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The Class Of 2009: Recession Or Restructuring?, William D. Henderson Jul 2010

The Class Of 2009: Recession Or Restructuring?, William D. Henderson

Articles by Maurer Faculty

No abstract provided.


(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla Jan 2010

(Mis)Judging Intent: The Fundamental Attribution Error In Federal Securities Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the element of scienter (fraudulent intent) in claims of federal securities fraud under Section 10(b) of the Exchange Act and, more specifically, the U.S. Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) from a social psychological perspective. The field of social psychology has documented a pervasive phenomena, the Fundamental Attribution Error, the failure of decision makers to consider situational explanations, including the force of environments and social and situational norms on human conduct. In light of robust social psychological research on the Fundamental Attribution Error, legal ...


Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders Jan 2010

Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders

Articles by Maurer Faculty

This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.

As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights ...


Comparative Law: Problems And Prospects, Elisabeth Zoller, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V, Snyder Jan 2010

Comparative Law: Problems And Prospects, Elisabeth Zoller, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V, Snyder

Articles by Maurer Faculty

This is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Acadimie Internationale de Droit Compare). The remarks were given in a mix of French and English, but for ease of reading the transcript is almost entirely in English.


Personal Jurisdiction Over Foreign Directors In Cross-Border Securities Litigation, Hannah L. Buxbaum Jan 2010

Personal Jurisdiction Over Foreign Directors In Cross-Border Securities Litigation, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.


Duplicative Foreign Litigation, Austen L. Parrish Jan 2010

Duplicative Foreign Litigation, Austen L. Parrish

Articles by Maurer Faculty

What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? With the growth of transnational litigation, the issue of reactive, duplicative proceedings - and the waste inherent in such duplication - becomes a more common problem. The future does not promise change. In a modern, globalized world, litigants are increasingly tempted to forum shop among countries to find courts and law more favorably inclined to them than their opponents.

The federal courts, however, do not yet have a coherent response to the problem. They apply at least ...


Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence, Aviva A. Orenstein Jan 2010

Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence, Aviva A. Orenstein

Articles by Maurer Faculty

Dying declarations have taken on increased importance since the Supreme Court indicated that even if testimonial, they may present a unique exception to its new confrontation jurisprudence. Starting with Crawford v. Washington in 2004, the Court has developed strict rules concerning the use of testimonial statements made by unavailable declarants. Generally, testimonial statements (those made with the expectation that they will be used to prosecute the accused) may be admitted only if they were previously subject to cross examination. The only exceptions appear to be dying declarations and forfeiture by wrongdoing if the accused intentionally rendered the declarant unavailable.

This ...


Adaptive Management In The Courts, Robert L. Fischman, J. B. Ruhl Jan 2010

Adaptive Management In The Courts, Robert L. Fischman, J. B. Ruhl

Articles by Maurer Faculty

Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question ...


Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley Jan 2010

Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


Right Problem; Wrong Solution, Joseph L. Hoffmann, Nancy J. King Jan 2010

Right Problem; Wrong Solution, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

No abstract provided.


The Joint Law Venture: A Pilot Study, Jayanth K. Krishnan Jan 2010

The Joint Law Venture: A Pilot Study, Jayanth K. Krishnan

Articles by Maurer Faculty

This pilot study evaluates the effectiveness of law firms entering into joint ventures, an increasingly eyed business model particularly by American and British lawyers seeking to expand into promising financial markets. One country at the center of the joint venture experiment has been Singapore. With the strong encouragement of the Singaporean government (which has long embraced foreign investment), various elite law firms from the United States and Britain have been partnering with domestic Singaporean law firms for over the past decade. Because these foreign firms were traditionally barred from practicing Singaporean law on their own, the ‘joint law venture,’ or ...


Paying Women For Their Eggs For Use In Stem Cell Research, Pamela Foohey Jan 2010

Paying Women For Their Eggs For Use In Stem Cell Research, Pamela Foohey

Articles by Maurer Faculty

On June 11, 2009, the Empire State Stem Cell Board (“Board”), which administers the $600 million in New York State funds allotted to stem cell research, voted to allocate a portion of those funds to compensate women up to $10,000 for “donating” their eggs for use in stem cell research. The Board's decision makes New York the first state to affirmatively allow state funds to be used to compensate women for providing their eggs for use in stem cell research beyond mere reimbursement of associated medical and other expenses, and, similarly, distinguishes it from most international countries, which ...


