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University of Maryland Francis King Carey School of Law

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Full-Text Articles in Law

Anonymous Companies, William J. Moon Jan 2022

Anonymous Companies, William J. Moon

Faculty Scholarship

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies ...


Feminist Legal History And Legal Pedagogy, Paula A. Monopoli Jan 2022

Feminist Legal History And Legal Pedagogy, Paula A. Monopoli

Faculty Scholarship

Women are mere trace elements in the traditional law school curriculum. They exist only on the margins of the canonical cases. Built on masculine norms, traditional modes of legal pedagogy involve appellate cases that overwhelmingly involve men as judges and advocates. The resulting silence signals that women are not makers of law—especially constitutional law. Teaching students critical modes of analysis like feminist legal theory and critical race feminism matters. But unmoored from feminist legal history, such critical theory is incomplete and far less persuasive. This Essay focuses on feminist legal history as foundational if students are to understand the ...


Environmental Enforceability, Seema Kakade Jan 2022

Environmental Enforceability, Seema Kakade

Faculty Scholarship

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so, it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance ...


Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli Jan 2022

Gender, Voting Rights, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that “there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment.” This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it ...


Mental Health Care And Intimate Partner Violence: Unasked Questions, Delaney E. Anderson, Richard C. Boldt Jan 2022

Mental Health Care And Intimate Partner Violence: Unasked Questions, Delaney E. Anderson, Richard C. Boldt

Faculty Scholarship

There is significant overlap between the group of people who experience trauma, including domestic or intimate partner violence, and those who are hospitalized for severe mental illness. In recent years there has been a growing awareness in the mental health treatment community of the prevalence of trauma among individuals with behavioral health problems. Despite the strong evidence of elevated rates of exposure to domestic or intimate partner violence among individuals experiencing mental illness (including depression, anxiety, and posttraumatic stress disorder), mental health professionals often do not effectively address this co-occurring factor in assessing and treating their clients or patients. The ...


Getting Real: The Maryland Healthcare Ethics Committee Network’S Covid‑19 Working Group Debriefs Lessons Learned, Norton Elson, Howard Gwon, Diane Hoffmann, Adam M. Kelmenson, Ahmed Khan, Joanne F. Kraus, Casmir C. Onyegwara, Gail Povar, Fatima Sheikh, Anita J. Tarzian Jan 2021

Getting Real: The Maryland Healthcare Ethics Committee Network’S Covid‑19 Working Group Debriefs Lessons Learned, Norton Elson, Howard Gwon, Diane Hoffmann, Adam M. Kelmenson, Ahmed Khan, Joanne F. Kraus, Casmir C. Onyegwara, Gail Povar, Fatima Sheikh, Anita J. Tarzian

Faculty Scholarship

No abstract provided.


Revitalizing Greenhouse Gas Permitting Inside A Biden Epa, Matt Haber, Seema Kakade Jan 2021

Revitalizing Greenhouse Gas Permitting Inside A Biden Epa, Matt Haber, Seema Kakade

Faculty Scholarship

No abstract provided.


Disposable Lives: Covid-19, Vaccines, And The Uprising, Matiangai Sirleaf Jan 2021

Disposable Lives: Covid-19, Vaccines, And The Uprising, Matiangai Sirleaf

Faculty Scholarship

Two French doctors appeared on television and publicly discussed potentially utilizing African subjects in experimental trials for a tuberculosis vaccine as an antidote to the novel coronavirus (COVID-19). Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organization (WHO), denounced these kinds of racist remarks as a “hangover from ‘colonial mentality’” and maintained that “Africa can’t and won’t be a testing ground for any vaccine.” The fallout on social media was similarly swift, with Samuel Eto’o, a Cameroonian football legend, referring to the doctors as “[d]es assasins” and several others questioning the motives behind testing a ...


Delaware's Global Competitiveness, William J. Moon Jan 2021

Delaware's Global Competitiveness, William J. Moon

Faculty Scholarship

For about a hundred years, Delaware has been the leading jurisdiction for corporate law in the United States. The state, which deliberately embarked on a mission to build a haven for corporate law in the early twentieth century, now supplies corporate charters to over two thirds of Fortune 500 companies and a growing share of closely held companies. But Delaware’s domestic dominance masks the important and yet underexamined issue of whether Delaware maintains its competitive edge globally.

This Article examines Delaware’s global competitiveness, documenting Delaware’s surprising weakness competing in the emerging international market for corporate charters. It ...


Environmental Enforceability, Seema Kakade Jan 2021

Environmental Enforceability, Seema Kakade

Faculty Scholarship

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump Administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance ...


Contract's Influence On Feminism And Vice Versa, Martha M. Ertman Jan 2021

Contract's Influence On Feminism And Vice Versa, Martha M. Ertman

Faculty Scholarship

Feminist legal theory has both embraced and rejected contract. While contract-based conceptual and doctrinal tools have improved women’s economic and social status, feminists also critique contract-based reforms for colluding with hierarchies of gender, race and class. This chapter charts influential work on both sides of the contract debate and identifies a third approach that sees contract as a mechanism for law to move away from a hierarchal regime by stopping at a contractual way station en route to a more equal system of public ordering. It concludes by identifying ways that feminist legal theorists have injected feminist insights into ...


