Law Commons^™

Capital Requirements In United States Corporation Law, Richard A. Booth Marbury Research Professor Of Law

Faculty Scholarship

This paper focuses on corporation law in the United States as it relates to capital contributions and capital maintenance. In other words, the paper addresses the provisions of corporation law relating to (1) the obligation of investors to contribute to the corporation a specified amount of capital and (2) the obligation of the corporation to maintain a specified amount of capital (and not to pay it back to the stockholders in the form of dividends or payments to repurchase or redeem shares). Traditionally, the amount of capital that must be contributed to and maintained by a corporation is called the …

Kentucky River At The Intersection Of Professional And Supervisory Status: Fertile Delta Or Bermuda Triangle?, Marley S. Weiss

Faculty Scholarship

No abstract provided.

Tobacco Regulation Review, V. 4, No. 2, Dec. 2005

Tobacco Regulation Review

No abstract provided.

Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax

Faculty Scholarship

It appears that our society has tacitly agreed to spare corporate directors any significant legal liability—which includes both financial and incarceration—for failing to perform their duties as board members. Thus, over the last twenty years, there has been a virtual elimination of legal liability—particularly in the form of financial penalties—for directors who breach their fiduciary duty of care. This is true despite the fact that we entrust directors with the awesome responsibility of monitoring all of America's corporations as well as the officers and agents within those corporations. More surprisingly, this tacit agreement against legal liability for directors has persisted …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin

Faculty Scholarship

The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it …

A Chapter 11 Debtor's Life After Oct. 17: Not So Bad If You Effectively Plan, Michelle M. Harner, Carl E. Black

Faculty Scholarship

No abstract provided.

Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram

Faculty Scholarship

As institutions of international justice proliferate, so do disputes about their legitimacy, and about what shape they ought to take. As truly international tools such as the International Criminal Court and the exercise of universal jurisdiction face political and practical challenges, some scholars and practitioners have advocated a distinct institutional solution: the hybrid court. These are courts that are neither purely national nor international, but rather that pursue accountability in the country where abuses and crimes occurred, but with both national and international staff, and utilizing a mixture of national and international law. Many have suggested that these tribunals represent …

Evaluating Marriage: Does Marriage Matter To The Nurturing Of Children?, Robin Fretwell Wilson

Faculty Scholarship

Three decades ago, it would have been inconceivable for people to discuss seriously the idea of withdrawing the legal and financial support society gives to marriage. In recent years, however, thinkers and policymakers have given more serious thought to the possibility of eliminating marriage as a category entitled to the State’s support. An important consideration in this debate is whether keeping or eliminating the State’s support of marriage matters to the well-being of children. A wealth of studies contemplating modern family forms now exists, many of which invariably stack newer family structures up against the more traditional nuclear family. Until …

The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger

Faculty Scholarship

In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention- sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress’ power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 …

When Should Judges Admit Or Compel Genetic Tests?, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Removing Violent Parents From The Home: A Test Case For The Public Health Approach, Robin Fretwell Wilson

Faculty Scholarship

Few decisions are as determinative of a child’s well-being and long-term success as the decision to remove a child from his or her own home following an allegation of abuse by a parent. Using the public health lens Professor Marsha Garrison develops elsewhere in this Issue, this Comment examines one of the most critical questions Child Protective Services agencies face thousands of times a day: whether to remove a child who is a possible victim of abuse or neglect from his or her home. This evidence-based approach shows that the choice to remove the child rather than the alleged offender …

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

Mid-Atlantic Ethics Committee Newsletter, Fall 2005-Winter 2006

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival

Faculty Scholarship

The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court’s handling of environmental cases during Justice Blackmun’s service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author’s October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall …

Encouraging Moderation In State Policies On Collecting Food Stamp Claims, David A. Super

Faculty Scholarship

Regulations issued by the Food and Nutrition Service, U.S. Department of Agriculture in July 2000 promote efficient and effective food stamp claims collection by the states. These regulations give states significant flexibility in tailoring their procedures on filing claims. States can incorporate waiver and compromise policies that increase efficiency and can serve low-income households.

An Unnatural Disaster: The Aftermath Of Hurricane Katrina, David M. Driesen, Alyson Flournoy, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Carmen G. Gonzalez, David J. Gottlieb, Donald T. Hornstein, Douglas A. Kysar, Thomas O. Mcgarity, Catherine A. O'Neill, Clifford Rechtschaffen, Christopher Schroeder, Sidney Shapiro, Rena I. Steinzor, Joseph P. Tomain, Robert R.M. Verchick, Karen Sokol

Faculty Scholarship

No abstract provided.

