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Full-Text Articles in Law

The "Publicization" Of Private Space, Sarah B. Schindler Jan 2018

The "Publicization" Of Private Space, Sarah B. Schindler

Faculty Publications

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or POPOS. These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This is especially important because in embracing POPOS, cities have made a ...


Bilateral Investment Treaties And Domestic Institutional Reform, Richard C. Chen Jan 2017

Bilateral Investment Treaties And Domestic Institutional Reform, Richard C. Chen

Faculty Publications

The bilateral investment treaties (BITs) signed between developed and developing countries are supposed to increase the flow of investment from the former to the latter. But the evidence indicates that the existing approach of guaranteeing special protections for foreign investors has only a modest impact on luring their dollars. At the same time they are failing to produce meaningful benefits, these treaty commitments create substantial costs for the host states that make them, exposing them to liability and constraining their regulatory authority. Given this state of imbalance, the time seems ripe for a new approach, but existing proposals for revising ...


Measuring The Creative Plea Bargain, Thea B. Johnson Jan 2017

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea ...


Much Ado About The Tpp's Effect On Pharmaceuticals, Emily M. Morris Jan 2017

Much Ado About The Tpp's Effect On Pharmaceuticals, Emily M. Morris

Faculty Publications

The Trans-Pacific Partnership Agreement’s many provisions that were beneficial to the pharmaceutical industry have caused a good deal of controversy. Specifically, critics allege that the TPP’s provisions requiring that member states expand patentable subject matter, adjust pharmaceutical patent terms, and link regulatory marketing approval to a drug's patent status would have raised drug prices and hindered access to medicines, particularly in developing countries. Closer examination of these provisions as well as the various ways in which member states can modify or ameliorate the effects of these provisions suggests that their potential effect on drug prices and access ...


Community Development Law And Economic Justice--Why Law Matters, Peter R. Pitegoff Jan 2017

Community Development Law And Economic Justice--Why Law Matters, Peter R. Pitegoff

Faculty Publications

The evolution of community economic development (CED) over the past several decades has witnessed dramatic growth in scale and complexity. New approaches to development and related lawyering, and to philosophies underlying these approaches, challenge us to reimagine the framework of CED. From the early days of community development corporations to today’s sophisticated tools of finance and organization, this evolution reflects “why law matters” in pursuit of economic justice and opportunity. Change is visible in new approaches to enterprise development and novel grassroots initiatives that comprise a virtual “sharing economy,” as well as intensified advocacy around low-wage work and efforts ...


Crafting Precedent, Richard C. Chen Jan 2017

Crafting Precedent, Richard C. Chen

Faculty Publications

(with the Hon. Paul J. Watford & Marco Basile)

How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, a recent treatise by Bryan Garner and twelve distinguished appellate judges. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases. Instead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. This Review takes up the treatise on its ...


The Irrelevance Of Nanotechnology Patents, Emily M. Morris Jan 2016

The Irrelevance Of Nanotechnology Patents, Emily M. Morris

Faculty Publications

Although scientists have for decades now had the ability to manipulate matter at the atomic level, we have yet to see the nanotechnological revolution that these scientists predicted would follow. Despite the years of effort and billions of dollars that have been invested into research and development thus far, nanotechnology has yielded surprisingly few end-user applications. A number of commentators have blamed this lack of progress on the Bayh-Dole Act and other changes to patent law, arguing that, although these laws are supposed to stimulate technological development, they have in fact had the exact opposite effect when it comes to ...


Branding Taxation, Jeffrey A. Maine, Xuan-Thao Nguyen Jan 2016

Branding Taxation, Jeffrey A. Maine, Xuan-Thao Nguyen

Faculty Publications

Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed ...


From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith Aug 2015

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Faculty Publications

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine ...


Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith Jul 2015

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of ...


Regulating The Underground: Secret Supper Clubs, Pop-Up Restaurants And The Role O F Law, Sarah B. Schindler Jan 2015

Regulating The Underground: Secret Supper Clubs, Pop-Up Restaurants And The Role O F Law, Sarah B. Schindler

Faculty Publications

Instagram pictures of elegantly plated dinners, long farmstyle tables, and well-to-do people laughing in what looks like a loft apartment are followed by commenters asking, “Where is this?” This is the world of underground dining. Aspiring and established chefs invite strangers into their homes (or their friends’ stores after hours, or the empty warehouse at the edge of town, or the nearest farm) for a night of food and revelry in exchange for cash. Although decidedly antiestablishment, these secret suppers and pop-up restaurants are popular—there are websites to help people locate them, and many respected publications have penned stories ...