Negotiating Equitable Access To Influenza Vaccines: Global Health Diplomacy And The Controversies Surrounding Avian Influenza H5n1 And Pandemic Influenza H1n1, David P. Fidler Jan 2010

Negotiating Equitable Access To Influenza Vaccines: Global Health Diplomacy And The Controversies Surrounding Avian Influenza H5n1 And Pandemic Influenza H1n1, David P. Fidler

Articles by Maurer Faculty

No abstract provided.


Hicks V. Dowd, Conservation Easements, And The Charitable Trust Doctrine: Setting The Record Straight, W. William Weeks, Nancy A. Mclaughlin Jan 2010

Hicks V. Dowd, Conservation Easements, And The Charitable Trust Doctrine: Setting The Record Straight, W. William Weeks, Nancy A. Mclaughlin

Articles by Maurer Faculty

This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts. In 2002, Johnson County, Wyoming, attempted to terminate a conservation easement that had been conveyed to the County as a tax-deductible charitable gift. The County's actions were challenged, first in a suit brought by a resident of the County, Hicks v. Dowd, and then in a suit brought by the Wyoming Attorney General, Salzburg v. Dowd. The over six years of litigation associated with the easement's attempted termination has ...


The Role Of Independent Directors In Startup Firms, Brian Broughman Jan 2010

The Role Of Independent Directors In Startup Firms, Brian Broughman

Articles by Maurer Faculty

This Article develops a new theory to explain the widespread use of independent directors in the governance of startup firms. Privately held startups often assign a tie-breaking board seat to a third-party independent director. This practice cannot be explained by the existing corporate governance literature, which relies on diffuse ownership and passive investment-features unique to the publicly traded firm. To develop an alternative theory, I model a financing contract between an entrepreneur and a venture capital investor. I show that allocating a tie- breaking vote to an unbiased thirdparty can prevent opportunistic behavior that would occur ifthe firm were controlled ...


Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter Jan 2010

Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Charitable donations fund social goods that the state and markets undersupply. Despite widespread belief in the importance of private charity, most Americans donate little or nothing. Experiments in behavioral economics show that anonymity, not human nature, causes low contributions. Anonymity poses a particular challenge for charity because of the special character of the obligation. Charity is a disjunctive social norm, meaning the obligation is owed to ‘A or B or C or …’. Disclosure of each individual’s aggregate conduct is necessary for the effectiveness of any disjunctive social norm. To revitalize charity we propose a public registry where each taxpayer ...


Payments Data Security Breaches And Oil Spills: What Lessons Can Payments Security Learn From The Laws Governing Remediation Of The Exxon Valdez, Deepwater Horizon, And Other Oil Spills?, Sarah Jane Hughes Jan 2010

Payments Data Security Breaches And Oil Spills: What Lessons Can Payments Security Learn From The Laws Governing Remediation Of The Exxon Valdez, Deepwater Horizon, And Other Oil Spills?, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.


The Price Of Conflict: War, Taxes, And The Politics Of Fiscal Citizenship, Ajay K. Mehrotra Jan 2010

The Price Of Conflict: War, Taxes, And The Politics Of Fiscal Citizenship, Ajay K. Mehrotra

Articles by Maurer Faculty

Since 2003 American political leaders and lawmakers have been committed to the simultaneous pursuit of tax cuts and military excursions abroad. Just a few decades ago, when military hawks were also deficit hawks, such a position would have seemed incongruous. This essay reviews, War and Taxes, a provocative and fascinating new book that seeks to explain the apparent dissonance of recent American wartime tax policy. In contrast to conventional wisdom which presumes that wartime patriotism has always and everywhere trumped self-interest, War and Taxes shows that the history of U.S. wartime taxation is not quite such a heroic tale ...


