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Full-Text Articles in Law

Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle Dec 2009

Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle

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This article examines the constitutionality of legislation creating a new form of independent agency – in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution. In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while insulating it from traditional mechanisms for ensuring accountability. Congress deemed the PCAOB not an agency, rendered it substantially immune from judicial review, empowered Board members to set their own salaries and budget, and gave the embattled Securities and Exchange Commission – not the President – the ...


Linton Family Llc And The Step Transaction Doctrine, Wendy G. Gerzog Nov 2009

Linton Family Llc And The Step Transaction Doctrine, Wendy G. Gerzog

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This article discusses Linton, a district court decision about a family limited liability company, indirect gifts, and the step transaction doctrine.


Evidence Issues In Cina Cases, Lynn Mclain Nov 2009

Evidence Issues In Cina Cases, Lynn Mclain

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This handout reviews different evidence issues involved in CINA (Children in Need of Assistance) cases in Maryland.


Uniform Law And Its Impact On National Laws Limits And Possibilities, James Maxeiner Nov 2009

Uniform Law And Its Impact On National Laws Limits And Possibilities, James Maxeiner

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This report surveys uniform laws in federalism in the United States for synthesis in an international report comparing uniform laws in federal countries.


The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeals, Amy E. Sloan Nov 2009

The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeals, Amy E. Sloan

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Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en ...


Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler Oct 2009

Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler

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In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's ...


A Defense Of Embryonic Stem Cell Research, Gregory Dolin Oct 2009

A Defense Of Embryonic Stem Cell Research, Gregory Dolin

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On November 21, 2007, sensational scientific developments were reported by major newspapers, both in the United States and abroad. The media reported a new breakthrough in the area of stem cell research. According to two articles published in Science and Cell (both highly respected scientific journals), two teams of scientists were able to “reprogram” adult stem cells into embryonic stem cells, without actually having to experiment on embryos. The discovery was immediately hailed by the White House and other opponents of embryonic stem cell research. The New York Times gushed that the “stem cell wars” may be at an end ...


Operatively White: Exploring The Significance Of Race And Class Through The Paradox Of Black Middle-Classness, Audrey Mcfarlane Oct 2009

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 ...


Assigning Rights And Protecting Interests: Constructing Ethical And Efficient Legal Rights In Human Tissue Research, Natalie Ram Oct 2009

Assigning Rights And Protecting Interests: Constructing Ethical And Efficient Legal Rights In Human Tissue Research, Natalie Ram

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No abstract provided.


Imagining Judges That Apply Law: How They Might Do It, James Maxeiner Oct 2009

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

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"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts ...


The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt Oct 2009

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

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Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the ...


Stop The Killing: Potential Courtroom Use Of A Questionnaire That Predicts The Likelihood That A Victim Of Intimate Partner Violence Will Be Murdered By Her Partner, Amanda Hitt, Lynn Mclain Oct 2009

Stop The Killing: Potential Courtroom Use Of A Questionnaire That Predicts The Likelihood That A Victim Of Intimate Partner Violence Will Be Murdered By Her Partner, Amanda Hitt, Lynn Mclain

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Judges in domestic cases often underestimate the risk to a mother and her children that an angry and abusive father or other intimate partner poses. In a recent Maryland case, for example, two judges refused to deny a father visitation or require that visitation be supervised, despite the fact that the father had threatened suicide. During the father’s unsupervised visitation, he drowned all three of his children, then attempted to kill himself.

The Danger Assessment tool (the D.A.) developed by a Johns Hopkins Nursing professor and validated by herself and other social scientists shows how much the father ...


Funny Money: How Federal Education Funding Hurts Poor And Minority Students, Cassandra Jones Havard Oct 2009

Funny Money: How Federal Education Funding Hurts Poor And Minority Students, Cassandra Jones Havard

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Neither race nor class alone can predict educational achievement. However, in America, disparities in funding for education may be an impediment to educational opportunity for disadvantaged youth. At the crux of the Nation's achievement gap among minority children is the question of the how states should allocate federal education funds, and how local school districts should use those monies. Educators have long recognized that the socioeconomic circumstances of many public school students present great educational challenges. Since 1965, Congress has authorized the use of federal funds by local school districts to remedy the achievement gap.

Part I of this ...


