Law Commons^™

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

State-Enabled Crimes, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

International crimes are committed by individuals, but many – from genocide in Rwanda to torture at Abu Ghraib – would not have occurred without the integral role played by the State. This dual contribution, of individual and State, is intrinsic to the commission of what I term “State-Enabled Crimes.” Viewing international adjudication through the rubric of State-Enabled Crimes highlights a feature of the international judicial architecture that is typically taken for granted: its bifurcated structure. Notwithstanding the deep interrelationship between individual and State in the commission of State-Enabled Crimes, the international legal system adjudicates the responsibility of each under two …

The Olmstead Imperative: The Right To Live In The Community And Beyond, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

Of the 20 Americans with Disabilities Act (ADA) cases that the United States Supreme Court has decided in the 25 years of the statute’s existence, Olmstead v. L.C. by Zimring is without doubt the most significant for people with intellectual and developmental disabilities. Olmstead is the only Supreme Court ADA case that specifically addresses the rights of people with intellectual and developmental disabilities, but its importance goes well beyond this specific fact. In this essay, I set out the holding of the Olmstead decision, its connection to, and extension of, prior case law, the extent of its subsequent enforcement, and …

Independence And Immigration, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Short-Termism And Long-Termism, Michal Barzuza, Eric L. Talley

Faculty Scholarship

A significant debate in corporate law and finance concerns the role of activist investors (especially hedge funds) in corporate governance. Activists, it is often alleged, imprudently privilege short term earnings over superior (but less liquid) long term investments. Activists counter that they target managers who unjustifiably cling to questionable strategies. While this debate is hardly new, it has grown increasingly fractious of late. We analyze the activism debate within a theoretical securities-market setting. In our framework – which draws from an emerging literature in empirical and experimental finance – managers are differentially overconfident (causing them to favor long-term projects), while …

Can't Get There From Here: Recalculate Into Better Legal Writing, Heather Ridenour

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Firearm Legislation And Firearm Mortality In The Usa: A Cross-Sectional, State-Level Study, Bindu Kalesan, Matthew Mobily, Olivia Keiser, Jeffrey Fagan

Faculty Scholarship

In an effort to reduce firearm mortality rates in the USA, US states have enacted a range of firearm laws to either strengthen or deregulate the existing main federal gun control law, the Brady Law. We set out to determine the independent association of different firearm laws with overall firearm mortality, homicide firearm mortality, and suicide firearm mortality across all US states. We also projected the potential reduction of firearm mortality if the three most strongly associated firearm laws were enacted at the federal level.

A Model Company Act And A Model Company Court, Ronald J. Gilson

Faculty Scholarship

This paper is a contribution to a symposium on the European Model Company Act ("EMCA ") in which I argue that a model company court powerfully complements the EMCA. A particular characteristic of company law complicates the intermediating role of a model act in a federal system. Because complex corporate transactions inevitably are associated with significant uncertainty, especially when they present conflicts of interest, transaction designers and legislative drafters tend to frame applicable contractual and legal rules as standards, such as fairness and equal treatment, rather than as rules. In turn, the effectiveness of a standard in the face of …

"Section 5 And 'Unfair Methods Of Competition': Protecting Competition Or Increasing Uncertainty?", Tim Wu

Faculty Scholarship

Since the late 1980s, Section 5 of the FTC Act has come to center on a certain kind of case, the so-called anticompetitive “scheme” featuring extraordinary and nefarious conduct – like gaming a standards process, rigging industry tests, that sort of thing. Deception, fraud, bad-faith and oppressive action are typical. This kind of self-restraint has, to its credit, yielded a focus on cases where the conduct is extraordinary, an anticompetitive intent is obvious and the harm is substantial. At this point, the self-imposed limits on Section 5 enforcement are extensive enough that a critic could fairly accuse the agency of …

The Effects Of Local Police Surges On Crime And Arrests In New York City, John Macdonald, Jeffery Fagan, Amanda Geller

