Law Commons^™

A Principled Defence Of The International Human Right To Privacy: A Response To Frédéric Sourgens, Asaf Lubin

Articles by Maurer Faculty

Part I offers a brief summary of Sourgens’ key arguments and his legal rationales for them. Part II pushes against the existence of a general privacy principle. This Part challenges both the methodology employed by Sourgens to identify this principle, as well as the practicality of the overall endeavor. Part III makes the case for an extraterritorial right to privacy under both treaty and customary international law. This Part further analyzes recent successes of IHRL in fighting against unwarranted surveillance, and concludes by providing counter-arguments to the concerns raised by Sourgens regarding the effectiveness of the human rights discourse in …

Pavan V. Smith: Equality For Gays And Lesbians In Being Married, Not Just Getting Married, Steve Sanders

Articles by Maurer Faculty

No abstract provided.

Constructing Citizenship Through War In The Human Rights Era, Timothy W. Waters

Articles by Maurer Faculty

War's historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war - as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights - an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept …

Why A State-Level Carbon Tax Can Include Border Adjustments, David Gamage, Darien Shanske

Articles by Maurer Faculty

This is our third in a series of articles considering taxation and greenhouse gas mitigation. To date, all state-level attempts to mitigate greenhouse gas emissions by placing a price on carbon have involved cap-and-trade regimes. In our previous two articles, we considered how importing tax features into a cap and- trade regime could ease distributive concerns and also make cap-and-trade regimes more efficient.

Ceo Side Payments In Mergers And Acquisitions, Brian J. Broughman

Articles by Maurer Faculty

In addition to golden parachutes, CEOs often negotiate for personal side-payments in connection with the sale of their firm. Side-payments differ from golden parachutes in that they are negotiated ex post in connection with a specific acquisition proposal, whereas golden parachutes are part of the executive’s employment agreement negotiated when she is hired. While side-payments may benefit shareholders by countering managerial resistance to an efficient sale, they can also be used to redistribute merger proceeds to management. The current article highlights an overlooked distinction between pre-merger golden parachutes and merger side-payments. Similar to a legislative rider attached to a popular …

Transforming Election Cybersecurity, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Laws, Norms, And The Institutional Analysis And Development Framework, Daniel H. Cole

Articles by Maurer Faculty

Elinor Ostrom’s Institutional Analysis and Development (IAD) framework has been described as ‘one of the most developed and sophisticated attempts to use institutional and stakeholder assessment in order to link theory and practice, analysis and policy’. But not all elements in the framework are sufficiently well developed. This paper focuses on one such element: the ‘rules-in-use’ (a.k.a. ‘rules’ or ‘working rules’). Specifically, it begins a long-overdue conversation about relations between formal legal rules and ‘working rules’ by offering a tentative and very simple typology of relations. Type 1: Some formal legal rules equal or approximate the working rules; Type 2: …

The Human Side Of Public-Private Partnerships: From New Deal Regulation To Administrative Law Management, Alfred C. Aman, Joseph C. Dugan

Articles by Maurer Faculty

During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms, establishing independent agencies, and empowering them to shape and enforce pragmatic industrial policies. Twenty-first century regulation looks strikingly different from the New Deal vision. While New Deal agencies continue to perform some regulatory functions, market approaches have replaced many traditional command-and-control formulations, with private entities stepping in to perform tasks historically reserved to government.

Though government-by-contract is becoming the new normal, neither the Administrative Procedure Act ("APA") nor many of its state equivalents provide adequate guidance to ensure that individual rights are protected and democratic …

Using Taxes To Support Multiple Health Insurance Risk Pools, David Gamage, Darien Shanske

Articles by Maurer Faculty

In most markets, it is considered desirable for consumers to have more choices. But health insurance regulation is different. When it comes to health insurance, giving consumers more choices can result in the market collapsing — leaving the sickest and most needy consumers without any good choices at all. To mitigate this problem, the Affordable Care Act’s Exchanges were designed around maintaining a single exchange-based risk pool. However, one problem with this approach taken by the Affordable Care Act is that the regulations designed to maintain the single exchange-based risk pool have the side effect of limiting some potentially positive …

The Data-Pooling Problem, Michael Mattioli

Articles by Maurer Faculty

American innovation policy as expressed through intellectual property law contains a curious gap: it encourages individual research investments, but does little to facilitate cooperation among inventors, which is often a necessary precondition for innovation. This Article provides an in-depth analysis of a policy problem that relates to this gap: increasingly, public and private innovation investments depend upon the willingness of private firms and institutions to cooperatively pool industrial, commercial, and scientific data. Data holders often have powerful disincentives to cooperate with one another, however. As a result, important research that the federal government has sought to encourage through intellectual property …

What Do Indiana Law Schools Do For Students In Need?, Inge Van Der Cruysse

Articles by Maurer Faculty

No abstract provided.

