bluuebunny/crossref_metadata_2025 huggingface dataset:
Working with Cancer: How the Law Can Help Survivors Maintain Employment
Authors: Hodges Ann C.
Published: July 2018

Advances in cancer treatment are saving lives, but along with the benefits come challenges. Millions of cancer survivors of working age need to support themselves and their families. This Article looks at the impact of cancer on employment starting with the empirical evidence gathered by researchers affiliated with medical centers. This empirical research provides a base, not previously explored in the legal literature, for assessing the existing laws dealing with cancer and employment (or unemployment). Viewing the law through this lens, which reveals the complex relationship between cancer and employment, exposes both the promise and the weakness of existing laws and offers ideas about legal changes that would better meet the needs of cancer survivors and their families.
Madisonian Fair Use
Authors: Madison Michael J
Published: July 2018

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.
Employers as Junior Immigration Inspectors: The Impact of the 1986 Immigration Reform and Control Act
Authors: Yale-Loehr Stephen W.
Published: July 2018

21 International Lawyer, (1987)Maurice A. Roberts and Stephen W. Yale-LoehrThe Immigration Reform and Control Act of 1986 (IRCA), also known as the Simpson-Rodino Act, is the most significant piece of immigration legislation in over thirty years. It radically revamps this already complicated area of law. Its impact on employers is particularly great, and can be seen in three ways. First, fines of up to $10,000 and even jail sentences can be imposed on businesses that knowingly hire undocumented aliens. Second, every employer must now verify and maintain records on the immigration and citizenship status of each prospective employee, even if the applicant is a U.S. citizen. Third, antidiscrimination provisions prohibit all but the smallest employers from discriminating in hiring or firing on the basis of an individual's national origin or citizenship status. Persons who feel they have been discriminated against may initiate an action against the employer.These provisions create major new responsibilities for businesses, and in effect deputize them as junior immigration inspectors. Employers must now provide the sort of enforcement check that the woefully undermanned Immigration and Naturalization Service (INS) is unable to perform. Lawyers will feel these duties and prohibitions doubly: first in advising their business clients, and second in having to comply themselves, in their own role as employers.This article analyzes the employer sanctions and antidiscrimination provisions of the Simpson-Rodino Act. The article points out ambiguities, gaps, and unanswered questions in the statute and supplementing regulations, and provides practical pointers for attorneys, businesses, and individuals.
Sexism, Sexual Violence, Sexuality, and the Schooling of Girls in Africa: A Case Study from Lusaka Province, Zambia
Authors: Bowman Cynthia Grant , Brundige Elizabeth
Published: July 2018

23 Texas Journal of Women and the Law 37 (2013)While the education of girls is central to development in Africa, persisting obstacles have prevented the full implementation of this goal. African countries have made significant progress in expanding girls' participation in schooling, yet many girls remain unable to access and benefit from a quality education on an equal basis with boys. This study, involving interviews of 105 schoolgirls in and around Lusaka, Zambia in May 2012, describes and discusses the following obstacles: (1) discriminatory treatment that reflects the persistence of sexist ideas about the position and capabilities of girls; (2) sexual abuse of schoolgirls, including constant harassment by boy pupils and requests for sex by male teachers; and (3) issues of sexuality involving teen pregnancy and societal attitudes toward sex. After presenting these findings and situating them in the social and economic context of modern-day Zambia, the article sets forth a variety of recommendations for change, including those of the girls interviewed, approaches attempted by the Zambian government, and others emerging from this study.
Leading New Lawyers: Leadership and Legal Education
Authors: Madison Michael J
Published: July 2018

Lawyers may become leaders, but leaders also may become lawyers. The path to leadership can begin in law school. This short essay describes a leadership development course developed and implemented at a law school over the last four years.
Imagining U.S. Labor Relations without Union Security
Authors: Hodges Ann C.
Published: July 2018

Attacks on union finances are intensifying. These assaults, which come in various forms, have the potential to jeopardize the current systems of labor relations in the United States in both private and public sectors. This essay analyzes what might happen if the challenges are successful. Unions may shrink further in size or power, or alternatively, respond to new conditions in ways that strengthen them. Removal of union security might prompt legal change such as elimination of the duty of fair representation, elimination of the system of exclusive representation, or permitting the union to charge nonmembers for actual representation. These changes, if they occur, will be disruptive although they might result in a system more suited to today’s workplace. Regardless of the immediate outcome, it seems certain that labor-management conflict will not be eliminated, though it may be diverted for a time or changed in form.
Felix Gonzalez-Torres's Epistemic Art
Authors: Hobbs Robert
Published: July 2018

