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Articles 121 - 150 of 1049
Full-Text Articles in Law
Exploring Federal Diversity Jurisdiction: Testimony In Front Of The House Of Representatives Committee On The Judiciary, Subcommittee On The Constitution And Civil Justice, Ronald Weich
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Good morning Chairman Franks, Ranking Member Cohen and members of the Subcommittee. My name is Ronald Weich and I am the dean of the University of Baltimore School of Law. Thank you for the opportunity to testify at this hearing entitled “Exploring Federal Diversity Jurisdiction.”
The subject of today’s hearing is technical, complex, little-understood by the general public, and yet fundamental to the administration of justice in this country. Federal diversity jurisdiction touches on profound questions of federalism, state sovereignty and the proper functioning of the federal courts.
New Wine In Old Wineskins: Metaphor And Legal Research, Amy E. Sloan, Colin Starger
New Wine In Old Wineskins: Metaphor And Legal Research, Amy E. Sloan, Colin Starger
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We construct our conceptual world using metaphors. Yet sometimes our concepts are flawed and our metaphors do damage. This Article examines a set of metaphors currently doing damage in law – those for legal research. It shows that while technology has radically altered the material world of legal research, our dominant metaphors have remained static, and thus, become outmoded. Conceptualizing today’s reality using old metaphors fails; it is like pouring new wine in old wineskins. To address this problem, this Article first surfaces unwarranted assumptions buried in the metaphors we use when talking about research and then proposes new metaphors …
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 …
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 …
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 …
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, …
Book Review: Academic Law Library Director Perspectives: Case Studies And Insights, Adeen Postar
Book Review: Academic Law Library Director Perspectives: Case Studies And Insights, Adeen Postar
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No abstract provided.
Maryland's Family Divisions Are A Model For Change, Barbara A. Babb, Gloria Danziger, Michele H. Hong-Polansky
Maryland's Family Divisions Are A Model For Change, Barbara A. Babb, Gloria Danziger, Michele H. Hong-Polansky
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In fiscal year 2014, 43 percent of all cases filed in Maryland’s trial court of general jurisdiction (the circuit court) were family law cases (Court Operations Department, 2014: CC-5). Historically, Maryland courts, like many states’ family justice systems, lacked a uniform structure to consolidate family law issues for an individual family. As a result, families often faced multiple hearings before different judges in different courtrooms to address a variety of issues, such as divorce, domestic violence, delinquency, and child abuse/neglect. This system created tremendous hardship for families (particularly low-income families, many of whom were self-represented litigants) and resulted in fragmented …
Building Community, Still Thirsty For Justice: Supporting Community Development Efforts In Baltimore, Renee Hatcher, Jaime Alison Lee
Building Community, Still Thirsty For Justice: Supporting Community Development Efforts In Baltimore, Renee Hatcher, Jaime Alison Lee
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Baltimore is a city of many challenges, but it possesses true communitybased strength. The city’s residents and community organizations are its greatest assets. This article highlights some of the community’s work and how the Community Development Clinic at the University of Baltimore School of Law (CDC) supports this work through its experiential learning curriculum.