Junk Science At Sentencing, Maneka Sinha Jan 2021

Junk Science At Sentencing, Maneka Sinha

Faculty Scholarship

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at ...


Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt Jan 2021

Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt

Faculty Scholarship

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches ...


Modeling Narrowest Grounds, Maxwell Stearns Jan 2021

Modeling Narrowest Grounds, Maxwell Stearns

Faculty Scholarship

The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”

The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not apply; (2 ...


Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt Jan 2021

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that ...


Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr. Feb 2020

Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr.

Faculty Scholarship

This article is about ethics-focused, law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two).

The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to ...


Race Decriminalization And Criminal Legal System Reform, Michael Pinard Jan 2020

Race Decriminalization And Criminal Legal System Reform, Michael Pinard

Faculty Scholarship

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system ...


The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin Jan 2020

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.


Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin Jan 2020

Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin

Faculty Scholarship

No abstract provided.


Navigating The Backlash Against Global Law And Institutions, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Shruti Rana, Imogen Saunders, Daan Verhoeven Jan 2020

Navigating The Backlash Against Global Law And Institutions, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Shruti Rana, Imogen Saunders, Daan Verhoeven

Faculty Scholarship

No abstract provided.


The Pandemic Paradox In International Law, Peter G. Danchin, Jeremy Farrall, Shruti Rana, Imogen Saunders Jan 2020

The Pandemic Paradox In International Law, Peter G. Danchin, Jeremy Farrall, Shruti Rana, Imogen Saunders

Faculty Scholarship

No abstract provided.


Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg Jan 2020

Beyond Settlement: Reconceptualizing Adr As “Conflict Process Strategy”, Deborah Thompson Eisenberg

Faculty Scholarship

“Alternative dispute resolution” or “ADR” has reached a paradoxical moment: it is both ubiquitous in practice and at risk of extinction as a distinct concept and field. As the ADR field nears middle age—nearly fifty years after the Pound Conference of 1976—“ADR” has become so popular in name, fractured in practice, and jumbled in theory that it risks a metaphorical genericide, a concept in trademark law when a product name is used to refer to so many things (incorrectly) that it becomes “generic” and confusing. Analogously, the name “ADR” has been applied to so many different processes and ...


Race, Surveillance, Resistance, Chaz Arnett Jan 2020

Race, Surveillance, Resistance, Chaz Arnett

Faculty Scholarship

The increasing capability of surveillance technology in the hands of law enforcement is radically changing the power, size, and depth of the surveillance state. More daily activities are being captured and scrutinized, larger quantities of personal and biometric data are being extracted and analyzed, in what is becoming a deeply intensified and pervasive surveillance society. This reality is particularly troubling for Black communities, as they shoulder a disproportionate share of the burden and harm associated with these powerful surveillance measures, at a time when traditional mechanisms for accountability have grown weaker. These harms include the maintenance of legacies of state ...


Remedial Payments In Agency Enforcement, Seema Kakade Jan 2020

Remedial Payments In Agency Enforcement, Seema Kakade

Faculty Scholarship

During the Obama Administration, the government settled many enforcement cases involving alleged violations of the nation’s federal statutes. The settlements have several requirements, including that the defendants pay money for beneficial projects to mitigate or offset harm directly or indirectly caused by defendant’s actions. For example, the government settled an environmental enforcement case against Volkswagen that included payments for environmental projects, and a mortgage enforcement case against Bank of America that included payments for housing education projects. These payments have spawned renewed criticism amongst conservative groups who have long claimed that payments for projects are mechanisms for agencies ...


Detecting Corporate Environmental Cheating, Seema Kakade, Matt Haber Jan 2020

Detecting Corporate Environmental Cheating, Seema Kakade, Matt Haber

Faculty Scholarship

As evidenced by the Volkswagen diesel emissions scandal, corporations cheat on environmental regulations. Such scandals have created a surge in the academic literature in a wide range of areas, including corporate law, administrative law, and deterrence theory. This article furthers that literature by focusing on one particular area of corporate cheating—the ability to learn of the cheating in the first place. Detecting corporate cheating requires significant information about corporate behavior, activity, and output. Indeed, most agencies have broad statutory authority to collect such information from corporations, through targeted records requests, and inspection. However, authority is different from ability. The ...


Delaware's New Competition, William J. Moon Jan 2020

Delaware's New Competition, William J. Moon

Faculty Scholarship

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector ...


Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin Jan 2020

Adr: Disputing With A Modern Face, Or Bargaining For The Bargain Impaired?, Robert J. Condlin

Faculty Scholarship

The Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find ...


Women, Democracy, And The Nineteenth Amendment, Paula A. Monopoli Jan 2020

Women, Democracy, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

This paper explores the status of women’s participation in our democracy, in response to both the commemoration of the Nineteenth Amendment’s centennial and the deep misogyny aimed at women holding formal political power during the current pandemic. The paper explores the connection between constitutional design and the level of women's participation in democratic governance. It suggests that the robust participation of women in our democracy is not only morally right, but that such parity is central to both the legitimacy of the state and its continued existence. The paper begins by describing the state of women’s ...


Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale Jan 2019

Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale

Faculty Scholarship

Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of ...


Regulating Offshore Finance, William J. Moon Jan 2019

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the ...