Law Commons^™

How High Do Cartels Raise Prices? Implications For Optimal Cartel Fines, John M. Connor, Robert H. Lande

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This Article examines whether the current penalties in the United States Sentencing Guidelines are set at the appropriate levels to deter cartels optimally The authors analyze two data sets to determine how high on average cartels raise prices. The first consists of every published scholarly economic study of the effects of cartels on prices in individual cases. The second consists of every final verdict in a US. antitrust case in which a neutral finder of fact reported collusive overcharges. They report average overcharges of 49% and 31% for the two data sets, and median overcharges of 25% and 22%. They …

Incitement In The Mosques: Testing The Limits Of Free Speech And Religious Liberty, Kenneth Lasson

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In times of terror and tension, civil liberties are at their greatest peril. Nowadays, no individual rights are more in jeopardy than the freedoms of speech and religion. This is true particularly for followers of Islam, whose leaders have become increasingly radical in both their preaching and practice. "Kill the Jews!" and "Kill the Americans!" are chants heard regularly in many Middle Eastern mosques, as frightful echoes of the fatwa are issued by today's quintessential terrorist, Osama bin Laden. The incitement continues unabated to this day. In April of 2004, for example, a Muslim preacher at the Al-Aqsa Mosque in …

Economic Efficiency And The Parameters Of Fairness: A Marriage Of Marketplace Morals And The Ethic Of Care, Barbara Ann White

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This article provides resolutions to a number of conundrums that have vexed policy-makers and scholars for some decades. The most significant conclusion is that efficiency and fairness concerns do not conflict but rather mutually support each other in the goal of maximizing social welfare. This is contrary to the more widely-held view by both advocates of law and economic reasoning and those favoring deontological concerns that a trade-off between fairness and efficiency is inevitable. This article demonstrates how the coalescence of the two frameworks, the cultivation of fairness with law and economics' efficiency maximization, yields greater enhancements of social welfare …

Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller

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Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA's actions, and the federal government's support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA's actions could be constrained by the Constitution. While it is clear that USADA has very close ties to the federal …

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

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The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

Sounds Of Silence, Kenneth Lasson

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No abstract provided.

Two Rules For Better Writing, Amy E. Sloan

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No abstract provided.

Poverty And Communitarianism: Toward A Community Based Welfare System, Michele E. Gilman

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This Article analyzes how communitarian political theory addresses poverty and impacts American social welfare programs. For several decades, communitarian and liberal philosophers have debated how best to achieve justice through their competing notions of personhood. Whereas liberal theorists stress the values of individual autonomy and state neutrality, communitarians assert that people are socially constituted and that liberalism therefore pays too little attention to the value of community. Yet despite their attempts to articulate a superior form of justice, communitarian theorists either ignore or misunderstand issues related to poverty, as this Article explains. Nevertheless, their insights are helpful in thinking about …

To Lend Or Not To Lend: What The Cra Ought To Say About Sub-Prime And Predatory Lending, Cassandra Jones Havard

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Policies that support the expansion of affordable housing for low- and moderate-income persons must be reconciled with those policies that undercut the sustainability of home ownership. The sub-prime market represents a much needed expansion of credit markets to those who have been denied access to credit though they are creditworthy. The high failure rate of the sub-prime market indicates that market forces are ineffective in halting this economic abuse. This article argues that the public policy choices and justifications for certain practices have marginalized the concerns of particular consumer classes. It challenges the premise that the free market can and …

The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros

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Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …

Preserving The Exceptional Republic: Political Economy, Race, And The Federalization Of American Immigration Law, Matthew Lindsay

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Between 1882 and 1891, the U.S. Congress enacted a spate of immigration laws though which the federal government assumed virtually exclusive control over a regulatory sphere that historically had been the province of the states. This Article argues that this federalization of immigration regulation represented an attempt to reconcile the nation’s most cherished ideological commitment - the notion that the U.S. would forever remain an exceptional, “free labor” republic - with the unprecedented social and economic convulsions of the 1870s and 1880s.

The meaning of both immigrants and immigration was fundamentally transformed during the Gilded Age due to two successive …

An Honest Approach To Plea Bargaining, Steven P. Grossman

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In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

Adoption With Contact Law Awaits Governor's Signature, Elizabeth Samuels

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No abstract provided.

'"You Have Been In Afghanistan": A Discourse On The Van Alstyne Method, Garrett Epps

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This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool …

The Game Of Pleasant Diversion: Can We Level The Playing Field For The Disabled Athlete And Maintain The National Pastime, In The Aftermath Of Pga Tour, Inc. V. Martin: An Empirical Study Of The Disabled Athlete, Donald H. Stone

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Kenny Walker, a deaf football player; Jim Abbott, a one-handed professional baseball player; Tom Dempsey, a physically disabled professional football kicker; Brad Doty, a paralyzed auto racer; and Nick Ackerman, a wrestler with amputated legs, have all competed at the highest level of sports. Persons with mental illness, individuals who are blind, and students with hearing impairments are seeking an opportunity to compete in fair competition with their non-disabled competitors. Can this occur in a fair, open, and just manner between competing athletes?

Does the Americans with Disabilities Act of 1990 ("ADA"), the landmark civil rights act protecting an individual …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

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Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

What Do Exit Polls And Flu Vaccine Shortages Have In Common?, Albert A. Foer, Robert H. Lande, F.M. Scherer

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What do exit polls and flu vaccine shortages have in common? Both involve situations where society has come to rely excessively on too few entities. When even one company makes a mistake society can suffer significantly. This short piece advocates that we abandon our almost laissez faire tolerence towards high concentration, and rely upon competition, rather than on monopoly or a small number of producers.

