adhered to in developing the government's legal position on torture, it …

Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

As Judge Messitte's essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given …

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and …

Landscaping The "Femme-Jardin" In Despstre's Erotic Trilogy, Anna Kristen Lokowich

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques …

Infant Safe Haven Laws: Legislating In The Culture Of Life, Carol Sanger

Faculty Scholarship

This Article analyzes the politics, implementation, and influence of Infant Safe Haven laws. These laws, enacted across the states in the early 2000s in response to much-publicized discoveries of dead and abandoned infants, provide for the legal abandonment of newborns. They offer new mothers immunity and anonymity in exchange for leaving their babies at designated Safe Havens. Yet despite widespread enactment, the laws have had relatively little impact on the phenomenon of infant abandonment. This Article explains why this is so, focusing particularly on a disconnect between the legislative scheme and the characteristics of neonaticidal mothers that makes the use …

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

The Sympathetic Discriminator: Mental Illness, Hedonic Costs, And The Ada, Elizabeth F. Emens

Faculty Scholarship

Social discrimination against people with mental illness is widespread. Treating people differently on the basis of mental illness does not provoke the same moral outrage as that inspired by differential treatment on the basis of race, sex, or even physical disability. Indeed, many people would freely admit preferring someone who does not have a mental illness as a neighbor, dinner party guest, parent, partner, or person in the next seat on the subway. Moreover, more than ten years after the Americans with Disabilities Act (the "ADA" or "Act") expressly prohibited private employers from discriminating on the basis of mental, as …

Who's Afraid Of The Precautionary Principle?, Robert V. Percival

Pace Environmental Law Review

No abstract provided.

Constituting Fundamental Environmental Rights Worldwide, James R. May

Pace Environmental Law Review

No abstract provided.

Who's Who: Exploring The Discrepancy Between The Methods Of Defining African Americans And Native Americans, Keneisha M. Green

American Indian Law Review

No abstract provided.

Developing A School Based Science Curriculum: Teachers' Work As Language Work, Jennifer Ann Barnett

Theses: Doctorates and Masters

While it is widely recognised that language is consequential in teachers' work within the classroom, this thesis argues that it is also consequential in their curriculum development work outside the classroom. The study takes a phenomenological approach based in a single school, and the key data sources are transcripts of teachers' meetings held to develop a new curriculum framework for their junior secondary science classes. The broad aims of the study are to better understand the ways in which language is consequential in that work, to consider the implications these have for understanding school based curriculum development, and to identify …

The Relationship Between Individual Differences, Training In Second Language Aural Comprehension Strategies And Performance In Year 9 Indonesian Language Students, Wendy L. Young

Theses: Doctorates and Masters

There are three distinct but interrelated parts to this research. The first part measures language learning strategies (LLS) and other individual differences (IDs), as well as the relationship between LLS and the other IDs of year 9 students of Indonesian as a foreign language (L2). The second part measures differences in use of LLS between the control and experimental groups, and then over time. The third part measures the effects of training in LLS on listening comprehension. The study had three main aims. One was to determine the relationship between participants' LLS use and their language learning background, affective factors, …

Managing Employees Dependent Care Challenges: Human Resource Professionals' Perspectives, Jennifer R. Bradley, Katherine J. Huffstutter, Eileen M. Brennan, Julie M. Rosenzweig

School of Social Work Faculty Publications and Presentations

PDF version of a presentation given at the 86th annual meeting of the Western Psychological Association, Palm Springs, CA.

The Contribution Of Socio-Economic Status And Maturity On Injury Risk In Youth Soccer, Kristin Noel Stoneberg

Dissertations and Theses @ UNI

Soccer is considered the universal sport as it is played by youth in nearly every nation around the world. With such a large number of children involved in soccer, injury is inevitable. Many possible risk factors have been identified, but very little current data address other risk factors such as maturity and socio-economic status (SES). The purpose of this study was to determine injury rates and the association between injury, maturity, socio-economic status, and other risk factors in youth soccer players. There were 440 youth soccer players ages 6-18 years involved in the cohort sample and a sub-sample of 102 …

Job Satisfaction Of Iowa Public School Principals, Boris Sodoma

Dissertations and Theses @ UNI

In recent decades, job satisfaction has been the theme of numerous studies in both public and private organizations. As some researchers report, the examinations into the job satisfaction of school administrators have been frequently overlooked. Little attention has been given to job satisfaction among public school principals serving at elementary and secondary levels.

On a daily basis a wide variety of demands are being placed on principals. The legislature and taxpayers demand more services, industry expects competent workers, parents insist that social issues ought to be addressed, and the public wants achievement scores to improve. As a result, principals are …

Iep Team Decision-Making Process In The Reintegration Of Special Education Students: A Qualitative Analysis Of Exiting Decisions, Kenneth G. Hayes

Dissertations and Theses @ UNI

The purpose of this study was to take an in-depth look at the decision-making process that an IEP team goes through regarding the reintegration of special education students. In particular, this study looked at the exiting criteria used by an IEP team in determining whether or not a student should be exited back into the general education classroom prior to graduation. Furthermore, using Raven's (1992) Power/Interaction Model as the theoretical framework, this study also looked at the beliefs, perceptions, and attitudes of an IEP team that were adopted through the processes involved in exiting students from special education programs.

The …

Trends In Family-Centered Early Intervention, Jody Lee Albertson

Dissertations and Theses @ UNI

Family-centered early intervention services have been evolving for quite some time, and the role of the family in intervention for children with disabilities has changed drastically. Part C of the Individuals with Disabilities Education Act (IDEA) mandated the family-centeredness of early intervention services, which is evident in the services and supports a family receives, the Individualized Family Services Plan document, and service coordination activities. The Office of Special Education Programs (OSEP) then conducts compliance monitoring to gauge whether states are in compliance with IDEA. State monitoring reports are available to the public online.

