Law Commons^™

Book Review: (The History Of) Criminal Justice As A Morality Play, Michael M. O'Hear

Faculty Publications

Stephanos Bibas's new book, The Machinery of Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a "participatory morality play," in which ordinary members of the community played a crucial role. In Bibas's view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas's book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects …

Limitations (A Response To Judge Posner), Chad M. Oldfather

Faculty Publications

In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations ­- the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging.

This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that …

The Duty To Think Strategically, Nadelle Grossman

Faculty Publications

Under Delaware corporate law, directors and officers have a duty to oversee their firm’s management of risk to limit losses. Corporate law does not, however, require directors or officers to oversee their firm’s management of strategy to create gains. Yet, managing both risk and strategy is essential to a firm in creating value. In fact, as I argue in the Article, the current focus by courts and commentators only on risk management to prevent losses could actually undermine a firm’s management of its strategy for gains. I therefore propose a model for how Delaware corporate law can drive firms to …

Legislative Diplomacy, Ryan M. Scoville

Faculty Publications

A traditional view in legal scholarship holds that the Constitution assigns to the President an exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its membership routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign legislatures. And members of the House and Senate frequently travel overseas on congressional delegations, or “CODELs,” to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the President. Moreover, many of these activities have occurred ever …

Mass Incarceration In Three Midwestern States: Origins And Trends, Michael M. O'Hear

Faculty Publications

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and …

Not Just Kid Stuff? Extending Graham And Miller To Adults, Michael M. O'Hear

Faculty Publications

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Faculty Publications

One of the central goals of federal securities laws is to protect investors by ensuring that they receive a steady flow of timely, complete, and accurate information. However, that goal is partially undermined by the SEC’s failure to require public companies to disclose anything about their strategic management processes despite increasing requirements on the disclosure of associated risk management processes. Like risk management processes, strategic management processes are designed to create firm value. But instead of focusing on loss-creating risks, strategic management focuses on wealth-creating opportunities. As a result, investors are given a lopsided — rather than a complete or …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Faculty Publications

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Two Cheers For The New Paradigm, Michael M. O'Hear

Faculty Publications

This brief essay comments on Attorney General Eric Holder's much-publicized announcement in 2013 of new federal prosecution priorities. While Holder's announcement represents a welcome shift away from the rigid legalism that has dominated federal prosecutorial policies for a generation, some concerns are also highlighted in the essay.