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Hearsay And The Confrontation Clause (2017), Lynn Mclain

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This material is a part of a lecture delivered at the Maryland Judicial Center on May 11, 2017. It is an update of previous versions available at the following locations:

2016: http://scholarworks.law.ubalt.edu/all_fac/955/

2012: http://scholarworks.law.ubalt.edu/all_fac/924/

The material is a series of flowcharts that explain the nuances of hearsay law and the confrontation clause under Maryland law.

The Elective Share Has No Friends: Creditors Trump Spouse In The Battle Over The Revocable Trust, Angela M. Vallario

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A revocable trust is a popular estate planning tool used to disinherit a spouse in sixteen jurisdictions. In common law jurisdictions, a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent's estate regardless of the decedent's estate plan. However, sixteen jurisdictions have defined a dissatisfied spouse's rights with a fractional share of the deceased spouse's "net probate estate," allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these common law jurisdictions have …

Hearsay And The Confrontation Clause, Lynn Mclain

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This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …

Causation In Whistleblowing Claims, Nancy M. Modesitt

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Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers. But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of …

Maryland's Family Divisions Are A Model For Change, Barbara A. Babb, Gloria Danziger, Michele H. Hong-Polansky

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In fiscal year 2014, 43 percent of all cases filed in Maryland’s trial court of general jurisdiction (the circuit court) were family law cases (Court Operations Department, 2014: CC-5). Historically, Maryland courts, like many states’ family justice systems, lacked a uniform structure to consolidate family law issues for an individual family. As a result, families often faced multiple hearings before different judges in different courtrooms to address a variety of issues, such as divorce, domestic violence, delinquency, and child abuse/neglect. This system created tremendous hardship for families (particularly low-income families, many of whom were self-represented litigants) and resulted in fragmented …

Building Community, Still Thirsty For Justice: Supporting Community Development Efforts In Baltimore, Renee Hatcher, Jaime Alison Lee

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Baltimore is a city of many challenges, but it possesses true communitybased strength. The city’s residents and community organizations are its greatest assets. This article highlights some of the community’s work and how the Community Development Clinic at the University of Baltimore School of Law (CDC) supports this work through its experiential learning curriculum.

The challenges facing Baltimore’s communities (systemic disinvestment, structural racism, vacant buildings, unemployment, and the criminalization of poverty, to name a few) existed long before the national media coverage and uprising surrounding the death of Freddie Gray, an unarmed Black man who suffered a fatal spinal injury …

How The Right To Speedy Trial Can Reduce Mass Pretrial Incarceration, Zina Makar

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Kenny Johnson1 was thirty-two years old when he was released from a Baltimore City jail— almost three years after his arrest in October 2012. Johnson was not serving a sentence, but these three years were spent under pretrial detention. He had been denied bail. Johnson’s case was a rollercoaster of delays and uncertainty, particularly towards the end of his pretrial incarceration. The need for certainty convinced Johnson to plead guilty—he could not stand knowing that his pretrial incarceration could be indefinite and he wanted to be sure he was going home, guilty or not guilty.

Between the time he was …

Government Internet Resources: Federal, State And Local, David E. Matchen Jr.

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This presentation discusses the basic outlines of federal legal research as well as state and local legal research. Discussion of state and local legal research is limited to Maryland, but many states have comparable systems.

Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt

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This Article was originally intended to be an analysis of the propriety, or impropriety, of the doctrines most commonly used by courts to decide employees’ whistleblowing retaliation claims against employers. However, upon conducting initial research, it quickly became apparent that there was very little data available on whistleblowing cases. Unlike employment discrimination cases, where several empirical studies have been conducted, there is only one empirical analysis of whistleblower claims, which focused solely on outcomes in the federal administrative process for claims brought under the Sarbanes-Oxley Act (SOX). That study revealed that whistleblowers fare poorly for a number of reasons, but …

New Options For State Indirect Purchaser Legislation: Protecting The Real Victims Of Antitrust Violations, Robert H. Lande

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In Illinois Brick v. Illinois Co., the Supreme Court held that, under federal antitrust law, only direct purchasers have standing to sue antitrust violators for damages. Since most products travel through one or more intermediaries before reaching consumers, this decision left most true victims of illegal cartels and other antitrust violations without a remedy to compensate them. Illinois Brick Co. also had the effect of undermining the objective of optimal deterrence of antitrust violations-because direct purchasers often have a suboptimal incentive to sue, the Court's decision often allows violators to escape paying significant damages. For this reason firms are insufficiently …

