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Luz Estella Nagle, The Rule of Law in Latin America, in Latin America Democracy: Emerging Reality or Endangered Species? (Richard Millett et al. eds., 1st ed., 2008)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, Berman v. Parker, in Encyclopedia of the Supreme Court of the United States (David S. Tanenhaus ed., Macmillan Reference USA, 2008)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, Hadacheck v. Sebastian, in Encyclopedia of the Supreme Court of the United States (David S. Tanenhaus ed., Macmillan Reference USA, 2008)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, Nothing “Errant” About It: The Berman and Midkiff Conference Notes and How the Supreme Got to Kelo with Its Eyes Wide Open, in Private Property, Community Development & Eminent Domain (Robin Paul Malloy ed., Ashgate, 2008)Clicking on the button will copy the full recommended citation.
This Essay draws on the Supreme Court's conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O'Connor's assertion in her Kelo v. City of New London dissent that there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff. The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O'Connor found objectionable was essential to the Court's holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O'Connor's suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect.
The Court's decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court's public use precedents. A more compelling dissent by Justice O'Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff's deference to the legislature was a mistake that should be corrected by overruling the prior cases.
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Tim Kaye, Law and Risk: An Introduction, in Risk and the Law (Gordon Woodman and Diethelm Klippel eds., Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
Although lawyers sometimes use terms such as 'risk distribution' and 'assumption of risk,' it is striking that there has been a dearth of scholarship on the relationship between law and risk. This paper seeks to start to address that deficiency and urges scholars to devote more time to this important area. It suggests that risk analysis in the past has been hampered by both confusion over terminology and fundamental misunderstanding of the differences between - and relevance of - subjective and objective risk. It argues that, once these details are properly understood, looking at law from the perspective of the risks involved dovetails with other, more familiar, ideas such as Henry Maine's movement from Status to Contract and John Stuart Mill's 'harm principle'. In this vein, it considers developments of the law within Europe and attempts to relate them to the growth of what has become known as the 'Risk Society'. Focusing particularly on English and German law, it also draws a number of comparisons with the position in the United States. Legal scholars who continue to omit a systematic discussion of risk from their analysis may be overlooking a valuable perspective.
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Tim Kaye, Risk and Predictability in English Common Law, in Risk and the Law (Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
It is often said that the biggest challenge facing private law is that posed by the continual need to choose between certainty and justice. Certainty is a worthy goal, it is said, because everyone knows exactly where they stand and judicial decision-making can proceed from clearly-articulated statements of legal principle. On the other hand, the pursuit of certainty may not allow for sufficient differentiation between different circumstances. Justice may modify this problem, but only by introducing uncertainty.
Such an account may be thought so familiar as hardly to be worth recounting. Yet this paper seeks to challenge this dichotomy by suggesting that it is the product of a very peculiar combination of perspectives. Philosophically, the dichotomy is problematic only to legal positivism and allied schools of thought. Even then, it presents difficulties only if viewed from a particular temporal perspective as well: that is, after the events in question have already taken place and have become known.
It is argued that this combination of perspectives is singularly unhelpful. It fails to provide any sort of systematic explanation for a very large number of cases, preferring instead to dismiss them as 'policy decisions'. Such dismissal is not so much an explanation as an abdication of explanation. This paper suggests that, if we move from an ex post facto positivistic perspective to one that takes an ex ante approach which focuses on the predictability of risk, then not only does the certainty-justice dilemma cease to be problematic; it also provides a much more plausible and persuasive account of the case law.
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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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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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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.