Law Commons^™

The Discriminating Shopper, Michael Blake

San Diego Law Review

This argument proceeds in two parts. Part I attempts to show that there is something special about discriminatory shopping, such that we ought to understand it prior to deriving an overall theory of employment discrimination. Part II then proceeds to analyze the political morality of discriminatory shopping and offers an account of when and how liberalism morally prohibits such discrimination. Part III concludes that such private discrimination is not always contrary to the egalitarian guarantees of liberalism; while there are some cases in which such practices run counter to liberalism's egalitarian guarantees, not all cases of discriminatory shopping have this …

Why Not Regulate Private Discrimination?, Matt Zwolinski

San Diego Law Review

In this Article I examine the disparity between attitudes toward regulating private discrimination and those concerning the regulation of what I will call "commercial" discrimination. My hope is to find a theory that can simultaneously explain these divergent attitudes by providing an account that fits the various aspects of our legal practices and our attitudes toward them, and justify those practices by providing an account that makes the divergence attractive from a moral point of view. I focus on an explanation of the disparity that is grounded in three different sorts of considerations: differences in our epistemological access to private …

Is The Privilege Of Private Discrimination An Artifact Of An Icon?, Donald A. Dripps

San Diego Law Review

Most of what Professor Zwolinski says about the three plausible grounds for private discrimination's privileged position seems to me persuasive. I do, however, offer three observations about the prospects of justifying the prevailing distinction. First, as a methodological matter, there are many settled rules and institutions that are, from the standpoint of moral theory, not quite justified by any single normative theory. Second, an attempt to redistribute the goods now distributed by persons exercising the privilege of private discrimination is normatively problematic. Third, the privilege for private discrimination indeed tends to track a widely-felt sense that autonomy has special value …

In Re Blair Misses The Mark: An Alternative Interpretation Of The Bapcpa's Homestead Exemption, Shaun Mulreed

San Diego Law Review

Bankruptcy law is wrought with compelling policy tensions, which legislators, judges, and academics must constantly balance. Bankruptcy law seeks to foster a fresh start and promote the rehabilitation of distressed debtors discharged from bankruptcy, while simultaneously ensuring that creditors receive repayment of debts owed to them by debtors. When bankruptcy law focuses too heavily on paternalistic goals providing a fresh start to debtors and fostering debtor rehabilitation both creditors and consumers suffer financially. Every dollar that remains with the debtor in furtherance of a fresh start is a dollar removed from the bankruptcy estate, and thus, a dollar that cannot …

On The Effective Communication Of The Results Of Empirical Studies, Part Ii, Lee Epstein, Andrew D. Martin, Matthew M. Schneider

Vanderbilt Law Review

In an important and certainly timely article published in the N.Y. U. Law Review, Nancy C. Staudt demonstrates that, in taxpayer standing cases, judges are motivated by politics but can be constrained when the law is clear and oversight exists. As part of that demonstration, Professor Staudt offers an empirical analysis of the decision to grant standing to federal taxpayers-the results of which we reproduce in Table 1.2

What are we to make of this rather ominous-looking table? Professor Staudt suggests two key takeaways. First, the analysis, she reports, shows that doctrine helps explain standing decisions even when political factors …

Juror Questions During Trial: A Window Into Juror Thinking, Shari Seidman Diamond, Mary R. Rose, Beth Murphy, Sven Smith

Vanderbilt Law Review

The jury has undergone a dramatic transformation from its earliest incarnation when jurors acted as witnesses, investigators, and tribunal. In the modern American jury trial, the parties determine what jurors learn during the proceedings. Jurors of today, assigned the role of audience members until deliberations begin, typically speak in the courtroom only during jury selection and through their verdict at the end of the trial. In light of their enforced silence throughout the trial, jurors have no opportunity to clarify or check on their interpretation of the evidence and they provide few external indications about their thinking as the trial …

