Law and Society Commons^™

Voices Of The Brown Generation: Description Of A Project, Mildred Wigfall Robinson

The Journal of Appellate Practice and Process

No abstract provided.

Litigation Campaigns And The Search For Constitutional Rules, Mark V. Tushnet

The Journal of Appellate Practice and Process

No abstract provided.

Back To Basics: Returning To The Matter Of Black Inferiority And White Supremacy In The Post-Brown Era, Regina Austin

The Journal of Appellate Practice and Process

No abstract provided.

Reflections On Brown, Paul D. Carrington

The Journal of Appellate Practice and Process

No abstract provided.

Hearing The Danger Of An Armed Felon- Allowing For A Detention Hearing Under The Bail Reform Act For Those Who Unlawfully Possess Firearms, Matthew S. Miner

University of Michigan Journal of Law Reform

This Article advocates an interpretation of the Bail Reform Act that affords courts the ability to hold detention hearings in gun crime cases to evaluate defendants' potential danger to the community. According to an interpretation advanced by some courts, gun possession offenses do not constitute "crimes of violence" within the meaning of the Act and therefore those charged with such crimes, even ifth ey have a prior felony conviction, are not subject to pre-trial detention. Arguing against this approach, the Article looks to the Bail Reform Act, the relevant federal case law, and the alarming statistics concerning the growing use …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …

How About A Little Perspective? The Usa Patriot Act And The Use And Abuses Of History, Jeffrey A. Breinholt

ExpressO

A historical analysis of the U.S. law enforcement response to threatened terrorism, showing that the USA PATRIOT and other modern counterterrorism methods are neither unpredecented nor unconstitutional and that U.S. courts remain a haven for persons who feel threatened by government actions taken in the name of national security.

From Legal Disputes To Conflict Resolution And Human Problem Solving: Legal Dispute Resolution In A Multidisciplinary Context, Carrie Menkel-Meadow

Journal of Legal Education

No abstract provided.

Remembering The Role Of Justice In Resolution: Insights From Procedural And Social Justice Theories, Nancy A. Welsh

Journal of Legal Education

No abstract provided.

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

In The Beginning Was The Law… An Intellectual Odyssey, Patrick Mcauslan

The Practice of Law and Development: Socio-Legal Approaches

Is there such a distinctive phenomenon in practice as "law and development?" Isn’t all law directed towards some kind of development in the sense that new law – judicial decisions, legislation, administrative directives – change the existing law and so is a development from that existing law and in changing the existing law, change, in howsoever slight a degree, the economy and society of which the law is a part. Law and Development did not start in the 1960s when American legal scholars discovered the developing world nor did it end in the 1970s when, starved of funds to pursue …

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

ExpressO

No abstract provided.

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Toward A New Theory Of Notice And Deterrence, Dru Stevenson

ExpressO

This article sets forth a new model of “notice” and deterrence that helps explain some long-standing contradictions in the literature on deterrence. Nearly all the work in the area of criminal law and deterrence has included an assumption that would-be offenders know the laws and the threatened sanctions, and therefore adjust their behavior in light of these disincentives. The fact that most people seem to be ignorant of the exact boundaries of the rules, and ignorant of the sanctions, presents an enormous conceptual problem for the classic model of deterrence. This new model presents an alternative mechanism for deterrence based …

Using Our Brains: What Cognitive Science Teaches About Teaching Law Students To Be Ethical, Professionally Responsible Lawyers, Alan M. Lerner

ExpressO

Throughout our lives, below the level of our consciousness, each of us develops powerful values, intuitions, expectations, and needs that powerfully affect both our perceptions and our judgments. Placed in situations in which we feel threatened, or which implicate our values, our brains, relying on those implicitly learned, emotionally weighted, memories, can "downshift," to primitive, self-protective problem solving techniques - fight or flight. Because these processes operate below the radar of our consciousness, we react without reflection or the opportunity for interdiction. Thus, it may be that automatic, “emotional” reaction, rather than thoughtful, reasoned analysis leads to our responses to …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

ExpressO

If the Progress Clause, a.k.a. the Patent and Copyright Clause, of the U.S. Constitution had been construed when its original meaning was still obvious, United States law would be far different. In this area at least, the Drafters’ Constitution was much less aristocratic than the modern (mis)reading. The original meaning of the Progress Clause, furthermore, should have stimulated a more communitarian First Amendment, the type of First Amendment currently being suggested by leading First Amendment scholars such as Jack Balkin.

