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Articles 31 - 60 of 176
Full-Text Articles in Law
Causation In Whistleblowing Claims, Nancy M. Modesitt
Causation In Whistleblowing Claims, Nancy M. Modesitt
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Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers. But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of …
What Are Constitutional Rights For? The Case Of The Second Amendment, Christopher J. Peters
What Are Constitutional Rights For? The Case Of The Second Amendment, Christopher J. Peters
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District of Columbia v. Heller—the Supreme Court’s 2008 Second Amendment decision—was the occasion for a momentous national conversation that never happened. Heller sparked heated debates about the Court’s originalist interpretive methodology, but virtually nobody asked what should have been an obvious question: Even if the Court got the meaning of the Second Amendment right, why should we obey that amendment?
This is the curiously underexplored question of the authority of constitutional rights: Why, indeed whether, we have some obligation to respect those rights even when we disagree with them. The Second Amendment brings that question front and center in …
Class Warfare: Why Antitrust Class Actions Are Essential For Compensation And Deterrence, Robert H. Lande
Class Warfare: Why Antitrust Class Actions Are Essential For Compensation And Deterrence, Robert H. Lande
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Recent empirical studies demonstrate five reasons why antitrust class action cases are essential: (1) class actions are virtually the only way for most victims of antitrust violations to receive compensation; (2) most successful class actions involve collusion that was anticompetitive; (3) class victims’ compensation has been modest, generally less than their damages; (4) class actions deter significant amounts of collusion and other anticompetitive behavior; and (5) anticompetitive collusion is underdeterred, a problem that would be exacerbated without class actions. Unfortunately, a number of court decisions have undermined class action cases, thus preventing much effective and important antitrust enforcement.
Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson
Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson
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Mediation scholars have long debated which mediator “style” or “model” is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a “grid” of mediator orientations comprised of what came to be known as “facilitative mediation” and “evaluative mediation.” A more recent addition to the grid—and one that is almost universally recognized as a distinct model—is “transformative mediation.” These three models are so embedded in the literature of mediation that they have been called “the big three.” The influence of Riskin’s work cannot be overstated. It has resonated within the community of …
Medicaid Maximization And Diversion: Illusory State Practices That Convert Federal Aid Into General State Revenue, Daniel L. Hatcher
Medicaid Maximization And Diversion: Illusory State Practices That Convert Federal Aid Into General State Revenue, Daniel L. Hatcher
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For years, states have been using illusory schemes to maximize federal aid intended for Medicaid services-and then often diverting some or all of the resulting funds to other use. And states have help. Private revenue maximization consultants are hired by states to increase Medicaid claims, often for a contingency fee. We do not know the exact amount of federal Medicaid funds that has been diverted to state revenue and private profit each year, but it is in the billions.
The states' revenue strategies take advantage of the matching-grant structure of the Medicaid program. When state funds are spent on eligible …
The 21st Century Fight Over Who Sets The Terms Of The Charity Property Tax Exemption, Evelyn Brody
The 21st Century Fight Over Who Sets The Terms Of The Charity Property Tax Exemption, Evelyn Brody
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Turning from the substantive issue of defining charity, this article considers the “who” question by examining the roles of the courts, legislatures, municipalities, and charities in determining exemption and payments in lieu of taxes. The three covered topics – constitutional power, statutory interpretation, and the “intermediate sanctions” of user fees and PILOTs – braid together to form the procedural framework for the financial relationship between nonprofit property owners and the taxing jurisdictions that host them. Change the parameters of one, and you change the others. Staying off the rolls or minimizing the tax bite often results from compromise – whether …
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
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This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.
By the second half of …
Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy
Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy
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This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …
Antitrust Balancing, Herbert J. Hovenkamp
Antitrust Balancing, Herbert J. Hovenkamp
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Antitrust litigation often confronts situations where effects point in both directions. Judges sometimes describe the process of evaluating these factors as “balancing.” In its e-Books decision the Second Circuit believed that the need to balance is what justifies application of the rule of reason. In Microsoft the D.C. Circuit stated that “courts routinely apply a…balancing approach” under which “the plaintiff must demonstrate that the anticompetitive harm…outweighs the procompetitive benefit.” But then it decided the case without balancing anything.
