SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Supreme Court Amicus Brief Regarding Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, Washington
No full textEconomists have long recognized that certainty of contract is essential to a healthy economy. Long-term forward contracts, in particular, help reduce financial risk. Those contracts can only accomplish that goal, however, if parties know the contracts will be enforced. From an economic and policy standpoint, long-term energy contracts should be abrogated only in truly exceptional circumstances. The mere fact that a price seems too high in retrospect does not justify abrogating contracts voluntarily agreed to by sophisticated buyers and sellers. Nor do generalized claims of - market dysfunction - at the time the contract was formed
The Changing Paradigm in Public Legal Education
No full textThe nation\u27s founding fathers, led by Thomas Jefferson and Benjamin Franklin, envisioned a democracy based upon a highly educated population. The public universities were founded to fulfill that mission. Professional schools, such as law, medicine, engineering, and business soon followed. The public higher education system was one of America\u27s greatest achievements by the end of the Twentieth Century. The nation\u27s flagship public universities, masters colleges, and community colleges educate 80% of the nation\u27s college students. However, state budget cuts in recent years reflect systemic changes in public financing from discretionary spending, especially higher education, to mandates and entitlements. The public law schools have borne a disproportionate share of the budget cuts as universities realized law schools could charge market-based tuition. The result is an explosion in tuition for both state residents and non-residents. These substantial tuition increases may plug the budget gaps in the short term, but substantially threaten the ethos of a public law school. Access and affordability are most at risk as the public law schools increasingly mirror their private competitors, but often without the endowment resources of their rivals. The problem is heightened by the pressure U.S. News & World Reports places on schools to raise the numerical indicia (LSAT\u27s and GPA\u27s) of the entering class. Financial aid funds are therefore often used to award scholarships based on merit rather than need, further limiting access and affordability. This article addresses the issues raised by the changing paradigm, and tracks tuition figures for 20 years to illustrate the change
Sustaining Cooperation in Trust Games
No full textIt is well known in evolutionary game theory that population clustering in Prisoner\u27s Dilemma games allows some cooperative strategies to invade populations of stable defecting strategies. We adapt this idea of population clustering to a two-person trust game. Without knowing it, players are typed based on their recent track record as to whether or not they are trusting (Players 1) and whether or not they are trustworthy (Players 2). They are then paired according to those types: trustors with trustworthy types, and similarly non-trustors with untrustworthy types. In the control comparisons, Players 1 are randomly repaired with Players 2 without regard to type. We ask: are there natural tendencies for people to cooperate more frequently in environments in which they experience more cooperation in comparison with controls
Remembering Robert J. Drinan, S.J.
No full textRobert F. Drinan had a varied and full legal career, as ordained Jesuit priest, Dean of Boston College Law School, U.S. Congressman, Professor at Georgetown U. Law School, and author of many books and articles. This article summarizes his life and his contributions to legal scholarship, including, in particular, his founding of the Georgetown Journal of Legal Ethics
The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century
No full textBrain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. Irresistible impulse (or control ) tests, on the other hand, provide an insanity defense to those who committed a crime due to their inability to exercise behavioral control. Control tests have fallen into disfavor, however. Opponents of control tests offer three rationales for their abandonment: (1) that cognitive tests for insanity are sufficient, since those with impaired impulse control will also be cognitively impaired; (2) that mental health professionals are incapable of reliably assessing the capacity for impulse control, particularly in relation to criminal behavior, or of differentiating between a truly irresistible impulse and an impulse that is merely difficult to resist; and, therefore, that control tests lead to erroneous insanity acquittals; and, (3) that because they directly pose the question of whether a person could control his or her behavior, control tests run counter to the law\u27s assumption that people have free will and bear responsibility for their actions. Current neuroscience research presents a challenge to these claims. In the Article, I argue for a return to control tests for insanity, but with important doctrinal modifications
The Dangers and Drawbacks of the Disclosure Antidote: Toward a More Substantive Approach to Securities Regulation
No full textThis article analyzes and critiques the federal securities laws\u27 reliance on disclosure as the primary method of protecting investors and regulating the securities markets. Since the inception of the federal securities law seventy years ago, the policy has always been that, as long as corporations disclose all material information about their operations and their stock, public investors can make their own informed investment decisions. The unprecedented number of corporate frauds, scandals, and bankruptcies in recent years has revealed weaknesses in the traditional disclosure strategy of regulation. Disclosure rules did not protect American investors from the damages they suffered when large public corporations, such as Enron and WorldCom, collapsed. As a regulatory response, Congress enacted the Sarbanes-Oxley Act, which many legislators described as sweeping reform. However, the thrust of the Sarbanes-Oxley Act was to require corporations to provide even greater disclosure to the investing public. This approach to regulation reflects the customary belief that disclosure is the antidote for most of the securities market\u27s ills.
This article challenges the underlying policies of disclosure-based regulation and identifies several drawbacks of the disclosure remedy. Using the psychological research on cognitive and behavioral biases and heuristics, Professor Ripken questions the assumption that investors can rationally and efficiently process disclosed information to their advantage. Rules that require more and more disclosure can lead to information overload and less effective decision-making. The article argues that we must be careful about placing too much confidence in the disclosure solution. Professor Ripken proposes a more substantive approach to securities regulation that deals with difficult corporate governance issues on their merits and regulates corporate conduct in a more direct manner
Brief of Amici Curiae Economists in Support of Petitioners, Bell Atlantic V. Twombly
No full textThe parallel behavior is enough standard cannot assist the courts in distinguishing horizontal agreements to restrain trade from normal competition. It would very likely impose significant costs on the economy by distorting competitive incentives and encouraging meritless litigation designed mainly to induce financial settlements
Adequacy and the Rights Revolution: Reinterpreting the Education Clauses in State Constitutions
No full textTracking Customer Search to Price Discriminate
No full textThe electronic technologies of the Internet make it possible for sellers to track potential customers and discriminate between the informed and uninformed. In this article, we report an experiment that investigates the market impact of firms tracking customers and offering discriminatory prices based on search history. We find that consumers, on average, face the same prices when sellers have the ability to track customers and price discriminate as when sellers post a single price for all buyers. However, informed buyers receive lower prices when sellers can detect buyer search, whereas uninformed buyers receive lower prices when firms cannot track customers