The Commodification Of Insurance Defense Practice, Herbert M. Kritzer

Vanderbilt Law Review

In this paper, I present an analysis of insurance defense practice using the heuristic of a commodity.7 Essentially, I argue that many, perhaps even most, insurance companies have come to view the more routine work of insurance defense as something to be purchased in a marketplace where there are a large number of interchangeable providers.8 Loyalty between buyer and seller, to the extent that it had been an important element of the relationship, has faded. Today, insurance companies frequently shop for the best deal, which may include producing insurance defense services in-house rather than purchasing those services from an outside …

In Texas, Life Is Cheap, Frank Cross, Charles Silver

Vanderbilt Law Review

What is the life of a Texan worth? Some might suggest very little. Payments in thousands of tort cases in which Texans died provide some evidence for this hypothesis. Although Texas has been a focus of much of the national controversy over the costs of tort litigation, payments in death cases have seen relatively little disciplined research. Existing research often misses the primary effect of the system because it focuses on trial outcomes rather than settlement payments. This Article provides some evidence of the actual payments made in Texas in death cases, their determinants, and the implications of those findings …

After Action Review (Aar) Of Attendance At The Brazilian Army Command And General Staff College, Gary Corn

Scholarly Articles in Law Reviews & Journals

In 2005, I was the first member of the U.S. Army Judge Advocate General's Corps (JAG Corps) to attend a foreign command and general staff college (CGSC). This article provides a summary of my attendance at the Brazilian Army's Command and General Staff College-Escola de Comando e Estado Maior do Extrcito (ECEME). Through a unique series of events, I was selected and attended the Brazilian Army's ECEME, a ten-month CGSC equivalent, where I studied brigade and division-level operations through the lens of a foreign military. This rare opportunity not only afforded me a unique and valuable professional development experience, it …

The Cognitive Psychology Of Circumstantial Evidence, Kevin Jon Heller

Michigan Law Review

Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter The traditional explanation of this paradox, based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant's guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology …

"Eggshell" Victims, Private Precautions, And The Societal Benefits Of Shifting Crime, Robert A. Mikos

Michigan Law Review

Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by …

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

Exploding The Class Action Agency Costs Myth: The Social Utility Of Entrepreneurial Lawyers, Myriam E. Gilles, Gary B. Friedman

Articles

In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice …

The Griswold Diagrams: Toward A Unified Theory Of Constitutional Rights, Stephen Kanter

Cardozo Law Review

No abstract provided.

The Ninth Amendment: It Means What It Says, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines thirteen …

Refining The Production Burden For "Regarded As Disabled" Claimants, Jennifer Schechter Sharret

Cardozo Law Review

No abstract provided.

Unjust Enrichment And Wrongly Paid Tax, Hang Wu Tang

Research Collection Yong Pung How School Of Law

Boake Allen Limited v. Revenue and Customs Commissioners [2006] EWCA Civ 25 concerned early payment of Advance Corporation Tax ("ACT"). ACT was normally payable when a company paid dividends to its shareholders, but there was a statutory exception where the company was a subsidiary of a United Kingdom company and both the parent and subsidiary made a group income election. If the tax authorities accepted the election, the obligation to pay ACT would only accrue when the parent company paid dividends. Section 247 of the Income and Corporation Taxes Act 1988 ("ICTA") stipulated that group income elections were only available …

Natural Obligations And The Common Law Of Unjust Enrichment, Hang Wu Tang

Research Collection Yong Pung How School Of Law

Two leading restitution scholars have recently argued that the notion of natural obligations is now an important defence in the law of unjust enrichment. 'In particular, the late Professor Peter Birks asserts, in his last book, that 'the claimant cannot say that the money was not due if, behind the technicalities of the law, there was still a moral obligation to pay.' This development is interesting because the concept of natural obligations is traditionally thought to be a civilian and not a common law concept. Birks' assertion represents an attempt to use the study of comparative law to interpret the …

Justice For The Vulnerable? Debating The Relationship Between Aboriginal People And Australian Criminal Justice, Mark Findlay

Research Collection Yong Pung How School Of Law

As much as it might be said that a nation is judged by the way it treats its most disadvantaged citizens, the reality of criminal justice is dependent on its relations with the vulnerable. On any measure Australian criminal justice is indicted by the overrepresentation of Aboriginal people in its domain.

