Traditional Legal Model Research Articles

Digital economy: theoretical and legal enforcement issues in terms of regional aspect

The study on issues of digital economy proved the current existence of the new “digital” economic reality. The traditional legal apparatus used for the statutory regulation of this new economic reality showed itself not only inefficient, but also significantly restraining the actively developing economic processes. In this regard, a plenty of practical and legal collisions occur related to the problems of identification of persons involved in civil-law transactions, property relations regarding digital economic turnover (for instance, relations concerning property rights in the field of distributed ledgers), registration of property rights and deals, regulation of banking line processes, formation of special protection models for relationships based on the use of digital technologies including issues of cybernetic and data security. The development of digital economy will inevitably influence legal principles and demand reconsidering some of doctrinal approaches to traditional legal models of regulating different types of economic activities. In this case, socially just changes in the legal regulation of economic activities should be primarily aimed at removing legal barriers that impede the development of digital economy, as well as at synchronizing legal rules with the technological features of economy’s functioning.

Transformative Constitutionalism: Not Only in the Global South

Originally a South African “brand,” transformative constitutionalism is increasingly presented as a new, distinctively Southern paradigm of constitutionalism. Yet, it remains unclear what transformative constitutionalism entails. This Article argues that transformative constitutions differ from traditional liberal constitutions by conceptualizing the constitution as a comprehensive order for a more just and equal society and a tool to prompt state action to that purpose as much as restrain it. So understood, the constitutional law of a number of Northern systems such as Germany’s should also be understood as transformative in important aspects. An advantage of opening up our understanding of transformative constitutionalism in this way is the comparative perspective it offers. Unsurprisingly, courts and lawyers in different countries have approached transformative constitutionalism differently: while some have taken a more “traditional” law-focused approach, others have opted for a more collaborative one. Within the traditional legal model, exemplified by the German case, courts seek to preserve those features typically associated with judicial rather than political processes, for example the individualized nature of proceedings. In contrast, the Indian collaborative approach often involves negotiation between different stakeholders and emphasizes legal flexibility. Each model comes with a different approach to judicial legitimacy and its own downsides and advantages. This Article sketches out some first thoughts how we might go about taking the best of both worlds, once we recognize how global the transformative project truly is. To do so, I suggest we should seek to avoid the overly hierarchical German approach with its problematic consequences for democratic empowerment, while at the same time attempting to preserve the key role of individual rights and law as a specialized discipline of its own—thus providing the foundation for an independent source of professional judicial legitimacy.

In the Jungle of the Unregulated: Towards Extra-Legal Regulatory Approaches in Addressing ‘Cybercrime’

Summary As the incidence and the cost of cybercrime keeps growing, the traditional legal model based on the command-and-control approach to regulation experiences major difficulties in curbing further inflation of the phenomenon. The article argues that the traditional legal approach that grounds its authority in enforcement is a poor option for regulation of online human interaction. By considering alternative avenues in influencing online behavior – community-, competition-, and design-based regulation – the article suggests reconsideration of our public policies and regulatory approaches to cybercrime. In doing so, the article offers a thorough interdisciplinary reflection on the idiosyncrasies of human interaction in network environments and its psychological implications, concluding that other regulatory powers may present more effective response to the problem of cybercrime. The holistic regulatory regime that the article advocates incorporates and coordinates all regulatory powers that exist in our societies in order to address the underlying cause of cybercrime.

Creating the New Law School by Fully Integrating Experiential Education Across the Entire Curriculum

Yesterday’s law schools and their pedagogical models and methods created some magnificent lawyers and thinkers. Tomorrow’s law schools must retain the best parts of yesterday’s approaches yet evolve in response to the changing needs of the legal profession. The question, of course, is how this evolution should occur. In this chapter, we argue that the law school of the future cannot merely incorporate more practical skills courses into the curriculum. Instead, law schools must integrate experiential learning across the entire curriculum to create an assessment-driven and outcome-based program of legal education that enables students to develop core lawyering competencies and solve real-world problems. In so doing, however, law schools must recognize that the sin qua non of effective legal advocacy is the ability to think analytically and reason logically. Thus, law schools should not dispense with the Socratic Method or compromise the rigor and depth of the traditional legal model. Instead, law schools must collapse the distinction between analytical, practical skills, and clinical training and develop a cohesive curricular model that bridges the divide between legal education and law practice. In this book chapter, we offer a blueprint for purposeful change by highlighting the innovative curriculum at Indiana Tech Law School.

