Law Commons^™

State's Rights, Last Rites, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

There are two ways to read the Supreme Court's decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race …

Regulating Cryptocurrencies In The United States: Current Issues And Future Directions, Sarah Jane Hughes, Stephen T. Middlebrook

Articles by Maurer Faculty

This article explores the state of virtual currencies and their regulation in and by the United States and the States. It offers thoughts on which models of regulation might suit virtual currencies best. It also surveys recent enforcement actions brought by the Departments of Treasury, Justice and Homeland Security against providers of virtual currencies or comparable electronic stored value. It concludes that issuers and users of virtual currencies are not being realistic if they think that the United States will not regulate virtual currencies for some purposes.

Alumni Services: Strategies For Keeping The Law Library's Doors Open After Graduation, Michelle M. Trumbo

Articles by Maurer Faculty

No abstract provided.

Access To Counsel: Psychological Science Can Improve The Promise Of Civil Rights Enforcement, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

Employment discrimination claimants in general, and racial minority claimants in particular, disproportionately lack access to legal counsel. When employment discrimination claimants lack counsel, they typically abandon their claims, or if they pursue their claims, they do so pro se (without counsel), a strategy that is seldom successful in court. Access to counsel is, hence, a decisive component in whether employment discrimination victims realize the potential of civil rights enforcement. Psychological science analyzes access to counsel by identifying psychological barriers—such as threatened social identity, mistrust in legal authorities, and fear of repercussions—that prevent employment discrimination victims from pursuing counsel. The analysis …

How Should Governments Promote Distributive Justice?: A Framework For Analyzing The Optimal Choice Of Tax Instruments, David Gamage

Articles by Maurer Faculty

A particular methodology derived from public finance economics has become very influential in the legal literature on taxation and related topics. Sometimes called the “double-distortion” approach, this methodology forms the heart of Louis Kaplow’s book “The Theory of Taxation and Public Economics” and is also the foundation of prominent work by other leading tax legal scholars such as David Weisbach and James Hines.

This Article develops an extended critique of how the double-distortion approach has been used to make legal policy arguments. In doing so, this Article constructs a framework for analyzing how governments can optimally raise revenues and promote …

Big Business, Big Government And Big Legal Questions, Michael Mattioli, Todd Vare

Articles by Maurer Faculty

No abstract provided.

Not Just For Scouting Anymore: Digital Badges For Legal Research Skills, Alcasid Hannah, Susan David Demaine, Catherine A. Lemmer, Benjamin J. Keele

Articles by Maurer Faculty

No abstract provided.

Use Of Eu Institutions Outside The Eu Legal Framework: Foundations, Procedure And Substance, Paul Craig

Articles by Maurer Faculty

The decision in Case Pringle was primarily concerned with whether the European Stability Mechanism (TFEU) was compatible with various substantive provisions of the Treaty on the Functioning of the European Union, most notably the prohibition on bailouts in Article 125 TFEU. The judgment is nonetheless important for other reasons, including the legitimacy of the use of EU institutions outside the EU legal framework. It will be seen that the CJEU endorsed their use and reaffirmed earlier case law. These conclusions were analysed by Steve Peers in a helpful article in a previous issue of the European Constitutional Law Review, in …

Hazardous Hedging: The (Unacknowledged) Risks Of Hedging With Credit Derivatives, Gina-Gail S. Fletcher

Articles by Maurer Faculty

Is hedging with credit derivatives always beneficial? The benefit of hedging with credit derivatives, such as credit default swaps, is presumed by the Dodd-Frank Act, which excludes hedge transactions from much of the new financial regulation. Yet, new, significant risks can arise when credit derivatives are used to manage risks. Hedging, therefore, should be defined not only in relation to whether a transaction offsets risks, but also whether, on balance, the risks that are mitigated, as well as any new risks that arise, are outweighed by the potential benefits.