Faculty Scholarship

The New York Police Department (NYPD) under Operation Impact deployed extra police officers to high crime areas designated as impact zones. Officers were encouraged to conduct investigative stops in these areas. City officials credited the program as one of the leading causes of New York City’s low crime rate. We tested the effects of Operation Impact on reported crimes and arrests from 2004 to 2012 using a difference-in-differences approach. We used Poisson regression models to compare differences in crime and arrest counts before and after census block groups were designated as impact zones compared to census block groups in the …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

Scholarly Articles in Law Reviews & Journals

As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …

The Prosecutor's Ethical Duty To End Mass Incarceration, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Preface, Rebecca Barrett-Fox

Journal of Hate Studies

By midway through 2016, the year was shaping up to be a rough one. Terrorist attacks had occurred nearly daily worldwide, with significant loss of life in around the world. In June, the Brexit vote. Continued war in Syria and political turmoil in nearby nations caused continued suffering for refugees. In the U.S., protests continued in across the country. In North Dakota, indigenous people have gathered in the largest meeting of Native American people in modern history in an effort to halt the erection of an oil pipeline dangerously close to native lands and waters. And the year ended with …

Discussing Auschwitz, Scholarly Integrity And Governmental Revisionism: A Case Study In Academic Intimidation, Kevin Mccarthy

Journal of Hate Studies

In September 2015, I became embroiled in a controversial and confrontational media discourse that rapidly assumed a global context as external actors engaged in a hateful campaign of intimidation and threatening behavior. It was initiated by a letter I had published in the Belfast Telegraph, which included a reference that localised anti-Semitism was a factor in the Nazi decision to locate the Auschwitz-Birkinau extermination camp in Poland. It was a response to a letter thread that had included multiple mentions of Poland, Auschwitz-Birkinau, and hateful intimidation. However, a forensic examination of the letter suggests the confrontation had, in fact nothing …

Elements Of Bile: Placing Daniel Ottolengui (1836-1918) In The Heritage Of Hate, Sally Stokes

Journal of Hate Studies

Just east of Broadway, in 1846, Isaac D. Baker and Charles Scribner opened their publishing house on Nassau Street near Ann Street in lower Manhattan. By the time of the Civil War, Baker & Scribner had cemented a reputation for thoughtful and elevating texts. In 1867, the firm, now Charles Scribner & Co., having moved up to 654 Broadway and released a miscellany of Christian meditations, poetry by Robert Burns, and a translation of the Iliad, had picked up Henry Ward Beecher’s Norwood, or Village Life in New England. This lone novel by Beecher—orator, abolitionist, and minister of Brooklyn’s Plymouth …

League Of The South's Internet Rhetoric: Neo-Confederate Community-Building Online, Brett A. Barnett

Journal of Hate Studies

A nationwide backlash against the Confederate flag and other Confederatesymbols occurred after the deadly June 17, 2015, church shootings inCharleston, South Carolina, when images of the alleged gunman displayinga Confederate flag surfaced. This backlash sparked a reactionary movementamong pro-Confederate supporters who viewed the attacks on Confederatesymbols as an affront to their Southern heritage. Some neo-Confederategroups exploited the backlash, and the pro-Confederate sympathy it generated,as an opportunity to build their communities. This essay examineshow the neo-Confederate group League of the South (LOS) used its websiteto attract members to its community in the week before the Confederateflag’s removal from South Carolina’s state …

Beyond Hate: White Power And Popular Culture By C. Richard King And David J. Leonard (Surrey, Uk: Ashgate, 2014. 200 Pp. $31.96. Isbn 978-1472427465)., Bianca Gonzalez-Sobrino, Matthew W. Hughey

Journal of Hate Studies

In Beyond Hate, C. Richard King and David J. Leonard present a critical, virtual ethnography that examines the relationship between popular culture, media, and white supremacy. Their efforts center on the exploration of the intersections of white power and popular culture in the virtual world as articulated in the context of the contemporary United States. In specific, King and Leonard explore how white nationalists come to utilize the digital realm of popular culture as a clarion call to cleanup a society “polluted” by the rise of nonwhite populations, the proliferation of liberal ideology and to the supposed demise of the …

The Nazis Next Door: How American Became A Safe Haven For Hitler's Men By Eric Lichtblau (Boston: Houghton Mifflin Harcourt, 2014. 288 Pg. $28.00 Isbn 978-0547669199)., Monique Laney