Results Of A Judicial Survey On The Maryland Department Of Juvenile Services, Gloria Danziger, Barbara A. Babb

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No abstract provided.

International Legal Personality, Mortimer N.S. Sellers

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No abstract provided.

Yours For Keeps: Mgm V. Grokster, Max Oppenheimer

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In MGM v. Grokster, now pending before the U.S. Supreme Court, all parties have made the assumption that most P2P file transfers infringe copyrights. Two theories contradict that assumption: a significant number of individuals who transfer files over P2P networks may have a license to do so, and the Copyright Act itself may exempt the transfer of certain categories of entertainment files over P2P networks from the definition of infringement.

Legal Writing And Academic Support: Timing Is Everything, Dionne L. Koller

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The conventional wisdom is that legal writing and academic support go hand-in-hand. Most law schools assume that struggling students can be reliably identified for academic support through their first-year legal writing course, and that first-year legal writing instructors can fairly easily and effectively provide this support. Indeed, this is the prevailing view in current academic support and legal writing scholarship. Professor Koller's article challenges the conventional wisdom and instead points out several issues that should be considered if a law school relies on the first-year legal writing course as a component of, or in lieu of, an academic support program. …

Objecting To Court Ordered Mediation, Jane C. Murphy

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Maryland judges have wide discretion to refer parties to mediate a variety of civil matters. Title 17 of the Maryland Rules, enacted in 1998, governs mediation of civil cases in the circuit courts. These rules are supplemented by Maryland Rule 9-205, which addresses mediation of child custody and visitation disputes. Although these rules define mediation and address mediator qualifications in some detail, they say very little about either a party's right to object to mediation or the court's authority to compel participation in mediation.

Given that the mediation rules are relatively new and mediation orders would generally be considered interlocutory, …

Symposium: Bruce Springsteen And The American Lawyer: "Meanness In This World", Garrett Epps

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As part of a symposium on Bruce Springsteen and American law, this essay considers the themes explored by Springsteen in his song "Nebraska," which was inspired by the story of Charles Starkweather and Caril Anne Fugate, two young "lovers" who indulged in a remarkable course of violence in Nebraska during the 1950s. The essay asks to what extent the song, and the story, echo the themes of emigration and displacement that are key elements in the history and current reality of the American West. The essay compares the story of Starkweather and Fugate with the current case of Christian Longo, …

An Experiment In Integrating Critical Theory And Clinical Education, Margaret E. Johnson

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Critical theory is important in live-client clinical teaching as a means to achieve the pedagogical goals of clinical education. Feminist legal theory, critical race theory, and poverty law theory serve as useful frameworks to enable students to deconstruct assumptions they, persons within institutions, and broader society make about the students' clients and their lives. Critical theory highlights the importance of looking for both the "obvious and non-obvious relationships of domination." Thus, critical theory informs students of the presence and importance of alternative voices that challenge the dominant discourse. When student attorneys ignore or are unaware of such voices, other voices …

The Irrational Supreme Court, Michael I. Meyerson

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Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting …

A Theory Of Access To Justice, Robert Rubinson

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This Article draws upon three observations: 1) the vast majority of disputes involve low-income litigants; 2) the vast majority of public and private resources of dispute resolution are allocated to disputes involving wealthy individuals and organizations; 3) any principled moral or ethical analysis demonstrates that the stakes are much higher in disputes involving low-income disputants than in disputes involving affluent individuals or organizations. Thus, the legal matters that attract a minute percentage of dispute resolution resources implicate issues of food and shelter, life and death. The Article describes a methodology - called "Resources of Dispute Resolution" or "RDR" - for …

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

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Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

An Analysis Of Unified Family Courts In Maryland And California: Their Relevance For Ontario's Family Justice System, Barbara A. Babb

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The Ministry of the Attorney General of Ontario has contracted with the University of Baltimore School of Law's Center for Families, Children and the Courts to prepare this research paper. The purpose of the paper is to provide an overview of unified family courts and court-connected family services in two jurisdictions, Maryland and California, as agreed to by officials of the Ministry. The overview provides information about the structure of each jurisdiction's unified family court, family services connected to the court, the role of judicial and quasi-judicial officers, the assignment and specialization of the judiciary, rules or processes to deal …

Time To Decide? The Laws Governing Mothers' Consents To The Adoption Of Their Newborn Infants, Elizabeth Samuels

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Adoption in the United States is a complex patchwork of law and practice that involves payments of nearly two billion dollars annually in fees and expenses. The adoptions that involve domestically born, voluntarily placed infants raise unique issues. In these as in all adoptions involving parental consent, two generally accepted goals of ethical and humane practice are first, avoiding unnecessary separation of families by ensuring that birth parents make informed and deliberate decisions and second, protecting the finality of placements. The two goals are ideally complementary, but in the case of domestic infant adoptions, there is a danger that pressure …

Domestic Violence And Mediation: Responding To The Challenges Of Crafting Effective Screens, Jane C. Murphy, Robert Rubinson

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Over the last two decades, mediation of family law cases has become well-established in American courts. As mediation has grown, experts have recognized that power imbalances between couples may interfere with mediation. This imbalance is particularly evident where one partner has been abusive to the other. Widespread consensus has developed that decisions about whether mediation is appropriate are particularly crucial and delicate when domestic violence is present. Despite this consensus, there is evidence that courts are still ordering couples who have experienced domestic violence to mediate their family law disputes with little or not particularized examination of the couples' circumstances. …