Law Commons^™

Coercive Insurance And The Soul Of Tort Law, Alexander Lemann

Faculty Publications

Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can …

Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael M. O'Hear, Darren Wheelock

Faculty Publications

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the …

Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka

Faculty Publications

How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the facts asserted. In 1972, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) proposed an innovative rule permitting all prior inconsistent statements to be used both for impeachment and as substantive evidence—a sea change in practice. Congress, …

Public Attitudes Toward Punishment, Rehabilitation, And Reform: Lessons From The Marquette Law School Poll, Michael M. O'Hear, Darren Wheelock

Faculty Publications

Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration. In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin. Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety. However, we also found significant divisions in public opinion. For instance, while black and white respondents largely shared the same priorities …

Finding Customary International Law, Ryan M. Scoville

Faculty Publications

Established doctrine holds that customary international law (“CIL”) arises from general and consistent state practice that is backed by a sense of legal obligation. Contemporary litigation requires federal courts to apply this doctrine to identify the contours of CIL in a diverse collection of cases ranging from civil actions under the Alien Tort Statute to criminal prosecutions under the Maritime Drug Law Enforcement Act. This Article provides an in-depth look at how federal judges carry out this task. Conducting a citation analysis of opinions published since the U.S. Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, this Article analyzes …

Justice Reinvestment And The State Of State Sentencing Reform, Michael M. O'Hear

Faculty Publications

The national Justice Reinvestment Initiative has arguably been the most important development in American sentencing policy in the past decade. This essay introduces an issue of the Federal Sentencing Reporter that focuses on the JRI. The essay highlights both strengths and weaknesses of the JRI, particularly from the standpoint of reducing mass incarceration in the United States.

The Communistic Inclinations Of Sir Thomas More, David Ray Papke

Faculty Publications

No abstract provided.

Persuading With Precedent: Understanding And Improving Analogies In Legal Argument, Jacob M. Carpenter

Faculty Publications

When writing persuasive briefs, attorneys use comparisons — metaphors or case-based analogies — to help explain their analyses and support their positions. But attorneys use the two types of comparisons for very different purposes. Several legal scholars have explored how attorneys use metaphors in their legal writing. While the existing scholarship on legal metaphors is excellent, it is not sufficient to properly understand how to best draft case-based analogies. Unfortunately, case-based analogies have been surprisingly understudied despite their critical role in persuasive legal briefs. Not surprisingly, many attorneys are unaware of how far short their analogies fall from reaching their …

How Cosmopolitan Are International Law Professors?, Ryan M. Scoville, Milan Markovic

Faculty Publications

This Article offers an empirical answer to a question of interest among scholars of comparative international law: why do American views about international law appear at times to differ from those of other countries? The authors contend that part of the answer lies in legal education. Conducting a survey of the educational and professional backgrounds of nearly 150 legal academics, the authors reveal evidence that professors of international law in the United States often lack significant foreign legal experience, particularly outside of the West. Sociological research suggests that this tendency leads professors to teach international law from predominantly nationalistic and …

Emergent Works, Bruce E. Boyden

Faculty Publications

We are on the cusp of a significant transformation in how creative works are produced. Automated programs can now generate music, write poetry, pen news reports, create videos, and more. These computer-generated works pose a problem for copyright law, which has only rarely had to address a situation in which creative elements are produced without conscious decisions. The question of who authors such works, and thus has the initial rights to them, will become more pressing as computer programs not only improve their artistic mimicry, but become commercially successful at doing so.

In this Essay I draw three conclusions. First, …