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Does the Severity of Sanctions Influence Learning about Enforcement Policy? Experimental Evidence
No full textThe literature on law enforcement often assumes that the updating of beliefs regarding the probability of detection is a process that is independent from the severity of the sanction. We test this presumption experimentally, using a taking game in which the probability of detection may be either high or low with commonly known probabilities. Individuals gain information about their probability of detection from their experience in the taking game. Some offenders are punished by a severe sanction, while others are sanctioned only mildly, which causes the experience to differ across subjects. Our analysis reveals that the severity of the sanction influences how individuals update their beliefs about the probability of detection, casting doubt on the widely held presumption that the perceived probability of detection and the magnitude of the sanction are separable
They Don\u27t Know What They Don\u27t Know : A Study of Diversion in Lieu of Lawyer Discipline
Get PDFLawyer misconduct can have devastating consequences for clients. But what is the appropriate regulatory response when lawyers make less serious mistakes? For almost thirty years, jurisdictions have offered some lawyers diversion in lieu of discipline. Diversion is intended to help educate lawyers or treat those with impairments so that they do not reoffend. Yet remarkably little is known about how diversion operates, whether it is used appropriately, and how well it seems to work. This Article addresses these questions. It draws on the limited published data and on interviews with disciplinary regulators in twenty-nine jurisdictions about their use of diversion. The Article reveals wide variations in the extent to which diversion is utilized and the circumstances under which it is used. It also describes significant differences among the jurisdictions in resource allocation and decision-making, which may affect how effectively diversion assists respondent lawyers. The Article makes recommendations for increasing the consistency of decisions to use diversion and improving the efficacy of diversion interventions. In addition, it discusses how diversion could be handled better to provide some satisfaction to complainants. Finally, and importantly, the Article stresses the need for regulators to collect and analyze data to ensure that diversion is adequately protecting the public
Latinas in the Legal Academy: Progress and Promise
Get PDFThe 2022 Inaugural Graciela Oliva ́rez Latinas in the Legal Academy (“GO LILA”) Workshop convened seventy-four outstanding and powerful Latina law professors and professional legal educators (collectively, “Latinas in the legal academy,” or “LILAs”) to document and celebrate our individual and collective journeys and to grow stronger together. In this essay, we, four of the Latina law professors who helped to co-found the GO LILA Workshop, share what we learned about and from each other. We invite other LILAs to join our community and share their stories and journeys. We hope that the data and lessons that we share can inspire other Latinas to join the legal academy. We encourage law schools to honor the transformation that our presence and contributions have brought to legal education and scholarship and to join us in considering how our path forward can be even more impactful and sustaining
Knowledge Institutions and Democratic Erosion: The Invaluable Contributions of Tom Ginsburg
Get PDFThe work of Tom Ginsburg, a leading scholar of comparative constitutional studies, is influential around the world and spans a very wide range of topics. He has played an absolutely essential role in establishing a database of constitutional provisions, both around the world and over time, that has fueled his own research, including his co-authored book on the endurance of national constitutions, and the research of other comparative constitutional scholars. He has contributed important insights about many different areas of comparative constitutional study. In much of his work he has been concerned with the relationship between political forces and political life on the one hand, and constitutional forms of law on the other. Whether on judicial review in new democracies, or on the role of courts and constitutions in authoritarian societies, his work is always interesting and reflects his terrific instinct for important and fruitful topics of inquiry
Ways of Knowing and the Law: A Tribute to Joseph William Singer
Get PDFWhat is art in human life? When we think of art, it seems at first blush to be just another human endeavor. It is brush strokes of some chosen substance across a piece of canvas or paper. It is the piece of wood or stone left after pieces have been removed by human hands. It is sounds made of a certain pitch and in a certain pattern, rather than another.
