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Articles 91 - 120 of 277
Full-Text Articles in Law
A Cognitive Theory Of Trust, Claire Hill, Erin O'Hara O'Connor
A Cognitive Theory Of Trust, Claire Hill, Erin O'Hara O'Connor
Articles
Interpersonal trust is currently receiving widespread attention in the academy. Many legal scholars incorrectly assume that interpersonal trust is an unmitigated good (or bad) and that legal policy should therefore be crafted to maximize (or minimize) trust. A more nuanced understanding of trust indicates instead that it should be promoted or discouraged, depending on the context. Such an understanding needs to reflect the fact that trust and distrust can, and often do, coexist. In most relationships, the parties trust one another with regard to some matters and yet distrust one another with regard to other matters. More specifically, developing a …
Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix
Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix
Articles
Electronic Contracting - understood broadly to include both the Internet downloading of free or purchased software and the use of rolling contracts (shrink-wrap or terms in the box) in the sale of computers or the lease of software - has raised problems, based in part on the novelty of the transactional forms, and in part on the now-standard issue of unread terms in standardized contracts. This article, part of a conference relating to the legal regulation of new property and new technologies, offers an overview of the distinctly different approaches to Electronic Contracting of the U.S. and the European Union. …
Prospects For Ratification Of The Convention On The Rights Of The Child, David Weissbrodt
Prospects For Ratification Of The Convention On The Rights Of The Child, David Weissbrodt
Articles
Since early in the development of international human rights law, the particular need to care for children has been acknowledged. Beginning with the Geneva Declaration on the Rights of the Child in 1924 1 and the Declaration of the Rights of the Child, adopted by the U.N. General Assembly in 1959, 2 children's rights have been recognized by human rights organizations and instruments alike. Rights of the child were included in the Universal Declaration of Human Rights; 3 the Geneva Convention for the Protection of Civilian Persons in Time of War; 4 the International Covenant on Economic, Social and Cultural …
The Absolute Prohibition Of Torture And Ill-Treatment, David Weissbrodt
The Absolute Prohibition Of Torture And Ill-Treatment, David Weissbrodt
Articles
The President, the Secretary of State, and other U.S. government officials have repeatedly assured the world that the United States does not engage in "torture." Whenever they try to issue such statements, the critical listener must ask such questions as "What do they mean by torture?" Have they so narrowly defined "torture" as to ask the listener to overlook the mounting evidence of extremely brutal treatment which U.S. personnel have perpetrated against detainees in Afghanistan, Guantanamo, Iraq, and other secret detention facilities? Many detainees held by the U.S. have been subjected to illtreatment that would, under international definitions and jurisprudence, …
Robert Alexy, Radbruch's Formula, And The Nature Of Legal Theory, Brian H. Bix
Robert Alexy, Radbruch's Formula, And The Nature Of Legal Theory, Brian H. Bix
Articles
Gustav Radbruch is well known for a formula that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch's formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch's formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy …
Extraordinary Rendition: A Human Rights Analysis, David Weissbrodt, Amy Bergquist
Extraordinary Rendition: A Human Rights Analysis, David Weissbrodt, Amy Bergquist
Articles
This article describes extraordinary rendition, the practice of seizing terror suspects and transporting them to third countries for detention and interrogation. The article examines this practice in light of several human rights instruments and demonstrates that extraordinary rendition violates international human rights and humanitarian law. The article is the first in a series of three articles by the co-authors to explore the practice of extraordinary rendition.
Why The Generation-Skipping Transfer Tax Sparked Perpetual Trusts, Mary Louise Fellows
Why The Generation-Skipping Transfer Tax Sparked Perpetual Trusts, Mary Louise Fellows
Articles
Max M. Schanzenbach and Robert H. Sitkoff, in the work they presented at this Symposium and in their earlier work, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, provide data to support what practitioners, policymakers, and academics already believe - the generation-skipping transfer (GST) tax exemption encouraged the creation of dynastic trusts and made those states that had no Rule Against Perpetuities (RAP) and no income tax on trusts particularly attractive as sites for settlors to establish their trusts. 1 Their work with the state-level panel data assembled from annual reports to federal banking authorities by …
Foreclosure Equity Stripping: Legal Theories And Strategies To Attack A Growing Problem, Prentiss Cox
Foreclosure Equity Stripping: Legal Theories And Strategies To Attack A Growing Problem, Prentiss Cox
Articles
Foreclosure equity stripping is the classic case of kicking someone who is down. The person perpetrating the equity strip-let's call this person the "acquirer"- targets homeowners who are in foreclosure and have equity remaining in the property. Promising to "save" the home for the desperate homeowner, the acquirer offers refinancing or other assistance to "stop the foreclosure." For too many foreclosed homeowners, these promises end when the acquirer or the acquirer's confederates gain title to the property and take the homeowner's equity.
Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Mary Louise Fellows, Gregory S. Alexander
Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Mary Louise Fellows, Gregory S. Alexander
Articles
In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …
Goliath Has The Slingshot: Public Benefit And Private Enforcement Of Minnesota Consumer Protection Laws, Prentiss Cox
Goliath Has The Slingshot: Public Benefit And Private Enforcement Of Minnesota Consumer Protection Laws, Prentiss Cox
Articles
The phrase "consumer protection case" may conjure up a used-car buyer trying to get recompense for a vehicle that turned out to be less than promised, or an elderly homeowner victimized by predatory lending tactics trying to maintain possession of her home. In August 2000, the private right of action to enforce Minnesota consumer protection laws was held to be something entirely different. After the Minnesota Supreme Court's decision in Ly v. Nystrom, 1 a business complaining about a competitor's advertising is more likely to have available a private right of action to enforce these laws than either the frustrated …
Extraordinary Rendition And The Torture Convention, David Weissbrodt, Amy Bergquist
Extraordinary Rendition And The Torture Convention, David Weissbrodt, Amy Bergquist
Articles
Extraordinary Rendition and the Convention Against Torture examines the U.S. policy of abducting terror suspects abroad and transferring them to third countries where they are likely to be subjected to torture and other forms of ill-treatment. The article notes that extraordinary rendition has evolved from a process by which persons were brought to the U.S. to stand trial, into a means of incapacitating suspects while keeping them out of reach of the U.S. legal system. Part I of this Article describes the Convention Against Torture and its provisions, and then examines the scope of the prohibition on torture under U.S. …
Juveniles' Competence To Exercise Miranda Rights: An Empirical Study Of Policy And Practice, Barry C. Feld
Juveniles' Competence To Exercise Miranda Rights: An Empirical Study Of Policy And Practice, Barry C. Feld
Articles
The United States Supreme Court has decided more cases involving the interrogation of juveniles than any other aspect of juvenile justice administration. 1 Although it has cautioned trial judges to be especially sensitive to the effects of youthfulness and immaturity on a defendant's ability to waive or to invoke her Miranda rights and to make voluntary statements, the Court has not mandated any special procedural protections for immature suspects. Instead, it endorsed the adult waiver standard - "knowing, intelligent, and voluntary" under the "totality of the circumstances" - to gauge the validity of a juvenile's waiver of Miranda rights. 2
Police Interrogation Of Juveniles: An Empirical Study Of Policy And Practice, Barry C. Feld
Police Interrogation Of Juveniles: An Empirical Study Of Policy And Practice, Barry C. Feld
Articles
The Supreme Court does not require any special procedural safeguards when police interrogate youths and use the adult standard--“knowing, intelligent, and voluntary under the totality of the circumstances”--to gauge the validity of juveniles' waivers of Miranda rights. Developmental psychologists have studied adolescents' capacity to exercise Miranda rights, questioned whether juveniles possess the cognitive ability and adjudicative competence necessary to exercise legal rights, and contended that immaturity and vulnerability make juveniles uniquely susceptible to police interrogation tactics. In the four decades since the Court decided Miranda, we have almost no empirical research about what actually occurs when police interview criminal suspects, …
Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter
Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter
Articles
It is time to rethink the role of Institutional Review Boards (IRBs) in approving social science research. While most law professors conduct their research in an almost unregulated environment - pouring through cases, statutes, and each other's articles, all without the kind of human interaction subject to IRB regulation - their colleagues elsewhere in the university have been coping for decades with an increasingly intrusive bureaucracy that sometimes undermines basic academic values. Three things seem very clear. First, there are a lot of IRBs - at least 4,000 - and their numbers are growing. Second, they have recently "increased their …
Piercing The Confidentiality Veil: Physician Testimony In International Criminal Trials Against Perpetrators Of Torture, David Weissbrodt, Ferhat Pekin, Amelia Wilson
Piercing The Confidentiality Veil: Physician Testimony In International Criminal Trials Against Perpetrators Of Torture, David Weissbrodt, Ferhat Pekin, Amelia Wilson
Articles
Physician-patient confidentiality is a notion deeply rooted in most medical traditions throughout the world. 2 Many nations have codified patient protections and rights with statutes that emphasize the inviolability of this confidence. 3 Physicians are prohibited, except in limited circumstances, to reveal any confi-dential information or communication. 4 Violating confiden-tiality often exposes the physician to professional, civil, and sometimes criminal sanctions. 5 Confidentiality is designed to protect the patient's most intimate information as well as foster a candid relationship between physician and patient to facilitate successful diagnosis and treatment. 6 And yet despite the raison d'etre of confidentiality laws and …
Protecting The Past: A Comparative Study Of The Antiquities Laws In The Mid-South, Douglas L. Reed, Trey Berry
Protecting The Past: A Comparative Study Of The Antiquities Laws In The Mid-South, Douglas L. Reed, Trey Berry
Articles
Governmental efforts to protect antiquities can be found in the early twentieth century; however, the most significant policy efforts began in the late 1960s and early 1970s. This manuscript focuses on the properties/items protected under current statutes in Arkansas, Louisiana, and Texas and provides background on major federal policies. Moreover, it addresses the penalties imposed for violating these regulations. The efforts made to enforce these rules are also addressed along with suggestions for improving implementation of antiquities policies in all three states.
