Law Commons^™

Information Security Breaches And The Threat To Consumers, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Legal Restrictions On Transborder Data Flows To Prevent Government Access To Personal Data: Lessons From British Columbia, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Should Ideology Matter In Selecting Federal Judges? Ground Rules For The Debate, Dawn E. Johnsen

Articles by Maurer Faculty

A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging …

Reconsidering The Law Of Democracy: Of Political Questions, Prudence, And The Judicial Role, Luis Fuentes-Rohwer

Articles by Maurer Faculty

In Vieth v. Jubelirer, the U.S. Supreme Court seemed poised to offer the Court's definitive position on political gerrymandering questions. Yet the Court splintered along familiar lines and failed to offer a definitive answer. This Article focuses on the plurality opinion, and particularly its conclusion that judicially manageable standards are wanting in this area. This conclusion is implausible and masks the real question at the heart of the case. The Vieth plurality is best understood by examining the Court's political and prudential concerns, as cabined by the political question doctrine. One understanding is simply that the plurality is making a …

Health As Foreign Policy: Between Principle And Power, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Interpreting Conflicting Provisions Of The Nevada State Constitution, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

Migrating Towards Minority Status: Shifting European Policy Towards Roma, Timothy W. Waters, Rachel Guglielmo

Articles by Maurer Faculty

During the 1990s, European policy towards Roma evolved from concern about migration toward rhetoric about rights. In this article we trace that shift across two OSCE reports. Following rhetorical-action models, we show how the EU's commitment to enlargement and "common values" compelled it to elaborate an internal approach to minority protection. Concerns about migration persist, but Europe now has to consider how to integrate Roma as minorities.

Multicultural Lawyering: Teaching Psychology To Develop Cultural Self-Awareness, Carwina Weng

Articles by Maurer Faculty

Much of the current literature in multicultural lawyering focuses on learning substantive information about clients who are culturally different from the lawyer, such as how the client's culture perceives eye contact or reacts to science-based world views. This article notes that such a focus sidesteps the human reality that every person reacts to people who are different from him- or herself unconsciously in ways that may be culturally insensitive and discriminatory and that this human reaction occurs despite awareness of the general values, attitudes, and beliefs of the client's culture. It therefore suggests that multicultural lawyering training should begin with …

Teaching Tax Stories, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Evolution Of Rules In A Common Law System: Differential Litigation Of The Fee Tail And Other Perpetuities, Jeffrey E. Stake

Articles by Maurer Faculty

This paper presents a variation on the Rubin-Priest theory of the evolution of common law rules toward efficiency. It offers the fee tail and similar restraints on alienation as examples of how inefficient rules can lead to inefficient uses of land, which cause owners to seek the help of courts in freeing their lands from the inefficient constraints. In other words, there is a feedback loop that provides courts with opportunities to overturn inefficient common law rules. We should expect this common law drift toward efficiency to be stronger for property rules than for tort rules. Because efficient property rules …

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

The Significance Of National Wildlife Refuges In The Development Of U.S. Conservation Policy, Robert L. Fischman

Articles by Maurer Faculty

A retrospective of National Wildlife Refuge System conservation shows a promising trajectory. The system has overcome persistent neglect to contribute to conservation policy. Haltingly, it has kept pace with conservation science to remain the chief American contribution to large-scale wildlife protection. Early on, it pioneered the use of habitat acquisition to protect imperiled species. More recently, it has begun to implement the cutting-edge ecological mandate to maintain biological integrity, diversity, and environmental health. Perhaps the most meaningful feature of the history of the refuge system is how closely it mirrors the development of conservation policy in the twentieth century.

This …

Cooperative Federalism And Natural Resources Law, Robert L. Fischman

Articles by Maurer Faculty

Cooperative federalism describes an arrangement under which a national government induces coordination from subordinate jurisdictions, such as states and tribes, through incentives rather than requirements. In environmental law, cooperative federalism highlights the divide between pollution control and resource management. This article examines the divide from both sides.

Even though almost all of the environmental law commentary on cooperative federalism focuses exclusively on the pollution control side, the basic elements of cooperative federalism can be combined in a wider variety of forms than are recognized by most pollution control programs or scholarship. This article reviews the ways in which resource management …

Domesticating The Gerrymander: An Essay On Standards, Fair Representation, And The Necessary Question Of Judicial Will, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The U.S. Supreme Court has moved beyond its cautious intervention in Baker v. Carr and now firmly controls the law of democracy. Yet political gerrymandering questions so understood have traditionally proven difficult for the Court to examine properly. The recent Vieth v. Jubelirer is but a further example of this phenomenon. This Essay situates Vieth within the reapportionment revolution and ultimately concludes that the central question in gerrymandering cases is the question of judicial will and whether the Court will choose to exercise its power. This Essay closes with a cautionary note: in light of the Court's general performance in …

Charity, Publicity, And The Donation Registry, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Many Americans donate little or nothing to charity, but according to Robert Cooter and Brian Broughman, our social environment is the cause, not human nature. They propose a small policy change to increase transparency and elicit generosity inspired by experimental evidence about the nature of giving.

Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law And The Search For Solutions To Canadian-U.S. Transboundary Water Pollution Disputes, Austen L. Parrish

Articles by Maurer Faculty

In the 1930s, a privately owned smelting plant in Trail, Canada was the focus of the most famous case in international environmental law: the Trail Smelter Arbitration. But the subject of that landmark case has not gone away. Over the last seventy years, the Trail smelter dumped millions of tons of mercury, arsenic, and toxic waste into the Columbia River. The dumping's effects have been felt in neighboring Washington State, where the toxic discharges have caused environmental harm. In 2003, the EPA began investigating the Washington border area for designation as a Superfund (CERCLA) site, and controversially demanded that the …

Disaster Relief And Governance After The Indian Ocean Tsunami: What Role For International Law?, David P. Fidler

Articles by Maurer Faculty

The tsunami in the Indian Ocean at the end of 2004 has produced heightened scrutiny of how international disaster relief is supplied and governed. This scrutiny connects to arguments by the International Federation of Red Cross and Red Crescent Societies that more effective and efficient disaster relief requires the significant development of international law on disaster relief. This commentary analyses the historical and current relationship between international law and disaster relief and challenges the arguments that more international law on disaster relief is needed.

From International Sanitary Conventions To Global Health Security: The New International Health Regulations, David P. Fidler

Articles by Maurer Faculty

In May 2005, the World Health Organization adopted the new International Health Regulations (IHR), which constitute one of the most radical and far-reaching changes to international law on public health since the beginning of international health cooperation in the mid-nineteenth century. This article comprehensively analyses the new IHR by examining the history of international law on infectious disease control, the IHR revision process, the substantive changes contained in the new IHR and concerns regarding the future of the new IHR. The article demonstrates why the new IHR constitute a seminal event in the relationship between international law and public health …

The Asian Century: Implications For International Law, David P. Fidler

Articles by Maurer Faculty

Predictions that the 21st century will be the "Asian century" have sparked analytical interest from many disciplines but not international law. This article focuses on what implications "Asia rising" may have for international law in the 21st century. The article begins by looking at the 19th and 20th centuries as the European and American centuries respectively to assess the impact these centuries made on international law. The article then analyses possible meanings for an Asian century and frames such a century's implications for international law around the concept of a "Concert of Asia". The article argues that, through a "Concert …

Playing Peekaboo With Constitutional Law: The Pcaob And Its Public/Private Status, Donna M. Nagy

Articles by Maurer Faculty

This Article is the first to consider the constitutional status of the Public Company Accounting Oversight Board (PCAOB - pronounced by some as peekaboo). Congress created the PCAOB in 2002 to regulate the accounting profession in response to scandals at Enron, WorldCom, and other public companies. The Article argues that notwithstanding the PCAOB's congressional designation as a nonprofit corporation in the private sector, its governmental creation, governmental objectives, governmental powers, and governmentally appointed board members render it a public (or state) actor for purposes of constitutional law. The Article also analyzes the PCAOB from a policy perspective, and argues that …

Addressing Imperfections In The Tax System: Procedural Or Substantive Reform?, Leandra Lederman, Stephen W. Mazza

Articles by Maurer Faculty

In his book "Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich - and Cheat Everybody Else", David Cay Johnston, the Pulitzer Prize-winning reporter for the New York Times, covers a wide array of topics, including some that are quite complex, in a very readable way. The federal income tax system generally and tax compliance in particular are important focuses of the book, but the theme that implicitly connects chapters that otherwise appear unrelated is a variety of aspects of income inequality.

Although "Perfectly Legal" does not make a clear case that politicians and …

European Governance: Executive And Administrative Powers Under The New Constitutional Settlement, Paul Craig

Articles by Maurer Faculty

No abstract provided.

An Idea Whose Time Should Never Have Come, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

Hail To The Chief: Former Law Clerks For William Rehnquist Recall What They Learned And How He Touched Their Lives, Craig M. Bradley, Laura E. Little, John C. Englander, Celestine Richards Mcconville

Articles by Maurer Faculty

Chief Justice William H. Rehnquist, who died Sept. 3, is remembered for his disarming warmth and humor, breadth of knowledge about the law, and insistence that there is life outside the office. Few knew him better than the legions of clerks who tolled with and learned from him. Indeed, the sheer number who attended his funeral testifies to how highly he was regarded. Here, four former clerks from the decades of the 1970s, '80s and '90s write about their own particular memories of the late chief justice.

Preventive Use Of Force: The Case Of Iraq, Feisal Amin Istrabadi, Henry Bienen, Jan Wouters, David Hannay

Articles by Maurer Faculty

No abstract provided.

The Report Of The U.N. High-Level Panel And The Use Of Force In Iraq In 2003, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Reviving Constitutionalism In Iraq: Key Provisions Of The Transitional Administrative Law, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Virtual Property, Joshua Fairfield

Articles by Maurer Faculty

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - that is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Institutional Structure: A Delicate Balance, Paul Craig

Articles by Maurer Faculty

No abstract provided.

A Dedication To Dean Joseph P. Tomain: Educator, Scholar, And Leader, Donna M. Nagy, Barbara G. Watts

Articles by Maurer Faculty

No abstract provided.