Law Commons^™

Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding

Working Paper Series

This chapter discusses the research on the general and specific deterrent effects of transferring juveniles for trial in adult criminal court, identifies gaps in our knowledge base that require further research, discusses the circumstances under which effective deterrence may be achieved, and examines whether there are effective alternatives for achieving deterrence other than adult sanctions for serious juvenile offenders. As a backdrop to this analysis, the chapter first examines the role of public opinion in shaping the get tough policies, and how policy makers have misunderstood and perceived support for these policies.

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

All Faculty Scholarship

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

What's Wrong With Being Creative And Aggressive?, W. Bradley Wendel

Cornell Law Faculty Publications

When I tell people that I am a law professor specializing in legal ethics, they usually have one of two reactions: “Legal ethics—that’s an oxymoron!” or “I bet you always have a lot to do.” The second reaction is the more interesting of the two, because it rightly implies that legal ethics is a fascinating field, in part because lawyers are always thinking of new ways to get into trouble. Many run-of-the-mill lawyer disciplinary cases involve simple wrongdoing, such as stealing from client funds, which does not present conceptually interesting issues. Contemporary high-profile legal ethics scandals, by contrast, are made …

The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric Feldman

All Faculty Scholarship

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material …

The Role Of International Arbitrators, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes.' Arbitration has taken on such prominence in the international context that commentators express "little doubt that arbitration is now the first-choice method of binding dispute resolution" and has "largely taken over litigation."'

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

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings …

Multicultural Perspectives On Delinquency Etiology And Intervention, Richard E. Redding, Bruce Arrigo

Working Paper Series

In this chapter, we consider the possible reasons for the overrepresentation of African-American youth in the juvenile and criminal justice systems. We review research on discrimination in the justice system and possible differences between African American and White youth in the key risk factors for delinquency that exist at the individual, family, and peer-group and neighborhood levels. Based on these findings, we provide recommendations for treatments and interventions aimed at preventing and reducing offending and justice system involvement among African-American youth.

Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper

Faculty Scholarship

"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly …

Developing Citizens, Anne Dailey

Faculty Articles and Papers

The Supreme Court has known for over a half century that the survival of our constitutional polity ultimately depends on the proper cultivation of children's hearts and minds. This idea was expressed most directly in Brown v. Board of Education, where a unanimous Supreme Court concluded that segregated schooling affects the hearts and minds of African-American schoolchildren in a way that undermines the very foundation of good citizenship. On many other occasions as well, the Justices have formulated constitutional doctrine to foster democratic skills of mind in future citizens. Yet for all the normative force of this idea, courts and …

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

Reading, Writing, And Reparations: Systematic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams

Faculty Articles and Other Publications

This Article examines reparations as a means of supporting systemic reform of public education, focusing on a recent enactment of the Virginia General Assembly, the Brown v. Board of Education Scholarship Program and Fund (Brown Fund Act). This provision seeks to remedy the state's refusal to integrate schools after the Supreme Court's decision in Brown v. Board of Education by providing scholarships to persons denied an education between 1954 and 1964, a period known as massive resistance. Under this regime, the state's executive and legislative branches colluded to develop laws that defied Brown's mandate, including authorizing the governor to close …

Toward Praxis, Emily Houh

Faculty Articles and Other Publications

This Essay, written for a 2005 symposium issue of the U.C. Davis Law Review, responds to an important question posed by the symposium organizers: What is the future of critical race feminism? In this Essay, I use a common law contractual good faith antidiscrimination claim, developed and proposed by me in a series of previously written articles, to help answer that question. While, in the past, my proposed good faith claim aimed principally to operationalize some recurring and foundational insights of critical race theory, such as the race crits' critique of the intentionality requirement in conventional antidiscrimination law, the Davis …

Still, At The Margins, Emily Houh

Faculty Articles and Other Publications

An anthology by Austin Sarat is reviewed from a critical race perspective. The book's agenda is to show how the law seeks to work in the world, particularly when, why, and how legal decisions respond to social characteristics of those making them as well as those who are subject to them. Also emphasized are the complex relations among the law's various parts (e.g., judges and jurors, police and prosecutors, appellate and trial courts). The book is organized around the law's paradoxes, purposes of the law which can be somewhat mutually exclusive. Many of the leading voices in the law and …

Forum, Donald J. Herzog

Reviews

Psst: here’s my secret wry suspicion. Political theorists are allergic to facts. They feel entitled to firm beliefs—about state-building, modernization, the rise of the bourgeoisie, you name it—because they’ve read some fancy theory books. So a lot of theory reads like a conceptual shell game, with various intoxicating abstractions shuffled about. I’m enough of a vulgar pragmatist to think that theory isn’t what you get when you leave out the facts. So I found Wahrman’s Making of the Modern Self sheer joy, from start to finish. The bottom line first: this is a mustread across the humanities and humanistic social …

A Case-Control Study Of Farming And Prostate Cancer In African-American And Caucasian Men, Tamra E. Meyer, Ann L. Coker, Maureen Sanderson, Elaine Symanski

CRVAW Faculty Journal Articles

Objective: To determine the risk of prostate cancer associated with farming by duration, recency and specific activities among African-Americans and Caucasians.

