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Kelly Feeley, Hear a Song-Write a Wrong: Poor Grammar in Song Lyrics: An Old and New Enemy to Clear and Succinct Legal Writing, Scrivener 4 (2008)Clicking on the button will copy the full recommended citation.
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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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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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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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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, 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.
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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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Cynthia Hawkins DeBose and Anesha Worthy, 10 Years Out of Step & Out of Line: Florida’s Statutory Ban of ‘Lesbi-Gay Adoption’ Violates the Adoption and Safe Familes Act of 1997 (ASFA), 8 U. Md. L.J. Race Relig. Gender & Class 71 (2008)Clicking on the button will copy the full recommended citation.
The U.S. child welfare and foster care systems have both received considerable criticism. These criticisms include, for example, that 'if a child survives foster care, it's not because of the system, it's despite the system and if the nation had deliberately designed a system that would... abandon the children who depend on it, it could not have done a better job than the present child welfare system.
This article argues that Florida's ban on lesbi-gay adoption is inconsistent with ASFA (Adoption and Safe Families Act). Excluding lesbian and gay individuals from eligibility to adopt children directly conflicts with ASFA's mandate to quickly find safe, permanent homes for children in foster care. Repealing the law that bans lesbi-gay adoption would help Florida meet ASFA's goal by increasing the number of potential adoptive parents and, therefore, the likelihood of finding permanent homes for children. Following this Introduction, Part II give a cursory overview of the history and development of foster care and adoption in the United States and Florida, and then briefly highlights the history, policies, and rationales behind AFSA. Part III argues that repealing the ban on lesbi-gay adoption is consistent with ASFA. Part III then addresses the validity of arguments against repealing the adoption ban. Finally, Part IV recommends that Florida repeal its statute banning gays and lesbians from adopting children and discusses why alternatives other than repealing the ban will not work.
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Ciara Torres-Spelliscy and Ari Weisbard, What Albany Could Learn from New York City: A Model of Meaningful Campaign Finance Reform in Action, 1 Alb. Gov't L. Rev. 194 (2008)Clicking on the button will copy the full recommended citation.
New York State used to be at the forefront of campaign finance reform. But over the past three decades, the State has fallen further and further behind the nation’s best practices. Now it has contribution limits that are sky high, riddled with loopholes, and subject to lax enforcement. Compounding these problems is a pay-to-play culture in Albany where candidates can use campaign funds to improve their personal day-to-day lifestyles. Most of these issues could be addressed with a properly designed public financing system coupled with pay-to-play regulations. Many of the reforms Albany needs have already been tried in New York City. Reformers in Albany, therefore, need look no further than down the Hudson for examples of best practices in campaign finance. This article explores six key areas where New York State law needs improvement in its approach to campaign finance reform and where New York City provides meaningful examples of better or best practices: (1) contribution limits; (2) candidates’ personal use of campaign funds; (3) pay-to-play; (4) disclosure; (5) enforcement; and (6) public financing.
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Luz Estella Nagle, Criminal Gangs in Latin America: The Next Great Threat to Regional Security and Stability?, 14 Texas Hispanic J.L. & Pol'y 7 (2008)Clicking on the button will copy the full recommended citation.
United States immigration and deportation policy is broken with regard to the removal of violent youth gang members from the United States to their nations of origin. The result is that Central America is quickly becoming a lawless region of our hemisphere as gangs known as Mara Salvatrucha (collectively mareros) struggle among themselves and against weak and failing governments to gain control of vast territory and resources in which to carry out criminal conspiracies and terrorist activities that threaten the national and regional security throughout the Americas.
This article examines the origins of marero gangs, the policies in the United States and Central American states to cope with the growth of the mareros, and the implications of what may realistically occur if the gangs are allowed to continue growing and spreading lawlessness throughout regions of the Americas critical to United States interests in the hemisphere.