Journal of Hate Studies

The Nazis Next Door is a follow-up to a breaking news story Lichtblau authored in 2010 when an unredacted version of a 600-page report chronicling the activities of the U.S. Department of Justice’s “Nazi hunting” Office of Investigations was leaked to the New York Times.2 The fact that the United States has been harboring Nazis, some of whom were war criminals, has not been news at least since the 1970s, but as Lichtblau explains in his 2010 article, the report “goes further in documenting the level of American complicity and deception,” especially the CIA’s involvement in using Nazis for postwar …

Native America And The Question Of Genocide By Alex Alvarez (Lanham, Md: Rowman And Littlefield, 2014. 203 Pp. $34.13. Isbn 978-1442225817)., Lisa King

Journal of Hate Studies

On September 6th, 2015, Indian Country Today publicized a story that did not make mainstream news but resonated throughout Indian Country: a Navajo/Maidu student, Chiitaanibah Johnson, was ejected from her California State-Sacramento history class after asking the instructor to address the genocide of Native peoples in his coverage of American history. The instructor claimed that Native peoples had simply died of disease and that she was “hijacking” his class when she insisted (Schilling). Meanwhile, amid the protests of 50 different California tribes, Pope Francis made headlines when he canonized the controversial figure Juniper Serra, one of the leaders of the …

A Forgotten Sisterhood: Pioneering Black Women Educators And Activists In The Jim Crow South By Audrey Thomas Mccluskey (Lanham, Md: Rowman And Littlefield, 2014. 181 Pp. $40.00, Isbn 978-1-4422-1138-4.), Doretha K. Williams

Journal of Hate Studies

Black women became a mighty force rising up against white supremacy in the mid- nineteenth century. Through sexual exploitation, racially charged violence, and employment discrimination, the imposers of slavery and the oppression that followed sought to destroy black women. A small yet savvy group of women defied the powers of institutionalized racism and pressed forward to create and sustain institutions for African Americans. In A Forgotten Sisterhood: Pioneering Black Women Educators and Activists in the Jim Crow South, Audrey Thomas McCluskey uncovers the lives and educational contributions of four extraordinary women: Lucy C. Laney, Mary McLeod Bethune, Charlotte Hawkins Brown, …

The Hidden Costs Of Cliff Effects In The Internal Revenue Code And Proposals For Change, Manoj Viswanathan

Faculty Scholarship

Cliff effects in the Internal Revenue Code trigger a sudden increase of federal tax liability when some attribute of a taxpayer—most commonly income—exceeds a particular threshold value. As a result, two taxpayers in nearly identical economic situations can face considerably different tax liabilities depending on which side of the triggering criterion they fall. The magnitude of the equity and efficiency costs associated with cliff effects is significant: cliff effects are attached to tax provisions amounting to hundreds of billions of dollars, the majority of which are targeted at low- and moderate-income taxpayers. Cliff effects have received little attention in legal …

How Could This Happen: Explaining The Holocaust By Dan Mcmillan (New York: Basic Books, 2014. 288 Pp. $27.99 Isbn 978-0-465-08024-3)., Sondra Perl

Journal of Hate Studies

Eighty-two years after Hitler became Reich Chancellor of Germany, seventy-seven years after Kristallnacht, seventy years after the liberation of Auschwitz: time makes no difference. The Holocaust remains an inexplicable phenomenon, the catastrophe of catastrophes, an omnipresent stain on the soul of humanity. In his thoughtful book, Dan McMillan attempts, with remarkable success, to demystify the Shoah, to explain how it happened and why. In doing so, McMillan is well aware of the pitfalls: to explain means to understand; to understand, to render the incomprehensible comprehensible, is to challenge the special status of the Holocaust as unique.