26 Cornell Journal of Law and Public Policy (2017)Latin-American, gay, and AIDS positive, Felix Gonzalez-Torres seemed to be the perfect model for both the late 1980s and early ’90s culture wars, which emphasized sex and diversity. Because Gonzalez-Torres’s life made him such an apt subject for addressing social and political wrongs, many critics and art historians premiered both him and his art when discussing these hotly debated issues. But Gonzalez-Torres himself regarded these personal matters separately from his epistemologically oriented work. In an interview with fellow artist Tim Rollins, he discussed his desire to critique mainstream culture from within its structure and accepted practice rather than serve as one of its pawns: “I love the idea of being an infiltrator. I always said that I wanted to be a spy . . . I don’t want to be the opposition because the opposition always serves a purpose . . .” Because Gonzalez-Torres understood the need to focus his energies within established art discourses rather than mounting attacks from the outside, his art, with its important epistemological and ontological innovations, places him in a direct line with such major twentieth century artist-thinkers as dadaist Marcel Duchamp, minimalists Donald Judd and Robert Morris, and earth artist Robert Smithson.
The Challenge of Legitimacy in Sovereign Debt Restructuring
Authors: Lienau Odette
Published: July 2018

57 Harvard International Law Journal 151-214 (2016)Since the emergence of the post-World War II international economic system, policymakers have lamented the absence of a global sovereign debt restructuring mechanism. This disappointment has only intensified in recent years, as the failure to provide prompt, comprehensive, and lasting debt relief becomes even more apparent. As a result, scholars and key international actors have argued for the development of a more coherent global approach to debt workouts. But to date this discussion lacks a sustained focus on questions of legitimacy — a fact that is exceptionally puzzling in light of the voluminous scholarship on the legitimacy deficits of international economic institutions once they have been established.This Article bridges that gap, arguing that serious attention should be paid to these questions in advance of negotiating a possible debt workout mechanism, and considering what such attentiveness might mean in practice. It highlights the political complexity and distributional ramifications of legitimacy arguments, and develops an analytical framework for understanding the concept along with a preliminary application to the debt restructuring context. It then analyzes the institutional and historical background of debt restructuring in light of this typology, and assesses how domestic insolvency regimes and investment treaty arbitrations incorporate features purported to advance legitimacy. Finally, the Article considers how a future debt workout institution might respond to calls for legitimacy — based on its initial establishment, ongoing processes, and final outcomes — and briefly discusses existing proposals and likely political obstacles in light of these themes. In foregrounding these concerns, this Article draws attention to issues and controversies that will likely be relevant for some time, and contends that the tensions, distributional issues, and power dynamics implicated in questions of legitimacy should inform negotiations on any sovereign debt workout mechanism going forward.
The French Veil Ban: A Transnational Legal Feminist Approach
Authors: Kalantry Sital
Published: July 2018

After the gruesome terrorist attack that killed eighty-four people in Nice, many beach towns in France began to ban Muslim women from wearing the "burkini" on beaches. The burkini, which was created by an Australian designer, is modest swimwear that covers the body and hair. The Nice attack occurred on the heels of a series of attacks in France. The timing of the French burkini ban suggests it was targeting Muslims due to the anger over the attacks. The argument that burkinis are not hygienic is a fig leaf for other more pernicious justifications. Others argue that religious garb generally contravenes the French vision of secularism. Another line of attack against the burkini relates to gender equality. For example, the French Prime Minister argues that the burkini reinforces the "enslavement of women." In this article, I will focus on arguments that justify bans on Muslim women's religious clothing on the basis that they are oppressive to women.Published: The French Veil Ban: A Transnational Legal Feminist Approach, 46 University of Baltimore Law Review 201 (2017).
Defining and Measuring A2K: A Blueprint for an Index of Access to Knowledge
Authors: Shaver Lea
Published: July 2018

Access to knowledge (A2K) is increasingly recognized as the central human development issue of our time. Yet to date there has been little literature defining precisely what is meant by this term, much less how to evaluate the progress toward achieving it. To help bridge this gap, this article offers a blueprint for an A2K index: a quantitative tool integrating a variety of data points to assess how wellcountries promote access to knowledge. The proposed index tracks five key dimensions of access to knowledge: education for informational literacy, access to the global knowledge commons, access to knowledge goods, an enabling legal framework, and effective innovation systems. The resulting conceptual map offers a concrete introduction to the A2K framework for information scholars and professionals.
Paying for Suffering: The Problem of Human Experimentation
Authors: Palmer Larry I.
Published: July 2018

56 Maryland Law Review 604 (1997)
Channeling Unilateralism
Authors: Gardner Maggie
Published: July 2018

56 Harvard International Law Journal 297 (2015)When crime reaches across borders to threaten human security or undermine democracy, states often respond by adopting multilateral treaties that obligate each of them to suppress the transnational crime at home. These treaties help, but only to the extent that parties comply with them. Because states generally cannot enforce their laws outside their own territory, transnational criminals can evade prosecution as long as some states are unable or unwilling to meet these treaty commitments. One solution for improving compliance with these treaties may be, counterintuitively, more unilateralism. Using case studies on transnational bribery and drug trafficking, as well as thick descriptions of several more transnational criminal regimes, this Article develops a theory of “channeled unilateralism” to explain how multilateralism and unilateralism can reinforce one another to the same ends. Treaties that channel unilateralism are structured to help motivated states apply their laws to crimes that reach beyond their borders. Specifically, the treaties endorse extraterritorial application of prescriptive jurisdiction and encourage the use of bilateral agreements for enforcement cooperation. These treaty provisions lower reputational and transaction costs for motivated states to expand their enforcement efforts as long as those efforts remain within the framework set by the treaty. Over time, these expanded unilateral efforts may promote broader compliance with the treaty regime by improving information, peer-to-peer contacts, and technical capacity. When channeled effectively, strong unilateral policies may strengthen rather than weaken multilateral regimes.
Panel Assignment in the Federal Courts of Appeals
Authors: Levy Marin K
Published: July 2018

103 Cornell L. Rev. 65 (2017)It is common knowledge that the federal courts of appeals typically hear cases in panels of three judges and that the composition of the panel can have significant consequences for case outcomes and for legal doctrine more generally. Yet neither legal scholars nor social scientists have focused on the question of how judges are selected for their panels. Instead, a substantial body of scholarship simply assumes that panel assignment is random. This Article provides what, up until this point, has been a missing account of panel assignment. Drawing on a multiyear qualitative study of five circuit courts, including in-depth interviews with thirty-five judges and senior administrators, I show that strictly random selection is a myth, and an improbable one at that—in many instances, it would have been impossible as a practical matter for the courts studied here to create their panels by random draw. Although the courts generally tried to “mix up” the judges, the chief judges and clerks responsible for setting the calendar also took into account various other factors, from collegiality to efficiency-based considerations. Notably, those factors differed from one court to the next; no two courts approached the challenge of panel assignment in precisely the same way. These findings pose an important challenge to the widespread assumption of panel randomness and reveal key normative questions that have been largely ignored in the literature. Although randomness is regarded as the default selection method across much of judicial administration, there is little exposition of why it is valuable. What, exactly, is desirable about having judges brought together randomly in the first place? What, if anything, is problematic about nonrandom methods of selection? This Article sets out to clarify both the costs and benefits of randomness, arguing that there can be valid reasons to depart from it. As such, it provides a framework for assessing different panel assignment practices and the myriad other court practices that rely, to some extent, on randomness.
What’s Left of General Jurisprudence? On law’s ontology and content
Authors: Marmor Andrei
Published: July 2018

The aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law have reached a dead end is challenged here by showing that the debates about the ontology of law and about the determinants of legal contents leave many interesting questions open for serious debate. The paper argues that traditional legal positivism is best seen as a theory about the ontological grounding of legal facts, and that a reductive account of this grounding can be provided with a more sophisticated account of the artifact nature of law, aided by some ideas derived from fictionalism. The paper also acknowledges that such a reductive ontology of law faces serious challenges, particularly from the view point of theories about determinants of legal contents. By explaining these challenges and pointing out how they may be met, the paper aims to show that some the age old debates about the nature or law are very much alive and worthy of serious philosophical inquiry
NASKAH AKADEMIK KEUANGAN DESA
Authors: Umanailo Muhamad Chairul Basrun , Umanailo Rosita , Bahasoan Husen , Ningkeula Edy Said , Assagaf Said Abdurahman , Hamid Iskandar , Nawawi Mansyur , Hentihu Idrus , Bula M. , Jumu La
Published: July 2018

Undang-undang Nomor 22 Tahun 1999 dan Undang-undang Nomor 25 Tahun 1999 yang telah disempurnakan dengan Undang-undang Nomor 32 Tahun 2004 dan Undang-undang Nomor 33 Tahun 2004 telah mengubah hubungan antara pemerintah pusat dan daerah. Dua uUdang-undang ini digunakan sebagai dasar hukum proses desentralisasi di Indonesia dengan memberikan peranan yang sangat penting kepada pemerintah lokal (kabupaten/kota).
From Disability to Usability in Online Instruction
Authors: deMaine Susan David
Published: July 2018

