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Articles 31 - 59 of 59
Full-Text Articles in Law
Jevic's Promise: Procedural Justice In Chapter 11, Pamela Foohey
Jevic's Promise: Procedural Justice In Chapter 11, Pamela Foohey
Articles by Maurer Faculty
In this Response to Jonathan Lipson's article, The Secret Life of Priority: Corporate Reorganization After Jevic, 93 Wash. L. Rev. 631 (2018)), I focus on Czyzewski v. Jevic Holding Corp.'s implications for procedural justice and corporate reorganization. In his article, Lipson explicitly links the chapter 11 process with the Bankruptcy Code’s substantive rules about priority, crafting a forceful argument about what procedural values the U.S. Supreme Court sought to uphold when it penned Jevic. In doing so, Lipson expounds on a broader truth about the co-option of corporate reorganization’s process in the name of value preservation. Procedural justice teaches that …
Judicial Selection And The Search For Middle Ground, Charles G. Geyh
Judicial Selection And The Search For Middle Ground, Charles G. Geyh
Articles by Maurer Faculty
This Article seeks to transcend perennial election versus appointment debates-including debates over campaign finance and the impact of "dark money"-by taking a closer look at why judicial selection is a contentious mess and discussing how it might be fixed. First, I present the case for elective and appointive systems. Second, I show that the arguments for each system are exaggerated or flawed.Third, I explore why it has been hard for proponents of each system to perceive and acknowledge those exaggerations and flaws, and propose ways to narrow the divide. Although the divide can and should be narrowed, I conclude that …
Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley
Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley
Articles by Maurer Faculty
The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental …
Caveat Irs: Problems With Abandoning The Full Deduction Rule, David Gamage, Joseph Bankman, Jacob Goldin, Daniel J. Hemel, Darien Shanske, Kirk J. Stark, Dennis J. Ventry Jr., Manoj Viswanathan
Caveat Irs: Problems With Abandoning The Full Deduction Rule, David Gamage, Joseph Bankman, Jacob Goldin, Daniel J. Hemel, Darien Shanske, Kirk J. Stark, Dennis J. Ventry Jr., Manoj Viswanathan
Articles by Maurer Faculty
Several states have passed — and many more are considering — new tax credits that would reduce tax liability based on donations made by a taxpayer in support of various state, local or non-profit programs. In general, taxpayer contributions to qualifying organizations — including public charities and private foundations, as well as federal, state, local, and tribal governments — are eligible for the federal charitable contribution deduction under section 170. In a previous article, we explained how current law supports the view that qualifying charitable contributions are deductible under section 170, even when the donor derives some federal or state …
Wayfair And The Retroactivity Of Constitutional Holdings, David Gamage, Adam Thimmesch, Darien Shanske
Wayfair And The Retroactivity Of Constitutional Holdings, David Gamage, Adam Thimmesch, Darien Shanske
Articles by Maurer Faculty
This essay analyzes the issue of retroactivity with respect to the Supreme Court case of South Dakota v. Wayfair.
Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein
Articles by Maurer Faculty
Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …
Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz
Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz
Articles by Maurer Faculty
No abstract provided.
Wayfair: Marketplaces And Foreign Vendors, David Gamage, Adam Thimmesch, Darien Shanske
Wayfair: Marketplaces And Foreign Vendors, David Gamage, Adam Thimmesch, Darien Shanske
Articles by Maurer Faculty
This is the third of a series of essays wherein we analyze the U.S. Supreme Court's decision in South Dakota v. Wayfair. In this essay, we address issues related to state taxation of internet marketplaces and of foreign vendors.
Increasing Transparency In The Us Tax Court, Leandra Lederman
Increasing Transparency In The Us Tax Court, Leandra Lederman
Articles by Maurer Faculty
Transparency is a widely accepted judicial norm because it increases accountability. Access to U.S. Tax Court documents has long differed from access to the documents of other courts. For example, the Tax Court does not participate in PACER (Public Access to Court Electronic Records). This essay discusses some of the ways in which access to Tax Court documents has been restricted; areas in which the Tax Court has increased transparency over the years; upcoming changes; and where increased transparency is still needed, such as with respect to case statistics.
