I’m the ‘editor’ of this august working paper series, so I think I’ll reprint issues here. Some good reading if you are so inclined.
SSRN: Legal Studies Research Paper Series
University Of Miami School Of Law
Vol. 3, No. 7
Table of Contents
Irreconcilable Differences? The Troubled Marriage of Science and Law
Susan Haack, University of Miami – School of Law, University of Miami – Department of Philosophy
A ‘Pay or Play’ Experiment to Improve Children’s Educational Television
Lili Levi, University of Miami – School of Law
Rhetoric and the Regulation of the Global Financial Markets in a Time of Crisis: The Regulation of Credit Ratings
Caroline M. Bradley, University of Miami – School of Law
Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law
Rebecca A. Sharpless, University of Miami – School of Law
Discovering Identity in Civil Procedure
Anthony Victor Alfieri, University of Miami – School of Law
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“Irreconcilable Differences? The Troubled Marriage of Science and Law”
Law and Contemporary Problems, Vol. 72, No. 1, 2009
University of Miami Legal Studies Research Paper No. 2009-22
SUSAN HAACK, University of Miami – School of Law, University of Miami – Department of Philosophy
Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for indicia and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances.
“A ‘Pay or Play’ Experiment to Improve Children’s Educational Television”
University of Miami Legal Studies Research Paper No. 2009-23
LILI LEVI, University of Miami – School of Law
This Article addresses both the constitutionality and the efficacy of the FCCs current rules that require broadcasters to air childrens educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCCs enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a ‘pay or play’ approach that allows broadcasters to pay a fee to a fund for high-quality public television childrens programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game-playing and FCC content-intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of ‘pay or play’ models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.
“Rhetoric and the Regulation of the Global Financial Markets in a Time of Crisis: The Regulation of Credit Ratings”
Transnational Law & Contemporary Problems, Forthcoming
University of Miami Legal Studies Research Paper No. 2009-24
CAROLINE M. BRADLEY, University of Miami – School of Law
The market for credit ratings is a transnational market dominated by a small number of credit rating agencies (CRAs). The article examines how CRAs have used market protection rhetoric and harmonization rhetoric during the crisis in the financial markets. As criticisms of pre-crisis financial regulation proliferated one might have expected CRAs to be less forceful in their resort to market protection rhetoric. CRAs lobbying strategies have evolved as discussions about the broader future of financial regulation have evolved, and they have conceded a greater role for regulation in 2009 than they had before the crisis, but they continue to emphasize, with some success, that as a global business they should not be subjected to different rules in different jurisdictions, and to insist that the core of their methodological approaches to rating should be unregulated.
“Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law”
University of Miami Law Review, Vol. 62, No. 4, 2008
University of Miami Legal Studies Research Paper No. 2009-25
REBECCA A. SHARPLESS, University of Miami – School of Law
When determining the legal effect of a conviction under immigration law, adjudicators claim to apply a uniform, federal standard that prohibits fact finding regarding the underlying circumstances that gave rise to the conviction. This categorical analysis of crimes is firmly rooted in all levels of administrative and federal court case law. Yet fundamental confusion exists concerning what it means to apply a categorical approach to evaluating when a criminal conviction is of a type that triggers deportation. This article demonstrates that a source of this confusion is a misunderstanding of the nature of a conviction and the difference between a fact necessarily decided to establish an element of the crime and an extraneous fact that appears in the record of conviction. This confusion has undermined the well-settled principle that immigration adjudicators lack the authority to determine the facts underlying a conviction when deportation depends on a conviction rather than conduct.
This article argues that that only defensible rule for analyzing whether a conviction falls within a ground of deportation is a true elements test – a test that characterizes a conviction based solely on facts decided in the prior criminal proceeding to establish guilt. Any deviation from this rule incorrectly permits immigration judges to make independent findings of fact regarding the manner in which a crime was committed.
This article analyzes immigration agency decisions as well as federal court decisions, focusing on the immigration and criminal sentencing jurisprudence of the U.S. Supreme Court and Eleventh Circuit Court of Appeals.
“Discovering Identity in Civil Procedure”
Southern California Law Review, Vol. 83, 2010
University of Miami Legal Studies Research Paper No. 2009-26
ANTHONY VICTOR ALFIERI, University of Miami – School of Law
This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didnt believe them. The backdrop for Noreluss story comes out of Ariela J. Grosss new book What Blood Wont Tell: A History of Race on Trial in America. In What Blood Wont Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs or rather reconstructs identity – both race and gender – from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two key moments in the twentieth century American history of racial and gender identity occurring initially when racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance, and subsequently when jingoist and nativist movements ignited efforts to define the boundaries of citizenship racially.
During these moments, she notes, the forum for the determination of racial identity moved to the local courthouse, a key arena through-out the nineteenth century for struggles over identity. At local courthouses, Gross explains, trials of racial and gender identity reverberated through American culture. Indeed, for Gross and others, the cultural arena of a courthouse and the legal case at stake could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn. Because of its cultural import, Gross argues, law has been a crucial institution in the process of creating racial meaning at every level. Both trials and trial transcripts, she observes, disclose glimpses of ordinary peoples, as well as lower-level legal actors understandings of legal and racial categories and of their own places in the racial hierarchy. Race trials, Gross emphasizes, brought to the surface conflicting understandings of identity latent in culture, and brought into confrontation everyday ways of understanding race with definitions that fit into the official, well-articulated racial ideology that supported the maintenance of slavery and post war racial hierarchy. Witnesses, lawyers, and litigants entangled in this cultural conflict learned to tell stories that resonated with juries and judges; in doing so, they actively participated in the day-to-day creation of race.
This Essay extends Grosss historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation. The Essay is divided into three parts. Part II maps Grosss analysis of racial identity trials, explicating her notions of racialized common sense and performance. Part III examines the trial and appellate litigation in Floride Noreluss civil rights case. Part IV considers alternative approaches to civil rights litigation embodied in identity performance and empowerment strategies.