Digital Commons Network^™

Interpreting Anti-Boycott Laws In The Shadow Of The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

Thirty-eight states have enacted “anti-BDS” laws. These laws require people or entities doing business with the state to certify that they do not participate in the Boycott Divestment Sanction movement against Israel. Typically, these laws define boycott as a “refusal to deal, terminating business, or other actions” that limit commercial relations with Israel or Israeli entities. It is highly contested in the courts and commentary whether these anti-boycott laws violate the First Amendment. Assuming arguendo that the “refusal to deal” and “terminating business” clauses do not implicate the First Amendment, that leaves the residual clause. At least one court and …

The Undemocratic Class Action, Nicholas Almendares

Articles by Maurer Faculty

Class actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works on their behalf. I label this the democratic critique of class actions, and it has been the dominant framework for understanding class actions, shaping both case law and reform proposals.

The democratic critique is based on a false premise, though, because it does not take into account …

On Fires, Floods, And Federalism, Andrew Hammond

Articles by Maurer Faculty

In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more …

Accessing Justice With Zoom: Experiences And Outcomes In Online Civil Courts, Victor D. Quintanilla, Kurt Hugenberg, Ryan Hutchings, Nedim Yel

Articles by Maurer Faculty

The global COVID-19 pandemic brought significant change to our civil justice system, particularly in the rapid shift from in-person to remote court proceedings. Courts across the country, facing the unprecedented challenge of a global health emergency, embraced rapid innovation and the adoption of remote proceeding platforms, such as Zoom and Webex. State courts did so across case types, including within high-volume civil dockets containing evictions, debt collections, small claims, and family law cases, where millions of self-represented and unrepresented litigants encounter the U.S. civil justice system each year. Amid the pandemic, voices converged to encourage these justice innovations, including the …

Facts Versus Discretion: The Debate Over Immigration Adjudication, Jayanth K. Krishnan

Articles by Maurer Faculty

Justice Amy Coney Barrett recently issued her first majority-led immigration opinion in Patel v. Garland (2022). As background, some immigrants looking to avoid deportation may apply for what is called “discretionary relief’ (e.g., asylum or adjustment of status) initially in an immigration court and then, if they lose, at the Board of Immigration Appeals (BIA). These immigration forums fall under the Department of Justice. Prior to Patel, immigrants who lost at the BIA could then ask a federal circuit court to review the factual findings of their case. Now, after Justice Barrett’s decision, Article III review is no longer available …

To “Defund” The Police, Jessica M. Eaglin

Articles by Maurer Faculty

Much public debate circles around grassroots activists’ demand to “defund the police,” raised in public consciousness in the summer of 2020. Yet confusion about the demand is pervasive. This Essay adopts a literal interpretation of “defund” to clarify and distinguish four alternative, substantive policy positions that legal reforms related to police funding can validate. It argues that the policy debates between these positions exist on top of the ideological critique launched by grassroots activists, who use the term “defund the police” as a discursive tactic to make visible deeper transformations in government practices that normalize the structural marginalization of black …

Lawyers For The Undocumented: Addressing A Split Circuit Dilemma For Asylum-Seekers, Jayanth K. Krishnan

Articles by Maurer Faculty

The immigration crisis at the border, since 2016, has seen children separated from parents, the detention of noncitizens increase, and record-breaking numbers of applicants denied entry into the United States. For individuals fleeing their home countries because of persecution, the hardship has been particularly severe. To start, the chances of gaining asylum have dwindled significantly. For those who are successful, a subsequent and crucial question is whether the lawyers who represent them can recoup their legal fees from the government.

Since 1980, a federal statute known as the Equal Access to Justice Act (EAJA) has allowed for a “prevailing party” …

Insuring Evolving Technology, Asaf Lubin

Articles by Maurer Faculty

The study of the interaction between law and technology is more critical today than ever before. Advancements in artificial intelligence, information communications, biological and chemical engineering, and space-faring technologies, to name but a few examples, are forcing us to reexamine our traditional understanding of basic concepts in torts and insurance law.