106 Law Library Journal 531 (2014)Online instruction is making inroads into legal education. In this shift from tangible to virtual, many pedagogical, structural, and design issues arise. To add to the complexity, law professors and librarians must consider and address the needs of the vision and hearing impaired. Online education holds many promises for people with sensory or motor impairments because digital information can be rendered in multiple ways depending on the learner’s preferences. Unfortunately, many educators – myself included – who are developing materials for online instruction do not know what is needed or how the tools work.This article is a primer on the work needed to ensure that, as law schools develop online instruction, accessibility is achieved. It begins with an overview of the types of impairments our students may have and a review of the relevant laws. The article then goes on to explore the relationship between accessibility standards and the broader principles of universal design, concluding that universal design is an effective paradigm for approaching accessibility issues. Universal design is effective because it pursues usability, allowing the concept of disability, and the segregation that often accompanies it, to abate. The article then introduces a number best practices for accessibility in creating online instruction. The emphasis here is on the most effective and easy-to-apply practices rather than on more technical aspects of coding for accessibility. The end result is usability – and better materials – for both instructors and students.
Real Copyright Reform
Authors: Litman Jessica
Published: July 2018

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright system is failing its intended beneficiaries. The foundation of copyright law’s legitimacy, I argue, derives from its evident benefits for creators and for readers. That foundation is badly cracked, in large part because of the perception that modern copyright law is not especially kind to either creators or to readers; instead, it concentrates power in the hands of the intermediaries who control the conduits between creators and their audience. Those intermediaries have recently used their influence and their copyright rights to obstruct one another’s exploitation of copyrighted works. I argue that the concentration of copyright rights in the hands of intermediaries made more economic sense in earlier eras than it does today. The key to real copyright reform, I suggest, is to reallocate copyright’s benefits to give more rights to creators, greater liberty to readers, and less control to copyright intermediaries.This article was published in the Iowa Law Review in 2010.
Backbone or Backyard of the Convention? The CISG's Final Provisions
Authors: Schroeter Ulrich G.
Published: July 2018

in: Camilla Baasch Andersen & Ulrich G. Schroeter (eds.), Sharing International Commercial Law Across National Boundaries: Festschrift for Albert H. Kritzer on the Occastion of his Eightieth Birthday, London: Wildy, Simmonds & Hill (2008), pp. 425-469This book chapter provides a comprehensive discussion of the 'Final Provisions' in Articles 89-101 of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).After a brief introduction to the purpose of the Final Provisions, it focusses on the Interpretation of Articles 89-101 CISG; the reservations contained therein (inter alia the conditions under which a reservation may be made under the CISG and the legal consequences when such a condition is not (or no longer) satisfied, the time at which a reservation may be made, the legal effects of reservations made, and unclear reservations (and how to avoid them)), 'interpretative declarations' under the CISG (examples of such declarations, their legal consequences under the CISG, and interpretative declarations and interpretative domestic legislation); succession of States and the CISG (how uniform law operates in a world of shifting borders, the effect of State successions upon the status as a CISG 'Contracting State', and successions and reservations); the Convention's relationship with other international instruments: Articles 90, 94 CISG and European Community law; and future accessions to the CISG and the limitation to 'States' (Article 91(3) CISG).
School Vouchers and the Constitution - Permissible, Impermissible, or Required?
Authors: Simson Gary J.
Published: July 2018

11 Cornell Journal of Law and Public Policy 553 (Summer 2002)Article is based on oral remarks at the April 2002 conference of the Cornell Journal of Law and Public Policy, a symposium on Children and Education.Article is a direct comment on Steven Shiffrin's paper, "The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers."
Dedication to Dean Timothy L. Coggins: "A Goodbye, and Thank You, to Tim Coggins"
Authors: Williams W. Clark
Published: July 2018

At the close of the 2014-15 academic year, the law school will say goodbye to one of our most valued faculty colleagues and administrative leaders, as Associate Dean for Library and Information Services Timothy Coggins retires. Dean Coggins has made some of the most significant contributions in recent memory to the enhanced stature of the law school. His impact has been deep and profound, not only within the law library and the delivery of information services, but more broadly throughout the law school community.
The Choice-of-Law Revolution in the United States: Notes on Rereading von Mehren
Authors: Simson Gary J.
Published: July 2018