Keynote Remarks: Re-Tooling Law and Legal Education for Food System Reform: Food Law and Policy in Practice

This essay is adapted from Emily Broad Leib’s remarks at the 2015 Seattle University Law Review Symposium, Re-Tooling Food Law: How Traditional Legal Models Can Be Re-Tooled For Food System Reform, held March 6, 2015 at Seattle University School of Law. The essay examines the essential skills law schools and lawyers can bring to the field of Food Law and Policy. It begins by relaying the author's personal background and journey to the field of Food Law and Policy, then defines this field of law and shares some metrics about the field’s growth over the past few years. To explain what this field looks like in practice, the piece then introduces four fundamental legal tools that make lawyers well situated to foster change in the food system. Concrete examples based on the Harvard Food Law and Policy Clinic’s work illustrate the use of each tool. The essay ends by advocating for more lawyers in this field and discussing some of the opportunities that exist for new lawyers seeking to pursue this work as a career or a passion

A Transactional Genealogy of Scandal: From Michael Milken to Enron to Goldman Sachs

Three scandals have reshaped business regulation over the past thirty years: the securities fraud prosecution of Michael Milken in 1988, the Enron implosion of 2001, and the Goldman Sachs “ABACUS” enforcement action of 2010. The scandals have always been seen as unrelated. This Article highlights a previously unnoticed transactional affinity tying these scandals together — a deal structure known as the synthetic collateralized debt obligation involving the use of a special purpose entity (“SPE”). The SPE is a new and widely used form of corporate alter ego designed to undertake transactions for its creator’s accounting and regulatory benefit. The SPE remains mysterious and poorly understood despite its use in framing transactions involving trillions of dollars and its prominence in foundational scandals. The traditional corporate alter ego was a subsidiary or affiliate with equity control. The SPE eschews equity control in favor of control through preset instructions emanating from transactional documents. In theory, these instructions are complete or very close thereto, making SPEs a real-world manifestation of the “nexus of contracts” firm of economic and legal theory. In practice, however, formal designations of separateness do not always stand up under the strain of economic reality. When coupled with financial disaster, the use of an SPE alter ego can turn even a minor compliance problem into a scandal because of the mismatch between the traditional legal model of the firm and the SPE’s economic reality. The standard legal model looks to equity ownership to determine the boundaries of the firm: equity is inside the firm, while contract is outside. Regulatory regimes make inter-firm connections by tracking equity ownership. SPEs escape regulation by funneling inter-firm connections through contracts, rather than equity ownership. The integration of SPEs into regulatory systems requires a ground-up rethinking of traditional legal models of the firm. A theory is emerging, not from corporate law or financial economics, but from accounting principles. Accounting has responded to these scandals by abandoning the equity touchstone in favor of an analysis in which contractual allocations of risk, reward, and control operate as functional equivalents of equity ownership — an approach that redraws the boundaries of the firm. Unfortunately, corporate and securities law hold out no prospects for similar responsiveness. Accordingly, we await the next alter-ego-based innovation from Wall Street’s transaction engineers with an incomplete menu of defensive responses.

The Causes of Pro-Immigration Voting in the United States Supreme Court

During the pre-confirmation debate over Supreme Court Justice Sonia Sotomayor, critics accused her of allowing her background to influence her judicial decisions. This article assesses the validity of such a claim for all sitting justices from 1875 to 2007 in one relevant policy area, immigration. In this article, we look at all 185 immigration-related decisions by the Supreme Court from its creation through 2007. Logistic general estimating equation regression analysis of Supreme Court voting on these cases suggests that justices who were nominated by Democratic presidents, who were urbanites, and who had previous judicial experience were more likely to vote in favor of immigration. However, justices who grew up in the Southwest, had Southern European ancestors, or were ideological conservatives were more hostile to immigration. Although public opinion, the unemployment rate, and the percent foreign-born in a given year did not affect justices’ votes, non-asylum cases and appeals from the Eighth Circuit were more likely to receive favorable treatment. The mean level of racial liberalism of the Senators in office during a particular justice's confirmation hearings likewise had a large impact on his or her subsequent rulings. These findings suggest that Supreme Court voting on immigration is substantially influenced by justices’ background and political preferences as well as by some political and legal structures. These results thus support Legal Realism and New Institutionalism instead of the Traditional Legal Model of Supreme Court behavior.

From Charm to Harm: A Content‐Analytic Review of Sexual Harassment Court Cases Involving Workplace Romance

We reviewed U.S. federal and state sexual harassment court cases involving a prior workplace romance between the plaintiff and alleged harasser. Results of our content analysis show that, unlike employees’ decisions, judges’ decisions can be predicted from legal but not ethically salient extralegal case features. Hence, when compared to prior research, our study reveals the following discrepancy: judges follow a traditional legal model, whereas employees follow an ethical model when making decisions about romance‐harassment cases. Our study also reveals that the mere presence (versus absence) of a prior romance reduces the likelihood of a plaintiff’s success in a harassment case. We discuss implications for management practice and research from the perspective of legal and ethical decision making.