The term “balancing” is a very poor label for what courts actually do in these cases. Balancing requires that two offsetting effects …
Conviction Review Units: A National Perspective, John Hollway
Conviction Review Units: A National Perspective, John Hollway
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Over the past 25 years, Americans have become increasingly aware of a vast array of mistakes in the administration of justice, including wrongful convictions, situations where innocent individuals have been convicted and incarcerated for crimes they did not commit. The most prevalent institutional response by prosecutors to address post-conviction fact-based claims of actual innocence is the Conviction Review Unit (CRU), sometimes called the Conviction Integrity Unit. Since the creation of the first CRU in the mid-2000s, more than 25 such units have been announced across the country; more than half of these have been created in the past 24 months. …
Moving Family Dispute Resolution From The Court System To The Community, Jane C. Murphy, Jana B. Singer
Moving Family Dispute Resolution From The Court System To The Community, Jane C. Murphy, Jana B. Singer
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Over the past three decades, there has been a significant shift in the way the legal system approaches and resolves family disputes. Mediation, collaboration, and other non-adversarial processes have replaced a traditional, law-oriented adversarial regime. Until recently, however, reformers have focused largely on the court system as the setting for innovations in family dispute resolution. But our research suggests that courts may not be the best places for families to resolve disputes, particularly disputes involving children. Moreover, attempting to turn family courts into multi-door dispute resolution centers may detract from their essential role as adjudicators of last resort and forums …
A Two-Step Plan For Puerto Rico, Clayton P. Gillette, David A. Skeel Jr.
A Two-Step Plan For Puerto Rico, Clayton P. Gillette, David A. Skeel Jr.
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Few still believe that Puerto Rico is capable of meeting all of its financial obligations and continuing to provide basic services. The territory is already in default, and conditions are rapidly deteriorating. Is there a way forward? We think there is. In this short article, we outline a two-part plan for correcting Puerto Rico’s most urgent fiscal and financial problems.
The first step is to create an independent financial control board that has authority over Puerto Rico’s budgets and related issues. Notwithstanding concerns that an externally imposed financial control board (FCB) may interfere with the decision making processes of democratically …
Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons
Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons
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Whether and how violence can be controlled to spare innocent lives is a central issue in international relations. The most ambitious effort to date has been the International Criminal Court (ICC), designed to enhance security and safety by preventing egregious human rights abuses and deterring international crimes. We offer the first systematic assessment of the ICC's deterrent effects for both state and nonstate actors. Although no institution can deter all actors, the ICC can deter some governments and those rebel groups that seek legitimacy. We find support for this conditional impact of the ICC cross-nationally. Our work has implications for …
One Model Of Collaborative Learning For Medical And Law Students At The University Of Baltimore And Johns Hopkins University, Gregory Dolin, Natalie Ram
One Model Of Collaborative Learning For Medical And Law Students At The University Of Baltimore And Johns Hopkins University, Gregory Dolin, Natalie Ram
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Medicine, like law, is sometimes referred to as a “conservative” profession, as both can change slowly, stifling innovation. While the art of medicine has produced important advances, there is at least one part of medicine that has not changed much in more than 100 years. Nearly all American medical schools have followed much the same educational model since Abraham Flexner published his famous report on the state of American medical education in 1910. The educational model promoted by that report emphasizes teaching students the science of medicine, but it is not well equipped for teaching students about the practicalities of …
Antitrust And Information Technologies, Herbert J. Hovenkamp
Antitrust And Information Technologies, Herbert J. Hovenkamp
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Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies of information also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. In addition, changes in the technologies of information affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm.
For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. The digital revolution has occurred in …
The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle
The History, Means, And Effects Of Structural Surveillance, Jeffrey L. Vagle
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The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing—what I refer to as structural surveillance— and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.
Recognizing Rights In Real Time: The Role Of Google In The Eu Right To Be Forgotten, Edward Lee
Recognizing Rights In Real Time: The Role Of Google In The Eu Right To Be Forgotten, Edward Lee
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No abstract provided.
