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Kristen David Adams, Of Stockyards and Stock Exchanges: Proceeds Puzzles under Revised UCC Article 9, 18 Bus. L. Today 1– (2008)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, Group Size, Heterogeneity, and Prosocial Behavior: Designing Legal Structures to Facilitate Cooperation in a Diverse Society Essay, 18 Cornell J.L. & Pub. Pol'y 203 (2008)Clicking on the button will copy the full recommended citation.
Recent social science research has found that in many scenarios, increases in group size and diversity have a negative impact on cooperation and other prosocial behavior. A related study by the political scientist Robert Putnam has created a firestorm of debate within the past few months about the negative effects of diversity on the social fabric.
This essay addresses a subset of this larger debate. It looks to recent social science research to explore how and why group size and diversity impact cooperation and other prosocial behaviors. It then considers how to take the results of this research into account in designing legal structures, either by placing people into contexts that foster cooperation or by taking affirmative steps to mitigate the negative impacts of increases in group size or diversity. Increases of group size and diversity tend to undercut the informal mechanisms that communities use to encourage cooperation, and in many circumstances these mechanisms can be replaced by legal structures. To illustrate the potential for using the design of legal structures to encourage prosocial behavior, the essay draws on examples including residential community organizations, the management of natural resources, corporate boards, and the private microlending groups organized by the Nobel-Peace-Prize-winning Grameen Bank.
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Luz Estella Nagle, Some Thoughts on the Rule of Law and Democracy in Latin America, Criminal Law Section Newsletter 7 (2008)Clicking on the button will copy the full recommended citation.
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Candace Zierdt and Ellen S. Podgor, Back Against the Wall: Corporate Deferred Prosecution Through the Lens of Contract Policing, 23 ABA Criminal Justice Magazine 34 (2008)Clicking on the button will copy the full recommended citation.
This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.
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Elizabeth Ippolito Boals et al., Reflections: The Honorable Irma S. Raker — Judge, Teacher and Role Model, 57 Am. U. L. Rev. 1563 (2008)Clicking on the button will copy the full recommended citation.
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Marco Jimenez, The Value of a Promise: A Utilitarian Approach to Contract Law Remedies, 56 UCLA L. Rev. 59 (2008)Clicking on the button will copy the full recommended citation.
This Article critically examines the applicability of law and economics, or wealth maximization theory, to contract law by examining this theory from within the consequentialist framework of utilitarianism. Roughly speaking, wealth maximization theory is a consequentialist theory of justice holding that those actions that increase wealth are just and should be allowed, whereas those actions that decrease wealth are unjust and should be forbidden. This theory has been used not only to support such controversial doctrines as efficient breach, but also to inform the way that many scholars and judges think about remedies for the breach of contract. Although the growth and acceptance of wealth maximization theory has been rapid since it was first formalized several decades ago, it is by no means uncontroversial, having been subject to constant attack since its inception from many who, operating outside of consequentialism, have criticized the normative foundations upon which wealth maximization theory rests, expressing their dismay over a theory that encourages the breaking of a solemn oath in the name of efficiency. Until now, however, previous scholarship has not critically examined this theory from within the consequentialist framework to see whether it, in fact, actually maximizes wealth. This Article provides that approach.
Unlike other scholarship in this area, this Article does not challenge the normative foundations upon which wealth maximization theory rests, but rather argues that, on its own terms, this theory fails to maximize wealth within contract law. This is because wealth maximization theory is a fundamentally utilitarian theory that depends upon, and derives its legitimacy from, the utilitarian concept of value. Notably however, wealth maximization theory often prevents value from being maximized in the name of wealth. This insight has profound implications, suggesting not only that the continued application of this theory to contract law ought to be seriously questioned, but also that the way both consequentialists and nonconsequentialists think about remedies in contract law may need to be rethought. Indeed, this insight may even help reconcile these divergent theories within contract law because, as this Article suggests, the best way to achieve the consequentialist end of utility maximization is often through the nonconsequentialist means of contract enforcement, including the enforcement of liquidated damages clauses and specific performance.
