Law Commons^™

Government Speech 2.0, Helen L. Norton, Danielle Keats Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Mainstreaming Privacy Torts, Danielle Keats Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Extraordinary Justice, David C. Gray

Faculty Scholarship

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

Cyber Civil Rights: Looking Forward, Danielle Keats Citron

Faculty Scholarship

The Cyber Civil Rights conference raised many important questions about the practical and normative value of seeing online harassment as a discrimination problem. In these remarks, I highlight and address two important issues that must be tackled before moving forward with a cyber civil rights agenda. The first concerns the practical—whether we, in fact, have useful antidiscrimination tools at the state and federal level and, if not, how we might conceive of new ones. The second involves the normative—whether we should invoke technological solutions, such as traceability anonymity, as part of a cyber civil rights agenda given their potential risks.

Punishment As Suffering, David C. Gray

Faculty Scholarship

In a series of recent high-profile articles, a group of contemporary scholars argue that the criminal law is a grand machine for the administration of suffering. The machine requires calibration, of course. The main standard we use for ours is objective proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on objective proportionality makes ours a rather crude machine. In particular, it ignores the fact that 1) different offenders may suffer to a different degree when subjected …

Case Study Of The Bank Of America And Merrill Lynch Merger, Robert J. Rhee

Faculty Scholarship

This is a case study of the Bank of America and Merrill Lynch merger. It is based on the article, Fiduciary Exemption for Public Necessity: Shareholder Profit, Public Good, and the Hobson’s Choice during a National Crisis, 17 Geo. Mason L. Rev. 661 (2010). The case study analyzes the controversial events occurring between the merger signing and closing. It reviews in depth the circumstances under the federal government threatened to fire the board and management of Bank of America unless it consummated the Merrill Lynch acquisition. Among other issues, this case study raises the questions: (1) what is the role …

Chalimony: Seeking Equity Between Parents Of Children With Disabilities And Chronic Illnesses, Karen Czapanskiy

Faculty Scholarship

Many thousands of children experience serious disabling conditions such as autism and debilitating chronic illnesses such as asthma. Caring for these children is often so demanding that caregiving parents cannot remain employed outside the home. Parental resources available to these children are also limited because an unusually high percentage of them live with only one parent. Nonetheless, surprisingly few cases involving families with a disabled or chronically ill child appear in the family law case law or scholarly literature. Even where child support and alimony are concerned, these families are seen only at the margins.

In my recent article, I …

Defaming Muhammad: Dignity, Harm, And Incitement To Religious Hatred, Peter G. Danchin

Faculty Scholarship

The Danish cartoons controversy has generated a torrent of commentary seeking to define and defend competing conceptions of the normative implications of the affair. This Article addresses the question of how liberal democratic states ought to respond to visible manifestations of hatred, especially speech that constitutes incitement to religious hatred. Taking the publication of the Danish cartoons as its point of departure, the Article interrogates the complex historical and normative relationship between free speech and freedom of religion in the liberal democratic order and discusses the two critical questions of whether the cartoons give rise to a genuine conflict of …

Crisis, Rescue And Corporate Social Responsibility Under American Corporate Law, Robert J. Rhee

Faculty Scholarship

This chapter discusses the legal issues of rescue and corporate social responsibility during times of public crisis. It analyzes a corporate board’s fiduciary duty related to the management of a public crisis and the provision of aid to government and the public. The thesis is that American corporate law adequately provides corporate boards authority to assume broad principles of corporate social responsibility, and that during a public crisis this authority is specially recognized in the enabling statutes of corporate law and should be broadened even further to pursue the public good in exigent circumstances.

Can An Ethical Person Be An Ethical Prosecutor? A Social Cognitive Approach To Systemic Reform, Lawton P. Cummings

Faculty Scholarship

This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging 'moral disengagement' in prosecutors. 'Moral disengagement' refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct. Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement …

Regulatory Blowout: How Regulatory Failures Made The Bp Disaster Possible, And How The System Can Be Fixed To Avoid A Recurrence, Alyson Flournoy, William Andreen, Rebecca Bratspies, Holly Doremus, Victor Flatt, Robert Glicksman, Joel Mintz, Daniel Rohlf, Amy Sinden, Rena I. Steinzor, Joseph Tomain, Sandra Zellmer, James Goodwin

Faculty Scholarship

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable.

BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in …

From Eugenics To The "New" Genetics: "The Play's The Thing", Karen H. Rothenberg

Faculty Scholarship

Genetics occupies a place in the public imagination with which few areas of science can compete. It is popularly understood to be the “science of life,” concerned with the essence of humanity: a subject that generates both awe and fear. These divergent emotions are encapsulated in the “promise versus peril” debate: the promise of an end to human disease is countered by the peril embodied in the discriminatory capacity of genetic essentialism. This debate has become ingrained in popular culture, and its dramatic potential has been effectively realized in theatre.

Plays have always been written and performed as expressions of …

Book Review: What Comes Naturally: Miscegenation Law And The Making Of Race In America, Taunya L. Banks

Faculty Scholarship

No abstract provided.