Lawyers, Guns & Public Monies: The U.S. Treasury, World War One, And The Administration Of The Modern Fiscal State, Ajay K. Mehrotra Jan 2010

Lawyers, Guns & Public Monies: The U.S. Treasury, World War One, And The Administration Of The Modern Fiscal State, Ajay K. Mehrotra

Articles by Maurer Faculty

The First World War was a pivotal event for American political and economic development, particularly in the realm of public finance. For it was during the war years that the federal government ended its traditional reliance on regressive import duties and excise taxes as principal sources of revenue and began a modern era of fiscal governance, one based primarily on the direct and progressive taxation of personal and corporate income. Like other aspects of war mobilization, this fiscal revolution required an enormous infusion of national administrative resources. Nowhere was this more evident than within the corridors of the U.S ...


What We Don't Know Can Hurt Us: The Need For Empirical Research In Regulating Lawyers And Legal Services In The Global Economy, Carole Silver Jan 2010

What We Don't Know Can Hurt Us: The Need For Empirical Research In Regulating Lawyers And Legal Services In The Global Economy, Carole Silver

Articles by Maurer Faculty

No abstract provided.


The Public Control Of Corporate Power: Revisiting The 1909 U.S. Corporate Tax From A Comparative Perspective, Ajay K. Mehrotra Jan 2010

The Public Control Of Corporate Power: Revisiting The 1909 U.S. Corporate Tax From A Comparative Perspective, Ajay K. Mehrotra

Articles by Maurer Faculty

The origins of U.S. corporate taxation are often associated with the 1909 corporate excise tax. Scholars who have investigated the beginnings of this levy have mainly focused on the legislative history of the 1909 corporate tax to argue that it was either an expression of the Progressive Era impulse to regulate large-scale corporations or an attempt to use corporations as remittance devices to collect taxes aimed at wealthy shareholders. This Article broadens the conventional historical accounts of the emergence of American corporate taxation by revisiting the 1909 U.S. corporate tax from a comparative perspective. The aim is to ...


Melendez-Diaz And The Right To Confrontation, Craig M. Bradley Jan 2010

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.


Panel Ii: The Global Contours Of Ip Protection For Trade Dress, Industrial Design, Applied Art, And Project Configuration, Mark D. Janis, Susan Scafidi, Orit Fischman Afori, Wendy J. Gordon, Jonathan Moskin Jan 2010

Panel Ii: The Global Contours Of Ip Protection For Trade Dress, Industrial Design, Applied Art, And Project Configuration, Mark D. Janis, Susan Scafidi, Orit Fischman Afori, Wendy J. Gordon, Jonathan Moskin

Articles by Maurer Faculty

No abstract provided.


Disintegrating Customary International Law: Reactions To Withdrawing From International Custom, Christiana Ochoa Jan 2010

Disintegrating Customary International Law: Reactions To Withdrawing From International Custom, Christiana Ochoa

Articles by Maurer Faculty

Withdrawing from International Custom, a recent article by Curtis Bradley and Mitu Gulati, has sparked interest and debate. Bradley and Gulati’s article, develops with significant nuance and detail that, naturally, can be best understood by a careful reading of their work. In essence, it proposes a modification in customary international law (CIL) doctrine – a change that would permit states to unilaterally exit from existing customary international law. This Essay will act as a brief reflection on that article. In Part I, it will explore the analogies Withdrawing makes between CIL and contract and will argue, first that CIL and ...


The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis Jan 2010

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Articles by Maurer Faculty

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next, we discuss the impact of new information technology and the global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor ...


Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, Charles G. Geyh Jan 2010

Judicial Elections In The Aftermath Of White, Caperton, And Citizens United, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


Judicial Selection, Judicial Disqualification, And The Role Of Money In Judicial Campaigns, Charles G. Geyh Jan 2010

Judicial Selection, Judicial Disqualification, And The Role Of Money In Judicial Campaigns, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


Patent Misuse And Innovation, Marshall Leaffer Jan 2010

Patent Misuse And Innovation, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.


Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa Jan 2010

Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa

Articles by Maurer Faculty

No abstract provided.


Cyberspace Is Outside The Schoolhouse Gate: Offensive, Online Student Speech Receives First Amendment Protection, Joseph A. Tomain Jan 2010

Cyberspace Is Outside The Schoolhouse Gate: Offensive, Online Student Speech Receives First Amendment Protection, Joseph A. Tomain

Articles by Maurer Faculty

Normative and doctrinal analysis shows that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus. The Third Circuit vacated both decisions and is considering these cases in a consolidated en banc appeal. Another case addressing the same ...