Law Commons^™

Evolution Of Rules In A Common Law System: Differential Litigation Of The Fee Tail And Other Perpetuities, Jeffrey E. Stake

Articles by Maurer Faculty

This paper presents a variation on the Rubin-Priest theory of the evolution of common law rules toward efficiency. It offers the fee tail and similar restraints on alienation as examples of how inefficient rules can lead to inefficient uses of land, which cause owners to seek the help of courts in freeing their lands from the inefficient constraints. In other words, there is a feedback loop that provides courts with opportunities to overturn inefficient common law rules. We should expect this common law drift toward efficiency to be stronger for property rules than for tort rules. Because efficient property rules …

The Significance Of National Wildlife Refuges In The Development Of U.S. Conservation Policy, Robert L. Fischman

Articles by Maurer Faculty

A retrospective of National Wildlife Refuge System conservation shows a promising trajectory. The system has overcome persistent neglect to contribute to conservation policy. Haltingly, it has kept pace with conservation science to remain the chief American contribution to large-scale wildlife protection. Early on, it pioneered the use of habitat acquisition to protect imperiled species. More recently, it has begun to implement the cutting-edge ecological mandate to maintain biological integrity, diversity, and environmental health. Perhaps the most meaningful feature of the history of the refuge system is how closely it mirrors the development of conservation policy in the twentieth century.

This …

Domesticating The Gerrymander: An Essay On Standards, Fair Representation, And The Necessary Question Of Judicial Will, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The U.S. Supreme Court has moved beyond its cautious intervention in Baker v. Carr and now firmly controls the law of democracy. Yet political gerrymandering questions so understood have traditionally proven difficult for the Court to examine properly. The recent Vieth v. Jubelirer is but a further example of this phenomenon. This Essay situates Vieth within the reapportionment revolution and ultimately concludes that the central question in gerrymandering cases is the question of judicial will and whether the Court will choose to exercise its power. This Essay closes with a cautionary note: in light of the Court's general performance in …

Envisioning The Modern American Fiscal State: Progressive-Era Economists And The Intellectual Foundations Of The U.S. Income Tax, Ajay K. Mehrotra

Articles by Maurer Faculty

At the turn of the twentieth century, the U.S. system of public finance underwent a dramatic, structural transformation. The late nineteenth-century system of indirect taxes, associated mainly with the tariff, was eclipsed in the early decades of the twentieth century by a progressive income tax. This shift in U.S. tax policy marked the emergence of a new fiscal polity - one that was guided not simply by the functional and structural need for government revenue but by concerns for equity and economic and social justice. This Article explores the paradigm shift in legal and economic theories that undergirded this dramatic …

The Judgment Of The Boss On Bossing The Judges: Bruce Springsteen, Judicial Independence, And The Rule Of Law, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

From Insull To Enron: Corporate (Re)Regulation After The Rise And Fall Of Two Energy Icons, William D. Henderson, Richard D. Cudahy

Articles by Maurer Faculty

For most Americans, the collapse of the Enron Corporation is without doubt the most memorable corporate event of their generation. Remarkably, few people are aware that the New Deal regulatory framework - which Congress recently reformed and toughened to in response to the Enron debacle - was itself erected in the wake of a strikingly similar corporate crash. In late 1931 and early 1932, the country looked on in horror as Samuel Insull's mighty and seemingly invulnerable electric utility holding company empire collapsed without warning, wiping out the holdings of over 1 million investors, most of whom believed that they …

German Legal Culture And The Globalization Of Competition Law: A Historical Perspective On The Expansion Of Private Antitrust Enforcement, Hannah Buxbaum

Articles by Maurer Faculty

One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic …

From The Ali To The Ili: The Efforts To Export An American Legal Institution, Jayanth K. Krishnan

Articles by Maurer Faculty

In this article, I argue that those who believe that Americans can successfully export their visions of law and legal research to other countries need to consider - in addition to Japan and Germany, two countries that are often touted as exemplars - the case of India. India gained its independence from the British in 1947, and soon thereafter many American experts traveled to India in an effort to foster a culture of Western legal intellectualism. As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of …

Winners And Losers In The Globalization Of Legal Services: Offshoring The Market For Foreign Lawyers, Carole Silver

Articles by Maurer Faculty

This article takes an empirical approach to the issue of how the U.S. legal services market is responding to globalization. It begins by considering the ways in which the domestic legal services market has internationalized by focusing on changes in legal education and examines the disconnection between U.S. legal education and practice opportunities in the U.S. The article proceeds to consider the ways in which U.S. law firms have become global organizations by offshoring their international identities, through the staffing of their non-U.S. offices with non-U.S. lawyers. Based on a database of more than 5,000 lawyers working in the offshore …

Disaster Relief And Governance After The Indian Ocean Tsunami: What Role For International Law?, David P. Fidler

Articles by Maurer Faculty

The tsunami in the Indian Ocean at the end of 2004 has produced heightened scrutiny of how international disaster relief is supplied and governed. This scrutiny connects to arguments by the International Federation of Red Cross and Red Crescent Societies that more effective and efficient disaster relief requires the significant development of international law on disaster relief. This commentary analyses the historical and current relationship between international law and disaster relief and challenges the arguments that more international law on disaster relief is needed.

