Digital Commons Network^™

Honest Services After Skilling: Judicial, Prosecutorial And Legislative Responses, Govind Persad, Jessie K. Liu, Cynthia J. Robertson, Govind C. Persad

Publications

In Skilling v. United States, the U.S. Supreme Court substantially narrowed the reach of the “honest services fraud” statute, 18 U.S.C. § 1346, by holding that it applies only to “bribery and kickback schemes,” not to “undisclosed self-dealing by a public official or private employee.” Skilling v. United States, 130 S. Ct. 2896 (2010). Two companion cases also were decided the same day. See Black v. United States, 130 S. Ct. 2963 (2010); Weyhrauch v. United States, 130 S. Ct. 2971 (2010). These decisions have major significance for federal fraud prosecutions.

Exposing The Underground Establishment Clause In The Supreme Court's Abortion Cases, Justin Murray

Publications

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court's use of Establishment Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment Clause themes into the structure of its Due Process analysis. The Due Process Clause prohibits the government …

Lessons From Mazibuko: Persistent Inequality And The Commons, Daria Roithmayr

Publications

No abstract provided.

The Terrorist Informant, Wadie E. Said

Publications

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such …

Coercing Voluntariness, Wadie E. Said

Publications

No abstract provided.

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

All Faculty Scholarship

This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

Poverty Revenue: The Subversion Of Fiscal Federalism, Daniel L. Hatcher

All Faculty Scholarship

Fiscal federalism is a staple of economic theory that underlies the federal-state partnership in the nation‘s largest federal grant-in-aid programs, such as Medicaid and Title IV-E Foster Care. The theory is founded on a simple principle, the collaboration of the federal government‘s financial power and stability and state governments‘ ability to deliver services tailored to regional needs. However, the theory ignores a vast industry that has grown around the flow of federal funds. In addition to providing operational and consulting services for all aspects of government aid, this poverty industry - which usurps inherently governmental functions and is rife with …

Balancing Liberty, Dignity And Safety: The Impact Of Domestic Violence Lethality Screening, Margaret E. Johnson

All Faculty Scholarship

This Article undertakes the first ever analysis of the consequences of the justice and legal system’s extensive use of lethality assessment tools for women subjected to abuse. An increasing number of states are now requiring their police, prosecutors, civil attorneys, advocates, service providers, and court personnel to assess women in order to obtain a score that indicates the woman’s lethality risk because of domestic violence. The mandated danger assessment screen of all women subjected to violence focuses only on the risk of homicide and thereby limits the definition of what is domestic violence. In addition, the accompanying protocol for the …

The Market Reaction To Legal Shocks And Their Antidotes: Lessons From The Sovereign Debt Market, Michael Bradley, James D. Cox, Mitu Gulati

Faculty Scholarship

In October 2000 a hedge fund holding an unpaid debt claim won an enormous victory against the debtor, the Republic of Peru, through an opportunistic interpretation of the common pari passu clause by a Brussels court. This development was met by charges from policy makers and practitioners that the court's decision (its novel interpretation of the pari passu clause) would lead to a dramatic increase in the risks of holdout litigation faced by sovereign debtors. Over the ensuing years, multiple reform solutions were proposed including the revision of certain contractual terms, the filing of amicus briefs in a key case, …

The Costs Of Judging Judges By The Numbers, Marin K. Levy, Kate Stith, Jose A. Cabranes

Faculty Scholarship

This essay discredits current empirical models that are designed to “judge” or rank appellate judges, and then assesses the harms of propagating such models. First, the essay builds on the discussion of empirical models by arguing that (1) the judicial virtues that the legal empiricists set out to measure have little bearing on what actually makes for a good judge; and (2) even if they did, the empiricists’ chosen variables have not measured those virtues accurately. The essay then concludes that by generating unreliable claims about the relative quality of judges, these studies mislead both decision-makers and the public, degrade …

Price And Pretense In The Baby Market, Kimberly D. Krawiec

Faculty Scholarship

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against “baby selling” – typically defined as a prohibition against the …

Public Choice And Environmental Policy: A Review Of The Literature, Christopher H. Schroeder