Jews In Jail, Kenneth Lasson Sep 2009

Jews In Jail, Kenneth Lasson

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No abstract provided.


Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain Sep 2009

Admissibility Of Scientific Evidence And Expert Testimony: One Potato, Two Potato, Daubert, Frye, Lynn Mclain

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This handout from a Maryland Judicial Institute presentation covers the Maryland Rules concerning expert testimony and the ways they differ from the Federal Rules of Evidence.


Out-Of-Court Statements: The Concentric Hoops Of The Hearsay Rule And The Confrontation Clause, Lynn Mclain Sep 2009

Out-Of-Court Statements: The Concentric Hoops Of The Hearsay Rule And The Confrontation Clause, Lynn Mclain

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This 44 page booklet created for the Maryland Judicial Institute outlines hearsay evidence, how hearsay overlaps with the Confrontation Clause, and the exceptions to hearsay under Maryland law.


Quick - Somebody Call Amnesty International! Intel Says Eu Antitrust Fine Violated Human Rights, Robert H. Lande Jul 2009

Quick - Somebody Call Amnesty International! Intel Says Eu Antitrust Fine Violated Human Rights, Robert H. Lande

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This articles discusses Intel's claim that the EU's fine against it for a competition law violation was so large that its human rights' were violated.


Families For Tax Purposes: What About The Steps, Wendy G. Gerzog Jul 2009

Families For Tax Purposes: What About The Steps, Wendy G. Gerzog

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At least 4.4 million families in the U.S. are blended ones that include step-children and step-parents. For tax purposes, these steps receive preferential treatment for their status because they are on the one hand included as family members for many income tax benefit sections, but on the other hand excluded as family members for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where steps have in fact voluntarily acted as their biological or adoptive counterparts, both ...


Collateral Children: Consequence And Illegality At The Intersection Of Foster Care And Child Support, Daniel L. Hatcher Jul 2009

Collateral Children: Consequence And Illegality At The Intersection Of Foster Care And Child Support, Daniel L. Hatcher

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This Article is the third in a series addressing the conflict between state revenue maximization strategies and the missions of state agencies serving low-income children. The Article examines the policy of foster care cost recovery through child support enforcement. When children are removed from poor families and placed in foster care, federal law requires child welfare agencies to initiate child support obligations against the parents. Resulting payments do not benefit the children but are converted into a government funding stream to reimburse the costs of foster care. This cost recovery effort often subordinates the child welfare system’s primary goals ...


Legal Strategies To Address Child Support Obligations For Nonresident Fathers In The Child Welfare System, Daniel L. Hatcher Jul 2009

Legal Strategies To Address Child Support Obligations For Nonresident Fathers In The Child Welfare System, Daniel L. Hatcher

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The legal and practical issues surrounding child support obligations have enormous impact on families in the child welfare system. Unfortunately, these issues are often ignored, overlooked, or misunderstood. A much-needed effort to engage nonresident fathers in the child welfare system is underway, but those efforts will often be derailed if child support is not properly addressed. This article sheds light on the legal and policy concerns regarding child support enforcement in child protection cases and provides legal strategies for advocates to address those concerns. While primarily aimed at advocates for nonresident fathers, this article should also benefit advocates for custodial ...


The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger Jul 2009

The Dna Of An Argument: A Case Study In Legal Logos, Colin Starger

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This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular ...


Muddy Waters: Congressional Consent And The Great Lakes-St. Lawrence River Basin Resources Compact, Sonya Ziaja Jul 2009

Muddy Waters: Congressional Consent And The Great Lakes-St. Lawrence River Basin Resources Compact, Sonya Ziaja

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After nearly a century of negotiations among the Great Lakes states, tribes, and provinces, a promising new agreement was recently ratified by the parties and recognized by Congress, this is the Great Lakes-St. Lawrence River Basin Water Resources Compact ("GLC"). Interstate compacts, like the GLC, may serve as a particularly useful tool for solving regional environmental problems which the federal government lacks the interest to resolve. However, due to constitutional strictures, interstate compacts are not binding unless Congress grants consent to the compact. This Note will focus on the GLC as a means to examine the current state of the ...