The Asian Century: Implications For International Law, David P. Fidler

Articles by Maurer Faculty

Predictions that the 21st century will be the "Asian century" have sparked analytical interest from many disciplines but not international law. This article focuses on what implications "Asia rising" may have for international law in the 21st century. The article begins by looking at the 19th and 20th centuries as the European and American centuries respectively to assess the impact these centuries made on international law. The article then analyses possible meanings for an Asian century and frames such a century's implications for international law around the concept of a "Concert of Asia". The article argues that, through a "Concert …

Playing Peekaboo With Constitutional Law: The Pcaob And Its Public/Private Status, Donna M. Nagy

Articles by Maurer Faculty

This Article is the first to consider the constitutional status of the Public Company Accounting Oversight Board (PCAOB - pronounced by some as peekaboo). Congress created the PCAOB in 2002 to regulate the accounting profession in response to scandals at Enron, WorldCom, and other public companies. The Article argues that notwithstanding the PCAOB's congressional designation as a nonprofit corporation in the private sector, its governmental creation, governmental objectives, governmental powers, and governmentally appointed board members render it a public (or state) actor for purposes of constitutional law. The Article also analyzes the PCAOB from a policy perspective, and argues that …

Addressing Imperfections In The Tax System: Procedural Or Substantive Reform?, Leandra Lederman, Stephen W. Mazza

Articles by Maurer Faculty

In his book "Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich - and Cheat Everybody Else", David Cay Johnston, the Pulitzer Prize-winning reporter for the New York Times, covers a wide array of topics, including some that are quite complex, in a very readable way. The federal income tax system generally and tax compliance in particular are important focuses of the book, but the theme that implicitly connects chapters that otherwise appear unrelated is a variety of aspects of income inequality.

Although "Perfectly Legal" does not make a clear case that politicians and …

Multicultural Lawyering: Teaching Psychology To Develop Cultural Self-Awareness, Carwina Weng

Articles by Maurer Faculty

Much of the current literature in multicultural lawyering focuses on learning substantive information about clients who are culturally different from the lawyer, such as how the client's culture perceives eye contact or reacts to science-based world views. This article notes that such a focus sidesteps the human reality that every person reacts to people who are different from him- or herself unconsciously in ways that may be culturally insensitive and discriminatory and that this human reaction occurs despite awareness of the general values, attitudes, and beliefs of the client's culture. It therefore suggests that multicultural lawyering training should begin with …

From International Sanitary Conventions To Global Health Security: The New International Health Regulations, David P. Fidler

Articles by Maurer Faculty

In May 2005, the World Health Organization adopted the new International Health Regulations (IHR), which constitute one of the most radical and far-reaching changes to international law on public health since the beginning of international health cooperation in the mid-nineteenth century. This article comprehensively analyses the new IHR by examining the history of international law on infectious disease control, the IHR revision process, the substantive changes contained in the new IHR and concerns regarding the future of the new IHR. The article demonstrates why the new IHR constitute a seminal event in the relationship between international law and public health …

Teaching Tax Stories, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

The Challenge And Promise Of Public Legal Education, Lauren K. Robel

Articles by Maurer Faculty

No abstract provided.

The Meaning Of Moscow: "Non-Lethal" Weapons And International Law In The Early 21st Century, David P. Fidler

Articles by Maurer Faculty

At the intersection of new weapon technologies and international humanitarian law, so-called "non-lethal" weapons have become an area of particular interest. This article analyses the relationship between "non-lethal" weapons and international law in the early 21st century by focusing on the most seminal incident to date in the short history of the "non-lethal" weapons debate, the use of an incapacitating chemical to end a terrorist attack on a Moscow theatre in October 2002. This tragic incident has shown that rapid technological change will continue to stress international law on the development and use of weaponry but in ways more politically …

Hail To The Chief: Former Law Clerks For William Rehnquist Recall What They Learned And How He Touched Their Lives, Craig M. Bradley, Laura E. Little, John C. Englander, Celestine Richards Mcconville

Articles by Maurer Faculty

Chief Justice William H. Rehnquist, who died Sept. 3, is remembered for his disarming warmth and humor, breadth of knowledge about the law, and insistence that there is life outside the office. Few knew him better than the legions of clerks who tolled with and learned from him. Indeed, the sheer number who attended his funeral testifies to how highly he was regarded. Here, four former clerks from the decades of the 1970s, '80s and '90s write about their own particular memories of the late chief justice.

An Idea Whose Time Should Never Have Come, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

Reviving Constitutionalism In Iraq: Key Provisions Of The Transitional Administrative Law, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

A Dedication To Dean Joseph P. Tomain: Educator, Scholar, And Leader, Donna M. Nagy, Barbara G. Watts

Articles by Maurer Faculty

No abstract provided.

Transnational Legal Practice Developments, Carole Silver, Robert E. Lutz, Philip T. Von Mehren, Laurel S. Terry, Peter Ehrenhaft, Clifford J. Hendel, Jonathan Goldsmith, Masahiro Shimojo

Articles by Maurer Faculty

No abstract provided.

Cooperative Federalism And Natural Resources Law, Robert L. Fischman

Articles by Maurer Faculty

Cooperative federalism describes an arrangement under which a national government induces coordination from subordinate jurisdictions, such as states and tribes, through incentives rather than requirements. In environmental law, cooperative federalism highlights the divide between pollution control and resource management. This article examines the divide from both sides.

Even though almost all of the environmental law commentary on cooperative federalism focuses exclusively on the pollution control side, the basic elements of cooperative federalism can be combined in a wider variety of forms than are recognized by most pollution control programs or scholarship. This article reviews the ways in which resource management …

Regulating International Lawyers: The Legal Consultant Rules, Carole Silver

Articles by Maurer Faculty

No abstract provided.

Protecting The Innocent: The Massachusetts Governor's Council Report, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Charity, Publicity, And The Donation Registry, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Many Americans donate little or nothing to charity, but according to Robert Cooter and Brian Broughman, our social environment is the cause, not human nature. They propose a small policy change to increase transparency and elicit generosity inspired by experimental evidence about the nature of giving.