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Articles by Maurer Faculty

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Full-Text Articles in Law

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Luis Fuentes-Rohwer, Guy-Uriel E. Charles Jan 2018

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

This article explores the Supreme Court's new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars ...


State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson Jan 2018

State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson

Articles by Maurer Faculty

State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could—in theory—accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All ...


Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe Jan 2018

Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe

Articles by Maurer Faculty

Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which ...


Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, W. William Weeks, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson Jan 2018

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, W. William Weeks, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson

Articles by Maurer Faculty

Climate change has significant consequences for land conservation. Government agencies and nonprofit land trusts heavily rely on perpetual conservation easements. However, climate change and other dynamic landscape changes raise questions about the effectiveness and adaptability of permanent conservation instruments like conservation easements. Building upon a study of 269 conservation easements and interviews with seventy conservation-easement professionals in six different states, we examine the adaptability of conservation easements to climate change. We outline four potential approaches to enhance conservation outcomes under climate change: (1) shift land-acquisition priorities to account for potential climate-change impacts; (2) consider conservation tools other than perpetual conservation ...


State Responses To Federal Tax Reform: Charitable Tax Credits, David Gamage, Joseph Bankman, Jacob Goldin, Daniel Hemel, Darien Shanske, Kirk J. Stark, Dennis J. Ventry Jr., Manoj Viswanathan Jan 2018

State Responses To Federal Tax Reform: Charitable Tax Credits, David Gamage, Joseph Bankman, Jacob Goldin, Daniel Hemel, Darien Shanske, Kirk J. Stark, Dennis J. Ventry Jr., Manoj Viswanathan

Articles by Maurer Faculty

This paper summarizes the current federal income tax treatment of charitable contributions where the gift entitles the donor to a state tax credit. Such credits are very common and are used by the states to encourage private donations to a wide range of activities, including natural resource preservation through conservation easements, private school tuition scholarship programs, financial aid for college-bound children from low-income households, shelters for victims of domestic violence, and numerous other state-supported programs. Under these programs, taxpayers receive tax credits for donations to governments, government-created funds, and nonprofits.

A central federal income tax question raised by these donations ...


Charitable Contributions In Lieu Of Salt Deductions, David Gamage Jan 2018

Charitable Contributions In Lieu Of Salt Deductions, David Gamage

Articles by Maurer Faculty

State governments are considering new charitable tax credits designed to circumvent the 2017 federal tax overhaul’s cap on state and local tax deductions. Will these plans work? This essay argues that the answer is: yes, but with some qualifications.


Access To Consumer Bankruptcy, Pamela Foohey Jan 2018

Access To Consumer Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias ...


Securing The Internet Of Healthcare, Michael Mattioli, Scott J. Shackelford, Steve Myers, Austin Brady, Yvette Wang, Stephanie Wong Jan 2018

Securing The Internet Of Healthcare, Michael Mattioli, Scott J. Shackelford, Steve Myers, Austin Brady, Yvette Wang, Stephanie Wong

Articles by Maurer Faculty

Cybersecurity, including the security of information technology (IT), is a critical requirement in ensuring society trusts, and therefore can benefit from, modern technology. Problematically, though, rarely a day goes by without a news story related to how critical data has been exposed, exfiltrated, or otherwise inappropriately used or accessed as a result of supply chain vulnerabilities. From the Russian government's campaign to influence the 2016 U.S. presidential election to the September 2017 Equifax breach of more than 140-million Americans' credit reports, mitigating cyber risk has become a topic of conversation in boardrooms and the White House, on Wall ...


The Ethical Practice Of Human-Centered Civil Justice Design, Victor D. Quintanilla, Haley Hinkle Jan 2018

The Ethical Practice Of Human-Centered Civil Justice Design, Victor D. Quintanilla, Haley Hinkle

Articles by Maurer Faculty

Over the past two decades, legal professionals have increasingly engaged in a new form of professional activity: civil justice design. In the past, legal professionals handled cases and transactions for clients or served as neutrals, including mediators and arbitrators, who helped to resolve disputes between parties. Today, legal professionals increasingly play a principal design role in creating systems that resolve streams of conflicts, disputes, and grievances between parties. Lawyers regularly now create internal grievance procedures, procedures for companies to resolve disputes with customers, and court-annexed alternative dispute resolution systems. The emergence of this new role raises difficult questions about the ...


Why (And How) States Should Tax The Repatriation, David Gamage, Darien Shanske Jan 2018

Why (And How) States Should Tax The Repatriation, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay analyzed how U.S. state tax laws should treat the repatriation income generated by the 2017 federal tax legislation.


Wayfair And The Retroactivity Of Constitutional Holdings, David Gamage, Adam Thimmesch, Darien Shanske Jan 2018

Wayfair And The Retroactivity Of Constitutional Holdings, David Gamage, Adam Thimmesch, Darien Shanske

Articles by Maurer Faculty

This essay analyzes the issue of retroactivity with respect to the Supreme Court case of South Dakota v. Wayfair.


Blockchain Versus Data Protection, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson Jan 2018

Blockchain Versus Data Protection, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.