36 Cornell International Law Journal 125 (2003)
Democratic Enforcement: Accountability and Independence for the Litigation State
Authors: Lemos Margaret H.
Published: July 2018

102 Cornell L. Rev. 929 (2017)A vast literature in law and political theory focuses on questions of accountability and independence in democratic government. Commentators tend to celebrate accountability in the legislative and regulatory arenas, and independence in the context of adjudication. Yet they largely ignore the government function that lies at the intersection of law-making and law-application: enforcement. The gap in theory is reflected in our current laws and institutional structures. When an agency proposes a new regulation, we have rules in place to promote political accountability, public participation, and neutral expertise in the regulatory process. When the same agency adopts a new approach to enforcing the relevant statutes and regulations, however, we lack equivalent mechanisms for legitimating government action. This Article seeks to fill that gap. Focusing on the civil side of the civil/criminal divide, I develop a theory of enforcement that makes sense of its place in our system of government. Enforcement, I explain, connects law-making and adjudication both in terms of how it operates—bringing cases to adjudicators so that generally applicable laws may be interpreted and applied to particular individuals and firms—and in terms of the features it shares with those more familiar modes of governance. Enforcement is a form of discretionary policymaking, necessitating the same sorts of policy judgments that characterize law-making, and triggering similar demands for accountability, transparency, and public engagement. But enforcers also must make individualized, retroactive, legal determinations of the sort we associate with judging, making the strongest forms of popular control seem inapt.Drawing from democratic theory, I argue that the seeming tension between accountability and independence can be resolved by understanding enforcement as a form of political representation. Casting enforcement in this light helps reveal the importance of accountability in the enforcement context, while also making clear that enforcers can “represent” the public without slavishly following the public will. To say that public enforcement should be accountable is not to deny the need for autonomous professional judgment, but to insist that it is the responsibility of government to inform its citizens of what it is doing in their name, and to listen to their views in return. A call for accountability is also a call for mechanisms by which citizens can attempt to influence enforcement prospectively, or “hold it accountable” retrospectively. And accountability to the public entails some measure of insulation from narrow, private interests. Our current treatment of enforcement falls far short of this vision. As this Article shows, we have few tools to secure meaningful political accountability for enforcement—but neither do we have the means to shield enforcement from improper influence. Under existing law, it turns out, enforcement is both too independent and not independent enough.
Law Libraries as Publishers: Historic Statutes
Authors: Keele Benjamin John
Published: July 2018

Benjamin J. Keele, Law Libraries as Publishers: Historic Statutes, ALL-SIS Newsletter, 35(4), at 5-6 (2016).
The Supreme Court’s Application of 'Ordinary Contract Principles' to the Issue of the Duration of Retiree Healthcare Benefits: Perpetuating the Interpretation/Gap-Filling Quagmire
Authors: Hillman Robert A.
Published: July 2018

32 ABA Journal of Labor & Employment Law 299 (2017)The United States Supreme Court purported to apply "ordinary contract principles" in its decision reversing the Sixth Circuit Court of Appeals in M&G Polymers USA v. Tackett . The Sixth Circuit had held that plaintiffs, retired employees of M&G, were entitled to lifetime healthcare benefits under their union's agreement with M&G. According to the Supreme Court, the Sixth Circuit wrongly relied on a false set of "inferences" established in International Union v. Yard-Man, Inc. to find that "in the absence of extrinsic evidence to the contrary, the provisions of [the collective bargaining agreement] indicated an intent to vest retirees with lifetime benefits." The Supreme Court therefore remanded the case for a determination under "ordinary contract principles," and without the benefit of the inferences, what the parties’ intentions were with respect to the duration of retiree healthcare benefits.This Article documents the various errors of the Supreme Court in applying "ordinary contract principles." In doing so, the Article suggests how courts should proceed in contract cases like M&G. I will argue that "ordinary contract principles" should have led the Court, not to abandon what the Supreme Court called the "Yard-Man inferences," but to treat them as probative, along with all other evidence concerning the duration of healthcare benefits. Because of the Supreme Court's mistakes, its attempt to clear up the Sixth Circuit's treatment of the duration of retiree healthcare benefits undoubtedly failed. More litigation is likely inevitable.
The Right to Science: Ensuring that Everyone Benefits from Scientific and Technological Progress
Authors: Shaver Lea
Published: July 2018