How Should Damages Be Calculated For Design Patent Infringement?, Mark D. Janis
How Should Damages Be Calculated For Design Patent Infringement?, Mark D. Janis
Articles by Maurer Faculty
No abstract provided.
Innovation Diffusion In The Legal Industry, William D. Henderson
Innovation Diffusion In The Legal Industry, William D. Henderson
Articles by Maurer Faculty
This article is adapted from a series of blog posts originally found in my recently-started blog entitled Legal Evolution. The foundational material set forth in this article (and in those blog posts) applies to the legal services market insights gained from disciplines other than law. This article begins by setting forth the well-established theory of an "innovation diffusion curve" and the research that has identified the factors that affect the rate of adoption of innovations. This article identifies why innovation in the legal services market is desirable and applies to the legal services field insights drawn from this research in …
Two Steps Forward, One Step Back: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Two Steps Forward, One Step Back: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Articles by Maurer Faculty
Our past surveys have observed that frequent changes in the rules surrounding electronic payments-spurred by both regulation and enforcement actions create uncertainty and make forward progress difficult for many providers. This survey year is no exception: regulators have taken "two steps forward, one step back" on a number of fronts. This survey reports on (1) the proposal by the Office of the Comptroller of the Currency ("OCC") regarding "fintech" charters, which states have challenged in actions still pending- (2) changes to Regulation CC regarding remote check deposit and disputes over altered or forged checks-(3) the Supreme Court's decision in Expression …
State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson
State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson
Articles by Maurer Faculty
State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could—in theory—accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All but four …
Cybersecurity And The New Era Of Space Activities, David P. Fidler
Cybersecurity And The New Era Of Space Activities, David P. Fidler
Articles by Maurer Faculty
No abstract provided.
Charitable Contributions In Lieu Of Salt Deductions, David Gamage
Charitable Contributions In Lieu Of Salt Deductions, David Gamage
Articles by Maurer Faculty
State governments are considering new charitable tax credits designed to circumvent the 2017 federal tax overhaul’s cap on state and local tax deductions. Will these plans work? This essay argues that the answer is: yes, but with some qualifications.
Evolution Of The Racial Identity Of Children Of Loving: Has Our Thinking About Race And Racial Issues Become Obsolete?, Kevin D. Brown
Evolution Of The Racial Identity Of Children Of Loving: Has Our Thinking About Race And Racial Issues Become Obsolete?, Kevin D. Brown
Articles by Maurer Faculty
No abstract provided.
Access To Print, Access To Justice, Kimberly Mattioli
Access To Print, Access To Justice, Kimberly Mattioli
Articles by Maurer Faculty
This article examines the relationship between self-represented litigants and digital literacy and how this particularly vulnerable patron group stands to be harmed by the elimination of print materials from public law libraries. An examination of the literature and a survey help to shed light on this growing problem.
Patent Pool Outsiders, Michael Mattioli
Patent Pool Outsiders, Michael Mattioli
Articles by Maurer Faculty
Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.