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Michael S. Finch et al., Psychological Expertise in the Court, 1 Psychological Injury and the Law (2008)Clicking on the button will copy the full recommended citation.
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Peter Lake, Still Waiting: The Slow Evolution of the Law in Light of the Ongoing Student Suicide Crisis, 34 J.C. & U.L. 253 (2008)Clicking on the button will copy the full recommended citation.
College and university student mental health issues, especially student suicide, have emerged as matters of national concern. Modern college and university students face an array of mental health challenges. The risks associated with suicide, which in some situations may include an attendant risk of homicide, have become signature risks in an ongoing college and university student mental health crisis. Suicide is neither the only, nor the most prevalent, mental health issue for students, but it has become salient. Just a few years ago, there was much less public discussion of the mental health challenges of the modern student and very little by way of systemic and proactive suicide prevention for a college and university community as a whole. The times have changed. Dealing with suicide risk in college and university populations is now a top concern for administrators.
In 2002, Nancy Tribbensee and I wrote of the emerging crisis of college and university student suicide. We addressed the wave of mental health issues menacing institutions of higher education and sounded an alarm that the delivery of higher education and litigation patterns would change. We acknowledged that, at the time, alcohol and drug use dominated the agendas of many college and university administrators. Events at Virginia Tech in April of 2007, however, put greater priority upon issues of self-inflicted injury and attendant violence. While college and university mental health issues had continued to garner interest prior to 2007, the Virginia Tech tragedy served as a catalyst for greater intervention by colleges and universities with respect to mental health issues. In 2002, we anticipated that in the near term, however, attention paid to suicide and other serious forms of self-inflicted injury will continue to increase and that these concerns may begin to gain prominence. The April 2007, tragedy has made our prediction regarding issues of suicide and related violence come true faster than we imagined. Unfortunately, although suicide and related risks have jumped in priority, the law has evolved at a frustratingly slow pace.
This article is an update to my earlier article with Nancy Tribbensee and a call to action: colleges and universities desperately need more legal guidance on the parameters of managing student suicide danger.
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Brooke J. Bowman, Research Across the Curriculum: The Road Must Continue Beyond the First Year, 61 Oklahoma Law Review 503 (2008)Clicking on the button will copy the full recommended citation.
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Luz Estella Nagle, Colombia’s Incursion into Ecuadorian Territory: Justified Hot Pursuit or Pugnacious Error?, 17 J. Transnat'l L. & Pol'y 359 (2008)Clicking on the button will copy the full recommended citation.
On March 1, 2008, Colombian military forces launched a cross-border airstrike and ground operation into Ecuador to attack a jungle encampment occupied by high ranking members of the Colombian guerrilla army known as the Revolutionary Armed Forces of Colombia (FARC). The specific target of the air attack was Luis Edgar Devia Silva, aka Raul Reyes, the FARC’s number two in command and one of Latin America’s longest enduring guerrilla leaders. Reyes and several cohorts were killed. The Colombian forces retrieved Reyes’ body and forensic evidence, including his laptop computer, and retreated back across the frontier, leaving the Ecuadorian military to deal with the aftermath and attend to a lone survivor.
The raid sparked a regional crisis that resulted in Ecuadorian and Venezuelan military mobilizations along their borders with Colombia. Colombia’s President, Alvaro Uribe, justified the incursion into Ecuadorian territory as an operation of "hot pursuit," an international legal doctrine that allows a nation to give chase across an international frontier in order to capture a rebel force attempting to escape to safe haven in a neighboring country. The justification quickly unraveled, however, when evidence of the actual attack indicated that those in the FARC camp were in bed sleeping at the time of the airstrike on the site, and that the force that went into Colombia on the ground was a clean-up operation rather than an offensive operation.
Although the crisis was resolved two weeks later at a Latin American summit, issues remain over international law doctrines such as hot pursuit, preemptive and anticipatory self defense, and use of the Bush Doctrine by other nations for purposes of crossing into another country’s territory to pursue combatants involved in an internal armed conflict. This article examines the international law issues surrounding Colombia’s actions and its justifications in the face of harsh international reactions.