Law Commons^™

Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Dna And Due Process, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court in District Attorney's Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not "constitutionalize the issue" by announcing an unqualified freestanding right, Chief Justice Roberts's majority opinion proceeded to carefully fashion an important, …

How We Lost The High-Tech War Of 2020: A Warning From The Future, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Iqbal And Empathy, Darrell A. H. Miller

Faculty Scholarship

This Essay argues that empathy does and should play an important, albeit limited role, in a judge’s decision making process. Specifically, empathy is essential for making correct, principled, and unbiased judgments, because empathy is one of the few means we have to understand human motivation. Empathy is a crucial cognitive mechanism that can help compensate for common cognitive bias. As such, empathy, appropriately restricted, should be an accepted and meaningful tool for judges to use in evaluating the sufficiency of complaints, especially as they relate to Iqbal’s plausibility pleading standard.

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 …

The Blind Leading The Blind: Who Gets Polling Information And Does It Improve Decisions?, Cheryl Boudreau, Mathew D. Mccubbins

Faculty Scholarship

We analyze whether and when polls help citizens to improve their decisions. Specifically, we use experiments to investigate 1) whether and when citizens are willing to obtain polls and 2) whether and when polls help citizens to make better choices than they would have made on their own. We find that citizens are more likely to obtain polls when the decisions they must make are difficult and when they are unsophisticated. Ironically, when the decisions are difficult, the pollees are also uninformed and, therefore, do not provide useful information. We also find that when polls indicate the welfare-improving choice, citizens …

Making Talk Cheap (And Problems Easy): How Legal And Political Institutions Can Facilitate Consensus, Cheryl Boudreau, Mathew D. Mccubbins, Daniel B. Rodriguez, Nicholas Weller

Faculty Scholarship

In many legal, political, and social settings, people must reach a consensus before particular outcomes can be achieved and failing to reach a consensus may be costly. In this article, we present a theory and conduct experiments that take into account the costs associated with communicating, as well as the difficulty of the decisions that groups make. We find that when there is even a small cost (relative to the potential benefit) associated with sending information to others and/or listening, groups are much less likely to reach a consensus, primarily because they are less willing to communicate with one another. …

The Dilemma Of Direct Democracy, Craig M. Burnett, Elizabeth Garrett, Mathew D. Mccubbins

Faculty Scholarship

The dilemma of direct democracy is that voters may not always be able to make welfare- improving decisions. Lupia’s seminal work has led us to believe that voters can substitute voting cues for substantive policy knowledge. Lupia, however, emphasized that cues were valuable under certain conditions and not others. In what follows, we present three main findings regarding voters and what they know about California’s Proposition 7. First, much like Lupia reported, we show voters who are able to recall endorsements for or against a ballot measure vote similarly to people who recall certain basic facts about the initiative. We …

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Faculty Scholarship

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They …

Unstandard Standardization: The Case Of Biology, Arti K. Rai

Faculty Scholarship

How applicable are the approaches adopted by information and communication technology standards-setting organizations to biological standards? Most engineering-based industries construct products from standard, well understood components. By contrast, despite the early attachment of the moniker “genetic engineering” to biotechnology, standardization in the biological sciences has been relatively rare.

Responsible Sovereign Lending And Borrowing, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

There are three reasons for attempting to reach a common understanding of the responsibilities of sovereign borrowers and their lenders. First, the flow of capital to sovereign debtors is exceptionally important to the world economy. Industrialized countries rely on it to finance their budget deficits, these days to a breathtaking extent. Developing countries need it to develop. Misbehaviour, either by the sovereign debtors or by the creditors, destabilizes this key component of the international financial system, making credit less available and more costly.

Second, sovereign finance is uniquely unforgiving of mistakes. Unlike corporate or personal debtors, sovereigns do not have …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Leverhulme Lecture: The Future Of Securitization, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 11, 2010, the third of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University.

The securitization of subprime mortgage loans is widely viewed as a root cause of the financial crisis. This lecture balances the costs and benefits of securitization, focusing on what went wrong and on what needs to be fixed to curtail securitization’s abuses and make it viable again as an important financing tool. Finally, the lecture examines alternatives to securitization, focusing on covered bonds and comparing and contrasting covered bonds and securitization.