Law & Health Care Newsletter, V. 13, No. 1, Fall 2005

Law & Health Care Newsletter

No abstract provided.

In Practice, V. 6, No. 1, Fall 2005

In Practice

No abstract provided.

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard highlights the holistic model of criminal defense representation, which seeks to address the myriad issues that often lead to the client’s involvement with the criminal justice system with the overarching goal of providing a comprehensive solution to those underlying factors. While lauding these developments, however, Professor Pinard argues that the holistic model has largely overlooked two facets of the criminal justice system that impact greatly the client’s life once the formal representation has concluded: the collateral consequences of criminal convictions and reentry. Professor Pinard explores the emerging attention devoted to these two components, but …

Mid-Atlantic Ethics Committee Newsletter, Summer 2005

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Terrorism Risk In A Post-9/11 Economy: The Convergence Of Capital Markets, Insurance, And Government Action, Robert J. Rhee

Faculty Scholarship

September 11 changed the American economy and the global insurance market. The insurance industry no longer covers terrorism risk for "free." The traditional insurance mechanism alone cannot spread the risk of repeated catastrophic losses. Beyond the Terrorism Risk Insurance Act of 2002 lingers the questions of a longterm solution and government's role therein. Government can assume different roles: reinsurer, wealth (re)distributor, regulator, or a combination thereof. This article suggests that the government should foster a regulatory and tax environment in which the private sector can develop a capital market solution for terrorism risk. Securitization is an alternative to reinsurance and …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

Environmental Law At Maryland, No. 21, Summer-Fall 2005

Environmental Law at Maryland

No abstract provided.

Dying In America - An Examination Of Policies That Deter Adequate End-Of-Life Care In Nursing Homes, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

This article examines current health care policies and government practices that deter appropriate end-of-life care, focusing on the use of hospice services for dying nursing home patients. The authors conclude that hospice and nursing home regulations, reimbursement for hospice and nursing homes, and enforcement of the fraud and abuse rules collude to “chill” utilization of hospice by nursing homes and result in inadequate end-of-life care for many nursing home patients. They argue that these policies and practices have at their roots a number of questionable assumptions and call for a shift in existing paradigms affecting care to this group and …

To Praise The Amt Or To Bury It, Daniel S. Goldberg

Faculty Scholarship

The alternative minimum tax (AMT) has recently become a cause célèbre because many more taxpayers are now subject to it than originally envisioned at the time of its enactment in 1969 (and, indeed, than after any of its several modifications over the years). As such, it has been discussed and criticized in the press and by tax professionals and academics, most recently in Tax Notes by four former Internal Revenue Service commissioners who advocated scrapping it entirely. The criticism has questioned the wisdom of the inadvertent expansion of the AMT in coverage, that is, the number of taxpayers who will …

Secondhand Smoke And The Family Courts: The Role Of Smoke Exposure In Custody And Visitation Decisions, Kathleen Dachille, Kristine Callahan

Faculty Scholarship

This publication is designed to assist courts, practitioners and lay people who are faced with a custody or visitation proceeding in which a child's exposure to secondhand smoke has been or may be raised.

Are Rights Efficient? Challenging The Managerial Critique Of Individual Rights, David A. Super

Faculty Scholarship

This Article contends that enforceable individual rights can improve the efficiency of government operations. The last decade has seen enforceable individual rights eliminated in a wide range of areas, from welfare to the treatment of immigrants and prisoners in U.S. jails to, most recently, the treatment of prisoners in Abu Ghraib and elsewhere overseas. In most instances, opponents of enforceable individual rights have quarreled little with the substantive norms underlying these rights. Instead, they have argued that enforceable legal rights would unduly burden government administration. Supporters of individual rights have tended to concede that they are inefficient, arguing instead that …

Book Review: Great Powers And Outlaw States: Unequal Sovereigns In The International Legal Order, Maxwell O. Chibundu

Faculty Scholarship

No abstract provided.

Thou Shalt Not Kill As Defeasible Heuristic: Law And Economics And The Debate Over Assisted Suicide, Daniel J. Gilman

Faculty Scholarship

Although the literature addressing medical decisions at the end of life is vast, surprisingly little of it has come from the perspective of law and economics. This article begins with a critical account of one of the very few law and economics-based discussions of physician-assisted suicide (PAS), that developed by Judge Richard Posner in his book, Aging and Old Age. Central to Judge Posner's account is a model of PAS as a sort of technological innovation. What this particular innovation is supposed to bring is a radical reduction in certain critical information costs attending end-of-life decision making. It is …