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Full-Text Articles in Law

An Empirical Study Of Single-Tier Versus Two-Tier Partnerships In The Am Law 200, William D. Henderson Jan 2006

An Empirical Study Of Single-Tier Versus Two-Tier Partnerships In The Am Law 200, William D. Henderson

Articles by Maurer Faculty

During the last decade, many of the nation's largest law firms have converted from single-tier to two-tier (or multi-tier) partnerships. A two-tier firm contains separate tracks for equity and nonequity partner. The equity tier typically controls the firm and enjoys a larger per capita share of the firm's profits. At present, two-tier partnerships make up 80 percent of Am Law 200. The conventional explanation for the growth of the two-tier system (or, conversely, the abandonment of the single-tier) is that it produces higher profits per equity partner (PPP), thus solidifying the prestige of the firm and improving its ...


Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira Jan 2006

Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira

Articles by Maurer Faculty

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise ...


Regulating The Mutual Fund Industry, Donna M. Nagy Jan 2006

Regulating The Mutual Fund Industry, Donna M. Nagy

Articles by Maurer Faculty

With virtually every other household in the United States invested in mutual funds, effective and efficient regulation of the mutual fund industry must be a top national priority. But the creation of a new private regulator - whether along the lines of SROs such as the NASD and NYSE or the recently created PCAOB - would be a step in the wrong direction. Instead, much more can be gained from strengthening the SEC's longstanding role as the principal overseer of mutual funds and improving other aspects of the existing regulatory regime.


Indiana Law In Evolution, Yvonne Cripps Jan 2006

Indiana Law In Evolution, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.


Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung Jan 2006

Do Attorneys Do Their Clients Justice? An Empirical Study Of Lawyers' Effects On Tax Court Litigation Outcomes, Leandra Lederman, Warren B. Hrung

Articles by Maurer Faculty

Do attorneys really add value or can unrepresented parties achieve equivalent results? This fundamental question ordinarily is difficult to answer empirically. An equally important question both for attorneys and the justice system is whether attorneys prolong disputes or instead facilitate expeditious resolution of cases.

Fortunately, there is a federal court that provides an excellent laboratory in which to test and answer these questions. In the United States Tax Court (Tax Court), where most federal tax cases are litigated, the government always is represented by Internal Revenue Service attorneys but a large portion of the taxpayer litigants proceed pro se. In ...


Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt, Carmen L. Brun Jan 2006

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt, Carmen L. Brun

Articles by Maurer Faculty

In this Essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the United States. In particular, we focus on three European countries-the United Kingdom, Germany, and France. We argue that differences in culture, the legal system, and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt more communitarian ...


Habitat Federalism, Robert L. Fischman Jan 2006

Habitat Federalism, Robert L. Fischman

Articles by Maurer Faculty

THE COMMON IMAGE OF COOPERATIVE FEDERALISM INVOLVES the Environmental Protection Agency (EPA) inducing states to adopt permit and other pollution abatement programs. States can tailor some standards, but public health benchmarks and end-of-the-pipe technologies are uniform across the nation. Inducements include both carrots, mostly in the form of federal funds and flexibility, and sticks, mostly in the form of penalties and loss of control.

This essay discusses cooperative federalism for habitat conservation. Habitat federalism focuses more on ecology than chemistry, more on cities and counties than states, and more on place-based variation than on uniform standards. It is about how ...


The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley Jan 2006

The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


Law, Markets And Democracy: A Role For Law In The Neo-Liberal State, Alfred C. Aman Jan 2006

Law, Markets And Democracy: A Role For Law In The Neo-Liberal State, Alfred C. Aman

Articles by Maurer Faculty

Especially after 1980, our belief in and our use of law to solve societal problems seemed to decline precipitously, well beyond the ebb and flow of political trends and tastes. Beginning in earnest in the 1980s, political discourse increasingly treated law and markets primarily in binary terms. You could have one or the other, but not both. More law meant less markets and vice versa. When it came to choosing between law or markets, the tide clearly had shifted. If injustices in the 1970s were greeted with the slogan "there ought to be a law", that approach to solving problems ...


Mixed Blessings: The Great Lakes Compact And Agreement, The Ijc, And International Dispute Resolution, Austen L. Parrish Jan 2006

Mixed Blessings: The Great Lakes Compact And Agreement, The Ijc, And International Dispute Resolution, Austen L. Parrish

Articles by Maurer Faculty

For scholars of international law and international dispute resolution, the Great Lakes-St. Lawrence River Basin Water Resources Compact and Agreement may seem a mixed blessing. On the one hand, they promise environmental cooperation and management of the Great Lakes at an unprecedented scale. The agreements have been heralded as a tremendous advancement in state-provincial relations. On the other hand, international scholars should be nervous for what the agreements signify for international law and dispute resolution. The Compact and Agreement are remarkable for replacing an already functioning regulatory regime: the 1909 Boundary Waters Treaty, administered by the International Joint Commission.

This ...


Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira Jan 2006

Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira

Articles by Maurer Faculty

Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors' emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the ...


Transnational Regulatory Litigation, Hannah Buxbaum Jan 2006

Transnational Regulatory Litigation, Hannah Buxbaum

Articles by Maurer Faculty

Recent years have seen much debate about the role of national courts in addressing global harms. That debate has focused on the application by domestic courts of international law - for instance, in civil actions brought in U.S. courts to enforce human rights law. This article identifies a parallel development in the area of economic regulation. It classifies and analyzes a category of cases that seek the application of regulatory law by domestic courts in situations involving global economic misconduct. Like the public international law cases, these cases highlight the tension between the benefits to be gained by enhanced enforcement ...


Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish Jan 2006

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process ...


Three Theories Of Substantive Due Process, Daniel O. Conkle Jan 2006

Three Theories Of Substantive Due Process, Daniel O. Conkle

Articles by Maurer Faculty

Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third ...


The Ethics Of Child Custody Evaluation: Advocacy, Respect For Parents, And The Right To An Open Future, Aviva A. Orenstein Jan 2006

The Ethics Of Child Custody Evaluation: Advocacy, Respect For Parents, And The Right To An Open Future, Aviva A. Orenstein

Articles by Maurer Faculty

No abstract provided.


Retaining Life Tenure: The Case For A Golden Parachute, Ryan W. Scott, David R. Stras Jan 2006

Retaining Life Tenure: The Case For A Golden Parachute, Ryan W. Scott, David R. Stras

Articles by Maurer Faculty

The first vacancies on the Supreme Court in eleven years have sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are ...