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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.
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Luz Estella Nagle, Colombia’s Raid into Ecuador Sparks International Debate on the Bush Doctrine, Hot Pursuit, and Preemptive Self-Defense, 24 Int'l Enforcement L. Reporter 188 (2008)Clicking on the button will copy the full recommended citation.
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Lance Long and William F. Christensen, Clearly, Using Intensifiers is Very Bad – Or is it?, 45 Idaho L. Rev. 171 (2008)Clicking on the button will copy the full recommended citation.
Although scholars have generally found that overusing intensifiers (words such as clearly, obviously, and very) negatively affects the persuasiveness or credibility of a legal argument, no one has studied actual appellate briefs to determine whether there is a relationship between intensifier use and the outcome of an appeal. This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But - and this was an unexpected result - if an appellate opinion uses a high rate of intensifiers, an appellant's brief written for that appeal that also uses a high rate of intensifiers is associated with a statistically significant increase in favorable outcomes. Additionally, when a dissenting opinion is written, judges use significantly more intensifiers in both the majority and dissenting opinions. In other words, as things become less clear, judges tend to use clearly, and obviously more often.
These results could be interpreted several ways. It could be that overusing intensifiers actually renders a brief suspect and subject to increased skepticism by appellate court judges. Alternatively, it could be that the overuse of intensifiers is accompanied by violations of other writing conventions that further affect the credibility of the brief. Or, it could simply be that appellants or appellees with difficult arguments (arguments that they believe they are likely to lose) tend to lapse into an intensifier-rich mode of writing in an attempt to bolster the perceived weaknesses of an argument. All of these factors may combine to produce the result. Of course, since no causal relationship is shown, it could be a yet unidentified factor. At the very least, the studies suggest the need for further research and a fruitful source of data for performing such research.
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Luz Estella Nagle, On Armed Conflict, Human Rights, and Preserving the Rule of Law in Latin America, 27 Penn St. Int'l L. Rev. 1 (2008)Clicking on the button will copy the full recommended citation.
The rule of law in Latin America is under great stress due to ongoing internal armed conflict, the proliferation of criminal gangs and international crime organizations, the presence of international terrorist cells in the region, government corruption, citizens’ loss of faith in their governments, and other social and political factors all conspire to cast the Latin American world into a region of transborder conflict, lawlessness, and long term political and social instability.
This article examines the impact on the rule of law in Latin America from internal armed conflict and its attendant terrorism and human rights violations committed by state and non-state actors, and what steps must be undertaken to stabilize the region, reform vital government and legal institutions, and reaffirm that protection of human rights and respect for the rule of law are paramount to long-term development and regional security.
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Luz Estella Nagle, Process Issues of Colombia’s New Accusatory System, 14 Sw. J.L. & Trade Americas 233 (2008)Clicking on the button will copy the full recommended citation.
Colombia has been among the Latin American states to have an accusatory criminal justice system imposed upon its judiciary by the United States. But the exportation of the Anglo-American accusatory system to supplant the centuries-old inquisitorial system has not achieved the intended results, such that now a confusing and disorganized hybrid system is in place that creates far more problems than the transition was meant to resolve. This article presents a critical look at the reform agenda Colombia was forced into accepting and explains why the Colombian judiciary and criminal justice system remain inefficient and in significant disarray.