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Rabenmutter and the Glass Ceiling: An Analysis of Role Conflict Experienced by Women Lawyers In Germany Compared with Women Lawyers in the United States
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Linkage and the Deterrence of Corporate Fraud
No full textCorporate fraud is often presumed to be the type of crime that can be deterred. Those who embrace deterrence as a goal of law enforcement, however, often ignore the tradeoffs between the deterrence of potential offenders and the deterrence of those mid-fraud perpetrators who are already mid-way through illicit schemes when the government announces a change in policy. Unlike potential offenders, mid-fraud perpetrators have no incentive to cease criminal conduct in response to increases in sanctions or likelihood of detection. This is true because a link exists between the offenders\u27 cessation of future misconduct and the probability that their prior conduct will be detected and punished. If a CFO has lied to a company\u27s shareholders in Quarter 1 about the company\u27s profits, his cessation of lying in Quarter 2 substantially increases the chances that someone will focus on and detect his previous lies in Quarter 1. The problem with this linkage between cessation of conduct and increased probability of punishment is that criminal sanctions aimed primarily at deterring new offenders may also encourage perverse reactions from perpetrators in the midst of frauds. Policymakers contemplating changes in law enforcement policy therefore should consider the linkage problem in calculating the benefits and drawbacks of different law enforcement strategies
Three Modes of Legal Problem Solving–and What to Do About Them in Legal Education
Get PDFLegal problems are addressed in at least three basic ways, or modes, each of which is associated with a particular tense : (1) through judgment, an authoritative decision pronounced by an empowered third party concerning the legal significance of past behaviors; (2) through consent, a present tense resolution in which the parties to a legal concern resolve it privately by negotiated or mediated agreement; and (3) through prevention, a future-oriented process that designs contracts, legal arrangements, compliance regimes, education and training programs, organizational structures, or even physical environments so as to keep legal risks from erupting into injuries or legal liability.
This Essay urges more understanding and use of the alternative modes of consent and prevention in legal education. To facilitate this, Part I explains and contrasts the three modes. Then, Part II offers specific suggestions for how the alternative modes of consent and prevention-the present and future tenses-might be integrated into traditional, doctrinal law school courses
Opportunity Lost: How Law School Disappoints Law Students, The Public, and the Legal Profession
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Clicking and Cringing
Get PDFShrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in rolling contract situations. In this Article, I propose that a consumer\u27s assent to a transaction should not be transmuted into blanket assent to each individual term of a nonnegotiated contract. Instead, the concept of assent should be bifurcated into two parts, actual assent and presumed assent. Actual assent means manifested, express agreement. Presumed assent means that the licensee, by expressly agreeing to the transaction, may also be presumed to have assented to certain terms of the contract. The licensee should not be presumed to have assented to all not unreasonable contract terms, however, as is currently the case under the blanket assent approach to contracts. Whether the licensee\u27s assent to a given term may be presumed depends upon the operative effect of the term. The licensee may be presumed to have assented to provisions governing the scope of license or the terms of use (as further defined) to the software or web site because such terms establish the conditions upon which the licensor has agreed to make the digital information available. Furthermore, the caption heading of scope of license or terms of use should not be determinative. The licensee should not be presumed to have assented to provisions that (i) impose affirmative obligations or (ii) purport to take away the licensee\u27s legal rights. The Introduction sets forth the doctrinal problems related to nonnegotiated software licenses. Part I proposes a two-step analysis. The first step is to determine whether the putative licensee has assented and the nature of that assent (i.e. whether the assent is to engage in the transaction or whether the assent is to a particular term). The second step is to determine what terms govern the activity based upon the nature of the assent. Part H summarizes and analyzes the current case law using my proposed approach, and applies the approach to a sample license agreement. The Conclusion explains that a presumption of assent to scope of license terms and a requirement of actual assent to other material terms both respects the integrity of contract doctrine and accommodates business realitie
Interdisciplinary Problem Solving Courses as a Context for Nurturing Intrinsic Values
Get PDFIntrinsic values and motivations are important foundations for career satisfaction and professionalism. The research of Lawrence Krieger and Kennon Sheldon highlights factors critical to the development of intrinsic values and motivations. Our aspiration was to create courses that could stimulate such development in our law students. This article discusses the foundation and goals for our courses, describes our courses, reviews our successes and failures, and poses questions for further study. Throughout our discussion we provide anecdotal data from comments by students and the professionals with whom they worked, indicating the degree to which students seem to be incorporating the goals we set forth. Finally, we provide suggestions for professors who may wish to implement aspects of these courses to further nurture students\u27 intrinsic values, self-confidence, and professionalism