The American Health Care Act Would Toss The States A Hot Potato, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay explains how the American Health Care Act (AHCA) – the House Republicans’ proposed replacement for Obamacare – would toss a hot potato to state governments. Were the AHCA to be enacted into law, state governments would need to act promptly if they are to save individual insurance markets within their states. This essay explains measures that state governments might take to respond to this threat.

Changing The Culture Of Disclosure And Forensics, Valena Beety

Articles by Maurer Faculty

This Essay responds to Professor Brandon Garrett’s Constitutional Regulation of Forensic Evidence, and, in particular, his identification of the dire need to change the culture of disclosing forensic evidence. My work on forensics is—similarly to Garrett’s—rooted in both scholarship and litigation of wrongful convictions. From this perspective, I question whether prosecutors fully disclose forensics findings and whether defense attorneys understand these findings and their impact on a client’s case. To clarify forensic findings for the entire courtroom, this Essay suggests increased pre-trial discovery and disclosure of forensic evidence and forensic experts. Forensic analysts largely work in police-governed labs; therefore, this …

How States Can Respond To The Ahca: Using The Mccarran-Ferguson Act, David Gamage, Darien Shanske

Articles by Maurer Faculty

No abstract provided.

Benchmark Regulation, Gina-Gail S. Fletcher

Articles by Maurer Faculty

Benchmarks are metrics that are deeply embedded in the financial markets. They are essential to the efficient functioning of the markets and are used in a wide variety of ways-from pricing oil to setting interest rates for consumer lending to valuing complex financial instruments. In recent years, benchmarks have also been at the epicenter of numerous, multi-year market manipulation scandals. Oil traders, for example, deliberately execute trades to drive benchmarks lower artificially, allowing the traders to capitalize on the manipulated benchmarks. This ensures that later trades relying on the benchmarks will be more profitable than they otherwise would have been. …

End Of The Racial Age: Reflections On The Changing Racial And Ethnic Ancestry Of Blacks On Affirmative Action, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

The Polycentric Turn: A Case Study Of Kenya's Evolving Legal Regime For Irrigation Waters, Daniel H. Cole, Stefan Carpenter, Elizabeth Baldwin

Articles by Maurer Faculty

Formal legal systems comprise a major part, but not the only part, of the “rules of the game” that structure social and social-ecological interactions. Throughout the twentieth century, centralization and consolidation of legal authority were dominant themes among many, if not all, legal systems. That process may have been successful in some cases, but in others the presumed economies of scale from consolidation and centralization either did not materialize or were offset by other social costs, including the failure to accommodate local knowledge, expertise, and preferences. In what could become a theme of the twenty-first century, many countries, including developing …

Determining The Territorial Scope Of State Law In Interstate And International Conflicts: Comments On The Draft Restatement (Third) And On The Role Of Party Autonomy, Hannah L. Buxbaum

Articles by Maurer Faculty

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used …

Consumer Credit In America: Past, Present, And Future, Pamela Foohey, Jim Hawkins, Creola Johnson, Nathalie Martin

Articles by Maurer Faculty

In September 2016, in conjunction with Law & Contemporary Problems at Duke University School of Law, we organized a symposium on Consumer Credit in America. We sought to assess the state of consumer credit in America — to review and examine its recent history, to consider arguments for and against regulation, and to discuss the potential for future innovation. This is the introduction to the volume of articles coming out of that symposium.

