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University of Maryland Francis King Carey School of Law

2005

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Human Rights Claims Vs. The State: Is Sovereignty Really Eroding?, Chandra Lekha Sriram Dec 2005

Human Rights Claims Vs. The State: Is Sovereignty Really Eroding?, Chandra Lekha Sriram

Faculty Scholarship

It is often argued that the increase in agreements, specialized courts, and litigation protecting human rights or responding to past abuses of human rights has begun to erode sovereignty. Contrary to traditional principles of non-interference in internal affairs, it is argued, genuine protection of human rights involves an invasion of the sovereign preserve of the state. While many examples might be adduced in support of this claim, ranging from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda to the European Court of Human Rights, this article examines two types of transnational procedures: civil accountability through the use …

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Capital Requirements In United States Corporation Law, Richard A. Booth Marbury Research Professor Of Law Dec 2005

Capital Requirements In United States Corporation Law, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

This paper focuses on corporation law in the United States as it relates to capital contributions and capital maintenance. In other words, the paper addresses the provisions of corporation law relating to (1) the obligation of investors to contribute to the corporation a specified amount of capital and (2) the obligation of the corporation to maintain a specified amount of capital (and not to pay it back to the stockholders in the form of dividends or payments to repurchase or redeem shares). Traditionally, the amount of capital that must be contributed to and maintained by a corporation is called the …

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Executive Compensation, Corporate Governance, And The Partner-Manager, Richard A. Booth Marbury Research Professor Of Law Dec 2005

Executive Compensation, Corporate Governance, And The Partner-Manager, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

In the debate over executive compensation, the assumption seems to be that the CEO of a publicly traded corporation is ultimately an employee of the corporation. According to the conventional view, the business belongs to the stockholders. Executive compensation is an expense like any other business expense that must be subtracted from income in reckoning stockholder return. The central problem has been that the CEO has too much power, and the board of directors has not acted as an effective monitor. Thus, the problem of executive compensation appears to be a thinly disguised problem of self-dealing. Professor Booth argues here …

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Who Should Recover What In A Securities Fraud Class Action?, Richard A. Booth Marbury Research Professor Of Law Dec 2005

Who Should Recover What In A Securities Fraud Class Action?, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

In this article, I argue that securities fraud class actions (SFCAs) should not be treated as class actions but rather should be treated as derivative actions. In addition, I argue that such actions should be dismissed unless it appears that insiders (including the company itself) have enjoyed gains from trading during the fraud period. Both of these conclusions are based on the fundamental argument that (1) securities law seeks to protect the interests of reasonable investors, (2) reasonable investors diversify, and (3) diversified investors are effectively protected against the supposed financial harms of securities fraud by virtue of being diversified, …

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Kentucky River At The Intersection Of Professional And Supervisory Status: Fertile Delta Or Bermuda Triangle?, Marley S. Weiss Dec 2005

Kentucky River At The Intersection Of Professional And Supervisory Status: Fertile Delta Or Bermuda Triangle?, Marley S. Weiss

Faculty Scholarship

No abstract provided.

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Foreword (Update), Richard A. Booth Dec 2005

Foreword (Update), Richard A. Booth

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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The Voting Rights Cases Of 1937? The Adoption Of Voting Machine Technology In Baltimore City, Andrew H. Robinson Dec 2005

The Voting Rights Cases Of 1937? The Adoption Of Voting Machine Technology In Baltimore City, Andrew H. Robinson

Legal History Publications

Article I, § 1 of the Maryland Constitution states that all elections “shall be by ballot.” What exactly constitutes “by ballot” has evolved over several generations to include everything from the viva voce casting of ballots in crowded rooms and seamy city streets to the electronic touch screens and computerized smart cards of the Direct Record Electronic voting machine first implemented in Baltimore City in 1996. What has remained constant through the ages, however, has been the ever present commitment on behalf of State and city officials to utilize the technology and resources available to them to deliver to the …

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Tobacco Regulation Review, V. 4, No. 2, Dec. 2005 Dec 2005

Tobacco Regulation Review, V. 4, No. 2, Dec. 2005

Tobacco Regulation Review

No abstract provided.