Yet, few insurance professionals and scholars will identify themselves as working in the field of “law-and-technology.” For many of them, technology is “just a fact about the world like any other,” as Ryan Calo once put it, not one that always merits “special care.”

This short paper is an …

Why States Should Consider Expanding Sales Taxes To Services, Part 1, Gladriel Shobe, Grace Stephenson Nielsen, Darien Shanske, David Gamage

Articles by Maurer Faculty

States are facing a severe budget crisis as a result of the coronavirus pandemic. And with the federal government unlikely to pass a relief bill to address those state budget issues,1 states will need to play a significant role in making up revenue shortfalls.

This is the first in a three-part series, which is a contribution to Project SAFE: State Action in Fiscal Emergencies. This essay will lay out the general case for why states should consider expanding their sales tax bases to more services as a response to the COVID-19 crisis. The follow-ups will discuss further mechanics and details …

Why States Should Now Consider Expanding Sales Taxes To Services, Part 1, Gladriel Shobe, Grace Stephenson Nielsen, Darien Shanske, David Gamage

Articles by Maurer Faculty

States are facing a severe budget crisis as a result of the coronavirus pandemic. And with the federal government unlikely to pass a relief bill to address those state budget issues,1 states will need to play a significant role in making up revenue shortfalls.

This is the first in a three-part series, which is a contribution to Project SAFE: State Action in Fiscal Emergencies. This essay will lay out the general case for why states should consider expanding their sales tax bases to more services as a response to the COVID-19 crisis. The follow-ups will discuss further mechanics and details …

Bhopal In The Federal Courts: How Indian Victims Failed To Get Justice, Jayanth K. Krishnan

Articles by Maurer Faculty

Over thirty-five years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (“UCIL”), which had as its parent company the American-based Union Carbide Corporation (“UCC”). Thousands were killed, with many more injured. One hundred forty-five cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the multi-district litigation (“MDL”) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens …

Keeping Up With New Legal Titles, Susan David Demaine, Susan Azyndar

Articles by Maurer Faculty

No abstract provided.

Safeguard Or Barrier: An Empirical Examination Of Bar Exam Cut Scores, Victor D. Quintanilla, Sam Erman, Michael B. Frisby

Articles by Maurer Faculty

In 2019, nearly 70,000 people took the bar exam. More than forty percent failed. Given the existing scores required to pass those exams (the “cut score”), nearly 30,000 test-takers otherwise qualified to practice law were lost to the profession. Had the cut score been lower, many would now be lawyers. So it goes every year, with staggering costs. Legal educators devote substantial resources to teaching tens of thousands of people legal skills that never get put to use in law practice. A national crisis in access to justice grows more entrenched. Applicants invest three years and countless thousands of dollars …

Doing Unrepresented Status: The Social Construction And Production Of Pro Se Persons, Victor D. Quintanilla

Articles by Maurer Faculty

In this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate on two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person …

The Institute For The Future Of Law Practice: A New Narrative For Legal Education And The Legal Profession, William D. Henderson

Articles by Maurer Faculty

"The mission of IFLP is to produce more legal professionals who have strong legal knowledge plus foundational training in allied disciplines — in other words, “T-shaped” legal professionals."

--

You look down at your smartphone and see that you just got a text from a close family relative. They are asking to schedule a phone call.

The next line reads, “I’m thinking about going to law school.”

Well, if you read PD Quarterly, you’re likely a logical person to seek out for advice. You’ve got some time to think about it. What are you going to say?

Whatever your counsel, …

Keeping Up With New Legal Titles, Susan David Demaine, Susan Azyndar

Articles by Maurer Faculty

No abstract provided.

Societal Pressures And Procreative Preferences For Gay Fathers Successfully Pursuing Parenthood Through Ivf And Gestational Carriers, Steven R. Lindheim Md, Jody L. Madeira, Artur Ludwin, Emily Kemmer, J. Preston Parry, Georges Sylvestre, Guido Pennings

Articles by Maurer Faculty

This retrospective study surveyed decision-making and challenges among 78 gay cisgender male couples utilizing in-vitro fertilization (IVF) and a gestational carrier. While most couples (67.1%) found the decision to actively pursue fertility treatment ‘not difficult’, 32.9% felt that it was ‘somewhat difficult’ or ‘very or extremely difficult’. Almost 30% of couples had not undertaken financial planning for treatment, which introduced delays of N2 years for 25.3% of participants. Conceiving twins was ‘important to very important’ in 52.3% of couples, and 84.2% of couples chose to transfer two embryos to ‘increase the odds’ or reach an ideal family size in a …

Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

This short article surveys developments in the law affecting electronic payments and financial services from June 1, 2017 to June 1, 2018. During this period, significant developments occurred that affected the regulation of initial coin offerings (ICOs), the Office of the Comptroller of the Currency’s proposal to issue “special purpose national bank charters” to FinTech companies, the CFPB’s final regulation of prepaid, general-purpose cards, state regulation of payroll cards, and how lawyers taking cryptocurrencies from clients as payment for services or for safekeeping should protect them. The survey also presents newly issued BitLicenses under the New York Department of Financial …

Access To The Justices’ Papers: A Better Balance, Susan David Demaine

Articles by Maurer Faculty

This article explores the history of Supreme Court Justices’ papers and their status as private property. It discusses questions of access, the public’s interest in understanding the Court and its decisions, and the effect of the Justices’ papers on scholarship and popular research. Several options for encouraging greater openness are proposed.

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 …

Access To Consumer Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …

Well-Timed Solutions For Legal Education And The Bar, William D. Henderson

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 …

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 …

Increasing Transparency In The Us Tax Court, Leandra Lederman

Articles by Maurer Faculty

Transparency is a widely accepted judicial norm because it increases accountability. Access to U.S. Tax Court documents has long differed from access to the documents of other courts. For example, the Tax Court does not participate in PACER (Public Access to Court Electronic Records). This essay discusses some of the ways in which access to Tax Court documents has been restricted; areas in which the Tax Court has increased transparency over the years; upcoming changes; and where increased transparency is still needed, such as with respect to case statistics.

"No Money Down" Bankruptcy, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

This Article reports on a breakdown in access to justice in bankruptcy, a system from which one million Americans will seek help this year. A crucial decision for these consumers will be whether to file a chapter 7 or chapter 13 bankruptcy. Nearly every aspect of their bankruptcies — both the benefits and the burdens of debt relief — will be different in chapter 7 versus chapter 13. Almost all consumers will hire a bankruptcy attorney. Because they must pay their attorneys, many consumers will file chapter 13 to finance their access to the law, rather than because they prefer …

Maurer School Of Law Marks 175 Years Of History, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

Calling On The Cfpb For Help: Telling Stories And Consumer Protection, Pamela Foohey

Articles by Maurer Faculty

Since it began operating in 2011, the Consumer Financial Protection Bureau (CFPB) has handled more than a million complaints regarding consumer financial product and services. Beginning in June 2015, the CFPB began publishing consumers’ narratives submitted with their complaints. This Article analyses a random sample of 5,000 of these narratives to assess how people engage with the complaint mechanism in light of the CFPB’s role in processing complaints. I find that people predominately use the complaint function for two distinct purposes: to express their anger and frustration about companies’ practices, or to express sadness and fear about how companies’ practices …

Discovering Forensic Fraud, Jennifer Oliva, Valena Beety

Articles by Maurer Faculty

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

Efficiency Engines: How Managed Services Are Building Systems For Corporate Legal Work, William D. Henderson

Articles by Maurer Faculty

No abstract provided.