Yet we know that art is more. It is more than the mechanics of creation or even the materials of which it is comprised. It is more not because of what it is, but because of what it can evoke. Somehow a work of art allows us to access—sometimes forces us to feel—emotions, thoughts, and connections that are buried or denied in everyday life. It allows us or compels us to experience hidden, deeper complexities that humans experience. It is another way of human knowing
Fishing and Fisheries Under International Water Law: A Dialogue Between Professor Gabriel Eckstein and Professor Paul Stanton Kibel
Get PDFOn April 10 and 11, 2023, the Center on Urban Environmental Law (CUEL) at Golden Gate University School of Law hosted a two-day webinar on International Law Aspects of Fisheries and Hydropower in Europe. To open the webinar, Professor Gabriel Eckstein (of Texas A&M University School of Law) and Professor Paul Stanton Kibel (of Golden Gate University School of Law) participated in a keynote dialogue titled Fishing and Fisheries under International Water Law. What follows is a transcription of this dialogue between Professor Eckstein and Professor Kibel
Risk, Responsibility, Resilience, Respect: COVID-19 and the Protection of Health Care Workers
Get PDFMedicine and nursing have long professional traditions of altruism and self-sacrifice, including undertaking not only extreme stress but also personal risk in service of patient care. With exceptions for natural disasters, humanitarian missions, and military service, however, recent concerns about professional “burnout” often have had more to do with mismanagement, exploitation, and generational or technological change than with core clinical circumstances. The COVID-19 pandemic changed that – bringing front and center the close connections between the well-being of health care workers and the well-being of the patients they serve. This chapter begins with the COVID-19 experience of health care workers in New York City and environs during the spring of 2020, examining what happened, why things went wrong, and how it drew attention and generated responses. The chapter then steps back to consider the root causes of health professionals’ physical and psychological vulnerability and moral anguish, such as inequities within the health care system, professional hierarchies, discrimination, safety system failures, and problems with business and regulatory practices. The chapter concludes by offering a range of potential improvements, ranging from ethics and advocacy to corporate governance and labor organization to workplace redesign to legal reform
Natural Property Rights: A Reply
Get PDFThis Reply concludes the symposium hosted by the Texas A&M University Journal of Property Law on the author’s forthcoming book Natural Property Rights. The Reply shows how natural law and rights apply to a wide range of doctrinal examples raised in this symposium—including business associations, correlative oil rights, timber extraction, sinking coastlands, water law, nuisance law, property rights in subsurface minerals, and the issues about sovereignty and property disposition associated with Johnson v. M’Intosh (1823). The Reply also addresses a wide range of skeptical objections to natural law—especially the arguments that it relies too much on intuitions and not enough on hard empirical data. The Reply responds to objections to natural rights familiar from law and economic scholarship—and rehearses important but often-neglected reasons why economic analysis of law needs support from moral and political theory. And the Reply responds to criticisms of rights theories typical from Progressive property scholarship—and argues that a Lockean theory of rights is more sober and tougher-minded than Progressive theories are about whether and how much law can secure justice in practice
Extinction or Bust: Improving Species Recovery Under the Endangered Species Act by Amending the Funding Allocation and Recovery Planning Processes
Get PDFThe Endangered Species Act of 1973 (“ESA”) is among the most powerful environmental statutes passed in U.S. history and serves as a blueprint for government-sanctioned conservation efforts globally. At its core, the ESA seeks to protect listed plant and animal species by prohibiting actions that harm their chances of survival. While the ESA has generally succeeded in pursuing this goal as implemented, it has also led to a host of problems that undermine its effectiveness and generated widespread discontent among conflicting, disparate stakeholders, including environmentalists, industry groups, government agencies, and private landowners. Criticisms of the ESA generally focus on several issues including its procedural inconsistency and the perceived indiscriminate harshness of its land-use restrictions. However, the greatest shortcoming of the ESA underpins all these concerns: its failure to achieve its stated objective of widespread and efficient species recovery. As climate change, habitat destruction, and other major, anthropogenic threats to biodiversity continue to mount on a global scale, the need to preserve biodiversity for present and future generations, as well as the attendant ecological, economic, and cultural benefits, is greater than ever.
This Comment contends that the ESA is a critical statute whose failure to achieve species recovery is not only its greatest weakness but also its greatest opportunity for reform. The Comment begins by exploring why the ESA has thus far failed to achieve widespread species recovery, in particular the issues of insufficient funding and the legal unenforceability of recovery plans. Next, this Comment argues that the ESA can achieve higher rates of species recovery through basic, common-sense changes to the present ESA. These measures include (1) establishing a recovery budgeting committee that analyzes the effectiveness of prescribed management actions and recommends allocation of funding based on a comprehensive framework and (2) amending the ESA to make adherence to management actions in recovery plans binding on the acting agency, with procedures for revising management actions in the face of new information. The Comment concludes by charging that in strengthening the ESA’s commitment to recovery, the Act may function more effectively while reconciling the interests of juxtaposed stakeholders
Foreword: Property and Education
Get PDFEducation policy is today a flashpoint in public discourse at both the national and state levels. This focus is for good reason. Public schools are highly segregated. School spending is stratified. The need for infrastructural renovations is extensive and expanding. Student debt has reached historic highs. For-profit companies are exploiting school districts’ limited resources for everything from curricular content to lunch menus. The list goes on.This moment presents an opportunity to highlight a threshold issue on which it seems prudent for this discourse to direct greater attention: the interconnections between education and property law. Indeed, decisions surrounding property—crafting district-mapping formulae; devising zoning schemes; setting the baseline conditions for housing and mortgage loans; investing in infrastructure; facilitating teacher and other public employee unionization efforts; and the like—determine in considerable respects the very architecture of our educational system. Whether the extant connections between education and property should exist, and, if so, in what shape and form, is a complex question that implicates not only the traditional confines of education and property law but related elements of state and local government law, tax law, immigration law, constitutional law, human rights law, and more. This Symposium brings together a diverse collection of scholars from these and adjacent fields to grapple with this question from various perspectives and research methodologies.
In this Foreword, we classify the Essays in this Symposium issue into three thematic categories: “Educational Boundaries,” “Educational Justice,” and “Educational Resources.” The first features work by LaToya Baldwin Clark, Rachel Moran, and Erika Wilson; the second includes writings of Timothy M. Mulvaney, Nicole Stelle Garnett, and Yuvraj Joshi; and the third comprises scholarship by Peter Yu, Michele Wilde Anderson, and Lange Luntao. We introduce these authors’ Symposium contributions before offering a brief reflection on the intersections between and the role of these thematic categories in education discourse moving forward