The Truth of Verdicts? A Social Psychological Examination of A Theory of the Trial

Robert Bums's A Theory of the Trial illustrates, quite masterfully, the many ways that the American trial is a much more dynamic and psychologically complex event in practice than its idealized legal version would suggest. Bums argues against what he calls the View of the trial, which can be characterized as the prevailing legal myth of how cases are structured, presented, and decided on in trial. This traditional legal model of the trial imagines the process following a very simple path to judgment: Reliable evidence is presented, the finders of fact assess credibility of witnesses and strength of evidence, that body then constructs a value-free narrative of the most likely scenario, and that narrative is then placed in one of the legal categories available, which determines the final verdict. While Bums suggests that there are some truths to the Received View, he illustrates the ways that trial practices diverge from this linear model, relying substantially on his own observations and experiences from his years as a trial lawyer. In particular, his discussion of how attomeys approach their task at trial-from argument and presentation of evidence to crossexamination and closing-to best reach their audience is richly nuanced and quite illuminating. Successful trial attomeys, in his view, have a knack for narrating their case, ordering and presenting their evidence, and zeroing in on the weaknesses of their opponent's case, so that their trial package will at least give jurors (or judges in bench trials) pause and make them consider more than the easy or obvious when deciding on facts, meanings, and judgments.

A Positive Political Model of Supreme Court Economic Decisions

1. Introduction A stark contrast exists between the widespread application of positive political economy models in the study of the executive and legislative branches of government and the relative dearth of such work on the judiciary. In particular, the U.S. Supreme Court is widely regarded as a totally independent body whose rulings are not influenced by political or other outside pressures. Indeed, the dominant political science model of Supreme Court decision making, the attitudinal model, argues that the rules and structures of the U.S. political system allow justices to vote sincerely without constraints from Congress and/or the president (Segal and Spaeth 1993). In contrast to this dominant view, several authors have begun to analyze Supreme Court decisions guided by the positive models of bureaucratic behavior that exist in both the economics and the political science literature. Toma (1991) finds that Congress signals its opinion of the Court's direction through budgetary allocations, and that budget changes have a significant effect on Court decisions. Her more recent work (Toma 1996) focuses on the role of the chief justice as an agent of Congress who reacts to budgetary signals to bring Court decisions in line with congressional preferences. Spiller and Gely (1992) find strong evidence of congressional influence over Court decisions in industrial labor relations cases. Caporale and Winter (1998) find support for the existence of both executive and congressional influence over Supreme Court decisions in criminal procedure cases. This paper investigates possible outside influences on Supreme Court decisions in economic cases. We find that Republican presidents and more conservative leadership of the Senate and House Judiciary Committees are significantly correlated with more conservative Supreme Court economic decisions. In addition, we find that conservative decisions are positively correlated with the fraction of the Court appointed by Republican presidents. This provides strong support for a presidential of appointment channel of judicial influence. Also, we find that the lagged inflation rate significantly influences the direction of the Court's economic decisions. Finally, we demonstrate the robustness of our results using an alternative measure of congressional ideology. 2. Theories of Supreme Court Behavior The Traditional Legal Model Courts are the mere instruments of the law, and can will nothing. When they are said to exercise discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the Law. Chief Justice John Marshall, 18241 As recent legal analysts have noted, the vast bulk of legal scholarship and content of law school training largely rests on Justice Marshall's contention.2 Explicitly or implicitly, an assumption is made that court decisions are based centrally on reasoned arguments. This view, in which judges apply neutral principles and logical reasoning to the Constitution, prior precedents, or statutes in resolving cases is labeled the legal Perhaps the clearest proponent and strongest advocate of the traditional model was Christopher Columbus Langdell, the Harvard Law School's first dean.3 For the Langdellian judge, judicial decisions are based on logical reasoning or reasoning by example. Primary importance is placed on textual interpretation and legal precedent. From this framework, decisions can be viewed as inevitable conclusions based on the analysis of earlier cases. Clearly, this model left no room for any expression of judicial individuality or personal ideology. The Attitudinal Model In contrast to the formalism of the traditional model, political scientists have developed an alternative theory of Supreme Court (and other judicial) decision making: the attitudinal model. …

Contracts for intimate relationships

This paper analyzes the extent to which intimate relationships established by contract differ from, and are more egalitarian than, those established by traditional legal marriage. Three types of intimate contracts are examined: contracts between legally married spouses, contracts written as a prelude to legal marriage, and contracts written by unmarried cohabitors as an alternative to legal marriage. The paper addresses two major questions: (1) To what extent do the relationships established by contract differ from those established by legal marriage? (2) To what extent do these contracts support more egalitarian family forms? While considerable variation by type of relationship was found, with the cohabitors departing the most from the traditional legal model, even the married couples wrote contracts that were significantly different from the model imposed by law. They were much more likely to structure their relationship as a partnership rather than as a hierarchy, and to hold their income and property as community property. Further, they were more likely to share the responsibilities for both economic support and homemaking tasks (in contrast to the legal assignment of these duties on the basis of sex). Thus, when compared to the relationships established by law, the 50 intimate contracts in this sample seemed to support more egalitarian family forms.