Law Commons^™

Review Of Prigg V. Pennsylvania: Slavery, The Supreme Court, And The Ambivalent Constitution, Susan David Demaine

Articles by Maurer Faculty

In 1842, the Supreme Court issued a landmark decision in Prigg v. Pennsylvania, resolving a dispute about fugitive slave rendition that had raged between the states for decades. H. Robert Baker’s analysis of the decision and the events that led up to it is the first book-length work to investigate Prigg and its place in American history. Baker traces the development of fugitive slave laws and recounts the heart-wrenching story that lies behind Prigg to shed light on the Supreme Court’s decision and the gradual clarification of American federalism.

Mind The Gap: Explaining Problems With International Law Where Cybersecurity And Critical Infrastructure Protection Meet, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Book Review. Epstein, L., Et. Al., The Behavior Of Federal Judges: A Theoretical And Empirical Study Of Rational Choice, Ashley A. Ahlbrand

Articles by Maurer Faculty

No abstract provided.

Reclaiming Our Essential Freedom To Determine Who May Be Admitted To Study Law, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Pringle: Legal Reasoning, Text, Purpose And Teleology, Paul Craig

Articles by Maurer Faculty

The CJEU's judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case.

The first was that the ESM was in reality …

Eu Accession To The Echr: Competence, Procedure And Substance, Paul Craig

Articles by Maurer Faculty

The issues raised by EU Accession to the ECHR have already generated a valuable and growing literature. This article seeks to contribute to this literature. The discussion begins with an overview of the European Union’s competence to accede to the European Convention on Human Rights, and the process by which the Accession Agreement was negotiated. The focus then shifts to analysis of whether the EU needs its own Charter of Rights in addition to membership of the ECHR.

This is followed by examination of a range of procedural issues raised by EU accession to the ECHR. This includes the choices …

Who's Eating Law Firms' Lunch? The Legal Service Providers, Law Schools And New Grads At The Table, William D. Henderson, Rachel M. Zahorsky

Articles by Maurer Faculty

No abstract provided.

Face-To-Data -- Another Developing Privacy Threat?, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

The Trouble With Tax Increase Limitations, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this symposium essay, we explore the theoretical implications of one particular type of fiscal limitation on state legislatures — namely, special Tax Increase Limitation rules (TILs). We argue that there is no meaningful content to the term “tax increase” as used in TILs. This incoherence allows legislative majorities who wish to do so to circumvent TILs. This fact about TILs, among others, explains the observed inefficacy of TILs in shrinking the size of state governments.

Furthermore, TILs are not just harmless political theater. When combined with other common features of state fiscal constitutions, particularly Balanced Budget Requirements (BBRs), they …

Review, Risk, Legality And Damages, Paul Craig

Articles by Maurer Faculty

No abstract provided.

Book Review. Tax And Spend: The Welfare State, Tax Politics, And The Limits Of American Liberalism By Molly C. Michelmore, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Kiobel, Unilateralism, And The Retreat From Extraterritoriality, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

Improving Law School "Transparency", Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

The Skeptic’S Guide To Information Sharing At Sentencing, Ryan W. Scott

Articles by Maurer Faculty

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law. This Article takes a skeptical view of the information sharing model, arguing that it suffers from …

La Citoyenneté Aux Etats-Unis : Une Valeur En Perpétuel Devenir, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Peel-Off Lawyers: Legal Professionals In India's Corporate Law Firm Sector, Jayanth K. Krishnan

Articles by Maurer Faculty

This study is about hierarchy within the legal profession – how it presents itself, how it is retained, and how it is combated. The socio-legal literature on this subject is rich, with many roots tracing back to Professor Marc Galanter’s famous early 1970s article on the ‘Haves’ and ‘Have-Nots.’ Galanter’s piece and the work of those influenced by him rightly suggest that resources – institutional, financial, and demographic – contribute to whether lawyers are, and remain as, part of the ‘Haves.’ Yet, while resources of course greatly matter, as this study will argue other forces are significant as well. One …

