Law Commons^™

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Eugenics, Jim Crow, And Baltimore's Best, Garrett Power

Faculty Scholarship

No abstract provided.

Current Trends In Consumer Junk Debt Buyer Litigation, Peter Holland

Faculty Scholarship

No abstract provided.

Gender And The Structural Constitution, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg

Faculty Scholarship

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland …

The "Nature" Of Legal Dispute Bargaining, Robert J. Condlin

Faculty Scholarship

The longstanding debate over the relative merits of adversarial and communitarian theories of legal dispute bargaining has been in somewhat of a holding pattern for several years, but recent research in the field of cognitive neuroscience may break the logjam. Laboratory experiments and case studies in that field have shown how dispositions and capacities for social cooperation inherited from natural selection and evolution predispose humans to configure disputing as a mixture of argument over factual reality, disagreement over the interpretation of normative standards, and a search for impartial resolutions that protect the interests of everyone involved equally. This neurobiological inheritance …

Stopping Deceptive Health Claims: The Need For A Private Right Of Action Under Federal Law, Diane Hoffmann, Jack Schwartz

Faculty Scholarship

This is the accepted version of the article. The final published version is available at

https://journals.sagepub.com/doi/abs/10.1177/0098858816644715

Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones

Faculty Scholarship

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis …

The Restorative Workplace: An Organizational Learning Approach To Discrimination, Deborah Thompson Eisenberg

Faculty Scholarship

On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach—restorative practices—that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices engage everyone in …

Reflections On "Innovations In Family Dispute Resolution", Deborah Thompson Eisenberg

Faculty Scholarship

No abstract provided.

Standing In The Judge’S Shoes: Exploring Techniques To Help Legal Writers More Fully Address The Needs Of Their Audience, Sherri Keene

Faculty Scholarship

No abstract provided.

The Target Method For Partnership Special Allocations And Why It Should Be Safe-Harbored, Daniel S. Goldberg

Faculty Scholarship

The Treasury Regulations’ concept of “substantial economic effect” is the holy grail of partnership special allocations. Special allocations that have substantial economic effect will come within a safe harbor in the regulations and have assurance that the allocations that are provided in the partnership agreement will be respected. In order for the allocations to come within the substantial economic effect safe harbor, the partnership must (1) maintain capital accounts in accordance with the Treasury Regulations’ standard; (2) provide for liquidation in accordance with capital accounts in all events; and (3) either (a) provide for a deficit restoration obligation (DRO) on …

Disciplining Corporate Boards And Debtholders Through Targeted Proxy Access, Michelle M. Harner

Faculty Scholarship

Corporate directors committed to a failed business strategy or unduly influenced by the company’s debtholders need a dissenting voice—they need shareholder nominees on the board. This article examines the bias, conflicts, and external factors that impact board decisions, particularly when a company faces financial distress. It challenges the conventional wisdom that debt disciplines management, and it suggests that, in certain circumstances, the company would benefit from having the shareholders’ perspective more actively represented on the board. To that end, the article proposes a bylaw that would give shareholders the ability to nominate directors upon the occurrence of predefined events. Such …

How Criminal Law Can Help Save The Environment, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Helping Our Students Reach Their Full Potential: The Insidious Consequences Of Stereotype Threat, Russell A. Mcclain

Faculty Scholarship

No abstract provided.

Inheritance Law And The Marital Presumption After Obergefell, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Drinking From The Data Well: Response To Gamete Donor Anonymity And Limits On Numbers Of Offspring: The Views Of Three Stakeholders, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Access To Essential Medicines In African Countries: An Introduction, Peter G. Danchin, Diane Hoffmann

Faculty Scholarship

No abstract provided.

Exceptional And Universal? Religious Freedom In American International Law, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Two Narratives Of Platform Capitalism, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

First Amendment Freeze Play: Bennett'S Strategy For Entrenching Inequality, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Democratizing Higher Education: Defending And Extending Income-Based Repayment Programs, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

Platform Neutrality: Enhancing Freedom Of Expression In Spheres Of Private Power, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Une Nouvelle Course Aux Armements: Surveillance Des Donnees Informatiques Et Finance Dematerialisee (Big Data, Digital Finance, And The Surveillance Arms Race), Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Law And Economics: Contemporary Approaches, Martha T. Mccluskey, Frank A. Pasquale, Jennifer Taub

Faculty Scholarship

No abstract provided.

Book Review: Automating The Professions: Utopian Pipe Dream Or Dystopian Nightmare?, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Market Myth And Pay Disparity In Legal Academia, Paula A. Monopoli

Faculty Scholarship

No abstract provided.