Digital Commons Network^™

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

Articles by Maurer Faculty

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the "three I's" of judicial ethics-independence, impartiality, and integrity-enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I's and judicial ethics itself …

Court Personnel Attitudes Towards Medication-Assisted Treatment: A Statewide Survey, Barbara Andraka-Christou, Meghan Gabriel, Jody L. Madeira, Rod D. Silverman

Articles by Maurer Faculty

Background: Despite its efficacy, medication-assisted treatment (MAT) is rarely available in the criminal justice system in the United States, including in problem-solving courts or diversionary settings. Previous studies have demonstrated criminal justice administrators' hostility towards MAT, especially in prisons and jails. Yet, few studies have examined attitudes among court personnel or compared beliefs among different types of personnel. Also, few studies have explored the relationship between MAT education/training and attitudes. Finally, few studies have directly compared attitudes towards methadone, oral buprenorphine, and extended-release naltrexone in the criminal justice system.

Methods: We modified a survey by Matusow et al. (2013) to …

The Cultural Politics Of Dan Quayle And Mike Pence, Steve Sanders

Articles by Maurer Faculty

This essay was part of an Indiana Law Review symposium on the five U.S. vice presidents who have hailed from Indiana.

The Gallup polling organization classifies Indiana as a “pink” state, rather than a “red” state, meaning it leans Republican but is not solidly in the GOP column. Yet, if an image of Indiana persists in many people’s minds as a bastion of social conservatism and tradition, that image likely has been shaped in part by the two most recent vice presidents the Hoosier state has sent to Washington: Dan Quayle and Mike Pence.

In selecting their running mates, major …

"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin

Articles by Maurer Faculty

The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …

The False Allure Of Settlement Pressure, Nicholas Almendares

Articles by Maurer Faculty

The threat of “blackmail” or “in terrorem” settlements have shaped the law, leading courts to conclude that if the plaintiff does not appear likely to win the case, then the litigation should be halted at an early stage. This Article questions the established logic of settlement pressure. After clarifying the concept and presenting the strongest case for it, I show that it cannot serve as the basis for wide-ranging civil procedure doctrines. Doing so has perverse results, such as privileging the defendant’s idiosyncratic tastes and helping corporate managers hide important facts from their shareholders. In addition, settlement pressure is not …

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 …

The Dragon-Kings’ Restraint: Proposing A Compromise For The Eez Surveillance Conundrum, Asaf Lubin

Articles by Maurer Faculty

The United States and China are at it again, as naval and aerial interceptions in and around the South China Sea become a matter of disturbing routine. At the heart of the dispute stands the lingering question of whether customary international law as reflected in the United Nations Convention on the Law of the Sea (“UNCLOS”) authorizes third States to engage in surveillance and military maneuvers in coastal States’ Exclusive Economic Zones (“EEZ”) without their consent. The answer lies in interpreting Article 58(1) of UNCLOS. This paper aims to respond to the calls put forward by States, scholars, and research …

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

Articles by Maurer Faculty

No abstract provided.

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.

Innovation Diffusion In The Legal Industry, William D. Henderson

Articles by Maurer Faculty

This article is adapted from a series of blog posts originally found in my recently-started blog entitled Legal Evolution. The foundational material set forth in this article (and in those blog posts) applies to the legal services market insights gained from disciplines other than law. This article begins by setting forth the well-established theory of an "innovation diffusion curve" and the research that has identified the factors that affect the rate of adoption of innovations. This article identifies why innovation in the legal services market is desirable and applies to the legal services field insights drawn from this research in …

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 …

Laws, Norms, And The Institutional Analysis And Development Framework, Daniel H. Cole

Articles by Maurer Faculty

Elinor Ostrom’s Institutional Analysis and Development (IAD) framework has been described as ‘one of the most developed and sophisticated attempts to use institutional and stakeholder assessment in order to link theory and practice, analysis and policy’. But not all elements in the framework are sufficiently well developed. This paper focuses on one such element: the ‘rules-in-use’ (a.k.a. ‘rules’ or ‘working rules’). Specifically, it begins a long-overdue conversation about relations between formal legal rules and ‘working rules’ by offering a tentative and very simple typology of relations. Type 1: Some formal legal rules equal or approximate the working rules; Type 2: …

Unequal Opportunities: Education Pathways To The U.S. Judiciary, Alfred C. Aman

Articles by Maurer Faculty

This paper is about diversity in federal and state courts in the United States. My main argument is that we should promote a judiciary that is reflective of the society of which it is a part for three reasons: first, because in doing so, we gain critical awareness of barriers to judicial service; second, because in doing so, we are also promoting access to resources, education and opportunities in the legal profession; and third, because it is possible (although not automatic) that a reflective judiciary will broaden the range of experience and perspective on the matters involved in the cases …

The Interaction Of The Pregnancy Discrimination Act And The Americans With Disabilities Act After Young V. Ups, Deborah A. Widiss

Articles by Maurer Faculty

Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under …

Transforming Election Cybersecurity, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …

Talent Systems For Law Firms, William D. Henderson

Articles by Maurer Faculty

irtually every large US law firm owes its rise and success to a talent system it adopted several decades ago. These talent systems were effective because they created highly skilled business lawyers in a way that aligned the interests of partners, associates, and clients. The most prominent example is the Cravath System, though other business lawyers throughout the US were making similar discoveries at roughly the same time. The tremendous forward momentum of these first-generation talent systems has created the problem of ahistorical partners — owners who collect the late-stage benefits of a talent system approach without understanding its original …

The Human Side Of Public-Private Partnerships: From New Deal Regulation To Administrative Law Management, Alfred C. Aman, Joseph C. Dugan

Articles by Maurer Faculty

During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms, establishing independent agencies, and empowering them to shape and enforce pragmatic industrial policies. Twenty-first century regulation looks strikingly different from the New Deal vision. While New Deal agencies continue to perform some regulatory functions, market approaches have replaced many traditional command-and-control formulations, with private entities stepping in to perform tasks historically reserved to government.

Though government-by-contract is becoming the new normal, neither the Administrative Procedure Act ("APA") nor many of its state equivalents provide adequate guidance to ensure that individual rights are protected and democratic …

Beyond Citizens United, Nicholas Almendares, Catherine Hafer

Articles by Maurer Faculty

The doctrine announced in Citizens United rendered most efforts to regulate campaign financing unconstitutional. We argue, however, that the doctrine allows for a novel approach to the concerns inherent in campaign financing that does not directly infringe on political speech, because it operates later in the process, after the election. This approach allows us to address a broad range of these issues and to do so with legal tools that are readily available. We describe two applications of our approach in this Article. First, we argue that courts should use a modified rational basis review when a law implicates the …

Judging Adaptive Management Practices Of U.S. Agencies, Robert L. Fischman, J. B. Ruhl

Articles by Maurer Faculty

All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs …

Irs Reform: Politics As Usual?, Leandra Lederman

Articles by Maurer Faculty

The IRS is still reeling from accusations that it "targeted" Tea Party and other non-profit organizations. Although multiple government investigations found no politically motivated behavior-only mismanagement-Congressional hearings were quite inflammatory. Congress recently followed up those hearings with a set of IRS reforms. Congress's approach is reminiscent of the late 1990s, when highly publicized Congressional hearings regarding alleged abuses by the IRS resulted in a major IRS reform and restructuring, although the allegations subsequently were largely debunked. This Article argues that the recent allegations against the IRS also were overblown. It looks to the aftermath of the 1998 IRS reform, which …

External Forces, Internal Dynamics: Foreign Legal Actors And Their Impact On Domestic Affairs (Book Review), Jayanth K. Krishnan, Vitor M. Dias, Martin Hevia

Articles by Maurer Faculty

This Review examines the influence of foreign legal actors on jurisdictions that are not their own. Rachel Stern, a scholar of China, reflects on this point in her groundbreaking book published in 2013. In her penultimate chapter, Stern discusses how such foreign legal actors wield influence in China because of their presence on the ground. Building off of Stern's research, this Review proceeds to ask whether foreign legal actors can influence a domestic environment when that environment prohibits them from permanently working there. The analysis below will suggest so, arguing that the forces of globalization can enable foreign legal …

When Responsibilities Collide: Humanitarian Intervention, Shared War Powers, And The Rule Of Law, Dawn E. Johnsen

Articles by Maurer Faculty

The use of military force to respond to a foreign humanitarian crisis raises profound legal questions, especially when force is not authorized by the U.S. Congress or the U.N. Security Council. President Clinton's use of air strikes in Kosovo, President Obama's use of air strikes in Libya, and his threat of force following Syrian President Assad's use of chemical weapons against the Syrian people all responded to powerful humanitarian needs-but serious questions about their legality remain. Drawing upon these case studies, Professor Harold Koh proposes a framework that would find some such interventions lawful, even without congressional or Security Council …

Preparing Law Students For Information Governance, Susan David Demaine

Articles by Maurer Faculty

Information governance is a holistic business approach to managing and using information that recognizes information as an asset as well as a potential source of risk. Law librarians and legal information professionals are well situated to take leadership roles in information governance efforts, including instructing law students in information governance principles and practices. This article traces the development of information governance and its importance to the legal profession, offers a primer on information governance principles and implementation, and discusses how academic law librarians and other legal educators can teach information governance to law students using problem-based learning or similar pedagogical …

State Court Protection Of Reproductive Rights: The Past, The Perils, And The Promise, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Articles by Maurer Faculty

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.

Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss

Articles by Maurer Faculty

Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language.

The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written …

Foreword: Reflections On Our Founding, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

No abstract provided.

Patent-Eligible Processes: An Audience Perspective, Mark D. Janis, Timothy R. Holbrook

Articles by Maurer Faculty

Many of the problems with modern patent-eligibility analysis can be traced back to a fundamental philosophical divide between judges who treat eligibility as the primary tool for effectuating patent policy and those who take patent-eligibility as nothing more than a coarse filter to be invoked in rare cases. After several years in which the coarse filter approach seemed to have the upper hand, the eligibility-as-king approach now is firmly in ascendancy. This Article, resists that trend, exploring more centrist approaches to patent-eligibility, particularly in the context of process inventions. This Article first examines the practice of undertaking an eligibility analysis …