Law's Lunacy: W.S. Gilbert And His Deus Ex Lege, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru

Cardozo Law Review

No abstract provided.

Private Protection Of Patentable Goods, Jonathan M. Barnett

Cardozo Law Review

No abstract provided.

Explaining Death Row's Population And Racial Composition, John H. Blume, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

Twenty-three years of murder and death sentence data show how murder demographics help explain death row populations. Nevada and Oklahoma are the most death-prone states; Texas's death sentence rate is below the national mean. Accounting for the race of murderers establishes that black representation on death row is lower than black representation in the population of murder offenders. This disproportion results from reluctance to seek or impose death in black defendant-black victim cases, which more than offsets eagerness to seek and impose death in black defendant-white victim cases. Death sentence rates in black defendant-white victim cases far exceed those in …

Attorney Fees In Class Action Settlements: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Study of two comprehensive class action case data sets covering 1993-2002 shows that the amount of client recovery is overwhelmingly the most important determinant of the attorney fee award. Even in cases in which the courts engage in the lodestar calculation (the product of reasonable hours and a reasonable hourly rate), the client's recovery generally explains the pattern of awards better than the lodestar. Thus, the time and expense of a lodestar calculation may be wasteful. We also find no robust evidence that either recoveries for plaintiffs or fees of their attorneys increased overtime. The mean fee award in common …

Enough: The Failure Of The Living Will, Angela Fagerlin, Carl E. Schneider

Articles

Enough. The living will has failed, and it is time to say so. We should have known it would fail: A notable but neglected psychological literature always provided arresting reasons to expect the policy of living wills to misfire. Given their alluring potential, perhaps they were worth trying. But a crescendoing empirical literature and persistent clinical disappointments reveal that the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy. As the evidence of failure has mounted, living wills have …

Civil Obedience, W. Bradley Wendel

Cornell Law Faculty Publications

Discussions of legal ethics generally assume that lawyers should deliberate straightforwardly on the basis of reasons to act or refrain from acting. This model of deliberation fails to account for the role of the law in resolving normative disagreement and coordinating social activity by people who do not share comprehensive ethical doctrines. The law represents a collective decision about what citizens ought to do, which replaces the reasons individuals would otherwise have to act. This Article contends that legal ethics ought to be understood as an aspect of this theory of the authority of law. On this account, lawyers have …

Antitrust Immunity And Standard Setting Organizations: A Case Study In The Public-Private Distinction, Christopher L. Sagers

Cardozo Law Review

No abstract provided.

“It’S The Law.”: Social Norms And The Rule Of Law, Amir N. Licht

ExpressO

This Article posits that treating social norms as isolated regularities, as is commonly done in the legal literature, misses the big picture of social norms. Analyses of the relations between social norms and the law consequently run the risk of becoming “just so stories.” Economic analyses of other-regarding behavior may go beyond the narrow view of self-interestedness yet they remain confined to the individual level of analysis. To account for the societal-level mechanisms underlying social norms, this Article outlines a model in which norms form interdependent systems. Societal emphases on cultural values define the backbone of an evolving body of …

The Disenchantment Of Logically Formal Legal Rationality Or Max Weber's Sociology In The Genealogy Of The Contemporary Mode Of Western Legal Thought, Duncan Kennedy

ExpressO

Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. This appreciation begins with a summary description of the Western legal thought of Weber's time, as it looks from our present 100 years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. Part II presents Weber's sociology of law, comparing and contrasting his approach with that of the social current. The most striking thing about Weber's sociology of law, from …

Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson

ExpressO

Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an …