Aviram on the Financial Sense Behind Prison Reform

Hadar Aviram has published an op-ed in the San Francisco Bay Guardian (June 2) in which she argues that the financial crisis provides California with an opportunity to engage in a fresh and frank cost-benefit analysis of its penal system. Here's the link: http://www.sfbg.com/entry.php?entry_id=8633

Little on Ruling Out Evidence Causing Wrongful Convictions

Rory Little has published an essay titled "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes," 37 Southwestern Univ. L. Rev. 965 (2008), in which he proposes a model statute that would ban any capital prosecution based primarily on the types of evidence known to cause the conviction of innocent persons. The four types are (1) eyewitness (stranger) identification testimony; (2) confession; (3) criminal informant; and (4) unvalidated forensic evidence.

Aaronson on Empathy and Judging

Mark Aaronson has published an op-ed in the May 26 edition of the San Francisco Daily Journal defending empathy as a necessary ingredient of responsible judging. The issue has arisen in connection with criticisms of Supreme Court nominee Sonia Sotomayor.

Hazard on the Cultural Chasm Between Lawyers and Corporate Clients

Geoff Hazard has published an essay titled, "Legal and Managerial 'Cultures' in Corporate Representation," 46 Houston L. Rev. 1 (2009). The essay identifies six dimensions in which the culture of corporate clients and the culture of lawyers differ. (Geoff defines the "culture" of an organization as "the style and character in which its members typically behave in terms of effort, focus, efficiency, awareness, dedication, and ethical tone.) The six dimensions are (1) benefit versus burden; (2) certainty versus ambiguity; (3) subjectivity versus objectivity; (4) multiple versus single; (5) time horizons; and (6) task techniques. In writing this essay, Geoff conspicuously draws on Ascanio Piomelli's analysis of differences between low-pay clients and lawyers in "Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda," 4 Hastings Race & Pov. L. J. 131 (2006).

Paul on the Myths of Globalization

Joel Paul has published an essay in the Waseda University Journal of Comparative Law titled, "The Myth of Economic Interdependence." Joel denies the conventional wisdom that economic interdependence is increasing and unavoidable and further argues that, so long as we hold to this conventional belief, we are obscuring the difficult policy choices that need to be made. (This essay resulted from a lecture Joel delivered at the Waseda Law School on July 15 of last year.)

Aviram on Decisions to Imprison

Hadar Aviram has published a review of Rasmus Wandall's book, Decisions to Imprison: Court Decision-Making Inside and Outside the Law (Ashgate, 2007), which focuses on the question of when to imprison those convicted of crimes. Although Hadar would have liked some discussion of the impact of race and ethnicity, she found Wandall's book overall a "fascinating and important enterprise, which takes seriously what judges and other actors say, and not just what they do." The review is at 43(1) Law & Soc'y Rev. 239 (2009).

Leib on Criminal Justice and the Family

Ethan Leib, together with Dan Markel (Florida State) and Jennifer Collins (Wake Forest), has published a book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford University Press, 2009). Here is the abstract:

This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, the authors explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but Markel, Collins, and Leib argue that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one's family ties or responsibilities. Privilege or Punish breaks new ground by offering an important synthetic view of the intersection between crime, punishment, and the family. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the panoply of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one's family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that should be of interest to anyone interested in the improvement of our criminal justice system.

Here is the OUP link: http://www.oup.com/us/catalog/general/subject/Law/?view=usa&ci=9780195380064

Mart on Internet Access to Government Information

Susan Nevelow Mart has published an article titled, "The Internet's Public Domain: Access to Government Information on the Internet," 12 No, 9 J. Internet L. 3 (2009). Here is the abstract:

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

Mart on Patriot Act Reauthorization

Susan Nevelow Mart has published an article called "The Chains of the Constitution and Legal Process in the Library: A Post-USA PATRIOT Reauthorization Act Assessment," 33 Okla. City U. L. Rev. 435 (2008). Here is the abstract:

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are such a potent symbol of democratic openness, the effect of the Patriot Act on libraries has acted in the public mind as a microcosm of the broader problems with the implementation of the Patriot Act. The public's discomfort with the civil liberties implications of the Patriot Act has turned out to be justified, as every agency that has reviewed the implementation of the Patriot Act has concluded that the government has not been able to maintain an appropriate balance between the need to protect civil liberties and the need to prevent terrorist acts. The government's list of domestic terrorist acts that have been prevented or punished is not inspiring: the entire panoply of tools authorized by the Patriot Act has not done much more than stop some home-grown right wing fringe groups and ecoterrorists. In light of the evidence of abuse of civil liberties and the questionable constitutionality of many of the Patriot Act's provisions, this paper suggests that the time for vigorous advocacy has not passed and that further legislative changes need to be made.