Lea Shaver, The Right to Science: Ensuring that Everyone Benefits from Scientific and Technological Progress, 2015 Euro. J. H.R. 411The right to enjoy the benefits of scientific progress and its applications has long been neglected, both in theory and in practice. Even scholars, advocates, and jurists deeply involved in the human rights field are likely to express uncertainty as to what the right to science concretely requires…if they are even aware of its existence. This essay seeks to remedy that obscurity, providing a highly accessible account of the right to science that is both philosophically grounded and very practical. In short, the right to science calls for treating science and technology as global public goods, to be cultivated for the benefit of humanity and made accessible to all, just as with other socioeconomic rights such as education and healthcare. The essay then elaborates what that broad vision means for minimum core content. Particular emphasis is given to reconciling the potential tension between the right to science and intellectual property regimes.
Vertical Boilerplate
Authors: Gibson James
Published: July 2018

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the whole transaction. Yet real-world transactions often involve multiple layers of contracts, each with its own information costs. What is needed, then, is a “vertical” analysis, a study that examines fewer contracts of any one kind but tracks all the contracts the consumer encounters, soup to nuts. This Article presents the first vertical study of boilerplate. It casts serious doubt on the market mechanism and shows that existing scholarship fails to appreciate the full scale of the information cost problem. It then offers two regulatory solutions. The first works within contract law’s unconscionability doctrine, tweaking what the parties need to prove and who bears the burden of proving it. The second, more radical solution involves forcing both sellers and consumers to confront and minimize boilerplate’s information costs—an approach I call “forced salience.” In the end, the boilerplate experience is as deep as it is wide. Our empirical work should reflect that fact, and our policy proposals should too.
Unequal Justice: The Federalization of Criminal Law
Authors: Clymer Steven D.
Published: July 2018

70 Southern California Law Review 643 (1997)From humble beginnings, federal substantive criminal law has grown to prohibit a wide range of conduct, including much that state criminal laws also proscribe. This expansion, commonly called federalization, has recently attracted substantial academic criticism. Some critics bemoan the federal government's intrusion into matters historically left to the states. Others denounce the burden on the federal judiciary of an increasing criminal caseload. However, there has been far less attention devoted to what may be the most troubling consequence of federalization: the dramatically disparate treatment of similarly situated offenders, depending on whether they are prosecuted in federal or state court. This Article addresses that consequence and contends that equal protection doctrine has a role to play in preventing unprincipled disparity.
Implicit Bias in Judicial Decision Making How It Affects Judgment and What Judges Can Do About It
Authors: Wistrich Andrew J. , Rachlinski Jeffrey J.
Published: July 2018

This Chapter reviews research indicating that judges, like most adults, rely too heavily on intuition while making important decisions. This tendency leaves them vulnerable to using overly simplistic cognitive strategies to decide cases, which creates predictable, systematic errors in judgment. It can also facilitate a reliance on implicit race and gender biases while deciding cases. Numerous strategies are available that would allow judges to stop and deliberate more carefully. This Chapter also describes these strategies. If adopted, judges would avoid excessive reliance on intuition and implicit biases so as to make better, more just judgments.
Bank Governance and Systemic Stability: The 'Golden Share' Approach
Authors: Omarova Saule T.
Published: July 2018

68 Alabama Law Review 1029 (2017)The global financial crisis of 2008-2009 has sharply reframed the debate on the role of bank corporate governance as a mechanism of systemic crisis prevention. Among other things, it revealed how often the incentives of bank managers and shareholders to maximize short-term private gains are perfectly aligned as a matter of internal governance, but work directly against the broader public interest in preserving long-term financial stability. This Article accepts the existence of that built-in potential conflict as the critical starting point for answering the central question of post-crisis bank governance: How do we ensure that the board of directors of a privately-owned banking institution consistently and effectively acts in a manner that serves the overarching public interest in preventing systemic financial crises?The Article offers an unorthodox solution to this problem: in lieu of “improving” or “tweaking” existing standards and procedures that determine board composition or guide specific board actions, it advocates a fundamental structural reconfiguration of bank governance. Specifically, the Article proposes a special “golden share” regime that would grant direct but conditional management rights to a designated government representative on the board of each systemically important banking organization. The goal of the proposed regime is to create a powerful organizational node of public-interest-driven management, which would operate as a dynamic and flexible internal “emergency brake” on individual banks’ activities presenting significant systemic stability concerns. In effect, this mechanism would enable the federal government to accept the role of the “manager of last resort” of a systemically significant financial firm—but only temporarily, and only when it is necessary to preempt or reverse emerging threats to the financial system’s continuing operation.Importantly, the proposed regime is neither a nationalization measure nor an institutionalized bank bailout. Its overarching purpose is not to put the government in charge of private firms but, on the contrary, to steer the firms toward self-correcting and preventative actions necessary to avoid that undesirable result. In that sense, the golden share regime operationalizes a novel approach to bank—and, more broadly, systemically important financial institution (“SIFI”)—corporate governance as an inherently hybrid public–private process.Keywords: banks, bank governance, bank directors, financial stability, systemic risk, financial crisis, SIFI governance, corporate governance, golden share, government stake, board of directors, fiduciary duty, financial institutions, manager of last resort, crisis management
Transparência e Replicabilidade na Pesquisa Empírica em Direito: conceitos e ferramentas
Authors: Oliveira Paulo
Published: July 2018