The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the …
Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe
Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe
Articles by Maurer Faculty
Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which …
The Ethical Practice Of Human-Centered Civil Justice Design, Victor D. Quintanilla, Haley Hinkle
The Ethical Practice Of Human-Centered Civil Justice Design, Victor D. Quintanilla, Haley Hinkle
Articles by Maurer Faculty
Over the past two decades, legal professionals have increasingly engaged in a new form of professional activity: civil justice design. In the past, legal professionals handled cases and transactions for clients or served as neutrals, including mediators and arbitrators, who helped to resolve disputes between parties. Today, legal professionals increasingly play a principal design role in creating systems that resolve streams of conflicts, disputes, and grievances between parties. Lawyers regularly now create internal grievance procedures, procedures for companies to resolve disputes with customers, and court-annexed alternative dispute resolution systems. The emergence of this new role raises difficult questions about the …
The New Writs Of Assistance, Ian Samuel
The New Writs Of Assistance, Ian Samuel
Articles by Maurer Faculty
The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn, in principle, almost anything about anyone. That has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and …
The Interpretation And Effect Of Permissive Forum Selection Clauses Under U.S. Law, Hannah L. Buxbaum
The Interpretation And Effect Of Permissive Forum Selection Clauses Under U.S. Law, Hannah L. Buxbaum
Articles by Maurer Faculty
A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of …
Wayfair: Substantial Nexus And Undue Burden, David Gamage, Darien Shanske, Adam Thimmesch
Wayfair: Substantial Nexus And Undue Burden, David Gamage, Darien Shanske, Adam Thimmesch
Articles by Maurer Faculty
This is the first of a series of essays wherein we analyze the U.S. Supreme Court’s decision in South Dakota v. Wayfair. In this essay, we tackle some of the more immediate interpretive questions raised by the Wayfair opinion, such as how a state should approach substantial nexus. As part of our analysis, we offer advice to state governments. Specifically, we recommend that states take note of the features of South Dakota’s law that appealed to the Court and replicate or improve on these to the extent possible. We advise states to consider simplifying their sales tax systems (and potentially …
Autonomy In The Age Of Autonomous Vehicles, Michael Mattioli
Autonomy In The Age Of Autonomous Vehicles, Michael Mattioli
Articles by Maurer Faculty
This essay describes intertwined policy challenges related to autonomous vehicle data. The policy goals of promoting privacy, safety, competition, and commerce are all so deeply intertwined, I conclude, that they must be understood and addressed together. This essay does not attempt to solve the problem. Instead, it presents a descriptive snapshot of the current state of play in the industry and closes by raising a set of questions. I hope these questions will prompt useful discussions among policy experts and the public.
Wayfair: Sales Tax Formalism And Income Tax Nexus, David Gamage, Adam Thimmesch, Darien Shanske
Wayfair: Sales Tax Formalism And Income Tax Nexus, David Gamage, Adam Thimmesch, Darien Shanske
Articles by Maurer Faculty
This is the second of a series of essays wherein we analyze the U.S. Supreme Court's decision in South Dakota v. Wayfair. In this essay, we address issues related to sales tax formalism and income tax nexus.
Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer
Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer
Articles by Maurer Faculty
No abstract provided.
Reaching And Teaching Millennials: Designing The Future Of Student Services, Kimberly Mattioli, Brian Detweiler, Mike Martinez Jr.
Reaching And Teaching Millennials: Designing The Future Of Student Services, Kimberly Mattioli, Brian Detweiler, Mike Martinez Jr.
Articles by Maurer Faculty
Today’s students have come to expect library services that are quite different from their predecessors and law librarians must evolve to meet their needs. As law libraries in the United States face the realities of declining enrolment and decreasing budgets, it is imperative that we find new and creative ways to build positive relationships with our students while also preparing them for the realities of practicing law in an environment driven by rapid technological change. Three law librarians from the United States, Brian Detweiler, Kimberly Mattioli, and Mike Martinez, Jr., discuss their successes and failures in reaching out to their …
Religious Arguments, Religious Purposes, And The Gay And Lesbian Rights Cases, Steve Sanders
Religious Arguments, Religious Purposes, And The Gay And Lesbian Rights Cases, Steve Sanders
Articles by Maurer Faculty
No abstract provided.
Business & Human Rights: Optimism And Concern From The U.S. Perspective, Christiana Ochoa
Business & Human Rights: Optimism And Concern From The U.S. Perspective, Christiana Ochoa
Articles by Maurer Faculty
Forty-five years passed between the release of the first major United Nations report referencing the need to regulate transnational corporations and the release of the Zero Draft. Those years were accompanied by vibrant scholarly work and debate, as well as a significant jurisprudence, corporate engagement, and civil society discourse and activism that, cumulatively, has resulted in a much better understanding of how the once very distinct ideas of “business” and “human rights” are now merged by an ampersand. The field of business & human rights signifies the introduction of polycentric governance and law that binds businesses, sometimes softly and sometimes …