Procedural Issues In The Anti-Dumping Regulations Of China: A Critical Review Under The Wto Rules, Won-Mog Choi, Henry S. Gao

Research Collection Yong Pung How School Of Law

Since the World Trade Organization (WTO) was established, China his made large-scale efforts to shape its trade remedy system through legal and organizational changes. Through these changes, China could clarify the meanings of WTO anti-dumping provisions including the provision relating to the definition of domestic industry. Moreover, procedural disciplines on reviews were fortified in Chinese anti-dumping system. While the overall improvements to the trade remedy system of China are evident, definitions of several key legal terms, including the concept of related producers, the negligible import standard, and adjustment factors for a fair comparison between normal values and export prices are …

National Security And Immigration Policy: Reclaiming Terms, Measuring Success, And Setting Priorities, Margaret D. Stock

ExpressO

This paper offers a three-pronged framework for evaluating immigration-related security measures and tactics. First, does the measure or strategy relate to a legitimate security goal? Second, what does the measure propose to accomplish, will it be successful in achieving that end, and how can its success (or failure) be assessed? Third, is the measure worth the cost both in resources and opportunities foregone? The paper goes on to evaluate the US Government's recent implementation of the US-VISIT program against this framework.

The Police Power And 'Public Use': Balancing The Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher D. Supino

ExpressO

The Supreme Court’s 2005 decision in Kelo v. City of New London sparked nationwide outrage. The American public was shocked to learn that the Fifth Amendment’s Taking Clause could be interpreted to allow the government to seize a non-blighted residence and convey it to another private party to help facilitate a development project. Yet, contrary to popular belief, the Kelo decision did not mark a significant departure from the Court’s early eminent domain jurisprudence. This article traces the judicial history of the Public Use Clause and the police power of the states, and demonstrates the Court’s historical inability to clearly …

“Statistical Dueling” With Unconventional Weapons: What Courts Should Know About Experts In Employment Discrimination Class Actions, William T. Bielby, Pamela Coukos

ExpressO

When statistical evidence is offered in a litigation context, the result can be bad law and bad statistics. In recent high profile, high-stakes employment discrimination class actions against large multinationals like UPS, Wal-Mart, and Marriott, plaintiffs have claimed that decentralized and highly discretionary management practices result in systematic gender or racial disparities in pay and promotion. At class certification, plaintiffs have relied in part on statistical analyses of the company’s workforce showing companywide inequality. Defendants have responded with statistical presentations of their own, which frequently demonstrate widely varying outcomes for members of protected groups in different geographic areas of the …

Social Security And The Stock Market: How The Pursuit Of Market Magic Shapes The System, Alicia Haydock Munnell, Steven A. Sass

Upjohn Press

Munnell and Sass explore whether equities could help solve the woes facing the U.S. retirement income system in general, and the Social Security shortfall in particular. They examine the experiences of three nations that added equities to the investment mix of their retirement systems—the U.K., Australia, and Canada. As these experiences show, while equities promise higher returns than government bonds, how they are implemented—as add-ons, carve-outs, or as trust fund supplements—matters greatly.

The International Dimensions Of Homeland Security, Ryan P. Stiles

International Law Studies

No abstract provided.

Limits On The Use Of Force In Maritime Operations In Support Of Wmd Counter-Proliferation Initiatives, Craig H. Allen

International Law Studies

No abstract provided.

The Proliferation Security Initiative In The Maritime Domain, Stuart Kaye

International Law Studies

No abstract provided.

The Legality Of Operation Iraqi Freedom Under International Law, Michael N. Schmitt

International Law Studies

No abstract provided.

Debating The Issues, Kenneth Roth, Robert F. Turner

International Law Studies

No abstract provided.