Parent Education Programs: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, Itta Englander Jun 2009

Parent Education Programs: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, Itta Englander

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Court-connected parent education programs are an integral family service component in most of the nation’s family courts. These programs are implemented to enable the courts to respond efficiently and effectively to the proliferation of cases involving separation, divorce, and related issues such as child custody and access (Sigal, Sandler, Wolchik, and Braver, 2008; Pollet and Lombreglia, 2008; McIntosh and Deacon-Wood, 2003). Since 2007, parent education classes are mandatory in forty-six states (Pollet and Lombreglia, 2008). In Maryland, every court with jurisdiction over divorce and child custody matters utilizes some form of parent education.

The findings discussed in this literature ...


The Price Of Abuse: Intel And The European Commission Decision, Robert H. Lande Jun 2009

The Price Of Abuse: Intel And The European Commission Decision, Robert H. Lande

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The May 13, 2009 decision by the European Commission ('EC') holding that Intel violated Article 82 of the Treaty of Rome and should be fined a record amount and prohibited from engaging in certain conduct, set off a predictable four part chorus of denunciations:

  1. Intel did nothing wrong and was just competing hard;
  2. Intel's discounts were good for consumers;;
  3. The entire matter is just another example of Europeans protecting their own against a more efficient U.S. company; and;
  4. Even if Intel did engage in anticompetitive activity, the fine was much too large. These assertions will be addressed in ...


Obama's Second Chance To Make History, José F. Anderson May 2009

Obama's Second Chance To Make History, José F. Anderson

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This short article provides a view of the circumstances and issues surrounding President Obama's nomination of federal circuit Judge Sonia Sotomayor to the U.S. Supreme Court.

With President Barack Obama's nomination of federal circuit Judge Sonia Sotomayor to the Supreme Court, his judicial appointment team has been presented with an early introduction to what has become one the most challenging areas of presidential governance over the last several decades.

The nominations to the nation's highest court have generated controversies going back to Ronald Reagan's failed attempt to elevate the highly controversial federal Judge Robert Bork ...


Of Myths And Evidence: An Analysis Of 40 U.S. Cases For Countries Considering A Private Right Of Action For Competition Law Violations, Robert H. Lande, Joshua P. Davis May 2009

Of Myths And Evidence: An Analysis Of 40 U.S. Cases For Countries Considering A Private Right Of Action For Competition Law Violations, Robert H. Lande, Joshua P. Davis

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This article assesses some of the benefits of private enforcement of the United States antitrust laws by analyzing forty large recent, successful private cases. It should help in assessing the desirability and efficacy of private enforcement - information that may prove useful to jurisdictions contemplating a private right of action for competition cases.


Negron: Circuits Now Split 2-2, Wendy G. Gerzog May 2009

Negron: Circuits Now Split 2-2, Wendy G. Gerzog

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The article discusses Negron and the circuit split on the issue of whether to value non-assignable lottery payments in a decedent's estate by means of the actuarial tables or whether that value needs to be discounted for non-marketability.


Whither Newspapers? Wither Newspapers?, Eric Easton Apr 2009

Whither Newspapers? Wither Newspapers?, Eric Easton

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No abstract provided.


Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack Apr 2009

Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack

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This review of custody evaluation literature encompasses a number of perspectives gleaned from the following: practitioners who perform the evaluations; the professional organizations that recognize the necessity to establish performance standards for practitioners; and the judges who depend on the findings and recommendations in the evaluations to assist with difficult custody decisions.

General agreement exists among practitioners about the components of a comprehensive evaluation (interviews of adults responsible for child care, interviews of children and their preferences, life histories, observations, psychological testing, document review, and collateral source data), though little consensus exists about the details of performance concerning a given ...


Supervised Visitation And Monitored Exchange: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, William A. Mack Apr 2009

Supervised Visitation And Monitored Exchange: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, William A. Mack

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Though courts increasingly rely on supervised visitation services in custody disputes and child welfare cases (Salem, Kulak, & Deutsch, 2007), a search of the literature produces few studies reporting empirically validated aspects of supervised visitation programs. The current literature about supervised visitation extensively documents the rationale for providing the service and contains numerous descriptions of provider programs (Birnbaum & Alaggia, 2006). The next generation of research must focus on long-term outcomes that demonstrate effectiveness of supervised visitation programs (Birnbaum & Alaggia, 2006).

This project involves a review of the literature concerning supervised visitation and child access services. The intent of the research is ...