The challenges facing Baltimore’s communities (systemic disinvestment, structural racism, vacant buildings, unemployment, and the criminalization of poverty, to name a few) existed long before the national media coverage and uprising surrounding the death of Freddie Gray, an unarmed Black man who suffered a fatal spinal injury …
Public Laws And Private Lawmakers, Kimberly L. Wehle
Public Laws And Private Lawmakers, Kimberly L. Wehle
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The Obama Administration's "Clean Power Plan" for addressing industrial carbon emissions is controversial as a matter of environmental policy. It also has important constitutional implications. The rule was initially crafted not by officers or employees of the Environmental Protection Agency, but by two private lawyers and a scientist with industry ties. Private parties operate extra-constitutionally, and no existing legal doctrine tethers constitutional scrutiny to the nature of the power delegated to them. The nondelegation doctrine applies to delegations by Congress-not to agencies' subdelegations of legislative power to private parties. The other doctrinal lens for reviewing rulemaking by entities other than …
Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment Of The Reasonableness Requirement For Fourth Amendment Seizures, Steven P. Grossman
Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment Of The Reasonableness Requirement For Fourth Amendment Seizures, Steven P. Grossman
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Although the United States Supreme Court’s approach to issues governing application of the probable cause requirement of the Fourth Amendment has mutated over the years, at least one aspect of its approach has remained constant. Before information leading to probable cause or its lesser iteration of reasonable suspicion is found to exist, the government must demonstrate in some meaningful way the reliability of the person providing the information or of the information itself. Lacking such reliability, no search or seizure based on probable cause or reasonable suspicion is permitted. In its recent decision in Navarette v. California, the Court largely …
Shattering The Glass Ceiling In International Adjudication, Nienke Grossman
Shattering The Glass Ceiling In International Adjudication, Nienke Grossman
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The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target …
Putting Public Law Into “Private” Sport, Dionne L. Koller
Putting Public Law Into “Private” Sport, Dionne L. Koller
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Across all levels of sport—professional, Olympic, intercollegiate, interscholastic, and youth recreational—the prevailing view is that the government should not take an active role in regulating athletics. As a result, there are relatively few federal or state statutes directed at regulating sports, and those that are aimed at sports primarily serve to support the professional sports industry. Moreover, courts show great deference to sports leagues and administrators, most often applying law in a way that insulates and empowers them. This creates a climate where leagues and administrators are permitted wide latitude to structure and conduct their respective sports as they see …
There Are Cracks In The Civil Commitment Process: A Practitioner’S Recommendations To Patch The System, Donald H. Stone
There Are Cracks In The Civil Commitment Process: A Practitioner’S Recommendations To Patch The System, Donald H. Stone
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When a dangerously mentally ill person is in need of in-patient psychiatric hospitalization, the apparatus for involuntary civil commitment goes into motion. As a result, a mentally ill person can be confined against his or her will, to remain in the hospital indefinitely. The mentally ill person’s freedom depends on the outcome of a single hearing. The civil commitment process raises a number of legal questions: What are the constitutional protections against self-incrimination and the right to remain silent? Who presides over the hearing? Do the rules of evidence apply, specifically hearsay? Is the burden of proof standard by the …
En-Gendering Economic Inequality, Michele E. Gilman
En-Gendering Economic Inequality, Michele E. Gilman
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We live in an era of growing economic inequality. Luminaries ranging from the President to the Pope to economist Thomas Piketty in his bestselling book Capital in the Twenty- First Century have raised alarms about the disparity between the haves and the have-nots. Overlooked, however, in these important discussions is the reality that economic inequality is not a uniform experience; rather, its effects fall more harshly on women and minorities. With regard to gender, American women have higher rates of poverty and get paid less than comparable men, and their workplace participation rates are falling. Yet economic inequality is neither …
The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler
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We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …
Conjunctive Groundwater Management As A Response To Social Ecological Disturbances: A Comparison Of Four Western U.S. States, Sonya Ziaja, Zachary P. Sugg, Edella C. Schlager
Conjunctive Groundwater Management As A Response To Social Ecological Disturbances: A Comparison Of Four Western U.S. States, Sonya Ziaja, Zachary P. Sugg, Edella C. Schlager
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Recent severe droughts in U.S. western and Great Plains states have highlighted the challenges that socio-ecological disturbances can pose for governing groundwater resources, as well as the interconnections between groundwater and surface water and the need to manage the 2 in an integrated way. Conjunctive management recognizes these interconnections and can be used to mitigate disturbances and achieve a variety of water management goals. However, comparative studies of how and to what extent various states have implemented conjunctive management strategies are few. Here we compare and assess the use of conjunctive management practices in 4 western state —Arizona, California, Nebraska, …
Achieving Sex-Representative International Court Benches, Nienke Grossman
Achieving Sex-Representative International Court Benches, Nienke Grossman
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Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.”1 As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015.2 On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time.3 Women made up a lower percentage of the bench in mid 2015 than in previous years …