Cognitive Science Program

The property ‘instinct’ (2004)
S Zeki, OR Goodenough and Jeffrey Evans Stake
Philosophical Transactions of the Royal Society of London. Series B: Biological Sciences, 359 (1451), 1763-1774

Abstract

Evolutionary theory and empirical studies suggest that many animals, including humans, have a genetic predisposition to acquire and retain property. This is hardly surprising because survival is closely bound up with the acquisition of things: food, shelter, tools and territory. But the root of these general urges may also run to quite specific and detailed rules about property acquisition, retention and disposition. The great variation in property-related behaviours across species may mask some important commonalities grounded in adaptive utility. Experiments and observations in the field and laboratory suggest that the legal rules of temporal priority and possession are grounded in what were evolutionarily stable strategies in the ancestral environment. Moreover, the preferences that humans exhibit in disposing of their property on their deaths, both by dispositions made in wills and by the laws of intestacy, tend to …

The uneasy case for adverse possession (2000)
Jeffrey Evans Stake
Geo. Lj, 89 2419

Abstract

In the above quotation, Justice Holmes explained title by prescription and the" strange and wonderful"'2 doctrine of adverse possession. Judge Posner has argued that Holmes was making a point about the diminishing marginal utility of income. I think not. One purpose of this Article is to develop a different interpretation of Justice Holmes, an interpretation with roots in modem experimental psychology and the theory of loss aversion. 4 Professors Stoebuck and Whitman stated in their property treatise," If we had no doctrine of adverse possession, we should have to invent something very like it."'5 That was true in the past and may still be true today, but it is not at all clear that it will remain true in the future. The more general purpose of this Article is to examine the various rationales for adverse possession, exploring a number of questions: Which rationales, if any, supply a satisfactory normative justification for the …

The interplay between law school rankings, reputations, and resource allocation: Ways rankings mislead (2006)
Jeffrey Evans Stake
Ind. LJ, 81 229

Abstract

This Article discusses problems created by the annual rankings of law schools published by US. News & World Report (" US. News"). Of course all unidimensional rankings of law schools, no matter who produces them, ignore the fact that law schools have different jobs to do for different students, from preparing those who will serve under-represented communities to preparing those who will advise major corporations and the government. Moreover, the consumer orientation of the rankings fails to recognize that law schools have other roles to perform in society, from devising improved laws to augmenting the stock of knowledge about law. In addition, there are serious, particular problems associated with law school rankings-they mislead law schools and prospective applicants. Law schools are misled in the sense that the rankings lead them down a path of operation that reduces the quality of schooling they offer to …

Lifting the veil of ignorance: personalizing the marriage contract (1997)
Eric Rasmusen and Jeffrey Evans Stake
Ind. LJ, 73 453

Abstract

Sir Henry Maine long ago identified a historical shift in the law from status to contract.'In recent times we have seen the number of written agreements, warnings, and warranties increase vastly, a classic example being the movement in commercial leases from tenurial relationships to contractual agreements. 2 This change has freed parties from many constraints imposed in the past on the basis of status. Yet marriage remains an exception. The large majority of marrying couples have no written agreement beyond the marriage license, which binds them to state marriage laws.Even if a couple were to sign a contract setting out their terms of endearment, the courts might refuse to enforce it. This was consciously the attitude of courts in the days before no-fault divorce. As the United States Supreme Court said in 1888:

Mandatory Planning for Divorce (1992)
Jeffrey Evans Stake
Vand. L. Rev., 45 397

Abstract

Rachel, if you'll not transport us, I will take you for my wife, And I'll split with you my money Ev'ry pay-day of my life. 1

Darwin, Donations, and the Illusion of Dead Hand Control (1990)
Jeffrey E Stake
Tul. L. Rev., 64 705

Abstract

" No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." 1 Students have struggled with the Rule against Perpetuities, 2 and scholars and practitioners urge simplification, 3 but deep in the Rule lies a beauty, part of which stems from the very complexity and intricacy many bemoan. 4 The Rule merits

