Law Commons^™

The Integration Game, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

No abstract provided.

Testing Lay Intuitions Of Justice: How And Why?, Paul H. Robinson

All Faculty Scholarship

When John Darley and I wrote Justice, Liability, and Blame: Community Views and the Criminal Law, our goal was not to provide the definitive account of lay intuitions of justice but rather to stimulate interest in what we saw as an important but long-term project that would require the work of many people. Having this American Association of Law Schools program is itself something toward that end and for that we thank Christopher Slobogin and Cheryl Hanna. In this brief introduction to the Symposium, let me set the stage by doing four things. Part I of this Article summarizes the …

Some Doubts About Argument By Hypothetical, Paul H. Robinson

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In his paper, Why the Successful Assassin Is More Wicked than the Unsuccessful One, Leo Katz "pick[s] up the gauntlet [Sandy] Kadish throws down" to offer a nonconsequentialist justification for giving significance to resulting harm and, in particular, to justify the common practice of punishing attempts less than the completed offense. In one sense, I may not be the ideal person to serve as critic. I am not one of those who, like Kadish and others, does not believe in the significance of resulting harm in assessing blameworthiness (people whom Katz calls the "luck- skeptics" but to whom I will …

Gender And Privacy In Cyberspace, Anita L. Allen

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No abstract provided.

Publish Or Perish, Gideon Parchomovsky

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No abstract provided.

Structuring Criminal Codes To Perform Their Function, Paul H. Robinson

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This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of …

Why Does The Criminal Law Care What The Layperson Thinks Is Just? Coercive Versus Normative Crime Control, Paul H. Robinson

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THE criminal law codification movement of the 1960s and 70s was guided by instrumentalist principles designed to reduce crime, rather than by retributivist notions of giving offenders deserved punishment. The Model Penal Code, which served as a model for nearly all of the period's code reforms, was explicit on the point: The Code's "dominant theme is the prevention of offenses" and its "major goal is to forbid and prevent conduct that threatens substantial harm." Yet, as Part I of this Article will show, even from such a staunchly instrumentalist code came a criminal law that defers to laypersons' shared intuitions …

Equality And Affiliation As Bases Of Ethical Responsibility, Geoffrey C. Hazard Jr.

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No abstract provided.

The Bitter With The Sweet: Tradition, History, And Limitations On Federal Judicial Power--A Case Study, Stephen B. Burbank

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No abstract provided.

Rationality And Responsibility, Stephen J. Morse

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No abstract provided.

Corporate Law As A Facilitator Of Self Governance, Edward B. Rock, Michael L. Wachter

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No abstract provided.

The Five Worst (And Five Best) American Criminal Codes, Paul H. Robinson, Michael T. Cahill, Usman Mohammad

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Each American jurisdiction has a criminal code. Most jurisdictions have substantially restructured and improved their codes since 1962, when the American Law Institute first promulgated its Model Penal Code. Such reform efforts are worthwhile, especially in criminal law, because many advantages flow from the thoughtful codification of criminal law rules. By compiling all criminal rules in a single comprehensive source, codification makes access to these rules easier, increasing the chance that citizens will know what the criminal law commands. A codified rule has the advantage of increased precision, which is likely to increase the uniformity of its application. Uncodified rules--or, …

"Bad For Business": Contextual Analysis, Race Discrimination, And Fast Food, Regina Austin

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No abstract provided.

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

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No abstract provided.

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

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While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …

When The Rule Swallows The Exception, Claire Oakes Finkelstein

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No abstract provided.

Introduction, Anthony J. Scirica

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No abstract provided.

Privacy-As-Data Control: Conceptual, Practical, And Moral Limits Of The Paradigm, Anita L. Allen

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No abstract provided.

Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman

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Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …

Creating And Solving The Problem Of Drug Use During Pregnancy, Dorothy E. Roberts

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No abstract provided.

Changing Structure In The Practice Of Law, Geoffrey C. Hazard Jr.

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No abstract provided.

Why The Successful Assassin Is More Wicked Than The Unseccessful One, Leo Katz

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No abstract provided.

Toward A Greener Gatt: Environmental Trade Measures And The Shrimp-Turtle Case, Howard F. Chang

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No abstract provided.

Delaware Law As Applied Public Choice Theory: Bill Cary And The Basic Course After Twenty-Five Years, William W. Bratton

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No abstract provided.

Copyright And Democracy: A Cautionary Note, Christopher S. Yoo

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Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The ""speech hierarchy"" …

Competitor Collaboration After California Dental Association, Herbert Hovenkamp

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No abstract provided.

The Real Separation In Separation Of Powers Law, Elizabeth Magill

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This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.

Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …

The Moral Exclusivity Of The New Civil Society, Dorothy E. Roberts

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No abstract provided.

The Futures Problem, Geoffrey C. Hazard Jr.

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Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem and Ortiz appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about …

A Comprehensive Wealth Tax, David Shakow, Reed Shuldiner

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Income, consumption, and wealth are all possible bases for a tax system in the United States. Scholars have specified the structure of income tax and consumption taxes, but no one has attempted to describe in detail a comprehensive wealth tax for the United States. In this paper, we begin to develop such a structure. In particular, we hypothesize that the combination of a flat rate tax on networth and a flat rate tax on earned income along with an appropriate level of exemptions, could be an attractive tax base. In order to explore the structure of a wealth tax, we …