Enforcement As Substance In Tax Compliance, Leandra Lederman, Ted Sichelman

Articles by Maurer Faculty

It is well known that the government's complete failure to enforce a law can nullify that law. But what are the effects of partial enforcement? This Article shows that imperfect enforcement can alter the de facto content of the written law in predictable and beneficial ways. Specifically, in the tax compliance context, even if perfect enforcement were costless, it would not always be socially optimal. When improving the substantive law is infeasible, the enforcement agency can effect beneficial changes in the law by adopting a probabilistic enforcement scheme that varies according to the category of taxpayer and type of transaction. …

A Blueprint For Change, William D. Henderson

Articles by Maurer Faculty

This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by …

Women And Judging: A Feminist Approach To Judging And The Issue Of Customary Law (Eleventh Annual Ruth Bader Ginsburg Lecture), Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Plucky Little Russia: Misreading The Georgian War Through The Distorting Lens Of Aggression, Timothy W. Waters

Articles by Maurer Faculty

One might expect massed armor crossing an international frontier to constitute the paradigmatic example of aggression — a case perfectly fit to analyze with the rules of jus ad bellum — and in the first flush and shock of the Georgian War in 2008, this is exactly how Western leaders described Russia’s actions. Yet that August, a constellation of circumstances combined to produce an anomalous outcome: an international war without any aggressor or any wrongful violation of territorial integrity. In theory — in doctrine — this is not supposed to happen.

The key to this puzzle is the special regime …

Prism And Privacy: Will This Change Everything?, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

On The Future Of Tax Salience Scholarship: Operative Mechanisms And Limiting Factors, David Gamage

Articles by Maurer Faculty

This Essay — written for Florida State University’s symposium on the 100th anniversary of the U.S. federal income tax — evaluates how the literature on tax salience should be advanced in order for it to better guide tax policy over the coming decades. The literature on tax salience analyzes how taxpayers account for the costs imposed by taxation when the taxpayers make decisions or judgments, both in the taxpayers’ roles as voters and as market participants. This Essay evaluates both possible operative mechanisms that might underlie observed tax salience effects and limiting factors that might prevent tax salience effects from …

The Case For A State-Level Debt-Financing Authority, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this essay, we argue for the adoption of state-level debt-financing authorities as part of a broader package for reforming local government borrowing.

Justice Brennan: Legacy Of A Champion, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

A Twenty-Year Retrospective On United States Trademark Law In Ten Cases, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.

The Varieties Of Comparative Institutional Analysis, Daniel H. Cole

Articles by Maurer Faculty

This paper, written as a contribution to a festchrift in honor of Neil Komesar, subjects his "comparative institutional analysis" (CIA) to a comparative analysis with various other social-scientific approaches to CIA.

Neil Komesar is among the very few legal scholars who has taken to heart Ronald Coase's call for comparative institutional analysis (CIA) of alternative "social arrangements." While Komesar has plowed a relatively lonely furrow in the legal academy, scholars from across the social sciences have been engaged in CIA (broadly defined), using various terminologies, methodologies, and evaluative criteria. This paper takes a pluralistic approach to understanding the differences in …

Le Principe De Transparence Et Les Nouvelles Technologies Aux États-Unis, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Rehnquist's Fourth Amendment: Be Reasonable, Craig M. Bradley

Articles by Maurer Faculty

"The Fourth Amendment: Be Reasonable," is a chapter in a book, The Rehnquist Legacy, published by Cambridge University Press in 2006. The book is a comprehensive legal biography of the Chief Justice in which leading scholars examine his legacy in diverse areas of constitutional law, including criminal procedure. This chapter examines Rehnquist's voluminous Fourth Amendment jurisprudence. While Rehnquist has not authored any single path-breaking case in this area, the chapter shows his success, across the board, in achieving his stated goal of calling a halt to the pro-defendant rulings of the Warren Court in the criminal procedure area. However, Rehnquist …