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Confronting the Two Faces of Corporate Fraud
No full textSome criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self.
Although the law and economics and behavioral psychology accounts separately offer important lessons for observers of corporate fraud, neither theory addresses the regulatory implications confronting opportunistic behavior and temporal inconsistency at the same time. How can an internal corporate enforcer best respond to the “two faces” of corporate fraud? This Article explores this question, first by analyzing the interaction between the two dispositions, and then by considering the relative merits of various enforcement approaches
Secrecy, Intimacy and Workable Rules
No full textThis Essay was written for the Yale Law Journal Forum’s symposium, The Early Jurisprudence of Justice Sotomayor. The Essay analyzes Justice Sotomayor’s already oft-discussed concurrence in United States v. Jones, which exemplifies her attempt to stake out a “middle ground” approach to Fourth Amendment debates over surveillance and technology, and foregrounds intimacy and common-sense rules as guiding principles
Situational Duress and the Aberrance of Electronic Contracts
Get PDFThis article explains how the aberrant nature of electronic contracts has unique effects. Companies take advantage of these unique effects and use electronic contracts in a coercive manner. This article proposes the new defense of “situational duress” to address the exploitative use of electronic contracts in certain situations.
Part I explains why electronic contracts are aberrant and explains how the developing law in this area deviates from traditional contract doctrine. This section also discusses how the electronic form affects consumer behavior and understanding of contract terms. Part II provides background to the traditional doctrine of duress and introduces the concept of situational duress. Part III explains how the defense of situational duress would operate and how it would respond to, and rectify problems associated with, electronic contracts. Part III also addresses anticipated objections to such a defense. This article concludes that the aberrance of electronic contracts as a contracting form requires recognition in the definition and application of doctrinal rules
Two Alternate Visions of Contract Law in 2025
Get PDFPart I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered by courts that understand the diversity of marketplace needs, acknowledge contracting realities, and consider the context of transactions in applying doctrinal rules. This essay concludes that the strength of contract law lies is in its flexibility, but its relevance depends upon how courts use that flexibility to guide its development
The Separation of Politics and Science
Get PDFThis article proposes that scientific inquiry regarding questions of fact should have an autonomous zone that is protected from politics. Although many scholars promote the idea that science is politicized, little empirical data exists to support this conclusion. This article contains an empirical study that demonstrates that the public received inaccurate information in the debate over a highly politicized and controversial area of scientific inquiry, embryonic stem cell research.
This article utilizes the data from the empirical study and public choice theory to explain that there are process defects; this economic model can help explain, but cannot be used to resolve, the process defects. Instead, this article articulates reasons why scientific inquiry should have an autonomous zone and that political actors should play a limited role in oversight. This article proposes solutions to balance the roles of elected officials with the expertise of scientists
Clinical Jurisprudence: Could Thorough Documentation Have Changed The Outcome Of This Trial?
No full textA patient sued her gynecologist on the grounds that, because an originally planned BSO was not performed, she was fearful of developing ovarian cancer in the future.
Preoperative documentation was “sketchy”at best and did not reflect the preoperative discussion and options presented to the patient. There was no documentation of anyone accompanying the patient at the preoperative office visit.
The case went to trial.
What’s the verdict
Reflective practice in legal education: The stages of reflection
Get PDFExperiential legal education programs include reflection as an explicit learning outcome. Although many teachers and students have seen the value of reflection, few have studied the process of reflection. Drawing from research in the fields of cognitive development, reflective judgment, and moral reasoning, this article presents an organizational model for teaching reflection in six stages. The Stages of Reflection model provides teachers and students with a deeper understanding of the process of reflection, and creates a pathway for the development of reflective practice