French Constitutionalism, Part 3, Elisabeth Zoller Jan 2018

French Constitutionalism, Part 3, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


The Interpretation And Effect Of Permissive Forum Selection Clauses Under U.S. Law, Hannah L. Buxbaum Jan 2018

The Interpretation And Effect Of Permissive Forum Selection Clauses Under U.S. Law, Hannah L. Buxbaum

Articles by Maurer Faculty

A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of ...


La Méthode Comparative En Droit Public, Elisabeth Zoller Jan 2018

La Méthode Comparative En Droit Public, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.


Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein Jan 2018

Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein

Articles by Maurer Faculty

Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting ...


Patent Pool Outsiders, Michael Mattioli Jan 2018

Patent Pool Outsiders, Michael Mattioli

Articles by Maurer Faculty

Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.

The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the consumer electronics ...


Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley Jan 2018

Empirical Environmental Scholarship, Robert L. Fischman, Lydia Barbash-Riley

Articles by Maurer Faculty

The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental ...


Evolution Of The Racial Identity Of Children Of Loving: Has Our Thinking About Race And Racial Issues Become Obsolete?, Kevin D. Brown Jan 2018

Evolution Of The Racial Identity Of Children Of Loving: Has Our Thinking About Race And Racial Issues Become Obsolete?, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.


Access To Print, Access To Justice, Kimberly Mattioli Jan 2018

Access To Print, Access To Justice, Kimberly Mattioli

Articles by Maurer Faculty

This article examines the relationship between self-represented litigants and digital literacy and how this particularly vulnerable patron group stands to be harmed by the elimination of print materials from public law libraries. An examination of the literature and a survey help to shed light on this growing problem.


Judicial Intervention As Judicial Restraint, Luis Fuentes-Rohwer, Guy-Uriel E. Charles Jan 2018

Judicial Intervention As Judicial Restraint, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

This paper examines the Court's decision in Gill v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should ...


Autonomy In The Age Of Autonomous Vehicles, Michael Mattioli Jan 2018

Autonomy In The Age Of Autonomous Vehicles, Michael Mattioli

Articles by Maurer Faculty

This essay describes intertwined policy challenges related to autonomous vehicle data. The policy goals of promoting privacy, safety, competition, and commerce are all so deeply intertwined, I conclude, that they must be understood and addressed together. This essay does not attempt to solve the problem. Instead, it presents a descriptive snapshot of the current state of play in the industry and closes by raising a set of questions. I hope these questions will prompt useful discussions among policy experts and the public.


Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne Jan 2018

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities ...


Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz Jan 2018

Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz

Articles by Maurer Faculty

No abstract provided.


The Statutory Authority For Court-Ordered Disgorgement In Sec Enforcement Actions, Donna M. Nagy Jan 2018

The Statutory Authority For Court-Ordered Disgorgement In Sec Enforcement Actions, Donna M. Nagy

Articles by Maurer Faculty

What empowers the U.S. Securities and Exchange Commission (SEC) to seek, and federal district courts to order, the disgorgement of ill-gotten gains from securities law violators? The short answer, which stood largely unchallenged for 46 years, is that federal courts may award disgorgement, at the request of the SEC, pursuant to the equitable powers that Congress conferred in the jurisdictional provisions of the federal securities laws. During the 2017 oral argument in Kokesh v. SEC, however, five justices of the U.S. Supreme Court interjected statements expressing varying degrees of skepticism. The tenor of the questions during the Kokesh ...


Cybersecurity And The New Era Of Space Activities, David P. Fidler Jan 2018

Cybersecurity And The New Era Of Space Activities, David P. Fidler

Articles by Maurer Faculty

No abstract provided.


The Future Of Salt: A Broader Picture, David Gamage, Darien Shanske Jan 2018

The Future Of Salt: A Broader Picture, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this essay, we evaluate the new cap on the state and local tax (SALT) deduction. We argue that the structure of the new cap is not consistent with any theory as to what the SALT deduction is or should be. In canvassing these theories, we further evaluate how future reforms to the SALT deduction might proceed.


Wayfair: Substantial Nexus And Undue Burden, David Gamage, Darien Shanske, Adam Thimmesch Jan 2018

Wayfair: Substantial Nexus And Undue Burden, David Gamage, Darien Shanske, Adam Thimmesch

Articles by Maurer Faculty

This is the first of a series of essays wherein we analyze the U.S. Supreme Court’s decision in South Dakota v. Wayfair. In this essay, we tackle some of the more immediate interpretive questions raised by the Wayfair opinion, such as how a state should approach substantial nexus. As part of our analysis, we offer advice to state governments. Specifically, we recommend that states take note of the features of South Dakota’s law that appealed to the Court and replicate or improve on these to the extent possible. We advise states to consider simplifying their sales tax ...


Against Seminal Principles: Ethics, Hubris, And Lessons To Learn From Illicit Inseminations, Jody L. Madeira, Steven R. Lindheim Md, Mark V. Sauer Md Jan 2018

Against Seminal Principles: Ethics, Hubris, And Lessons To Learn From Illicit Inseminations, Jody L. Madeira, Steven R. Lindheim Md, Mark V. Sauer Md

Articles by Maurer Faculty

This short essay addresses the ethical implications of Illicit inseminations, instances of fertility fraud in which a physician uses his own gametes to impregnate a patient.


French Constitutionalism, Part 4, Elisabeth Zoller Jan 2018

French Constitutionalism, Part 4, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.