Office Politics: Hiring And Firing Government Lawyers, Gilda R. Daniels

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In September of 2009, the U.S. Department of Justice (DOJ) announced that it would not prosecute former DOJ Civil Rights Division official Bradley Schlozman for alleged false statements made during his congressional testimony about personnel actions at DOJ. As many government lawyers will remember, a July 2, 2008, report of the DOJ Office of Professional Responsibility and Office of the Inspector General (hereinafter, the IG's report) found that Schlozman had violated the Civil Service Reform Act when he "considered political and ideological affiliations in hiring career attorneys and other personnel actions affecting career attorneys in the Civil Rights Division." Often …

Operatively White: Exploring The Significance Of Race And Class Through The Paradox Of Black Middle-Classness, Audrey Mcfarlane

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The black–white paradigm has been the crucial paradigm in racial geography of land use, housing and development. Yet it is worthwhile to consider that, in this context, distinctions based on race are accompanied by a powerful, racialized discourse of middle class versus poor. The black–white paradigm in exclusionary zoning, for example, involves the wealthy or middle-class white person (we need not even use the term white) protesting against or displacing the poor black person. (we also need not even use the term black). Another example of the racialized discourse of middle class versus poor is in the urban-gentrification context. The …

Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane

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The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today's cities: complex, fundamental disagreements between market and community about Development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In particular, how should we address the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory …

Pro-Gun Scholars Twist Constitution, Kenneth Lasson

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Earlier this year, the Court of Appeals for the District of Columbia became the first federal tribunal to strike down a local gun-control law, holding that the Founding Fathers would have allowed all private citizens to arm themselves.

Putting The "Public" Back Into Public-Private Partnerships For Economic Development, Audrey Mcfarlane

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Public-Private Partnerships are viewed quite positively. In the context of working with local government for economic development, the interests and concerns of the private appear to dominate the development decision-making. This Essay explores eminent domain decisions and community benefits agreements for standards for measuring the efficacy of these partnerships. It suggests ways in which we can begin to think about public accountability and public benefits to be derived from these partnerships.

Wrongful Discharge: The Use Of Federal Law As A Source Of Public Policy, Nancy M. Modesitt

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Wrongful discharge in violation of public policy circumscribes the employment at-will doctrine by prohibiting employers from firing employees who engage in conduct that is deemed to be protected by state or federal public policy. While much has been written about the pros and cons of such wrongful discharge claims, to date no scholarship has focused on the problems that arise when the source of public policy is a federal rather than state statute. This article analyzes the historical and current approaches to the use of federal statutes as a source of public policy to protect employees against discharge, concluding that …

Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner

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The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.

Who Fits The Profile?: Thoughts On Race, Class, Clusters And Redevelopment, Audrey Mcfarlane

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This essay shifts the discussion of gentrification and redevelopment to consider the mechanics of exclusion in the formulation and operation of today's commercial retail shopping venues typically included in today's urban redevelopment projects. In particular the essay discusses the exclusionary implications of geo-demographic cluster classification systems that use race and class to construct profiles of desirable customers for urban redevelopment schemes.

The New Inner-City: Class Transformation, Concentrated Affluence And The Obligations Of The Police Power, Audrey Mcfarlane

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This article examines the role of local government in the process of urban spatial restructuring (gentrification). In light of the disparate needs and competing interests of different racial and socioeconomic groups seeking a place in the city, there are limits to local government's ability to facilitate redevelopment projects that deliberately aim to accomplish class transformation and exclusively reconfigure the inner city for the affluent. These limits exist by virtue of implied obligations of the police power.

Redevelopment And The Four Dimensions Of Class In Land Use, Audrey Mcfarlane

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This essay begins with the proposition that the battle over the exercise of eminent domain as a question of the extent to which we accept local economic development as a proper exercise of local governmental authority. In light of the reality that economic development seeks to accomplish redevelopment to meet the social needs and consumption tastes of the affluent, the issue of local governments' autonomy to engage in redevelopment for economic development purposes is suffused with socioeconomic class struggles over land use. Therefore, the changes wrought by redevelopment challenge us to think and talk about class in ways for which …

Foreword, Byron L. Warnken

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No abstract provided.

