Throw Away the Key or Throw Away the Jail? The Effect of Punishment on Recidivism and Social Cost

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Miguel F. P. de Figueiredo. We jail too many people and it costs too much. Incarceration is not only expensive, it also is prone to “hardening” and negative peer learning effects that may increase recidivism. With local, state, and federal budgets at a breaking point, politicians and regulators are increasingly considering alternative approaches to preventing crime. Yet, they face a problem. Studies show that incapacitation is a successful way of reducing crime, yet most scholars and policymakers think that the only way to incapacitate is to incarcerate. This study demonstrates that this assumption is problematic, arguing that we should understand incapacitation along a continuum, with incarceration at one end. This understanding is important because it allows policy makers to think about new ways to avoid the significant social and fiscal…
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Sugar & Cyanide: The Combinatory Effects of Poison Pills and Dual-Class Structures on Shareholder Rights

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Nathan Andrews. Corporations represent a strategic compromise by which ownership is separated from management. This structure has numerous legal and economic benefits; however, the corporate structure is especially adept in diversifying ownership. Shares, a type of security which are also often referred to as stock or common stock, represent a portion of ownership of a corporation. Shares of publicly traded corporations are available for purchase on stock exchanges throughout the world allowing virtually any entity to purchase ownership in a corporation. Typically, shareholders receive various rights through share ownership, including the right to vote for directors, who represent the diversified ownership in major decisions. A corporation’s management generally consists of a chief executive officer and various other officers, as well as intermediate and lower level management who do not necessarily…
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Professional Rights Speech

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Timothy Zick. Some regulations of professional-client communications raise important, but so far largely overlooked, constitutional concerns. Three recent examples of professional speech regulation: restrictions on physician inquiries regarding firearms, “reparative” therapy bans, and compelled abortion disclosures, highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right; the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of “professional rights speech” should be subjected to heightened First Amendment scrutiny. Many professionals perform critical, but under- appreciated, functions with regard to the recognition and effective exercise of constitutional rights. Moreover, the author…
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THAT’S WHAT HE SAID: The Office, (Homo)Sexual Harassment, and Falling Through the Cracks of Title VII

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Sasha Andersen. This article uses The Office as a platform to explore the history of Title VII and illustrate the puzzling rationale for why homosexuals fall through the cracks of Title VII and are not protected from workplace harassment. This article analyzes the way Title VII would apply to Oscar’s situation and shows how bringing a seemingly clear-cut case of sexual harassment would be unsuccessful despite common-sense perceptions of the law. In exposing the way Title VII law is inconsistent with common sense, this article has two objectives. First, it probes the history of Title VII jurisprudence and demonstrates that homosexuals have no recourse under Title VII—that is, unless they act “gay” enough or the harasser is actually homosexual. Understanding this reality exposes a more problematic logic in Title VII…
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Patent Markets: A Framework for Evaluation

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Michael J. Burstein. Patents have become financial assets. They are valued like securities, traded like stocks, and modeled as options. Our discourse about patents increasingly draws from finance. Firms whose business models depend on patent assertion explain that they are providing “liquidity” to the patent market. Those on the other side, which engage in collective defense, talk about using the market to mitigate “patent risk.” Commentators who ordinarily take very different positions about the merits of our current patent system seem to agree that we should make patent markets more efficient. But neither they nor most others ask the logically prior question: should there be robust patent markets at all? This Essay provides a roadmap for answering that question. Taking seriously the analogy between patent markets and financial markets, I demonstrate…
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Patent Pledges

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Jorge L. Contreras. An increasing number of firms are making public pledges to limit the enforcement of their patents. In doing so, they are entering a little-understood middle ground between the public domain and exclusive property rights. The best-known of these patent pledges are FRAND commitments, in which patent holders commit to license their patents to manufacturers of standardized products on terms that are “fair, reasonable and non-discriminatory.” But patent pledges have been appearing in settings well beyond standard-setting, including open source software, green technology and the life sciences. As a result, this increasingly prevalent private ordering mechanism is beginning to reshape the role and function of patents in the economy. Despite their proliferation, little scholarship has explored the phenomenon of patent pledges beyond FRAND commitments and standard-setting. This article…
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Against Design

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Caryn Devins, Roger Koppl, Stuart Kauffman & Teppo Felin. Institutions and the incentives they create can be designed or redesigned to produce desired outcomes. But design does not work if social and economic dynamics are “creative.” If it is impossible to know in advance how an institution will change behavior and incentives—and what interests it may serve or harm in the future—then it is impossible to “design” optimal institutions. Like organisms, institutions are adaptive functional wholes that change in unpredictable and unprestateable ways. We examine the history of interpretations of the United States Constitution to illustrate the unpredictable and unprestateable dynamics of institutional change. We highlight how innovative interpretations of the Commerce Clause crafted in the civil rights context of the 1960s provided legal support to the Controlled Substances Act of 1970, which…
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Tilting at Windmills: Finding an Alternative Dormant Commerce Clause Framework to Preserve Renewable Portfolio Standard Generator Location Requirements

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Danny Englese. As our world becomes ever more connected, with a boundless supply of information and products from all over the world readily accessible through the click of a button, consumers are becoming more motivated than ever to spend their money at locally-owned businesses. This “localist” movement is supported by various local organizations around the country, whose memberships are steadily increasing. The localist movement has been particularly visible in Arizona. For instance, Local First Arizona, “a statewide non-profit organization working to strengthen communities and local economies through growing, supporting, and celebrating locally owned businesses throughout the state,” has over 2,000 members in industries ranging from food service to banking and finance. There is growing evidence that spending at local businesses has a significant economic impact. According to one study, for…
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Big Conflicts Little Conflicts

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Katherine Florey. Choice-of-law doctrine today increasingly presents two distinct faces. When it comes to garden-variety tort and contract cases, conflicts doctrine often produces uncontroversial results with surprisingly little drama. In more complicated litigation, however, the picture is starkly different. It is fair to say that choice-of-law issues represent perhaps the most serious obstacle to consolidating complex cases. Further, conflicts issues even in simpler cases have proven deeply problematic when they implicate not just the interests of individuals, but larger questions about the proper allocation of state power. What accounts for the divergent performance of conflicts doctrine in, on the one hand, small-scale litigation and, on the other, litigation that affects more people or raises broader policy concerns? This Article argues that domestic U.S. choice-of-law doctrines serve two distinct functions, and…
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Google Glass While Driving

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Adam M. Gershowitz. Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “[r]ead up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using”…
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