Piomelli on Democratic Lawyering

Ascanio Piomelli has just published an essay called The Challenge of Democratic Lawyering, 77 Fordham L. Rev. 1383 (2009), as part of a symposium on The Lawyer's Role in a Contemporary Democracy.

Here is the abstract:

The essay argues that a diverse movement of social-change lawyering that has emerged over the past two decades is united by a commitment to fostering robust democratic participation in collective action by low-income and working-class people and people of color. The essay describes the democratic vision that unites these lawyers, with its focus on enhancing ordinary citizens' abilities to act in concert with others in self-government broadly construed. This vision challenges the long-prevailing, thinner conception, which limits democracy to a political process that provides a say in selecting one's representatives and an incentive structure to encourage representatives to act wisely. This essay argues that these democratic lawyers and their partners challenge deep-seated individualistic, aristocratic, and formalistic cultural predispositions in the United States and its legal profession.These prevailing, but contested, predispositions relate to: what democracy means and how we practice it; how we understand individuals and groups, intelligence and expertise; and the relative importance we place on formal rights or on the power of people and groups to change their living conditions.

Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1364140#

Feldman on Patent and Antitrust

Robin Feldman's article, Patent and Antitrust: Different Shades of Meaning, originally published at 13 Virginia J. L. & Tech. 5 (2008), has been selected for inclusion in the Intellectual Property Law Review (Thompson Reuters) as one of the best intellectual property law review articles of the last year!

Leib on Contracts and Friendships

Ethan Leib has posted to SSRN an article called "Contracts and Friendships," which will appear in Volume 59 of the Emory Law Journal. Here is the abstract:

This article aims to give the relational theory of contract some new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship. In drawing the analogy between friendships and relational contracts and revealing their morphological similarities, I offer a provocative window into friendship's contractual structure - and into relational contracts' approximation of friendships. The analogy I develop in the article is poised to replace the "relational contract as marriage" model, prevalent among relationalists. The new model developed here is more honest to relational contract theory and to marriage - and helps relational contract theory produce some new insights, support old ones, and revise some of its normative agenda.

Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1358562

Boswell on True Immigration Reform

Richard Boswell has published an article titled, Crafting True Immigration Reform, 35 William Mitchell L. Rev. 7 (2008). While stopping short of advocating open borders, Richard proposes a three-pronged modification of the existing family- and employment-based immigration systems:

First, there must be a mechanism to bring as many of those who are living in the underground shadows into some type of legal status where they are less vulnerable to being victimized and more likely to cooperate with law enforcement. Second, we must reduce the incentives to join the ranks of the undocumented by addressing the forces that make people move in the first place. Third, we must create a system for legal migration that preserves family unification for immigrants and fills occupations for which workers are not in sufficient supply.

King on Duty to the Unborn

Jaime King has published an article titled, Duty to the Unborn: A Response to Professor Smolensky, 60 Hastings L. J. 377 (2008). Here is the abstract:

This article responds to Professor Kirsten Smolensky's article in Hastings Law Journal titled Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions by arguing in favor of creating a duty for individuals to act as reasonably prudent parents with respect to their preimplantation reproductive decisions. In addition, the article advocates use of a balancing test to determine the reasonableness of parents' choices when compared to the risks associated with using genetic testing and assisted reproductive technologies. The article concludes with an argument for national regulation as the primary social response to challenges associated with assisted reproductive technology rather than tort liability.

Here is the link to the download: http://ssrn.com/abstract=1336375

California Corrections Crisis Conference

A reminder to all that the California Corrections Crisis Conference is coming up March 19-20, and the timing couldn't be more perfect, with the prison health care litigation quite possibly headed for the U.S. Supreme Court. Admission is free, but you must RSVP to the website at http://cacorrectionalcrisis.org. The conference will be held in the State Building at 350 McAllister.