“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer
“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer
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Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …
Making Civilian Drones Safe: Performance Standards, Self-Certification, And Post-Sale Data Collection, Henry Perritt, Albert Plawinski
Making Civilian Drones Safe: Performance Standards, Self-Certification, And Post-Sale Data Collection, Henry Perritt, Albert Plawinski
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With millions of small drones in private hands, the FAA continues its struggle to develop an effective regulatory regime to comply with Congress’s mandate to integrate them into the national airspace system. Thousands of individuals and small businesses have obtained authorization from the FAA—"section 333 exemptions"—allowing them to fly their drones commercially. Farmers, TV stations, surveyors, construction-site supervisors, real estate agents, people selling their properties, and managers seeking cheaper and safer ways to inspect their facilities, want to hire the exemption holders, but many are holding back until the FAA clarifies the groundrules.The FAA understands that its traditional approach for …
Tasers Help Police Avoid Fatal Mistakes, Paul H. Robinson
Tasers Help Police Avoid Fatal Mistakes, Paul H. Robinson
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This op-ed piece argues that police will inevitably be placed in impossible situations in which they reasonably believe they must shoot to defend themselves but where the shooting in fact turns out to be unnecessary. What can save the police, and the community, from these regular tragedies is a more concerted shift to police use of nonlethal weapons. Taser technology, for example, continues to become increasingly more effective and reliable. While we will always have reasonable mistakes by police in the use of force, it need not be the case that each ends in death or permanent injury. Such a …
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
The Legal Limits Of “Yes Means Yes”, Paul H. Robinson
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This op-ed piece for the Chronicle of Higher Education argues that the affirmative consent rule of "yes means yes" is a useful standard that can help educate and ideally change norms regarding consent to sexual intercourse. But that goal can best be achieved by using “yes means yes” as an ex ante announcement of the society's desired rule of conduct. That standard only becomes problematic when used as the ex post principle of adjudication for allegations of rape. Indeed, those most interested in changing existing norms ought to be the persons most in support of distinguishing these two importantly different …
Disaggregating “Immigration Law”, Matthew J. Lindsay
Disaggregating “Immigration Law”, Matthew J. Lindsay
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Courts and scholars have long noted the constitutional exceptionalism of the federal immigration power, decried the injustice it produces, and appealed for greater constitutional protection for noncitizens. This Article builds on this robust literature while focusing on a particularly critical conceptual and doctrinal obstacle to legal reform—the notion that laws governing the rights of noncitizens to enter and remain within the United States comprise a distinct body of “immigration laws” presumed to be part and parcel of foreign affairs and national security. This Article argues that the U.S. Supreme Court’s recent immigration jurisprudence suggests a willingness to temper, and perhaps …
Interpretation: Article I, Section 5, Ronald Weich, Martin B. Gold
Interpretation: Article I, Section 5, Ronald Weich, Martin B. Gold
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In Article I of the Constitution, the Framers vest the legislative authority of the United States government in a bicameral Congress, and over the ten sections of the Article they systematically flesh out the structure, duties, and powers of that Congress. In the early sections of Article I they describe the membership of each House, giving life to the “Great Compromise” of the Constitutional Convention under which each state has equal representation in the Senate but population-based representation in the House of Representatives. In Section 5, they grant Congress the power to govern itself.
Section 5 consists of four separate …
Taking Patents, Gregory Dolin, Irina D. Manta
Taking Patents, Gregory Dolin, Irina D. Manta
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The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …
Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar
Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar
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Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …
Defining Lawmaking Power, Kimberly L. Wehle
Defining Lawmaking Power, Kimberly L. Wehle
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This Article teases apart the various permutations of what the federal lawmaking power means, canvases the Court's historical treatment of that question, and describes its practical implications as a matter of both constitutional and administrative law. It proposes a taxonomy of lawmaking in an effort to bring coherence to the task of defining the lawmaking power as well as Congress's prerogative to exercise it.
Permitting Abused Spouses To Claim The Earned Income Tax Credit In Separate Returns, Fred B. Brown
Permitting Abused Spouses To Claim The Earned Income Tax Credit In Separate Returns, Fred B. Brown
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The earned income tax credit (EITC) is a refundable tax credit for federal income tax purposes that is generally available to lowincome taxpayers who have income from either employment or selfemployment. The EITC is currently the largest government program providing aid to low-income individuals. The subsidy provided by the EITC is of particular importance to individuals subjected to domestic abuse, given that such individuals are often impoverished, and the EITC can provide them with the financial resources necessary to improve, endure, or leave an abusive relationship.
Despite the importance of the EITC, married individuals subjected to domestic abuse face serious …
Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes
Evolving Contours Of Immigration Federalism: The Case Of Migrant Children, Elizabeth Keyes
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In a unique corner of immigration law, a significant reallocation of power over immigration has been occurring with little fanfare. States play a dramatic immigration gatekeeping role in the process for providing protection to immigrant youth, like many of the Central American children who sought entry to the United States in the 2014 border “surge.” This article closely examines the history of this Special Immigrant Juvenile Status provision, enacted in 1990, which authorized a vital state role in providing access to an immigration benefit. The article traces the series of shifts in allocation of power between the federal government and …
The Presumptions Of Classical Liberal Constitutionalism, Matthew Lindsay
The Presumptions Of Classical Liberal Constitutionalism, Matthew Lindsay
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No abstract provided.
Constitutional Law And Rhetoric, Colin Starger
Constitutional Law And Rhetoric, Colin Starger
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What are the legitimate types of argument in constitutional debate? This is a perennial question in American law and every generation of constitutional scholars has the right to ask it anew. For over thirty years, Phillip Bobbitt’s taxonomy of legitimate constitutional argument types has reigned as the most influential and enduring in the scholarly discourse. In a recent article, Jamal Greene has proposed a welcome but flawed rhetorical re-conception of Bobbitt’s venerable typology. By identifying and correcting the errors in Greene’s framework, this Article provides a rigorous theoretical grounding for the entire constitutional law and rhetoric project.
When properly grounded, …