Law and Society Commons^™

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Separating Rhetoric From Reality: A Political And Statistical Look At Federal Judicial Confirmation Delays, Marvin L. Longabaugh

ExpressO

In this article, I conduct a statistical analysis of confirmation delays in the ratification of appointments to the federal bench. Section II discusses the history of confirmation delays and some of the political factors that have caused these delays. Section III assesses the effect of factors such as age, education, ethnic origin, and political control of the U.S. Senate on 614 District Court appointments between 1985 and 2000. Section IV conducts a similar analysis on 362 Circuit Court appointments between 1961 and 2000. Last, Section V similarly scrutinizes all 110 Supreme Court appointments from 1789 through 2000.

Valuing Cultural Differences In Behavioral Economics, Justin D. Levinson, Kaiping Peng

ExpressO

Behavioral economic research has tended to ignore the role of cultural differences in economic decision-making. The authors suggest that a systematic bias affects existing behavioral economic theory-- cognitive biases are often assumed to be universal. To examine how cultural background informs economic decision-making, and to test framing effects, morality effects, and out-group effects in a cross-cultural study, the authors conducted an experiment in the United States and China. The experiment was designed to test cultural and cognitive effects on a fundamental economic phenomenon-- how people estimate the financial values of objects over time.

Results of the experiment demonstrated dramatic cultural …

How The Legal System Can Help Millions Retire: A Call For Improved Application Of The Suitability Standard, Ryan Z. Keller

ExpressO

An increased awareness in legal circles of the value of aggressive investments is necessary and the recommended solution should have two divergent effects on broker liability. On one hand, a broker who recommends growth investments should find his potential liability has decreased because the legal profession no longer solely focuses on financial loss. On the other hand, a broker who invests conservatively should discover his liability has potentially increased because his recommendations may not be in the client’s best interest. The value of both of these effects is that it causes brokers to have a substantially greater incentive to invest …

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As …

A Tale Of Two Trusts: The Barnes Foundation And The Isabella Stewart Gardner Museum, Jeannette H. Maurer

ExpressO

This paper examines the law of charitable trusts and donor intent through a comparison of two museums: the Barnes Foundation and the Isabella Stewart Gardner Museum. This paper first analyzes the framework of the Barnes trust and the Gardner trust and explores the various limitations each donor placed upon their trust instruments, including the similar restriction that, after their deaths, their art could never be moved from where they placed it in their respective galleries. The paper then compares and contrasts the Gardner trust with the Barnes trust and discusses how, given their initial similarities, the Gardner Museum has received …

Entrapment By Numbers, Dru Stevenson

ExpressO

This essay analyzes emerging trends in entrapment law, and is the first to describe the declining numbers of reported cases that involve the entrapment defense. This phenomenon is attributed to decreasing levels of uncertainty in the rules pertaining to the defense, and to discreet procedural issues. The shifting degrees of certainty in penal rules, which have become increasingly mechanical and mathematical over time, are shown to disfavor certain defendants inherently, to the point of being a snare or source of “entrapment” themselves for these individuals. (Published in 16 J. Law & Pub. Pol’y 1 2005)

Any Place For Ethnicity? The Liberal State And Immigration, David Abraham

ExpressO

When it comes to immigration, almost all liberal states are faced with the contradiction between their universalist principles and the real affinities they feel for ethnic kinsmen. This review essay (4000 words) addresses the different ways a number of liberal democracies have handled this dilemma.

Urban Legends, Desegregation And School Finance: Did Kansas City Really Prove That Money Doesn’T Matter?, Preston C. Green

ExpressO

This article examines whether conservative critics are correct in their assertion that the Kansas City, Missouri School District (KCMSD) desegregation plan clearly establishes that no correlation exists between funding and academic outcomes. The first section provides a summary of public education in the KCMSD prior to 1977, the beginning of the Missouri v. Jenkins school desegregation litigation. The second and third sections analyze whether the Jenkins desegregation and concurrent school finance litigation (Committee for Educational Equality v. State) addressed these problems. The fourth section provides an overview of school finance litigation and explains how the KCMSD desegregation plan has been …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

Formal Versus Informal Allocation Of Land In A Commons: The Case Of The Macarthur Park Sidewalk Vendors, Gregg Kettles

ExpressO

Sidewalk vendors are becoming a more common presence in cities in Latin America and the United States. Vendor demand for the best sidewalk vending spots increasingly exceeds supply, making necessary a system to allocate space in what is essentially an open access commons. This paper presents an empirical study of two very different systems of allocation that have been adopted in the city of Los Angeles, California, a formal one imposed by the city on legal vendors when they were unable to come up with one on their own, and a second that was embraced by illegal vendors across the …

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations, David S. Gamage

ExpressO

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law.

This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

When 2 Or 3 Come Together, Tracey L. Meares

ExpressO

This article investigates policies that are responsive to crime in disadvantaged, urban neighborhoods from a community-based context. The vehicle is an analysis of a community-wide prayer vigil held in Chicago in May of 1997. The vigil resulted from a collaboration between the Chicago Police Department and hundreds of (mostly) African-American churches on Chicago’s West Side. Strikingly, the local police district’s commander facilitated the vigil. We explain the sociological and political significance of this collaboration by drawing upon the “Chicago School” of urban sociology and demonstrating theoretically and empirically the potential for the collaboration, through the integration of key community institutions, …

A Norms Approach To Jury "Nullification", Joseph Sanders

ExpressO

The paper synthesizes economic and sociological approaches to norms to explain the circumstance under which juries are most likely to substitute their own rules and criteria for that of the law when deciding a case. It concludes that this type of “nullification” is most likely to occur when substantive societal value norms embedded in scripts are contrary to legal rules.