Architectural Exclusion: Discrimination And Segregation Through Physical Design Of The Built Environment, Sarah B. Schindler Jan 2015

Architectural Exclusion: Discrimination And Segregation Through Physical Design Of The Built Environment, Sarah B. Schindler

Faculty Publications

The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods. Although the law has addressed the exclusionary impacts of racially ...


A Contractual Approach To Investor-State Regulatory Disputes, Richard C. Chen Jan 2015

A Contractual Approach To Investor-State Regulatory Disputes, Richard C. Chen

Faculty Publications

International investment arbitral tribunals are increasingly tasked with resolving regulatory disputes. This relatively new form of dispute involves a challenge by a foreign investor to a host state’s generally applicable regulation, enacted in good faith to promote the public interest but resulting incidentally in harm to the investor’s business. Such claims typically invoke the “fair and equitable treatment” standard provided for in the bilateral investment treaty between the host state and the investor’s home state. The dominant view among commentators, and increasingly among the tribunals themselves, is that regulatory disputes should be analyzed within a public law ...


Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms And The Local Food Movement, Sarah B. Schindler Apr 2014

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms And The Local Food Movement, Sarah B. Schindler

Faculty Publications

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends’ microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive1 actions that people living in urban and suburban communities are undertaking to ...


Flood Money: The Challenge Of U.S. Flood Insurance Reform In A Warming World, Jennifer B. Wriggins Jan 2014

Flood Money: The Challenge Of U.S. Flood Insurance Reform In A Warming World, Jennifer B. Wriggins

Faculty Publications

No abstract provided.


Banning Lawns, Sarah B. Schindler Jan 2014

Banning Lawns, Sarah B. Schindler

Faculty Publications

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.

Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes ...


We Know Who You Are And What You Are Made Of: The Illusion Of Internet Anonymity And Its Impact On Protection From Genetic Discrimination, Christine S. Davik Oct 2013

We Know Who You Are And What You Are Made Of: The Illusion Of Internet Anonymity And Its Impact On Protection From Genetic Discrimination, Christine S. Davik

Faculty Publications

Recent advances in technology allow the online activities of Internet users to be monitored, gathered, and recorded without their knowledge. New electronic tools can compile extensive data on exactly what an individual is doing on the Web. This information can then be almost simultaneously cross-referenced with additional data to create detailed dossiers, including the user’s age, zip code, gender, and even health-related issues. While there is a vast amount of consumer information that can easily be accessed, at present there are very few restrictions on how the data amassed can be used. As a result, when consumers go online ...


Improving The Lives Of Individuals In Financial Distress Using A Randomized Control Trial: A Research And Clinical Approach, Lois R. Lupica, Dalie´ Jimenez, D. James Greiner, Rebecca L. Sandefur Jan 2013

Improving The Lives Of Individuals In Financial Distress Using A Randomized Control Trial: A Research And Clinical Approach, Lois R. Lupica, Dalie´ Jimenez, D. James Greiner, Rebecca L. Sandefur

Faculty Publications

This Article describes an ambitious Randomized Control Trial (RCT) in the area of consumer debt collection. Randomized trials are the same kind of evaluation that the law requires (or at least strongly encourages) before new drugs and medical devices may be sold to the public. Although they have not yet gained widespread popularity in the evaluation of legal systems, randomized trials are uniquely effective ways of assessing whether any benefits observed after implementation of legal or educational assistance programs are really due to those programs as compared to other factors, such as unusual levels of competence or motivation of program ...


Voter Ignorance And Judicial Elections, Dmitry Bam Jan 2013

Voter Ignorance And Judicial Elections, Dmitry Bam

Faculty Publications

This Article proceeds as follows. Part I begins by offering a brief history and background of judicial elections in the United States, including a description of the two major justifications for judicial elections. The first, made by the original proponents of judicial elections, is that elections would make judges more independent, freeing them to make decisions according to the requirements of the law. I call this the “independence theory of judicial elections.” The second justification, made frequently by defenders of judicial elections, is that judicial elections allow the electorate to hold judges accountable for mistakes, whether intentional or unintentional, as ...


The Future Of Abandoned Big Box Stores : Legal Solutions To The Legacies Of Poor Planning Decisions, Sarah B. Schindler Apr 2012

The Future Of Abandoned Big Box Stores : Legal Solutions To The Legacies Of Poor Planning Decisions, Sarah B. Schindler

Faculty Publications

Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use ...


The Consumer Bankruptcy Fee Study: Final Report, Lois R. Lupica Jan 2012

The Consumer Bankruptcy Fee Study: Final Report, Lois R. Lupica

Faculty Publications

The Consumer Fee Study’s primary objective is to identify and monetize these costs of bankruptcy access through the analysis of quantitative and qualitative data gathered from court dockets and from professionals working within the bankruptcy system. We began the quantitative section with the hypothesis that following BAPCPA’s enactment, the cost of accessing the consumer bankruptcy system increased. We set out to determine the degree of increased costs, as well as to identify the specific policies and practices affecting these costs. Additionally, we endeavored to evaluate, with specificity, how diverse local procedures and guidelines impact the system’s processes ...


Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine Jan 2012

Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article sets out to analyze both intellectual property laws and tax systems as applied to software. The article also analyzes software within the intellectual property doctrinal framework, and examines both the federal and state tax systems governing software.


Of Backyard Chickens And Front Yard Gardens: The Conflict Between Local Governments And Locavores, Sarah B. Schindler Jan 2012

Of Backyard Chickens And Front Yard Gardens: The Conflict Between Local Governments And Locavores, Sarah B. Schindler

Faculty Publications

Locavores aim to source their food locally. Many locavores are also concerned more broadly with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food — for personal use and for sale — and municipal zoning ordinances that seek to separate agriculture from residential uses.

In this article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate ...


Wealth Transfer Tax Planning For 2013 And Beyond, John A. Miller, Jeffrey A. Maine Jan 2012

Wealth Transfer Tax Planning For 2013 And Beyond, John A. Miller, Jeffrey A. Maine

Faculty Publications

On January 1, 2013 Congress avoided the tax part of the so called “fiscal cliff” when it passed the American Taxpayer Relief Act of 2012 (ATRA). Among its many impacts this law prevented the application of a number of sunset provisions that would have dramatically altered the operation of the federal wealth transfer taxes. Instead Congress made permanent two significant transfer tax provisions introduced as temporary measures in 2010: the indexed basic exclusion amount and the deceased spousal unused exclusion amount. The latter provisions are sometimes referred to as the portability rules. ATRA also introduced a new maximum transfer tax ...


Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith Oct 2011

Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith

Faculty Publications

This Article examines the origins of the unique relationship between the psychiatric diagnosis Posttraumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry 's standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM} , and is the focus of significant controversy within psychiatry, because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person 's symptoms, a ...


The Unequal Tax Treatment Of Intellectual Property, Xuan-Thao Nguyen, Jeffrey A. Maine Feb 2011

The Unequal Tax Treatment Of Intellectual Property, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

The tax treatment of intellectual property receives surprisingly little attention despite intellectual property's important role in the economy. In this article, Maine and Nguyen evaluate the fairness of the intellectual property tax system, identifying differences in the tax treatment of what appear to be similar transactions.


Encouraging Private Investment In Energy Efficiency, Sarah B. Schindler Jan 2011

Encouraging Private Investment In Energy Efficiency, Sarah B. Schindler

Faculty Publications

Combating the negative effects of climate change requires finding ways to increase energy production while reducing energy demand. Every New England state has programs in place to encourage home and business owners to improve the energy efficiency of their buildings. Despite the clear fmancial benefits and environmental benefits that result from energy efficiency upgrades, most New Englanders have not taken advantage ofthe programs being offered by their states.


The Fundamentals Of Wealth Transfer Tax Planning: 2011 And Beyond, John A. Miller, Jeffrey A. Maine Jan 2011

The Fundamentals Of Wealth Transfer Tax Planning: 2011 And Beyond, John A. Miller, Jeffrey A. Maine

Faculty Publications

This article discusses basic aspects of all three transfer taxes, with particular emphasis on the estate tax. This article then outlines fundamental estate planning techniques in light of the impact of these taxes. In addition, references are provided in the footnotes to more detailed treatments of the planning techniques described here.


Introduction: The Deepwater Horizon Incident, Charles H. Norchi Jan 2011

Introduction: The Deepwater Horizon Incident, Charles H. Norchi

Faculty Publications

In this symposium, the contributors appraise the regulatory and institutional pathologies that contributed to the incident, offer projections based on current practices and legal frameworks, propose alternative institutional and regulatory approaches, and recommend policies to achieve a preferred future for marine ecosystems and dependent human activity.


An Evolving Foreclosure Landscape: The Ibanez Case And Beyond, Peter R. Pitegoff, Laura S. Underkuffler Jan 2011

An Evolving Foreclosure Landscape: The Ibanez Case And Beyond, Peter R. Pitegoff, Laura S. Underkuffler

Faculty Publications

Mortgage securitization, subprime lending, a persistently weak housing market, and an explosion of residential mortgage defaults – today’s homeowners and banks face a new and challenging landscape. Recently, courts in several states have issued decisions that alter the terrain for mortgage foreclosures. In Massachusetts, New Jersey, and New York, among other states, courts have dismissed foreclosure actions on the basis of what might seem to be highly technical deficiencies in the pleading or proof. The most well-known–and controversial–in this cluster of cases is U.S. Bank National Ass’n v. Ibanez, decided by the Supreme Judicial Court of ...