Preserving Community In The City: Special Improvement Districts And The Privatization Of Urban Racialized Space, Audrey Mcfarlane

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This essay examines some of the ramifications of the formation of business improvement districts (BIDs) in urban centers that levy additional taxes in particular geographic areas to provide supplementary services. Originally designed to further business development to improve the tax base of the entire city, these districts are increasingly being used by affluent city neighborhoods to enhance what are viewed as inadequate municipal services. Because cities are often divided into affluent, white neighborhoods and poor minority ones, BIDs are troubling in that they reinforce race and class divisions within what is theoretically an urban whole. Professor McFarlane argues that we …

Local Economic Development Incentives In An Era Of Globalization: The Exploitation Of Decentralization And Mobility, Audrey Mcfarlane

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This essay discusses the dilemma corporate mobility through globalization presents for cities that are fixed geographically. Corporations seek and cities offer business incentives that with questionable benefits to local residents. The essay recommends that the local government dilemma and susceptibility to exploitation be acknowledged. While the essay recommends that cities seek to limit their efforts to be providers of local infrastructure (eg., roads, utilities, an educated workforce) it also recommends that the cities are incapable of addressing the corporate mobility issue on their own and are prone to continued exploitation.

Products Liability Harmonization: A Uniform Standard, Rebecca Korzec

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Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level. For example, Australia and Canada, which share a common-law heritage with the United States, have federal tort systems. The United States approach may be appropriate in some tort settings, such as in the premises liability or motor vehicle accident context (not involving a claim of products liability), where the state rule’s impact remains within that state’s geographical boundaries. Unlike the simple 'fender-bender', which occurs within the borders of one state, the typical product is manufactured and marketed nationally or internationally. …

When Inclusion Leads To Exclusion: The Uncharted Terrain Of Community Participation In Economic Development, Audrey Mcfarlane

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Since the advent of federally-sponsored urban development, the federal government has sought to facilitate decentralized decision-making by local governments. These federal programs have also strongly encouraged local governments to include community participation in the development decision-making process. Participation evokes notions of democracy, egalitarianism, and inclusion and it is easy to support in principle. But participation is often less easy to support in practice because of its structural disconnect with urban development. This disconnect between principle and practice has been reflected in an ebb and flow of contrastingly strong and weak mandates for participation. This ebb and flow of federally-mandated participation …

Race, Space And Place: The Internal Critique Of The Empowerment Zones Program, Audrey Mcfarlane

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This Article examines the extent to which the Empowerment Zones Program is properly viewed as a neutral, rational, and beneficial program for poor, inner-city communities and their residents by exploring the limits and potential of its chief mechanism, economic development, as a tool to achieve social justice for the inner cities. This Article grounds its exploration within the contested terrain of the city, not simply as a legal or juridical concept, but in terms of its reality as a lived place on the eve of the 21st century.

Empowerment Zones: Urban Revitalization Through Collaborative Enterprise, Audrey Mcfarlane

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The federal government recently designated six empowerment zones in selected urban areas as an urban revitalization demonstration program. The program is derived from the enterprise zone strategy promoted by former HUD Secretary Jack Kemp that sought to address urban poverty by encouraging business growth through deregulation and tax incentives. The Clinton administration modified the original concept and now refers to the target areas as empowerment zones. As the definitions of "enterprise" and "empower" indicate, renaming the zones reflects a significant shift in emphasis-from a focus on stimulating business enterprise through reducing regulation to one in which regulation is used to …

When Should States Challenge Mergers: A Proposed Federal/State Balance, Robert H. Lande

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This article critically analyzes the current system of United States merger enforcement, under which both federal and State antitrust enforcers scrutinizes and potentially can challenge any merger that affects interstate commerce. This article develops and proposes an alternative, a voluntary division of responsibility patterned after the European Union's approach. Under this alternative federal enforcers normally would defer to State enforcers for certain specified mergers, and State enforcers normally would defer to federal enforcers for other specified mergers.

Public Land Banking And Mount Laurel Ii — Can There Be A Symbiotic Relationship?, Cassandra Jones Havard

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The story behind the litigation that produced two decisions in Southern Burlington County NAACP v. Township of Mount Laurel may accurately be told in terms of plans having gone awry. The New Jersey Supreme Court invalidated the two attempts by Mount Laurel to regulate land through the implementation of fiscal zoning ordinances. In its most recent decision, Mount Laurel II, the court imposed upon communities a state constitutional obligation to provide adequate housing opportunities for low- and moderate-income families. Mount Laurel II thus defines the constitutional limitations on a municipality's power to regulate land. It also establishes a supporting corollary: …

Religious Freedom And The Church-State Relationship In Maryland, Kenneth Lasson

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Maryland holds the unique and admirable distinction of having been the State whose early history most directly ensured, and whose citizenry was most directly affected by, the first amendment's grant of religious liberty. The Supreme Court's docket is still liberally sprinkled with petitions calling for renewed interpretation of the establishment clause, and Marylanders will soon vote upon a proposed new state constitution with a similar provision - hence, the opportuneness for tracing Maryland's contribution to the cause of toleration and to the principle of church-state separation.

The scope of this article will not extend beyond a sketch of the important …