Calling On The Cfpb For Help: Telling Stories And Consumer Protection, Pamela Foohey

Articles by Maurer Faculty

Since it began operating in 2011, the Consumer Financial Protection Bureau (CFPB) has handled more than a million complaints regarding consumer financial product and services. Beginning in June 2015, the CFPB began publishing consumers’ narratives submitted with their complaints. This Article analyses a random sample of 5,000 of these narratives to assess how people engage with the complaint mechanism in light of the CFPB’s role in processing complaints. I find that people predominately use the complaint function for two distinct purposes: to express their anger and frustration about companies’ practices, or to express sadness and fear about how companies’ practices …

Discovering Forensic Fraud, Jennifer Oliva, Valena Beety

Articles by Maurer Faculty

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

No abstract provided.

President Trump, Trade Policy, And American Grand Strategy: From Common Advantage To Collective Carnage, David P. Fidler

Articles by Maurer Faculty

As a candidate for president of the United States, Donald J. Trump promised to abandon longstanding U.S. approaches to trade and pursue strategies anchored in protectionism and nationalism. This article examines President Trump’s trade policy ideas and proposals and highlights the extent to which he intends to disrupt traditions of U.S. policymaking on trade. The article also analyzes whether domestic and international politics might shift the Trump administration away from a radical approach back towards trade policies that approximate how the United States has managed trade for decades. If such a shift does not occur, the Trump administration’s trade policy …

Thinking On Your Feet: Reflections Of A First-Time Online Instructor, Ashley A. Ahlbrand

Articles by Maurer Faculty

Online education continues to rise in popularity for both undergraduate and graduate education. Among the reasons commonly stated for this preference is flexibility, both of time and location. It came as little surprise, therefore, when our Law Library’s long-term proposal to develop an online advanced legal research course found itself on the fast track. This article will discuss the process we went through to develop this course, the end result, and the lessons learned along the way.

A State-Level Carbon Tax With Border Adjustments, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay develops three new doctrinal arguments in support of the conclusion that a state-level carbon tax with border adjustments should be permissible under the dormant commerce clause. This essay builds on our prior work to argue against the view that a single state cannot (practically) impose a significant carbon tax due to the claim that border tax adjustments are Constitutionally impermissible. By demonstrating how a state government could implement a carbon tax with border tax adjustments in a Constitutionally permissible fashion, this essay shows that levying a carbon tax is a realistic and practical option for U.S. state governments. …

Tax Cannibalization And Fiscal Federalism In The United States, David Gamage, Darien Shanske

Articles by Maurer Faculty

We began this project pondering a riddle. Most state governments have adopted what we-and many others-view as clearly suboptimal tax policies, especially in regard to the taxation of corporate income and capital gains. Yet, with the notable exception of those who oppose progressivity and the taxation of capital, state-level tax policymakers have had remarkably little appetite for reform.

This Article provides one major explanation for this riddle by identifying and demonstrating a phenomenon that we label as "tax cannibalization." We argue that flawed state-level tax policies derive in part from perverse incentives inadvertently created by the federal government.

Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, Steve Sanders

Articles by Maurer Faculty

To survive rational basis scrutiny under the Equal Protection Clause, a law must serve a governmental purpose which is at least legitimate. It is well established that legitimate purposes can sometimes be found through speculation and conjecture-that is, they may be hypothesized-in order to avoid the difficulties of identifying actual purpose or the specter of courts second-guessing legislative judgments. But hypothesized purposes can be abused, and such abuse was rampant in the states' defenses of their bans on same-sex marriage, bans which were ultimately invalidated in Obergefell v. Hodges.

This Article draws on the federal marriage litigation as a lens …

After The Override: An Empirical Analysis Of Shadow Precedent, Deborah A. Widiss, Brian J. Broughman

Articles by Maurer Faculty

Congressional overrides of prior judicial interpretations of statutory language are typically de­fined as equivalent to judicial overrulings, and they are presumed to play a central role in maintaining legislative supremacy. Our study is the first to empirically test these assumptions. Using a differences-in-differences research design, we find that citation levels decrease far less after legislative overrides than after judicial overrulings. This pattern holds true even when controlling for depth of the superseding event or considering only the specific proposition that was superseded. Moreover, contrary to what one might expect, citation levels decrease more quickly after restorative overrides—in which Congress repudiates …

The Interaction Of The Pregnancy Discrimination Act And The Americans With Disabilities Act After Young V. Ups, Deborah A. Widiss

Articles by Maurer Faculty

Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under …

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …