Law Commons^™

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

Articles by Maurer Faculty

No abstract provided.

American Economic Development, Managerial Corporate Capitalism, And The Institutional Foundations Of The Modern Income Tax, Ajay K. Mehrotra

Articles by Maurer Faculty

Histories of the modern American income tax have generally focused on the role that social and political forces have played in the development of a new tax system. This article seeks to move beyond the social and political determinants to examine the economic factors that facilitated the adoption of the modern, graduated income tax. Without marginalizing the importance of social and political factors, the central aim of this article is to make a modest contribution to the legal and political historiography of the U.S. income tax by highlighting how changing material economic conditions afforded social groups, political reformers, and lawmakers …

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

Articles by Maurer Faculty

No abstract provided.

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 …

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

Articles by Maurer Faculty

No abstract provided.

Transnational Legal Practice 2009, Carole Silver, Laurel S. Terry, Ellyn S. Rosen

Articles by Maurer Faculty

This article identifies some of the most important U.S. and international developments in transnational legal practice and provides citations for further research. The article begins by briefly reviewing the impact of the recession on legal services. The second section focuses on international developments. It identifies some of the ongoing efforts to implement the 2007 U.K. Legal Services Act, including the issuance of the influential Hunt and Smedley reports. It also provides information about law reform initiatives in France, Scotland and Korea. This section of the article also provides information about Canadian and Australian developments regarding admission of foreign applicants and …

Protecting Privacy In Health Research: The Limits Of Individual Choice, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

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

Articles by Maurer Faculty

No abstract provided.

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 …

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. Treasury …

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

Articles by Maurer Faculty

No abstract provided.

Sex, Threats, And Absent Victims: The Lessons Of Regina V. Bedingfield For Modern Confrontation And Domestic Violence Cases, Aviva A. Orenstein

Articles by Maurer Faculty

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully.

Although Justice Scalia’s approach to confrontation is new, it is strikingly similar to the analysis in Regina v. Bedingfield, a notorious English murder case, which excluded from the evidence an alleged statement by the …

Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe

Articles by Maurer Faculty

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal …

Reducing Information Gaps To Reduce The Tax Gap: When Is Information Reporting Warranted?, Leandra Lederman

Articles by Maurer Faculty

A core problem for enforcement of tax laws is asymmetric information. The taxpayer knows the facts regarding the relevant transactions it engages in during the year-or at least has ready access to that information. The government is forced to play catch-up, obtaining that information either from the taxpayer or from third parties. Information reporting is routinely used to address this information gap. The government obtains information about the taxpayer's tax situation from a third party and-equally important-the taxpayer knows that the government has received that information. This fosters taxpayer honesty. Information reporting is not a panacea, however. It imposes costs …

Guest Editor's Introduction, Special Issue: Ensuring Access To Justice For Self-Represented, Amy Applegate

Articles by Maurer Faculty

I am pleased to be the guest editor of his special issue of Family Court Review, which focuses on "Access to Justice for Self-Represented Litigants." I am even more pleased that this issue includes articles written by some of the leaders of Indiana's pro bono legal community; several outstanding students; my collaborators who conduct research about the effect of self-representation in the mediation context, especially where there is intimate partner violence or abuse (IPVA); and colleagues in the national clinical and law school pro bono community whose students provide pro bono services to disadvantaged or marginalized individuals with family …

Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak

Articles by Maurer Faculty

In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory …

Preventing State Budget Crises: Managing The Fiscal Volatility Problem, David Gamage

Articles by Maurer Faculty

Forty-nine of the U.S. states have balanced budget requirements, and every state acts as though bound by such constraints. These constraints create fiscal volatility - the states must either cut spending or raise taxes during economic downturns, while doing the opposite during upturns. This paper discusses how states should cope with fiscal volatility on both the levels of ordinary politics and of institutional-design policy. On the level of ordinary politics, the paper applies principles of risk allocation theory to conclude that states should primarily adjust the rates of broad-based taxes as their economies cycle, rather than fluctuating public spending. States …

Minimizing The Harm Of State Fiscal Volatility, David Gamage, Jeremy Bearer-Friend

Articles by Maurer Faculty

This report’s primary concern is how U.S. state governments should respond to the fiscal volatility created by their balanced budget constraints. Applying the principles of risk allocation theory to this recurring problem, we conclude that states should primarily adjust the rates of broad-based taxes as their economies cycle, rather than fluctuating public spending.

Conceivable Changes: Effectuating Infertile Couples' Emotional Ties To Frozen Embryos Through New Disposition Options, Jody L. Madeira

Articles by Maurer Faculty

No abstract provided.

The Ifc's New Africa, Latin America, And Caribbean Fund: Its Worrisome Start, And How To Fix It, Christiana Ochoa, Patrick J. Keenan

Articles by Maurer Faculty

In April 2010 the International Finance Corporation announced the creation of the African, Latin American, and Caribbean fund, a new co-investment vehicle funded largely with commitments from sovereign wealth and pension funds. The fund's objective was to draw on the IFC and the World Bank's strengths in emerging markets to identify and support enterprises that might not otherwise have come to the attention of large investors and thereby help strengthen the private sector and alleviate poverty in some of the world's poorest countries. Unfortunately the fund has, so far, proven a disappointment. It has invested only in large corporations that …

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 …

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.

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 …

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 been the …

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.

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

Articles by Maurer Faculty

No abstract provided.

W(H)Ither Economic Substance?, Leandra Lederman

Articles by Maurer Faculty

Transactions that claim inappropriate tax benefits are a perennial problem. When the IRS claims a transaction is abusive, courts generally examine whether the taxpayer had a business purpose and whether the transaction had economic substance (essentially a prospect of profit before taxes). This two-pronged "economic substance doctrine" developed from a series of Supreme Court cases.

Unfortunately, the economic substance doctrine provides a poor proxy for the real question, which was the focus of the early cases-whether the claimed tax results are consistent with Congress's intent. One important drawback of the shift from a focus on congressional intent to a focus …

Developments In The Laws Governing Electronic Payments Made Through Gift Cards, Debit And Prepaid Cards, Credit Cards, And Direct Deposits Of Federal Benefits, Sarah Jane Hughes, Stephen T. Middlebrook

Articles by Maurer Faculty

No abstract provided.

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.

(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 concepts such as …