Toward an Economic Understanding of Touch and Concern (1988)
Jeffrey E Stake
Duke LJ, 925

Abstract

X promises A that Homeacre will be used for residential purposes only. X sells Homeacre to Y Does X's promise bind Y? 2 X promises A to operate a first-class department store on Macyacre. After X sells Macyacre to Y, must Y also operate a first-class department store? 3 X promises A to pay for Greenacre. IfX sells Greenacre to Y before paying A, does the debt pass to Y? 4 X promises A to pay homeowners' dues and assessments for Condoacre. X sells Condoacre to Y Can A extract the homeowners' dues from Y? 5 X promises A to bury a pipeline below the surface of Oilacre. X sells Oilacre to Y, and A sells to B. Can B force Y to bury the pipeline? 6 X buys Damacre from A, promising to provide electricity to A's new place of business. X sells to Y Must Y provide electricity to A? 7

Status and Incentive Aspects of Judicial Decisions (1991)
Jeffrey Evans Stake
Georgetown Law Review, 79 (5), 1447

Abstract

Go with me to a notary, seal me there Your single bond; and, in a merry sport, If you repay me not on such a day, In such a place, such sum or sums as are Expressed in the condition, let the forfeit Be nominated for an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me. IShould a court enforce this bond upon Antonio's failure to pay? How a court could, consistent with efficiency, refuse to enforce this contract once puzzled Judge Richard Posner. 2 There is an easy economic justification for the refusal, but it can be missed by those taking the usual economic approach to law. Analysts approaching the issue from the perspective of the new law & economics are quick to point out that the outcome chosen by the court will establish a rule which will create incentives that influence the behavior of others. 3 What law & economics scholars often leave unexamined is the obvious fact that …

Are We Buyers or Hosts--A Memetic Approach to the First Amendment (2000)
Jeffrey Evans Stake
Ala. L. Rev., 52 (4), 1213

Abstract

Laura:" Would you please stop singing that song?" Alison:" I want to, but I can't get it out of my head." Laura, a minute later:" Oh no! You gave it to me." Alison:" Well, don't blame me; you gave it to me in the first place."

Roundtable: Opportunities for and Limitations of Private Ordering in Family Law (1998)
Jeffrey Evans Stake and Michael Grossberg
Indiana Law Journal, 73 (2), 535

Abstract

The Roundtable was constructed in an effort to contribute to the growing debate about private ordering in family law. Each member of the Roundtable was asked to take some position on the basic question of whether private ordering should be the dominant new force in family lav. As the centerpiece of the Symposium, the Roundtable was intended to provide the audience with some overview of the topic, some of the broader connections going beyond the particulars to the larger issues and context, and to get a variety of perspectives on the significance, legitimacy, and efficacy of private ordering in family law. It is obvious that a wide variety of laws-from rules governing marriage, divorce, and child custody through contract, professional responsibility, and wills-influence family structure and the behavior of family members. Family law is a site for highly visible and important contests between state regulation and …

Evolution of rules in a common law system: differential litigation of the fee tail and other perpetuities (2004)
Jeffrey Evans Stake
Fla. St. UL Rev., 32 401

Abstract

In our common law system, courts have the power to make new law and to change old law. As Judge Posner might say, judges are not potted plants.'They make law by deciding specific cases. For each case, there are at least two possible outcomes. In most cases, one of these outcomes will be more efficient than the other; that is to say, one outcome will generate greater total welfare in the future. After Posner argued that much of the common law could be explained in terms of efficiency, 2 Paul Rubin set forth an evolutionary theory of how the common law, pushed by an invisible hand, might evolve to an efficient set of rules. 3 His seminal idea was that disputes involving inefficient rules would settle less often than disputes involving efficient rules, with the result that litigation would more frequently overturn inefficient rules. 4 George Priest extended Rubin's thesis, ar-