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Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax Nov 2005

Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax

Faculty Scholarship

It appears that our society has tacitly agreed to spare corporate directors any significant legal liability—which includes both financial and incarceration—for failing to perform their duties as board members. Thus, over the last twenty years, there has been a virtual elimination of legal liability—particularly in the form of financial penalties—for directors who breach their fiduciary duty of care. This is true despite the fact that we entrust directors with the awesome responsibility of monitoring all of America's corporations as well as the officers and agents within those corporations. More surprisingly, this tacit agreement against legal liability for directors has persisted …

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The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin Nov 2005

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

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A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin Nov 2005

A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin

Faculty Scholarship

The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it …

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A Chapter 11 Debtor's Life After Oct. 17: Not So Bad If You Effectively Plan, Michelle M. Harner, Carl E. Black Nov 2005

A Chapter 11 Debtor's Life After Oct. 17: Not So Bad If You Effectively Plan, Michelle M. Harner, Carl E. Black

Faculty Scholarship

No abstract provided.

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The Bottom Line On Board Diversity: A Cost-Benefit Analysis Of The Business Rationales For Diversity On Corporate Boards, Lisa M. Fairfax Nov 2005

The Bottom Line On Board Diversity: A Cost-Benefit Analysis Of The Business Rationales For Diversity On Corporate Boards, Lisa M. Fairfax

Faculty Scholarship

The Bottom Line on Board Diversity: A Cost Benefit Analysis of the Business Rationales for Diversity on Corporate Boards critically examines the business rationales for diversity in order to determine whether they can or should be used to encourage greater diversity on the boards of major corporations. The Article acknowledges the validity of some of the business rationales for diversity within corporations more generally, but questions whether those rationales apply with as much force in the context of corporate boards and the obligations board members undertake. On this point, the Article concludes that such rationales promise more, and in some …

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Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram Oct 2005

Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram

Faculty Scholarship

As institutions of international justice proliferate, so do disputes about their legitimacy, and about what shape they ought to take. As truly international tools such as the International Criminal Court and the exercise of universal jurisdiction face political and practical challenges, some scholars and practitioners have advocated a distinct institutional solution: the hybrid court. These are courts that are neither purely national nor international, but rather that pursue accountability in the country where abuses and crimes occurred, but with both national and international staff, and utilizing a mixture of national and international law. Many have suggested that these tribunals represent …

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Book Review: Transitional Justice Comes Of Age: Enduring Lessons And Challenges, Chandra Lekha Sriram Oct 2005

Book Review: Transitional Justice Comes Of Age: Enduring Lessons And Challenges, Chandra Lekha Sriram

Faculty Scholarship

This review article considers recent developments in transitional justice through an examination of two recent works on transitional justice, one dealing with "reparative" justice and the other seeking to offer an historical perspective on transitional justice generally. Through a consideration of the virtues and vices of each volume, the article also discusses some lessons learned and continuing challenges from a field of study and practice that is, at about a quarter-century, relatively young but maturing.

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Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson Oct 2005

Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson

Faculty Scholarship

Three decades ago, it would have been inconceivable for people to discuss seriously the idea of withdrawing the legal and financial support society gives to marriage. In recent years, however, thinkers and policymakers have given more serious thought to the possibility of eliminating marriage as a category entitled to the State’s support. An important consideration in this debate is whether keeping or eliminating the State’s support of marriage matters to the well-being of children. A wealth of studies contemplating modern family forms now exists, many of which invariably stack newer family structures up against the more traditional nuclear family. Until …

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E Tax: The Flat Tax As An Electronic Credit Vat, Daniel S. Goldberg Oct 2005