The (Practical) Meaning Of Property, Vincent F. Chiappetta

ExpressO

I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property …

The Employer Preference For The Subservient Worker And The Making Of The Brown Collar Workplace, Leticia M. Saucedo

ExpressO

The rapidly growing Latino immigrant population raises questions about how the “brown collar” worker is being incorporated into our economy. Newly arrived Latino immigrants, or “brown collar” workers, are increasingly found in segregated workplaces throughout the country. They typically perform the least desirable jobs in the most unstable conditions in our economy. This article explores the creation of these workplaces by focusing first, on the conditions that create brown collar subservience and second, on employer practices that seek workers out for their subservience. Today’s anti-discrimination law does not adequately capture the form of discrimination lurking in the interaction between brown …

Legal Archaeology And Feminist Legal Theory: A Case Study Of A Violation Of A Protective Order , Debora L. Threedy

ExpressO

This article explores the intersection between the field of legal archaeology and feminist legal theory through the medium of a case study of the prosecution of the violation of a protective order.

Both legal archaeology and feminist theory employ “bottom up,” or grounded, theorizing; that is, they begin with specific context and move from there to generalization or abstraction, rather than the other way around. And both operate from a critical perspective that consciously challenges what we think we know about how law operates. For example, both are interested in exploring how systemic vulnerabilities, such as conscious or unconscious gender …

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

Principles Of U.S. Family Law, Vivian E. Hamilton

ExpressO

What explains U.S. family law? To answer this question, this Article undertakes a conceptual analysis of the legal practices that govern families. This analysis has yet to be done, and its absence hamstrings constructive thought on our family law. The Article develops a typology that conceptualizes U.S. family law and exposes its underlying principles: First, it identifies the significant elements, or rules, of family law. Second, it demonstrates that these rules reflect or embody four important concepts – conjugality, privacy (familial as well as individual), contract, and parens patriae. Finally, it shows that the concepts of family law in turn …

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings …

Contracting Out Of The Culture Wars: How The Law Should Enforce And Communities Of Faith Should Encourage More Enduring Marital Commitments, Jamie A. Aycock

ExpressO

This article attempts to transcend the “culture wars” as they are played out in the family law arena by drawing on postmodern values, such as individualism and neutrality, to allow individuals who so desire to choose to emphasize more traditional or communitarian values, such as interdependence and attachment. This article argues, then, as others have, that the role of contract in marriage should be extended for those who choose to agree to additional terms. Here, the argument goes a step further, however, by positing an active, positive role for communities of faith to play in a marriage regime of expanded …

Come Down & Make Bargains In Good Faith: The Application Of 42 U.S.C. § 1981 To Race & National Origin Discrimination In Retail Stores, Charlotte H. Sanders

ExpressO

Plaintiffs who are harassed or otherwise discriminated against in retail stores on the basis of their race or national origin have few options for legal redress. The major federal public accommodations statute, Title II of the Civil Rights Act of 1964, does not cover retail stores. In addition, while some state public accommodations statutes explicitly ban discrimination in retail stores, many others do not. As a result, plaintiffs who have been discriminated against in retail stores have turned to the contracts clause of 42 U.S.C. § 1981.

Section 1981, a Reconstruction-era civil rights statute, guarantees to all people within the …

Entrenched Managers & Corporate Social Responsibility, Shane M. Shelley

ExpressO

A growing number of academics have suggested U.S. corporate governance laws bestow too much power on managers. Much of the research focuses on the relationship between corporate governance arrangements, which supply a means to managerial power, and the financial performance of corporations. This exclusive focus on financial performance may be misguided. Although profits serve as a proxy for the benefits corporations provide society, they do not always adequately reflect the costs of the activities that generated them. In this sense, financial performance may not give an accurate, or at least complete, picture of the real value of corporations. Whether managers …

Never Get Out'a The Boat: Stenberg V. Carhart And The Future Of American Law, Michael Scaperlanda, John Breen

ExpressO

In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture.

The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

ExpressO

Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music …

Piracy, Biopiracy And Borrowing: Culture, Cultural Heritage And The Globalization Of Intellectual Property, Olufunmilayo B. Arewa

ExpressO

Discussions of both “piracy” and “biopiracy” often start from questionable assumptions about the nature of borrowing. In addition, legal treatment of local or traditional knowledge is often based on inadequate conceptions of the nature of culture and borrowing among cultures. Uses of local or traditional knowledge are embedded within an at times contentious discourse between North and South and have led to accusations of misappropriation, exploitation and “biopiracy.” This discourse reflects historical hierarchies of culture and power that continue to exert a strong influence on discourse, policy and the shape of legal doctrine. Many countries in the South lack the …

The Focused Attention Of Others: A Conceptual And Normative Model Of Personal And Legal Privacy, Jeffery L. Johnson

ExpressO

The article defends an analysis of privacy as those areas of a person’s life where s/he is entitled to immunity from the illegitimate focused attention of others. It goes on to argue that such a model encompasses the concept of privacy in colloquial and legal contexts. The article concludes with an analysis of the normative value of privacy.

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

The Futile Debate Over The Morality Of The Death Penalty, Daniel R. Williams

ExpressO

No abstract provided.