Leverhulme Lecture: Regulating Complexity In Financial Markets, Steven L. Schwarcz

Faculty Scholarship

Lecture given November 9, 2010, the second of three delivered by Prof. Schwarcz as Leverhulme Visiting Professor of Law, Oxford University.

Complexity is the greatest challenge to 21st Century financial regulation, having the potential to impair markets and investments in several interrelated ways. Furthermore, complexity can cause failures that individual market participants cannot, or will not have incentive to, remedy. These failures are driven by information uncertainty, misalignment of interests and incentives among market participants, and nonlinear feedback and tight coupling that result in sudden unexpected market changes. These are the same types of failures that engineers have long faced …

Debt-Financed Consumption And A Hybrid Income-Consumption Tax, Lawrence A. Zelenak

Faculty Scholarship

The debate between proponents of income taxation and proponents of consumption taxation has focused almost exclusively on the differing treatment of savings under the two tax bases. This is odd, given that income and consumption tax bases also differ in their treatment of debt-financed consumption. This Essay addresses the largely-ignored question of the taxation of debt-financed consumption. It contends that a strong case can be made in favor of a hybrid income-consumption tax base under which taxation is triggered by the earlier of consumption or income, so that both debt-financed consumption and saved income are included in the tax base. …

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 …

Happiness Research And Cost-Benefit Analysis, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

A growing body of research on happiness or subjective well-being (SWB) shows, among other things, that people adapt to many injuries more rapidly than is commonly thought, fail to predict the degree of adaptation and hence overestimate the impact of those injuries on their SWB, and, similarly, enjoy small or moderate rather than significant changes in SWBg in response to significant changes in income. Some researchers believe that these findings pose a challenge to cost-benefit analysis, and argue that project evaluation decision-procedures based on economic premises should be replaced with procedures that directly maximize subjective well-being. This view turns out …

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

One Student’S Thoughts On Law School Clinics, Jeffrey Ward

Faculty Scholarship

Law school offers few opportunities for students to move beyond the ink and paper law of textbooks to see the actual effects of real law on real communities. Because law school clinics offer a rare opportunity for students to see the real and imperfect law-in-action, the import of immersive clinical experiences on the education of tomorrow's lawyers is inestimable. Through clinics, students learn how the law really works, witness its power and its shortcomings, and ideally begin to envision what shape the law ought to take. Expressing a student's perspective on how to make the most of the extraordinary opportunity …

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.

Keeping Up With Legal Technology: Five Easy Places, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Foreword, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Strategic Enforcement, Margaret H. Lemos, Alex Stein

Faculty Scholarship

No abstract provided.

If We Don’T Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.

Faculty Scholarship

This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.

Supporting Scholarship: Thoughts On The Role Of The Academic Law Librarian, Richard A. Danner

Faculty Scholarship

Discussing the role of the law library in legal education is necessary and essential, both because of the demands libraries place on increasingly tight law school budgets and space, and the challenges that libraries face as the information they collect and organize has moved largely from print to digital formats. This paper explores the roles of academic law librarians in supporting faculty scholarship within the context of the forces affecting libraries, librarians, and legal education in the (still early) twenty-first century. Although it has been more than 30 years since the widespread adoption of the legal research databases in the …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Punitive Damages And Class Actions, Francis Mcgovern

Faculty Scholarship

The union of punitive damages and class actions can be aptly described with Samuel Johnson’s famous quotation regarding marriage: “The triumph of hope over experience.” By most conventional wisdom, there is little future for plaintiffs or defendants who desire to resolve punitive damages claims globally using the procedural vehicle of a class action. From a conceptual perspective, however, there are circumstances under which the union could function. This Article explores those possibilities, not in the spirit of normative support, but in the spirit of exploring theories that may have some prospective vitality. Notwithstanding the chilly reception that punitive damages class …

Club Goods And Group Identity: Evidence From Islamic Resurgence During The Indonesian Financial Crisis, Daniel L. Chen

Faculty Scholarship

This paper tests a model in which group identity in the form of religious intensity functions as ex post insurance. I exploit relative price shocks induced by the Indonesian financial crisis to demonstrate a causal relationship between economic distress and religious intensity (Koran study and Islamic school attendance) that is weaker for other forms of group identity. Consistent with ex post insurance, credit availability reduces the effect of economic distress on religious intensity, religious intensity alleviates credit constraints, and religious institutions smooth consumption shocks across households and within households, particularly for those who were less religious before the crisis.