Bringing Coherence to Mens Rea Analysis for Securities-Related Offenses

This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is complicated enough, and determining what constitutes a crime in this area is even more difficult. The least that the government should do is provide clear guidance on the crucial issue of criminal mens rea. Fifty years ago, the MPC made clarity possible; it is time now to realize this goal

On Collegiality

The problem of collegiality in academia is like a crazy aunt in the family: ever present, whispered about in hallways, but rarely acknowledged directly. My goal in this article has been to initiate the demise of this pattern of unhappy toleration. The toleration stems, in large part, from an apparently widespread fear that attempts to control colleagues\u27 uncollegial conduct will result in an unacceptable diminution of academic freedom. Although these concerns are legitimate, I have sought to prove that, if appropriate care is taken, academic freedom may flourish at the same time that a norm of basic collegiality is enforced. Failure to maintain collegiality is potentially costly to the morale and productivity of an institution. The first line of defense in the battle for collegiality is manned by the faculty themselves; they must personally commit to collegial behavior, and they should use peer pressure to assure that their colleagues do the same

Rationalizing Hearsay: A Proposal for a Best Evidence Hearsay Rule

The enterprise of this article is the theoretical construction of an optimal solution to the hearsay conundrum. Its first task is the elucidation of the premises upon which a rational hearsay rule can be built. Thus, the article starts by exploring the relationship between hearsay doctrine and the foundation of all rational truth-seeking enterprises, inductive logic. The article continues with an examination of the relationship between hearsay evidence and trial dynamics, for a workable rule must take into account the actual functioning of our adversary system.\u27 This two-pronged analysis leads to the proposal of a best evidence hearsay rule

A Pragmatic Critique of Modern Evidence Scholarship

This Article contends that strict adherence to optimistic rationalism has blinded evidence scholars to the reality that the law of evidence is as indeterminate as all other areas of the law. At its core is not a single goal -- the attainment of truth -- but a number of important, complex, and, alas, competing considerations. Answers to questions concerning the appropriate configuration of evidence doctrine cannot be deduced from a unitary principle; indeed, they cannot be deduced at all. Rather, arguments about evidence doctrine must be conducted in the realm of practical reason. Practical reason is the process through which individuals argue about and justify decisions made under conditions of immutable uncertainty; it is, fundamentally, a conversation. The methods of practical reason include induction, analogy, ends-to-means rationality, and the test of time

Bringing Coherence to Mens Rea Analysis for Securities-Related Offenses

This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is complicated enough, and determining what constitutes a crime in this area is even more difficult. The least that the government should do is provide clear guidance on the crucial issue of criminal mens rea. Fifty years ago, the MPC made clarity possible; it is time now to realize this goal

Pragmatism Applied: Imagining a Solution to the Problem of Court Congestion

Can we improve the efficiency of jury trials? If so, would this reduce the problem of court congestion? Is there any reason to favor this approach over those that seek to avoid jury trials altogether? This Article attempts to answer these difficult questions. It does so by articulating and then employing a methodology suggested by recent scholarly ruminations about the philosophy of pragmatism and its implications for legal scholarship and practice. Although pragmatism does not provide right answers to questions of legal doctrine-indeed, it rejects the notion that such things exist-it does provide some guidance in formulating the search for workable solutions to legal dilemmas. This is, however, a controversial proposition, and so this Article begins with its defense. Once that task is accomplished, the Article will extrapolate some concrete methodological tools from the tenets of pragmatism. Finally, the Article will employ this methodology to argue for the development of an Abbreviated Jury Trial ( AJT )

Some Preliminary Statistical, Qualitative, and Anecdotal Findings of an Empirical Study of Collegiality among Law Professors

This article is an empirically-based follow-up to a piece I published last year in the Journal of Legal Education entitled, On Collegiality, 54 J. Legal Educ. 406 (2004). It provides insight into the process of conducting empirical research and sets forth some preliminary – yet very intriguing – data and qualitative information gleaned from a survey responded to by more than 1200 law professors nationwide. The survey addressed a wide range of topics related to collegiality and job satisfaction in the legal-academic profession

Pragmatism Applied: Imagining a Solution to the Problem of Court Congestion

Can we improve the efficiency of jury trials? If so, would this reduce the problem of court congestion? Is there any reason to favor this approach over those that seek to avoid jury trials altogether? This Article attempts to answer these difficult questions. It does so by articulating and then employing a methodology suggested by recent scholarly ruminations about the philosophy of pragmatism and its implications for legal scholarship and practice. Although pragmatism does not provide right answers to questions of legal doctrine-indeed, it rejects the notion that such things exist-it does provide some guidance in formulating the search for workable solutions to legal dilemmas. This is, however, a controversial proposition, and so this Article begins with its defense. Once that task is accomplished, the Article will extrapolate some concrete methodological tools from the tenets of pragmatism. Finally, the Article will employ this methodology to argue for the development of an Abbreviated Jury Trial ( AJT )

A Pragmatic Critique of Modern Evidence Scholarship

This Article contends that strict adherence to optimistic rationalism has blinded evidence scholars to the reality that the law of evidence is as indeterminate as all other areas of the law. At its core is not a single goal -- the attainment of truth -- but a number of important, complex, and, alas, competing considerations. Answers to questions concerning the appropriate configuration of evidence doctrine cannot be deduced from a unitary principle; indeed, they cannot be deduced at all. Rather, arguments about evidence doctrine must be conducted in the realm of practical reason. Practical reason is the process through which individuals argue about and justify decisions made under conditions of immutable uncertainty; it is, fundamentally, a conversation. The methods of practical reason include induction, analogy, ends-to-means rationality, and the test of time