National Legal Traditions At Work In The Jurisprudence Of The Court Of Justice Of The European Union: Symposium: Foreign Law In Constitutional Courts, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Numerous scholars have commented on the judicial style of the Court of Justice of the European Union and its non-Herculean judges, generally disapproving of its minimalist reasoning, lack of transparency, and failure to draw openly on comparative legal sources to avoid inconsistencies and weaknesses in its legal reasoning. In a debate where both historians and sociologists have provided new avenues of research, the paucity of comparative lawyers is surprising because European law is a quintessential example of a transnational legal order. Since its inception, European judges, advocates general, and lawyers in Luxembourg have drawn inspiration from the different national legal …

Supranationalism And Foreign Law At The Court Of Justice Of The Eu Symposium: Foreign Law In Constitutional Courts: Introduction, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

By virtue of its peculiar position as the world’s first supranational court, the comparative legal method and the use of foreign law hold a particular significance for the Court of Justice of the European Union (CJEU, or “the Court”). This supranational characteristic, however, places the Court under an intense and unique set of judicial and political pressures. The Court must ensure the autonomy, exclusivity, and functioning of the EU’s legal order, while remaining sensitive to the fact that it is positioned as a central node in a network of national, international, and foreign courts that are profoundly affected by its …

President Obama's Approach To The Middle East And North Africa: Strategic Absence, Paul Williams

Scholarly Articles in Law Reviews & Journals

Many commentators argue that the White House does not have a policy regarding the Middle East and North Africa. Based on observations of the White House's foreign policy decisions over a breadth of seven years, this article argues that The White House does have a clear policy and it is one of Strategic Absence. The term Strategic Absence is used to describe political behavior that arises from a belief that sometimes, in foreign affairs, it is better to be absent rather than present. Strategic Absence has led to a degradation of American influence in the Middle East and has contributed …

Applying The Health Justice Framework To Diabetes As A Community-Managed Social Phenomenon, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In East Harlem, it is possible to take any simple nexus of people -the line at an A.T.M., a portion of a postal route, the members of a church choir -and trace an invisible web of diabetes that stretches through the group and out into the neighborhood, touching nearly every life with its menace.Ten years ago, the New York Times published "Bad Blood," a series of articles examining the impact of diabetes on the residents of New York City. In the years that followed, New York pioneered a series of groundbreaking legal interventions, including implementing measures to track diabetes …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Judge Rodney Gilstrap has a lot of patent cases on his docket. In fact, in 2015 there were 1,686 patent cases that were filed and assigned to Judge Gilstrap, an astronomical number for a single judge. Judge Gilstrap — one of eight federal judges who sit on the Eastern District of Texas — is so popular with patent plaintiffs that over one-fourth of all patent cases in the country are heard by him. This Article addresses the problems with allowing this judge shopping to occur. It reviews the scholarship on the topic that is almost universally opposed to judge shopping …

Genealogies Of Cost–Benefit Analysis In Transatlantic Regulatory Cooperation, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Cost–benefit analysis (CBA) has become a quintessential tool in administrative law informing a variety of modes of regulatory governance. It provides a justification for the regulation of markets based on a quasi-scientific and seemly neutral logic to assess the impact of secondary legislation by government agencies. A new frontier for CBA is the promotion of trade liberalization. It features prominently in the regulatory chapter of the Transatlantic Trade and Investment Partnership (TTIP). During the TTIP negotiations, scholars deployed CBA as a “neutral” tool to achieve greater convergence or reassert divergence and experimentalism in regulatory governance across the Atlantic. A genealogical …

Rendered Invisible: African American Low-Wage Workers And The Workplace Exploitation Paradigm, Llezlie Coleman

Scholarly Articles in Law Reviews & Journals

The narrative of low-wage worker exploitation has increasingly narrowed in focus to reflect the experiences of undocumented immigrant workers whose immigration status makes them particularly vulnerable to wage theft and other denials of their substantive workplace rights. Indeed, much of the scholarship in this area rests solidly at the intersection of immigrant justice and employment law. This article disrupts this paradigm by arguing that this limited narrative has rendered African American low-wage workers invisible. It also draws from the voices of low-wage worker advocates who have borrowed from current activism to announce that #BlackWorkersMatter. Given the role of paradigms in …

Judicial Lobbying, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Abstract: Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done-not to mention little that could be done-to restrict judges from lobbying. Judicial lobbying occurs, in large part, when …