Com o crescimento das pesquisas empíricas em Direito quais as práticas devem ser adotadas pelos pesquisadores para acompanhar o Padrão Ouro da pesquisa? Quais os conceitos necessários para que a Pesquisa Empírica possa crescer de forma sustentável e democrática? Esse artigo tenta delinear alguns conceitos importantes da Ciência 2.0 e mostra algumas das principais ferramentas para atingir plenamente o ideal de Ciência Aberta.
Government Lawyers in the Trump Administration
Authors: Wendel W. Bradley
Published: July 2018

The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.
When Campus Sexual Misconduct Policies Violate Due Process Rights
Authors: Baker Blair A.
Published: July 2018

26 Cornell Journal of Law and Public Policy (2017)In 2015, the Association of American Universities evaluated twenty-seven schools that surveyed their students and found that one in four female students experiences nonconsensual sexual contact during their time in college. When a student alleges an instance of sexual misconduct to officials at his or her school, the institution launches an investigation to determine whether to take disciplinary action. In the past, universities failed to hold offending students accountable for their actions and social norms discouraged survivors from coming forward— creating a dangerous culture of silence. Research efforts and the media exposed these inadequacies and the pervasiveness of sexual misconduct on campus, driving national debate as well as the White House, Congress, and universities into action.
Soft Law, Authoritative Advice, and Nonbinding Agreements
Authors: Marmor Andrei
Published: July 2018

One of the most fascinating developments in the domain of international law in the last few decades is the astonishing proliferation of non-binding legal instruments, generally referred to as soft law. The forms and origins of various nonbinding legal instruments are quite varied, but what they have in common is the promulgation of norms, commitments, or directives, explicitly avoiding the imposition of legal obligations on the relevant parties. The legal status of soft law is debated in the literature, but my concern in this essay is different: I aim to provide an account of the rationale of soft law from the perspective of the practical reasons that can rationalize such instruments. The argument is focused on analyzing the idea of authoritative advice, suggesting that when authorities advise their putative subjects, they purport to give the subject what I call presumptive reasons for action. I explain here what presumptive reasons are and what their rationale is, suggesting it as a model for the practical reasons in play when soft law operates vertically, in cases of nonbinding directives of international authorities. Horizontal soft law, that normally comes in the form of international treaties, is also explained by employing the idea of presumptive reasons, coupled with the mutual accountability relations that such agreements invariably constitute.
NASKAH AKADEMIK BADAN USAHA MILIK DESA
Authors: Umanailo Muhamad Chairul Basrun , Assagaf Said Abdurahman , Bahasoan Husen , Nawawi Mansyur , Umanailo Rosita , Hentihu Idrus , Bula M. , Ningkeula Edy Said , Jumu La , Hamid Iskandar
Published: July 2018

Badan Usaha Milik Desa yang selanjutnya disebut BUMDes adalah suatu lembaga/badan perekonomian desa yang berbadan hukum dibentuk dan dimiliki oleh pemerintah desa, dikelola secara ekonomis mandiri dan profesional dengan modal seluruhnya atau sebagian besar merupakan kekayaan desa yang dipisahkan. Pada akhirnya BUMDes dibentuk dengan tujuan memperoleh keuntungan untuk memperkuat Pendapatan Asli Desa (PADes), memajukan perekonomian desa, serta meningkatkan kesejahteraan masyarakat desa. Seperti diungkapkan oleh Ngesti D. Prasetyo, bahwa keberadaan BUMDes sangat strategis yang pada akhirnya BUMDes berfungsi sebagai motor penggerak perekonomian desa dan kesejahteraan masyarakat desa. Harapan dengan adanya BUMDes, adalah pembentukan usaha baru yang berakar dari sumber daya yang ada serta optimalisasi kegiatan-kegiatan ekonomi masyarakat desa yang telah ada. Di sisi lain akan terjadi peningkatan kesempatan berusaha dalam rangka memperkuat otonomi desa dan mengurangi pengangguran
Cost-Benefit Analysis and Public Sector Trust
Authors: Stiglitz Edward H.
Published: July 2018