Methods: This population-based case–control study had information on farming-related activities for 405 incident prostate cancer cases and 392 controls matched for age, race and region in South Carolina, USA, from 1999 to 2001. Cases with histologically confirmed, primary invasive prostate cancer who were aged between 65 and 79 years were ascertained through the South Carolina Central Cancer Registry. Appropriately matched controls were identified from the Health Care Financing Administration Medicare Beneficiary File. Data were collected using computer-assisted telephone interviewing, …

The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine

Faculty Articles

This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …

Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin

Faculty Scholarship

On March 24, 2006, the Western New England College School of Law and School of Business jointly hosted the First Annual Academic Conference sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference capped a year of exciting developments at the Law and Business Center, which is the College's contribution to the entrepreneurship infrastructure in the greater Springfield, Massachusetts area. Economists have understood for some time that small businesses are an important engine of economic development and vitality. Across the United States, 25 million small businesses employ more than half the country's workers, create …

Six Thinking Hats For The Lorax: Corporate Responsibility And The Environment, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Treading On Hallowed Ground: Implications For Property Law And Critical Theory Of Land Associated With Human Death And Burial, Mary Clark

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Religious Liberty And The Law, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Some Observations On The Role Of Social Change On The Courts, Gerald Torres

Cornell Law Faculty Publications

No abstract provided.

Institutional Fixes Versus Fixed Institutions, Robert C. Hockett

Cornell Law Faculty Publications

A number of philosophers, policy thinkers and activists have despaired over the prospect that global institutions can bring progressive change to the international order. They advocate that those who would change things should place their hopes in global social movements rather than global institutions. This essay humbly suggests that we ought to do both. Global institutions require an active global civil society that includes social movements if they would not lose their senses of mission and purpose. Global social movements for their part require global institutions to serve as focal points for their efforts, which are otherwise threatened with diffusion …

Gloria’S Story And Guatemala’S Faith: Adulterous Concubinage, Law, And Religion, M C. Mirow

Faculty Publications

John Wertheimer, the author of “Gloria’s Story,” has produced a complex and absorbing text that skillfully guides the reader through the microhistory of Gloria’s concubinage to an enhanced appreciation of the greater legal, social, and institutional forces at play in mid-twentieth century Guatemala. Using Gloria’s story to shift into more general observations about law and society in Guatemala, Wertheimer states that laws can “affect behavior by establishing incentives and disincentives for different types of action and by reinforcing or undermining different values.”1 Wertheimer reads the legal records involving Gloria and her family to write her story from the dominant critical …

Law As Cinematic Apparatus: Image, Textuality, And Representational Anxiety In Spielberg's Minority Report, 37 Cumb. L. Rev. 25 (2006), Cynthia D. Bond

UIC Law Open Access Faculty Scholarship

No abstract provided.

Cognitive Dissonance Revisited: Roper V. Simmons And The Issue Of Adolescent Decision-Making Competence, 52 Wayne L. Rev. 1 (2006), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Against The Tide - Katrina Exposes Racial Divide, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Remarks By An Idealist On The Realism Of 'The Limits Of International Law', Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This paper is a response to Jack L. Goldsmith and Eric A. Posner, 'The Limits of International Law' (Oxford 2005), part of a symposium on the book held at the University of Georgia Law School in October 2005. The review views 'The Limits of International Law' sympathetically, and focuses on the intersection between traditional and new methodologies of international law scholarship, on the one hand, and the substantive political commitments that differing international law scholars hold, on the other. The paper notes that some in the symposium claim that the problem with 'The Limits of International Law' is that it …

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

Scholarly Works

No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

Asking The Straight Question: How To Come To Speech In Spite Of Conceptual Liquidation As A Homosexual, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud

Faculty Articles

This article argues that the discourse of viability of civil society in postcolonial polities is theoretically ungrounded, and helps to further marginalize subordinated sections of these societies. These failings result from the imprisonment of dominant social theories in Eurocentric unilinear evolutionism, an imprisonment that blinds one from the particularities of supposedly universal categories that issue from Europe's experience of modernity. Furthermore, enthusiasm for civil society ignores the truncated colonial career of modernity and the nature of the postcolonial state. In order to substantiate these propositions, the paper traces the genealogy of the concept of civil society, examines the colonial career …