The Pride of Indiana: An Empirical Study of the Law School Experience and Careers of Indiana University School of Law-Bloomington Alumni (2006)
Kenneth G Dau-Schmidt, Jeffrey E Stake, Kaushik Mukhopadhaya and Timothy A Haley
Ind. LJ, 81 1427

Abstract

One of the joys of the academic life is participating in the lifecycle of the law school" family." Each fall the halls of the law school resound with the noise and energy of a new entering class. Full of wonderment and excitement, these newest members of the law school family join their academic" siblings" to make new friends, perhaps meet a spouse, and begin their adventures in the life of the law. As with actual children, our time with them is all too short. Although teaching is hard work and some students can try one's patience, given the amount we enjoy getting to know our students and given how much they help us to learn and grow along with them during their education, three years seems far too short for this relationship. Nevertheless, each spring we rejoice in their successes as another third-year class outgrows their need for us and goes on to the rest of their lives and their legal careers.Although we denizens of …

Making the Grade: Some Principles of Comparative Grading (2002)
Jeffrey Evans Stake
J. Legal Educ., 52 583

Abstract

While I was a law school student, one teacher attempted to give grades of D or F to a large portion of his first-year class. Did he not know—I wondered—that it was statistically much more likely that his grading had changed than it was that the effort and ability of a class of 125 students was radically different from the effort and ability of his other recent first-year classes?'Upon joining the law teachers, I found that most colleagues were concerned about their grading but had spent little time thinking about how their grades fit into the context of marks given by their peers. They had not considered whether grading practices that would be benign standing alone could be problematic in that larger context. Most of us teach that process is important, but in some ways we do not practice what we preach. We spend little of our faculty energy overseeing our institutional process of calculating summary statistics such as grade point …

Income and career satisfaction in the legal profession: survey data from Indiana Law School graduates (2007)
Jeffrey Evans Stake, Kenneth G Dau‐Schmidt and Kaushik Mukhopadhaya
Journal of Empirical Legal Studies, 4 (4), 939-981

Abstract

This article presents data on graduates of a law school located at a large, midwestern public university. It presents responses to survey questions relating to various personal and job characteristics, including income from the practice of law and career satisfaction. It compares the responses across various demographic groups, including type of practice, gender, race, and ethnicity. We find that lawyers in large private law firms make more money than lawyers in small private practices, who, in turn, make more than those in government or public interest positions. Career satisfaction is greatest for lawyers in corporate counsel, public interest, and government jobs, followed by larger firms, and then smaller private firms. We find that women earn substantially lower incomes than men, but most of the difference can be eliminated by accounting for time taken away from paid work for childcare, among other factors. Both …

Decomposition of property rights (1999)
Jeffrey Evans Stake
Property Law and Economics, 126

Abstract

In light of the importance of property to the economic system and the tremendous attention to transaction costs since Coase (1960), it seems somewhat odd that the particular rules of English property law, which impose costs on land transactions, have received relatively little attention from economists. Perhaps this is because the English common-law system of property rules is both high enough in flexibility and generally low enough in administrative costs that it causes no large and obvious drag on commerce. Nevertheless, the rules governing subdivision or decomposition of property rights have received some attention from law and economics scholars (eg, Shavell 2004, pp. 27–32). The purpose of this chapter is to review some of the literature relating to ways in which rights in land and other assets can be divided and suggest explanations for existing decompositions of property.Economics and property law meet in at least two fundamentally different ways. In the standard analysis, researchers have attempted to determine the allocative and welfare effects of various legal rules and regimes. Both economists and lawyers have, in a positive vein, tried to explain and predict behavior ofindividuals and, in a normative vein, criticized the law and proposed reforms based on those predicted behaviors (eg, Epstein 1982; Hirsch 1983). Second, economic analysis has occasionally (Posner 2007; Krier 1974) been used to explain the behavior ofjudges and, in so doing, to clarify vague legal rules and make the law more predictable. The latter is not an application of Public Choice theory, although the two have similar goals. It is instead an attempt to predict …