E Tax: The Flat Tax As An Electronic Credit Vat, Daniel S. Goldberg

Faculty Scholarship

The article builds on the Hall-Rabushka Flat Tax and proposes a consumption tax called the “E Tax,” which is an electronically collected credit invoice VAT. The Hall-Rabushka Flat Tax is a two-tier consumption tax that is based on a subtraction method VAT. The Hall-Rabushka nuance, however, allows a deduction for wages as if they were purchases of materials by the employer. Wage earners would be taxed on those wages at rates that could be set as graduated or flat, with or without a zero rate or bracket amount and with or without personal exemptions and deductions. Hall and Rabushka proposed …

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The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger Oct 2005

The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger

Faculty Scholarship

In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention- sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress’ power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 …

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When Should Judges Admit Or Compel Genetic Tests?, Diane E. Hoffmann, Karen H. Rothenberg Oct 2005

When Should Judges Admit Or Compel Genetic Tests?, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

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Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson Oct 2005

Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson

Faculty Scholarship

Few decisions are as determinative of a child’s well-being and long-term success as the decision to remove a child from his or her own home following an allegation of abuse by a parent. Using the public health lens Professor Marsha Garrison develops elsewhere in this Issue, this Comment examines one of the most critical questions Child Protective Services agencies face thousands of times a day: whether to remove a child who is a possible victim of abuse or neglect from his or her home. This evidence-based approach shows that the choice to remove the child rather than the alleged offender …

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Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton Oct 2005

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

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Mid-Atlantic Ethics Committee Newsletter, Fall 2005-Winter 2006 Oct 2005

Mid-Atlantic Ethics Committee Newsletter, Fall 2005-Winter 2006

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

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Directors' Duties In Failing Firms, Larry E. Ribstein, Kelli A. Alces Oct 2005

Directors' Duties In Failing Firms, Larry E. Ribstein, Kelli A. Alces

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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Gap Filling In The Zone Of Insolvency, Frederick Tung Oct 2005

Gap Filling In The Zone Of Insolvency, Frederick Tung

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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Direct Creditor Claims For Breach Of Fiduciary Duty: Is They Is, Or Is They Ain't?, Roger A. Lane Oct 2005

Direct Creditor Claims For Breach Of Fiduciary Duty: Is They Is, Or Is They Ain't?, Roger A. Lane

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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Director And Officer Liability When "Zone Of Insolvency" Cases Go To Trial, Carl E. Metzger, Brian H. Mukherjee Oct 2005

Director And Officer Liability When "Zone Of Insolvency" Cases Go To Trial, Carl E. Metzger, Brian H. Mukherjee

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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The Directors' Duty To The Creditors Of A Financially Distressed Company: A Perspective From Across The Pond, Donna W. Mckenzie Skene Oct 2005

The Directors' Duty To The Creditors Of A Financially Distressed Company: A Perspective From Across The Pond, Donna W. Mckenzie Skene

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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Why A Fiduciary Duty Shift To Creditors Of Insolvent Business Entities Is Incorrect As A Matter Of Theory And Practice, J. William Callison Oct 2005

Why A Fiduciary Duty Shift To Creditors Of Insolvent Business Entities Is Incorrect As A Matter Of Theory And Practice, J. William Callison

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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From Production Resources To Peoples Department Stores: A Similar Response By Delaware And Canadian Courts On The Fiduciary Duties Of Directors To Creditors Of Insolvent Companies, Pamela L.J. Huff, Russell C. Silberglied Oct 2005

From Production Resources To Peoples Department Stores: A Similar Response By Delaware And Canadian Courts On The Fiduciary Duties Of Directors To Creditors Of Insolvent Companies, Pamela L.J. Huff, Russell C. Silberglied

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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Much Ado About Little? Directors' Fiduciary Duties In The Vicinity Of Insolvency, Stephen M. Bainbridge Oct 2005

Much Ado About Little? Directors' Fiduciary Duties In The Vicinity Of Insolvency, Stephen M. Bainbridge

2005 - Twilight in the Zone of Insolvency: FIDUCIARY DUTY AND CREDITORS OF TROUBLED COMPANIES

No abstract provided.

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