Firms using credit derivatives to hedge often fail to account for …

Identifying Congressional Overrides Should Not Be This Hard, Deborah Widiss

Articles by Maurer Faculty

This paper is an invited response to Professor William N. Eskridge, Jr., and Mr. Matthew R. Christiansen’s recently-published study (92 Texas L. Rev. 1317 (2014)) identifying and analyzing Congressional overrides of Supreme Court statutory interpretation decisions since 1967. Christiansen and Eskridge provide a new taxonomy for overrides that distinguishes between "restorative" overrides, which denounce a judicial interpretation as misrepresenting prior Congressional intent, and overrides that simply update or clarify policy. Although political science and legal scholarship has focused on the interbranch struggle implicit in restorative overrides, Christiansen and Eskridge classify only about 20% of the overrides in their total dataset …

Undermining Or Promoting Democratic Government?: An Economic And Empirical Analysis Of The Two Views Of Public Sector Collective Bargaining In American Law, Kenneth G. Dau-Schmidt, Mohammad Khan

Articles by Maurer Faculty

No abstract provided.

Power And Governance In Patent Pools, Michael Mattioli

Articles by Maurer Faculty

The recent influx of patent pools, research consortia, and similar cooperative groups led by companies at the vanguard of American innovation has raised a pressing question: How does collective action influence the incentive to innovate? This question hinges on how patent pools are internally governed — a topic that has not been deeply examined by legal scholars. Through an original study of fifty-two private agreements, this Article pulls back the veil on patent licensing collectives to examine whether such organizations are designed to encourage long-term innovation.

This study draws on collective patent license agreements spanning the years 1856 to 2013 …

(Un)Appealing Deference To The Tax Court, Leandra Lederman

Articles by Maurer Faculty

The U.S. Tax Court (Tax Court), which hears the vast majority of litigated federal tax cases, occupies an unusual place in the federal government. It is a federal court located outside of the judicial branch, but its decisions are appealable to the federal courts of appeals. This odd structure, coupled with the court's history as an independent agency in the executive branch, can give rise to important questions, such as the standard of review that should apply to its decisions. In particular, should the courts of appeals treat Tax Court decisions the same as those of district courts in tax …

Virtual Designs, Mark D. Janis, Jason J. Du Mont

Articles by Maurer Faculty

Industrial design is migrating to the virtual world, and the design patent system is migrating with it. The U.S. Patent and Trademark Office (USPTO) has already granted several thousand design patents on virtual designs, patents that cover the designs of graphical user interfaces for smartphones, tablets, and other products, as well as the designs of icons or other artifacts of various virtual environments. Many more such design patent applications are pending; in fact, U.S. design patent applications for virtual designs represent one of the fastest growing forms of design subject matter at the USPTO.

Our project is the first comprehensive …

When Churches Reorganize, Pamela Foohey

Articles by Maurer Faculty

The article complements and expands the author’s prior article, Bankrupting the Faith. This article primarily relies on interviews with attorneys who represented religious organizations in chapter 11 bankruptcy to assess whether reorganization has the potential to offer an effective solution to religious organizations’ financial problems. In doing so, it makes three contributions. First, it tracks the post-bankruptcy outcomes of a portion of the debtors to find that approximately 65% remained operating post-bankruptcy; these outcomes contradict previous studies of small business bankruptcy and are important to current debates about reforming small business bankruptcy. Given this—and in keeping with the ABLJ’s …

Did New York State Just Anoint Virtual Currencies By Proposing To Regulate Them, Or Will Regulation Spoil Them For Some?, Sarah Jane Hughes

Articles by Maurer Faculty

This Essay previews issues raised by the general subject of regulating virtual currencies and the specific efforts of New York State’s Department of Financial Services’ proposed Virtual Currency Regulatory Framework (the BitLicense) in particular. It focuses on five topics in the proposal and their interplay with the current regulation of “money services” and “money transmission” in other states, using the Commonwealth of Virginia and the State of Washington approaches on a few common topics for comparison purposes. It also asks whether regulation of virtual currencies is likely to cause more widespread adoption of virtual currencies or to frustrate the proponents …

Did The National Security Agency Destroy The Prospects For Confidentiality And Privilege When Lawyers Store Clients' Files In The Cloud--And What, If Anything, Can Lawyers And Law Firms Realistically Do In Response?, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.