Regulating Tobacco Advertising And Promotion: A "Commerce Clause" Overview For State And Local Governments, Kathleen Dachille

Faculty Scholarship

On June 22, 2009, President Barack Obama signed into law the Family Smoking Prevention and Tobacco Control Act, giving the U.S. Food and Drug Administration (FDA) comprehensive authority to regulate the manufacturing, marketing, and sale of tobacco products. The new law represents the most sweeping action taken to date to reduce what remains the leading preventable cause of death in the United States.

To help you understand the potential ways in which state and local regulation of tobacco product marketing and promotion might be limited by the U.S. Constitution’s Commerce Clause, the Tobacco Control Legal Consortium, a collaborative network of …

Corrective Lenses For Iris: Additional Reforms To Improve Epa's Integrated Risk Information System, Rena I. Steinzor, Wendy E. Wagner, Lena Pons, Matthew Shudtz

Faculty Scholarship

The Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) is the most important toxicological database in the world. Not only is it the single most comprehensive database of human health information about toxic substances, it also serves as a gateway to regulation, as well as to a range of public and private sector efforts to protect against toxic substances. IRIS “profiles” of individual substances include a number of scientific assessments of the substance’s toxicity to humans by various means of exposure – by inhalation, contact with the skin, and so on. Federal regulators rely on the assessments to do …

It Was The Best Of Practice, It Was The Worst Of Practice: Moving Successfully From The Courtroom To The Classroom, Sherri Lee Keene

Faculty Scholarship

This article discusses some of the challenges that experienced attorneys encounter when they move from practice to academia and recommends ways for new professors to bring professional knowledge successfully into classroom teaching.

Reflections And Perspectives On Reentry And Collateral Consequences, Michael Pinard

Faculty Scholarship

This essay addresses the continued and dramatic increase in the numbers of individuals released from correctional institutions and returning to communities across the United States. It provides a brief history of the collateral consequences of criminal convictions, and the ways in which these consequences impede productive reentry. It then highlights national and state efforts to address to persistent reentry obstacles and to better understand the range and scope of collateral consequences. It concludes by offering suggestions for reform.

Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber

Faculty Scholarship

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …

Educating Lawyers With A Global Vision, Phoebe A. Haddon

Faculty Scholarship

This article is based on a presentation made at Justice & the Global Economy, a conference celebrating the appointment of Phoebe A. Haddon as the ninth Dean of the University of Maryland School of Law, October 3, 2009.

E-Vat: An Electronically Collected Progressive Consumption Tax, Daniel S. Goldberg

Faculty Scholarship

This report proposes replacing the income tax with an electronic, progressive consumption tax that couples a credit-method VAT (modified for wages) with a progressive wage tax. I have called this proposal e-VAT (a convenient contraction for an electronic value added tax), because it is based on a business-level-credit VAT and can be collected automatically and electronically at the point of sale.

The essential advantage of e-VAT over the Hall-Rabushka flat tax is that e-VAT’s use of a credit VAT as its foundation facilitates automatic and electronic collection of the tax. A credit VAT lends itself to electronic monitoring and auditing …

Strategies For Promoting Green Energy Innovation, Deployment, & Technology Transfer, Robert V. Percival

Faculty Scholarship

This paper surveys various strategies for promoting the development and deployment of green energy technologies.

Death Ineligibility And Habeas Corpus, Lee B. Kovarsky

Faculty Scholarship

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

Tensions Between International Law And Domestic Responsibilities, Maxwell O. Chibundu

Faculty Scholarship

No abstract provided.

Assessing The High-Level Panel Report: Rethinking The Causes And Consequences Of Threats To Collective Security, Maxwell O. Chibundu

Faculty Scholarship

This is a contribution to a volume of essays anchored in the evaluations of proposed reforms of the United Nations system extant in the middle half of the last decade. The essay’s focus is primarily on the role of the Security Council as the provider of collective security within the system. It contends that the term “collective security” has become far too amorphous and too all-embracing to be useful, and that it runs the risk of distorting the proper allocation of power within the international system. It argues for a more circumscribed view of collective security, and for a less …

Community Recovery Lawyering: Hard-Learned Lessons From Post-Katrina Mississippi, Bonnie Allen, Barbara Bezdek, John Jopling

Faculty Scholarship

No abstract provided.

Introduction To Law's Allure Symposium: Law And Politics - An Old Distinction, New Problems, Mark A. Graber

Faculty Scholarship

No abstract provided.

A Public Calling: Lessons From The Lives Of Judges Of Color In Pennsylvania, Phoebe A. Haddon

Faculty Scholarship

This paper discusses how Judge Clifford Scott Green, Judge William Marutani, and Judge Juanita Kidd Stout spent their lives as leaders in the law to illustrate the ideal of a "public calling."

A Tale Told By A President, Mark A. Graber

Faculty Scholarship

Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.

Negotiating Executive Compensation In Lieu Of Regulation, Urska Velikonja

Faculty Scholarship

No abstract provided.

Selection Biases, Mark A. Graber, Sanford Levinson

Faculty Scholarship

No abstract provided.