Eighty percent of Americans believe that government is run for “a few big interests” rather than the public interest. Rooted in notions of social welfare, cost-benefit analysis might be seen as an analytical procedure to flush out and discourage at least the most egregious abuses in lawmaking authority, thereby encouraging citizens to view their government as essentially pursuing some plausible notion of the public interest. Yet the extent to which cost-benefit analysis might fill this trust-building role is an unaddressed issue. Here, I conduct an experiment based on a (de)regulatory action in the environmental context to examine whether cost-benefit analysis might yield trust dividends. I find that cost-benefit analysis produces large increases in public sector trust, but only when paired with reasonableness review, and only among “elites.” This pattern of findings suggests that, without more, an agency declaration of cost justification is not credible, but that it may be made so through a form of reasonableness review. I discuss the contours of such review, and highlight perils if review is overly aggressive.
Three Theories of Copyright in Ratings
Authors: Grimmelmann James
Published: July 2018

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright’s usual balance between incentives and access becomes indeterminate when ratings shape reality, rather than vice versa. All three theories are necessary for a complete understanding of ratings.
Known and Unknown, Property and Contract: Comments on Hoofnagle and Moringiello
Authors: Grimmelmann James
Published: July 2018

5 Brooklyn Journal of Corporate, Financial & Commercial Law 85 (2010)In addition to gerund-noun-noun titles and a concern with the misaligned incentives of businesses that handle consumers' financial data, Chris Hoofnagle's Internalizing Identity Theft and Juliet Moringiello's Warranting Data Security share something else: hidden themes. Hoofnagle's paper is officially about an empirical study of identity theft, but behind the scenes it's also an exploration of where we draw the line between public information shared freely and secret information used to authenticate individuals. Moringiello's paper is officially a proposal for a new warranty of secure handling of payment information, but under the surface, it invites us to think about the relationship between property and contract in the payment system. Parts I and II, respectively, of this brief essay explore these hidden themes in Hoofnagle's and Moringiello's articles. I hope the exercise tells us something interesting about these two papers, and also about the problems of privacy and security in the payment system. A brief conclusion adds a personal note to the mix.
Promoting Clinical Legal Education and Democracy in India
Authors: Kalantry Sital
Published: July 2018

Clinical legal education emerged in the United States in the 1960s to givevaluable skill-based instructions to law students while providing legal servicesto people who could not otherwise afford them. This essay proposesanother reason why both Indian and American law schools should supportthe development of law clinics. Drawing on the works of John Dewey andMartha Nussbaum, I argue that clinical legal education promotes democracy.Both elite American and Indian universities are largely unrepresentativeof the respective population demographics of their countries. In clinics,law students bridge this divide by undertaking representation for peoplefrom different racial, caste, and income backgrounds than themselves.These exchanges generate empathy and knowledge among students aboutthe challenges marginalized groups in the society.face. Consequently, theylearn to recognize other citizens as equals and to formulate policies thatwill enhance the welfare of society(y as a whole. There is an urgent needto formalize clinical legal education programs in Indian law schools bothfor purposes of enhancing the democracy as well as providing skill-basedtraining to law students and much-needed legal services to the poor.Published: Promoting Legal Education and Democracy in India, 8 National University of Juridical Science 1 (2015).
Employee Representation in the Boundaryless Workplace
Authors: Stone Katherine V.W.
Published: July 2018

77 Chicago-Kent Law Review 773 (2002)
The Importance of 'The Gap'
Authors: Sherwin Emily
Published: July 2018

35 University of Queensland Law Journal 47-56 (2016)One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that appear wrong from the perspective of individual actors. In this 25-year retrospective of Alexander's initial article on the gap, I examine a possible way out of the dilemma of the gap, and conclude that it does not work.
A Third Place for the Law Library: Integrating Library Services with Academic Support Programs
Authors: Walker David C.
Published: July 2018

While academic support programs3 have become more or less standard inlaw schools during the twenty-first century, they are constantly changing shape.Law librarians can take advantage of this to reinvent and reposition themselves inthe legal academy and, in doing so, add new value to legal education. Currently, lawlibrarians guide students through the process of acquiring legal information; workingwith academic support programs would allow them to take the next step andguide students in converting that information into legal knowledge