Restructuring The U.S. Tax Court: A Reply To Stephanie Hoffer And Christopher Walker's The Death Of Tax Court Exceptionalism, Leandra Lederman

Articles by Maurer Faculty

This article is an invited reply to an article in the Minnesota Law Review regarding whether the “reviewing court” provisions of the Administrative Procedure Act (APA) apply to the U.S. Tax Court, the principal court hearing disputes between taxpayers and the IRS. (The Tax Court has repeatedly said that the APA does not apply to it). It argues in part that the question of whether the Tax Court must apply the APA’s standard and scope of review when reviewing IRS action is not as clear as a matter of history and doctrine as Professors Hoffer and Walker argue. The author …

Tribute To Randall Shepard, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Aborted Emotions: Regret, Relationality, And Regulation, Jody L. Madeira

Articles by Maurer Faculty

Regret is a deeply contested emotion within abortion discourse. It is present in ways that we are both afraid of and afraid to talk about. Conventional pro-life and pro-choice narratives link regret to defective decision making. Both sides assert that the existence of regret reveals abortion’s harmfulness or harmlessness, generating a narrow focus on the maternal-fetal relationship and women’s “rights.”These incomplete, deeply flawed constructions mire discourse in a clash between regret and relief and exclude myriad relevant relationships. Moreover, they distort popular understandings of abortion that in turn influence women, creating cognitive dissonance and perhaps distress for those with different …

Kiobel's Broader Significance: Implications For International Legal Theory, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

Disclosing Big Data, Michael Mattioli

Articles by Maurer Faculty

This Article reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries—from medicine, to energy, to online services. At the heart of this phenomenon are innovative and complex practices by which experts shape featureless digital records into valuable information products. The fact that these big data practices are unlikely to be widely disclosed to the public is worrisome for familiar reasons: the law generally prefers to induce technological disclosure in …

Cybersecurity And The Administrative National Security State: Framing The Issues For Federal Legislation, David G. Delaney

Articles by Maurer Faculty

In the digital age, every part of federal government has critical cybersecurity interests. Many of those issues are brought into sharp focus by Edward Snowden's disclosure of sensitive government cyber intelligence programs conducted by the National Security Agency, the Federal Bureau of Investigation, and the Central Intelligence Agency. Courts are reviewing various constitutional and statutory challenges to those programs, two government review groups have reported on related legal and policy issues, and Congress is considering cyber intelligence reform proposals. All of this action comes on the heels of significant efforts by successive administrations to restructure government and pass comprehensive cybersecurity …

Making The World In Atlanta's Image: The Student Nonviolent Coordinating Committee, Morris Abram, And The Legislative History Of The United Nations Race Convention, H. Timothy Lovelace

Articles by Maurer Faculty

No abstract provided.

Health Policy And The Syrian Chemical Weapons Crisis, David P. Fidler

Articles by Maurer Faculty

For health policy, armed conflicts constitute one of the most severe emergency contexts in which health, well-being, and determinants of health are threatened. The Syrian civil war has proved no different, as health experts re­peatedly lament the humanitarian debacle the Syrian conflict has become. The main distinguishing feature of the Syrian civil war has been the large-scale use of chemical weapons in August 2013. This essay analyzes the chemical weapons crisis and its diplomatic resolution from a health policy perspective, with particular attention on whether the handling of this crisis created positive health policy “spillover” opportunities for more effectively addressing …

Plugging Leaks And Lowering Levees In The Federal Government: Practical Solutions For Securities Trading Based On Political Intelligence, Donna M. Nagy, Richard Painter

Articles by Maurer Faculty

From its founding, the federal government of the United States has been a potential gold mine for nonpublic market-moving information. By selectively disclosing this information to securities traders outside the government (or to persons who advise them), federal officials can substantially privilege certain wealthy or otherwise well-connected investors over ordinary investors in the securities market. The trading profits that can be derived from the use of this material nonpublic government information are often tremendous.

This disparity of access to government information may be unfair. But absent an identifiable personal benefit on the part of the government insider, neither the selective …

Le Cyberspace, C'Est Moi?: Authoritarian Leaders, The Internet, And International Politics, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Human Capital Accounting, William D. Henderson

Articles by Maurer Faculty

No abstract provided.

The (Data Privacy) Law Hasn't Even Checked In When Technology Takes Off, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Taking Stock After Four Years, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.