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Articles 1 - 14 of 14
Full-Text Articles in Law
Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller
Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller
Public Law and Legal Theory Papers
We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" -- fact-based and law-based determinations made during the sentencing phase -- to maximize the judges' sentencing preferences subject to the Guideline’s constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the …
What Is Legal Doctrine, Emerson Tiller, Frank B. Cross
What Is Legal Doctrine, Emerson Tiller, Frank B. Cross
Public Law and Legal Theory Papers
Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others’ efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe …
Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane
Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane
The Ohio State University Moritz College of Law Working Paper Series
Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a …
Utility, The Good And Civic Happiness: A Catholic Critique Of Law And Economics, Mark A. Sargent
Utility, The Good And Civic Happiness: A Catholic Critique Of Law And Economics, Mark A. Sargent
Working Paper Series
This paper contrasts the value maximization norm of welfare economics that is central to law and economics in its prescriptive mode to the Aristotelian/Aquinian principles of Catholic social thought. The reluctance (or inability) of welfare economics and law and economics to make judgments about about utilities (or preferences) differs profoundly from the Catholic tradition (rooted in Aristotle as well as religious faith) of contemplation of the nature of the good. This paper also critiques the interesting argument by Stephen Bainbridge that homo economicus bears a certain affinity to fallen man, and that law and economics thus provides appropriate rules for …
Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt
Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt
The Ohio State University Moritz College of Law Working Paper Series
Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit.
Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki
Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki
George Mason University School of Law Working Papers Series
Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …
Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan
Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan
Rutgers Law School (Newark) Faculty Papers
This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial, (2) Separately measuring Social Security’s long-term balance is inappropriate and misleading, (3) The methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …
Technology For Justice Customers: Bridging The Digital Divide Facing Self-Represented Litigants, Ronald W. Staudt
Technology For Justice Customers: Bridging The Digital Divide Facing Self-Represented Litigants, Ronald W. Staudt
All Faculty Scholarship
No abstract provided.
What Do Juvenile Offenders Know About Being Tried As Adults? Implications For Deterrence , Richard E. Redding
What Do Juvenile Offenders Know About Being Tried As Adults? Implications For Deterrence , Richard E. Redding
Working Paper Series
An underlying assumption in the nationwide policy shift toward transferring more juveniles to criminal court has been the belief that stricter, adult sentences will act as either a specific or general deterrent to juvenile crime. With respect to general deterrence - whether transfer laws deter would-be offenders from committing crimes - it is important to examine whether juveniles know about transfer laws, whether this knowledge deters criminal behavior, and whether juveniles believe the laws will be enforced against them. The current study is one of the first to examine juveniles' knowledge and perceptions of transfer laws and criminal sanctions. We …
Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey
Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
All Faculty Scholarship
The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. …
Keep Your Hands Off My (Dead) Body: A Critique Of The Ways In Which The State Disrupts The Personhood Interests Of The Deceased And His Or Her Kin In Disposing Of The Dead And Assigning Identity In Death, Mary Clark
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer
All Faculty Scholarship
No abstract provided.
Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi
Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi
All Faculty Scholarship
Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on an …