The purpose of this study was to …

Voicing Women's Resistance Within Religious Studies: An Interrogation Of Rational Choice Theory, Anne E. Tedore

Dissertations and Theses @ UNI

While women are generally oppressed within hierarchical and patriarchal religious traditions, researchers continue to detail the ways women negotiate power and construct meaning in religion. Within this thesis I interrogate the use of rational choice theory, a prominent theory utilized to describe religious behavior, as a framework for the analysis of women's religious experience and agency. I compare two texts, Brenda Brasher's Godly Women: Fundamentalism and Female Power and Jeanette Rodriguez's Our Lady of Guadalupe: Faith and Empowerment Among Mexican-American Women, in order to illustrate the inadequacies of rational choice theory in describing the religious experiences of marginalized women. I …

Perceived Weight Of Color : Its Effect On Balance Evinced By Scanning Strategies, Melissa June Dolese

Theses, Dissertations and Culminating Projects

The present study recorded the eye movements of individuals as they scanned reproductions of the original and altered versions of abstract paintings by Piet Mondrian. These artworks were composed of different sized colored areas made up of the primary colors, red, blue, or yellow. Each original consisted of vertical and horizontal black lines extending to the edge of the pictorial field or to another black line and three solid color areas on a white background. Changing the color of the largest colored area from red to either blue or yellow created the altered versions. It was hypothesized that altering the …

Theory Of Mind And Deception Ability, Amanda Johnson

Theses, Dissertations and Culminating Projects

Social based strategies such as deception may require a theory of mind. Individuals with developmental disorders have deficits in deception that may be related to deficits in ToM. Individuals in the general population may have similar deficits. Participants were asked to rate the believability of videotaped actors. We found an inverse relationship between autistic and schizotypal tendencies and deception detection. Increased self-awareness scores were related to increased confidence when determining the believability of an actor. Results suggest deception detection is related to both self-awareness and Theory of mind.

Financial Information Failure And Lawyer Responsibility, Steven L. Schwarcz

Faculty Scholarship

When public firms collapse amid allegations of financial information failure-such as misleading financial statements-society looks beyond the role of accountants to see who else should be held responsible. Lawyers advising the firm increasingly are charged with responsibility, perhaps because modern financial and business complexities, as well as rules that make accounting determinations turn in part on legal conclusions, have blurred the boundary between legal and accounting duties. Lawyers should want to satisfy this responsibility not only to avoid liability but also to safeguard their reputation and integrity. The difficult question, which this article attempts to answer, is what that responsibility …

Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman

Faculty Scholarship

This article first sets out the child welfare system's assumption that there is a child welfare exception to the Fourth Amendment and then describes the ways it is used to facilitate child maltreatment investigations. It goes on to analyze the validity of this assumption according to current Fourth Amendment doctrine including under the special needs administrative exception. (This analysis may be particularly useful to both family/children's law scholars as well as to Fourth Amendment scholars, as it examines all of the state and federal appellate cases addressing the subject, and provides a most up-to-date evaluation of the Supreme Court's special …

Privacy, Power, And Humiliation At Work: Re-Examining Appearance Regulation As An Invasion Of Privacy, Catherine Fisk

Faculty Scholarship

Workplace rules that deny fundamental aspects of personal autonomy are (in many states) and should be actionable invasions of privacy. Perhaps nowhere is the invasion more keenly felt than when an employer demands, under penalty of forfeiting one's livelihood, that one dress or alter one's physical appearance in a way that one finds offensive, degrading, inappropriate, or alien. Clothes and appearance are constitutive of how we see and feel about ourselves and how we construct ourselves for the rest of the world to see. Conventions of appearance for women and men, for racial, ethnic, and religious groups express and observe …

Some Fundamental Jurisdictional Conceptions As Applied In Judgment Conventions, Ralf Michaels

Faculty Scholarship

The law of jurisdiction and of the recognition and enforcement of foreign judgments is confused. So is the debate about it. Basic concepts, even that of jurisdiction, have ambiguous meaning. Misunderstandings, most prominent in the failure to conclude a worldwide judgments convention at the Hague, are the consequence. This article tries to bring conceptual clarity to the field through an analysis of concepts and relations. The article first shows that jurisdiction as a requirement for the rendering of a decision (direct jurisdiction) and jurisdiction as a requirement for the decision's enforceability elsewhere (indirect jurisdiction), are logically independent from each other. …

The Promise (And Limits) Of Neuroeconomics, Jedediah Purdy

Faculty Scholarship

Neuroeconomics - the study of brain activity in people engaged in tasks of reasoning and choice - looks set to be the next behavioral economics: a set of findings about how people make decisions that casts both light and doubt on widely accepted premises about rationality and social life. This essay explains what is most exciting about the new field and lays out some specific research tasks for it. By enabling researchers to view the mind at work, neuroeconomics calls into question the value of a methodological premise of twentieth-century empiricism, sometimes called positivism or behaviorism: that people are black …

The Oligopolistic Gatekeeper: The U.S. Accounting Profession, James D. Cox

Faculty Scholarship

The accounting and financial scandals the last few years not only produced the Sarbanes-Oxley Act, but have prompted a good deal of debate what forces led to so many dramatic reporting failures. This article is the only work to examine how the competitive structure of the accounting industry contributed to its movement from being a profession to a business that performed auditing. In the article we find not only documentation that the accounting profession is an oligopoly but a sound explanation of how its poor structure contributes significantly to negative social welfare. Throughout the article provides rich support of data …