Faculty Scholarship

This paper is a draft of a chapter for a forthcoming book, Research Handbook in Public Law and Public Choice, edited by Daniel Farber and Anne Joseph O'Connell, to be published by Elgar. It reviews the public choice literature on environmental policy making, first generally and then with respect to four fundamental environmental policy questions: (1) whether or not government action is warranted; (2) if it is, the scope and stringency of the government action, including the manner in which a bureaucracy will implement and enforce any statutory standards; (3) the level of government that assumes responsibility; and (4) the …

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

The Public Outrage Phenomenon & Limits On Remedying The Effect Of Implicit Racist Attitudes On Capital Charging Decisions, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Extending Due Process Protections To Unadmitted Aliens Within The U.S. Through The Functional Approach Of Boumediene, Charles Shane Ellison

Faculty Scholarship

No abstract provided.

Deradicalization: A Review Of The Literature With Comparison To Findings In The Literatures On Deganging And Deprogramming, Madeline Morris, Frances Eberhard, Jessica Rivera, Michael Watsula

Faculty Scholarship

No abstract provided.

Financing The American Newspaper In The Twenty-First Century, Richard Schmalbeck

Faculty Scholarship

No abstract provided.

What Are We Doing To The Children?: An Essay On Juvenile (In)Justice, Michael E. Tigar

Faculty Scholarship

No abstract provided.

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …

Proposition 13 And The California Fiscal Shell Game, Colin H. Mccubbins, Mathew D. Mccubbins

Faculty Scholarship

We study the effects of California’s tax and expenditure limitations, especially Proposition 13. We find that Proposition 13 was indeed effective at reducing both ad valorem property taxes per capita and total state and local taxes per capita, at least in the short run. We further argue that there have been unintended second- ary effects that have resulted in an increased tax burden, undermining the aims of Proposition 13. To circumvent the limits imposed by Proposition 13, the state has drastically increased nonguaranteed debt, has privatized the public fisc, and has devolved the authority to lay and collect taxes and …

The Rule Of Law Unplugged, Daniel B. Rodriguez, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

The "Rule of Law" is a venerable concept, but, on closer inspection, it is a complex admixture of positive assumptions, inchoate political and legal theory, and occasionally wishful thinking. Although enormous investments have been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries are often unclear about what they are transplanting and why they are doing so. The concept of rule of law has become unplugged from theories of law. Scholars clearly have more work to do in understanding the rule of law and designing institutions to …

Making Mountains Of Debt Out Of Molehills: The Pro-Cyclical Implications Of Tax And Expenditure Limitations, Mathew D. Mccubbins, Ellen Moule

Faculty Scholarship

This paper presents evidence that property tax limits have detrimental effects on state and local revenues during recessions. Property tax limits cause states to rely on income–elastic revenue sources, such as the income tax or charges and fees. Greater reliance on these revenue sources results in greater revenue declines during economic downturns. We present analysis of time–series, cross–sectional data for the U.S. states for each of these conclusions. Our results suggest that states would have fewer and more modest financial problems during economic downturns if they did not enact property tax limitations.

Brief Of Amici Curiae Of Professors Of History, Political Science, And Law In Support Of Petitioner, Kerry Abrams

Faculty Scholarship

No abstract provided.

The Substance Of False Confessions, Brandon L. Garrett

Faculty Scholarship

A puzzle is raised by cases of false confessions: How could an innocent on convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said …

Leveraging A Library Collection Through Collaborative Digitization Ventures, Femi Cadmus, Fred Shapiro

Faculty Scholarship

No abstract provided.

Did Secession Really Die At Appomattox?: The Strange Case Of U.S. V. Jefferson Davis, Cynthia Nicoletti

Faculty Scholarship

No abstract provided.

Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

No abstract provided.

International Soft Law, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained.

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of …

The Confrontation Clause And The Hearsay Rule: What Hearsay Exceptions Are Testimonial?, Paul W. Grimm, Jerome E. Deise, John R. Grimm

Faculty Scholarship

No abstract provided.

What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell

Publications

Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King's religious values were not abstracted …