A Dispatch From The Crypto Wars, A. Michael Froomkin
A Dispatch From The Crypto Wars, A. Michael Froomkin
Articles
Matt Curtin's Brute Force is a primarily personal account of one early effort to harness the power of distributed computing. In 1997, Mr. Curtin and other members of the DESCHALL (DES Challenge) project built, distributed, and managed software that united thousands of computers, many of them ordinary personal computers, in the search for a single decryption key among 72 quadrillion possibilities. The DESCHALL project sought to demonstrate that DES, then the U.S. national standard encryption algorithm, was no longer as secure as advertised. While Brute Force also offers some background on encryption regulation, export control policy, and other aspect of …
When "Victory" Masks Retreat: The Lsat, Constitutional Dualism, And The End Of Diversity, D. Marvin Jones
When "Victory" Masks Retreat: The Lsat, Constitutional Dualism, And The End Of Diversity, D. Marvin Jones
Articles
No abstract provided.
Why Blogs Are Bad For Legal Scholarship, Brian Leiter
International Law: A Welfarist Approach, Eric A. Posner
International Law: A Welfarist Approach, Eric A. Posner
Articles
This Article evaluates international law from a welfarist perspective. Global welfarism requires that international law advance the well-being of everyone in the world, and scholars influenced by global welfarism and similar cosmopolitan principles have advocated radical restructuring of international law. But global welfarism is subject to several constraints; including (1) heterogeneity of preferences of the world population, which produces the state system; (2) agency costs, which produce imperfect governments; and (3) the problem of collective action. These constraints place limits on what policies motivated by global welfarism can achieve and explain some broad features of international law that otherwise remain …
Irreversible And Catastrophic, Cass R. Sunstein
Irreversible And Catastrophic, Cass R. Sunstein
Articles
As many treaties and statutes emphasize, some risks are distinctive in the sense that they are potentially irreversible or catastrophic; for such risks, it is sensible to take extra precautions. When a harm is irreversible, and when regulators lack information about its magnitude and likelihood, they should purchase an "option" to prevent the harm at a later date-the Irreversible Harm Precautionary Principle. This principle brings standard option theory to bear on environmental law and risk regulation. And when catastrophic outcomes are possible, it makes sense to take special precautions against the worst-case scenarios-the Catastrophic Harm Precautionary Principle. This principle is …
Ranking Law Schools: A Market Test, Cass R. Sunstein
Ranking Law Schools: A Market Test, Cass R. Sunstein
Articles
Instead of ranking law schools through statistical aggregations of expert judgments or by combining a list of heterogeneous factors, it would be possible to rely on a market test simply by examining student choices. This tournament-type approach would have the large advantage of relying on the widely dispersed information that students actually have; it would also reduce reliance on factors that can be manipulated (and whose manipulation does no good other than to increase rankings). On the other hand, a market test has several problems as a measure of law school quality, partly because cognitive biases and social influences may …
"True Threats" And The Issue Of Intent, Paul Crane
Why Parties And Powers Both Matter: A Separationist Response To Levinson And Pildes, Richard A. Epstein
Why Parties And Powers Both Matter: A Separationist Response To Levinson And Pildes, Richard A. Epstein
Articles
No abstract provided.
Idea: Timing Controversial Decisions, Cass R. Sunstein
Justice Breyer's Pragmatic Constitutionalism, Cass R. Sunstein
Justice Breyer's Pragmatic Constitutionalism, Cass R. Sunstein
Articles
The pragmatic method is primarily a method of settling metaphysical disputes that otherwise might be interminable. Is the world one or many?- fated or free? - material or spiritual? - here are notions either of which may or may not hold good of the world; and disputes over such notions are unending. The pragmatic method in such cases is to try to interpret each notion by tracing its respective practical consequences. What difference would it practically make to any one if this notion rather than that notion were true? A Concise Statement of the Task: In interpreting a statute a …
Timing Controversial Decisions Ideas, Cass R. Sunstein
Judicial Oversight In Two Dimensions: Charting Area And Intensity In The Decisions Of Justice Stevens, Adam M. Samaha, Allison Marston Danner
Judicial Oversight In Two Dimensions: Charting Area And Intensity In The Decisions Of Justice Stevens, Adam M. Samaha, Allison Marston Danner
Articles
No abstract provided.
Discharge, Waiver, And The Behavioral Undercurrents Of Debtor-Creditor Law, Douglas G. Baird
Discharge, Waiver, And The Behavioral Undercurrents Of Debtor-Creditor Law, Douglas G. Baird
Articles
No abstract provided.
Absolute Priority, Valuation Uncertainty, And The Reorganization Bargain, Douglas G. Baird, Donald S. Bernstein
Absolute Priority, Valuation Uncertainty, And The Reorganization Bargain, Douglas G. Baird, Donald S. Bernstein
Articles
In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation of reorganization scholars for decades. By the standard law-and-economics account, deviations from absolute priority arise because well-positioned insiders take advantage of cumbersome procedures and permissive judges. In this Essay, we suggest a different force is at work. Deviations from absolute priority are inevitable even in a world completely committed to respecting priority as long as the value of the reorganized enterprise …