Law Commons^™

Toward A Structural Theory Of Implicit Racial And Ethnic Bias In Health Care, Dayna Bowen Matthew

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No abstract provided.

Corporate Legacy, Andrew A. Schwartz

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Many public companies have shed takeover defenses in recent years, on the theory that such defenses reduce share price. Yet new data presented here shows that practically all new public companies--those launching their initial public offering (IPO)--go public with powerful takeover defenses in place. This behavior is puzzling because the adoption of takeover defenses presumably lowers the price at which the pre-IPO shareholders can sell their own shares in and after the IPO. Why would founders and early investors engage in this seemingly counterproductive behavior? Building on prior attempts to solve this mystery, this Article claims that IPO firms adopt …

Book Review, Peter H. Huang

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This review of Leo Katz's book, Why the Law is So Perverse, addresses three questions. First, does Katz draw the appropriate normative conclusions about legal perversities based on their connections to social choice theory? In other words, what are the legal ethics and professionalism implications of his book? Second, how does each of the legal perversities in the book follow from a particular social choice theory result? In other words, what is the precise theoretical connection between each of the legal perversities discussed and an impossibility theorem in social choice theory? Third, can we reinterpret our understanding of the …

De-Naturalizing Criminal Law: Of Public Perceptions And Procedural Protections, Benjamin Levin

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Innocence, it turns out, is a complex concept. Yet the Innocence Movement has drawn power from the simplicity of the wrong-person story of innocence, as told most effectively by the DNA cases. The purity of that story continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. . . . [I]n the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the …

Benefit Corporations: A Challenge In Corporate Governance, Mark J. Loewenstein

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Benefit corporations are a new form of business entity that is rapidly being adopted around the country. Though the legislation varies from jurisdiction to jurisdiction, most statutes are based on a model proposed and promoted by B Lab, itself a nonprofit corporation. The essence of these statutes is that, in making business judgments, the directors of a benefit corporation must consider the impact of their decisions on the environment and society. The model legislation, though, may create serious governance issues for the directors of benefit corporations that operate under these laws. This article analyzes the model legislation and identifies its …

Understanding The United States' Incarceration Rate, William T. Pizzi

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What has caused prison sentences to climb so sharply and consistently in the last four decades?

Lawyers, Loyalty And Social Change, Deborah J. Cantrell

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Fundamentally, cause lawyers engage in their work to make social change. Scholars of cause lawyering have generated a robust and rich literature considering important issues, such as what kinds of advocacy strategies best generate social change and what features of the relationship between cause client and cause lawyer are critical to an engaged and mutual relationship. But, the literature has neglected a key aspect of the cause lawyer and client relationship: whether the particular kind of loyalty that exists as between them hinders or helps in achieving social change. This Article fills that void. It first illuminates the particular features …

Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz

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In the 1960s and 1970s, American society came to the considered conclusion that if eighteen-year-olds can be drafted to fight and possibly die for their country, they should be treated as adults under the law. Thus, in 1971, the Twenty-Sixth Amendment to the United States Constitution, which lowered the voting age to eighteen from twenty one, was proposed and ratified in just three months, making it the fastest amendment in American history. The minimum age for federal and state jury service was also lowered to eighteen from twenty one. And, with regard to contract law, every state passed legislation reducing …

State Responsibility In Promoting Environmental Corporate Accountability, Lakshman Guruswamy

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No abstract provided.

Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag

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In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford, Lolita Buckner Inniss

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In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …

Marriage And Practical Knowledge, Robert F. Nagel

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No abstract provided.

The Concept Of "Less Eligibility" And The Social Function Of Prison Violence In Class Society, Ahmed A. White

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No abstract provided.

Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss

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This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …

Sensational Reports: The Ethical Duty Of Cause Lawyers To Be Competent In Public Advocacy, Deborah J. Cantrell

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This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer's commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization …

Afterthoughts From A "Buzz Killer", Sarah Krakoff

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No abstract provided.

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Sarah Krakoff

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No abstract provided.

Where There's At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

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Employment at will, the doctrine holding that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they increasingly have riddled the rule with exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of …

Statutes Of Limitations: A Policy Analysis In The Context Of Reparations Litigation, Suzette M. Malveaux

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This article discusses the underlying policy rationales for statutes of limitations and their exceptions, as demonstrated by Supreme Court precedents. This article explores limitations law in the context of a case brought by African-American survivors of the Tulsa Race Riot of 1921 who sought restitution from the local government for its participation in one of the worst race riots in American history, in violation of their constitutional and federal civil rights. Using the Tulsa case as an exemplar, this article analyzes the propriety of the case’s dismissal as time-barred, and contends that this outcome was unwarranted under precedents and failed …

Deconstructing Development, Jon H. Sylvester, Ruth E. Gordon

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The objective in this article is to construct and then deconstruct the concept of development, and to question whether development is so fundamentally flawed that it should be abandoned in favor of a post-development paradigm.

Part I constructs the theory of development, beginning with the discovery of global poverty after the Second World War. It establishes how poverty is in some respects socially contingent, and how the notion of global poverty suddenly homogenized and problematized the lives of the majority of the world's peoples. With the impending Cold War and the disintegration of colonial empires as crucial backdrops, industrialized nations …

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

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No abstract provided.

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

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This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey

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Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor's role is relatively new. Based on archival research on the papers of the New York County District Attorney's Office, "The Discretionary Power of 'Public' Prosecutors in Historical Perspective" explores the meaning of the word "public" as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave defendants' rights …

Justice For Interests Of The Poor: The Problem Of Navigating The System Without Counsel, Deborah J. Cantrell

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No abstract provided.

Does Law And Literature Survive Lawyerland?, Sarah Krakoff

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No abstract provided.

Rule Of Law And The Limits Of Sovereignty: The Private Prison In Jurisprudential Perspective, Ahmed A. White

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No abstract provided.

A Normative Analysis Of New Financially Engineered Derivatives, Peter H. Huang

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This Article analyzes whether the introduction of new derivative assets makes a society better or worse off. Because trading such non-redundant derivatives produces new distributions of income across time and over possible future contingencies, individuals can utilize such financial instruments to hedge risks not possible before the introduction of these assets. Thus, it may seem that new derivatives unambiguously benefit society. In fact, introducing sufficiently many new derivatives completes asset markets. Asset markets are complete if trading on them can attain every possible payoff pattern of wealth across time and over possible future contingencies. The first fundamental theorem of welfare …

Lies And Law, Robert F. Nagel

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No abstract provided.

Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel

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No abstract provided.

Dangers Of Monetary Commensurability: A Psychological Game Model Of Contagion, Peter H. Huang

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No abstract provided.