INTRODUCTION
EMOTIONAL PATERNALISM
Jeremy A. Blumenthal
At least two bodies of legal scholarship have recently challenged the primacy of the traditional rational-actor, law and economics approach to law and policy. The first, taking a cognitive-psychological or behavioral economics approach, focuses on mental heuristics and biases that lead to departures from optimal or rational decisionmaking. This literature is voluminous and increasing. A second line of legal scholarship focuses on the role of emotion in legal judgment and decisionmaking, whether by judges, juries, bureaucrats, legislators, or citizens. Although somewhat less developed than the first, this line of writing, and the empirical social science research it often seeks to incorporate, has likewise demonstrated departures from the traditional conception of a rational decisionmaker. Substantial empirical evidence shows, for instance, that people make different judgments and choices when in a good mood than when in a bad mood. Emotion biases an individual’s perceptions of probability and risk. Similarly, contrary to the predictions of rational decisionmaking, when a judgment about the outcome of a particular action is accompanied by strong emotion, people’s decisions about those outcomes are relatively impervious to changes in their probability. And people tend to inaccurately predict their own future emotional states—as well as those of others—even when the predictions concern important self-relevant events or, in some cases, are even minutes in the future.
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SECULARIZATION, LEGAL INDETERMINACY, AND HABERMAS’S DISCOURSE THEORY OF LAW
Mark C. Modak-Truran
“Our age is not an age of secularization,” according to the prominent sociologist Peter Berger, but “it is an age of exuberant religiosity.” Berger’s empirical studies have verified that “[m]ost of the world today is as religious as it ever was, and in some places is more religious than ever.” The continued vitality of religion has motivated many scholars to revisit their assumptions about how religion relates to their disciplines. In sociology and religion, scholars are revisiting, revising, or rejecting the paradigmatic assumption that the modernization of society necessarily leads to the secularization of society. Scholars in anthropology, political science, international relations, and philosophy have also joined in the debate about secularization and the changing role of religion in modern society and in their disciplines. For instance, in Philosophy and the Turn to Religion, philosopher Hent De Vries begins his book by claiming: “That religion can no longer be regarded as a phenomenon belonging to a distant past, and that it is not a transhistorical and transcultural phenomenon either, is no longer disputed in modern scholarship.”
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FALSE CATEGORIES IN COMMERCIAL LAW: THE (IR)RELEVANCE OF (IN)TANGIBILITY
Juliet M. Moringiello
eSnowshoes, Inc. is a hypothetical small company selling snowshoes online. To finance its business, eSnowshoes borrowed $100,000 from Commercial Bank and granted the bank a security interest in its inventory, accounts receivable, and general intangibles, including the www.snowshoes.com domain name that it registered with Network Solutions and the eSnowshoes storefront in the virtual world Second Life. Commercial Bank properly perfected the security interest by filing a financing statement. Because of unusually warm winters in the northeastern United States, eSnowshoes’ biggest market, snowshoes started to fall out of favor, and eSnowshoes defaulted on the loan. Commercial Bank knows that it can use self-help repossession to obtain the inventory and self-help collection remedies to obtain payment on the accounts receivable, but it wants to know how to enforce its interest in the Internet domain name and the Second Life virtual “real estate.”
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OFF OF THE PEDESTAL AND INTO THE FIRE: HOW PHILLIPS CHIPS AWAY AT THE RIGHTS OF SITE-SPECIFIC ARTISTS
Rachel E. Nordby
What does a herd of Black Angus cattle in New York have in common with city planners in Sarasota, Florida? Both are unexpected interlopers into the world of site-specific art. Art is site-specific when its locality or surrounding environment plays an integral role in the meaning and interpretation of the work. Because site-specific art is designed for particular locations, removal from a specific location arguably mutilates or destroys the integrity of the work, whether or not the actual art piece is physically altered.
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OVERLOOKED TOOL: PROMISSORY FRAUD IN THE CLASS ACTION CONTEXT
Karen Sandrik
Ten years ago the United States Supreme Court in Amchem Products, Inc. v. Windsor1 ended the trend of mass tort case certification by sending a clear message to district courts and, consequently, plaintiff class counsel.2 Declining to approve a global settlement for hundreds of thousands, if not millions, of present and future plaintiffs claiming asbestos-related injuries, the Court decertified the class, emphasizing the lack of commonality and predominance of common issues. The Court stated: “ ‘Class members were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, Ten years ago the United States Supreme Court in Amchem Products, Inc. v. Windsor1 ended the trend of mass tort case certification by sending a clear message to district courts and, consequently, plaintiff class counsel.2 Declining to approve a global settlement for hundreds of thousands, if not millions, of present and future plaintiffs claiming asbestos-related injuries, the Court decertified the class, emphasizing the lack of commonality and predominance of common issues. The Court stated: “ ‘Class members were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes,
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