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The Purpose Of International Law Is To Advance Justice -- And International Law Has No Value Unless It Does So, Mortimer N.S. Sellers

All Faculty Scholarship

The central topic of this year’s annual meeting of the American Society of International Law has been “What International Law Values,” restated more forcefully in the title of this panel, “The Value and Purpose of International Law.” Notice the underlying assumption: that international law has value and serves some useful purpose. This premise is important because it supplies the basis on which international law seeks to secure our obedience and respect. We have no reason to obey or respect international law unless international law has some value or serves some useful purpose. This leads us to consider what this value …

Editorial Notes: January 2017, Barbara A. Babb

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I am extremely honored to write my first “Editorial Notes” for Family Court Review, and I am most grateful to the Association of Family and Conciliation Courts (AFCC) Board of Directors for appointing me to succeed Professor Andrew Schepard. I have been a devoted reader of and contributor to FCR (and its predecessor journals) for many decades, and I have been a committed AFCC member since the early 1990s. Although I doubt anyone can fill Professor Schepard’s shoes, I certainly plan to try my best to follow in his incredibly large footsteps. He is a dear friend and colleague with …

Reproducing Gender And Race Inequality In The Blawgosphere, Jane C. Murphy, Solangel Maldonado

All Faculty Scholarship

The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this …

Razing The Patent Bar, William Hubbard

All Faculty Scholarship

Innovation is vital to economic prosperity, and lawmakers consequently strive to craft patent laws that efficiently promote the discovery and commercialization of new inventions. Commentators have long recognized that legal fees are a significant cost affecting innovation, but remarkably a crucial driver of these costs has largely escaped scrutiny: the Patent Bar. Every year innovators spend billions of dollars on legalfees for representation in the U.S. Patent and Trademark Office ("USPTO"), where inventors apply for patents and potential infringers seek to invalidate issued patents. Supply in this essential legal services market, however, is sharply limited because patent law requires innovators …

The Presumptions Of Classical Liberal Constitutionalism, Matthew J. Lindsay

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Richard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported …

Indigency, Secrecy, And Questions Of Quality: Minimizing The Risk Of "Bad" Mediation For Low-Income Litigants, Robert Rubinson

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Mediation can be magical. In the face of seemingly insurmountable differences, it can lead to productive resolutions far beyond what litigation could ever produce.' In the hands of sophisticated practitioners and in appropriate cases, it offers a means for participants to engage in self-determination and more flexible conflict resolution. In light of how well mediation can work, it has experienced explosive growth in all areas of conflict, and in both private and court-connected contexts. There is, nevertheless, a risk that mediators can be unskilled or, worse, affirmatively damaging. This risk is endemic to all mediation but play out in particularly …

The Diversity Rationale For Affirmative Action In Military Contracting, Hugh Barrett Mcclean

All Faculty Scholarship

No abstract provided.

The Italian Enlightenment And The American Revolution: Cesare Beccaria's Forgotten Influence On American Law, John Bessler

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The influence of the Italian Enlightenment—the Illuminismo—on the American Revolution has long been neglected. While historians regularly acknowledge the influence of European thinkers such as William Blackstone, John Locke and Montesquieu, Cesare Beccaria’s contributions to the origins and development of American law have largely been forgotten by twenty-first century Americans. In fact, Beccaria’s book, Dei delitti e delle pene (1764), translated into English as On Crimes and Punishments (1767), significantly shaped the views of American revolutionaries and lawmakers. The first four U.S. Presidents—George Washington, John Adams, Thomas Jefferson and James Madison—were inspired by Beccaria’s treatise and, in some cases, read …

The Persistence Of The Confederate Narrative, Peggy Cooper Davis, Anderson Francois, Colin Starger

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Ever since the United States was reconstituted after the Civil War, a Confederate narrative of states’ rights has undermined the Reconstruction Amendments’ design for the protection of civil rights. The Confederate narrative’s diminishment of civil rights has been regularly challenged, but it stubbornly persists. Today the narrative survives in imprecise and unquestioning odes to state sovereignty. We analyze the relationship, over time, between assertions of civil rights and calls for the protection of local autonomy and control. This analysis reveals a troubling sequence: the Confederate narrative was shamefully intertwined with the defense of American chattel slavery. It survived profound challenges …

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 …

Science As Speech, Natalie Ram

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In April 2015, researchers in China reported the successful genetic editing of human embryos using a new technology that promised to make gene editing easier and more effective than ever before. In the United States, the announcement drew immediate calls to regulate or prohibit
outright any use of this technology to alter human embryos, even for purely research purposes. The fervent response to the Chinese announcement was, in one respect, unexceptional. Proposals to regulate or prohibit scientific research following a new breakthrough occur with substantial frequency. Innovations in cloning technology and embryonic stem cell research have prompted similar outcries, and …

Too Conflicted To Be Transparent: Giving Affordable Financing Its ‘Good Name’ Back, Cassandra Jones Havard

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Securitization, the process of pooling loans for re-sale on the secondary market, is an important part of mortgage financing. It creates more capital for mortgages and makes home pricing affordable, which is beneficial to borrowers. The subprime crisis exposed intrinsic structural flaws in the mortgage securitization process. Chief among them is the “issuer-pays” model of credit ratings. Issuers, who bundle loans for sale on the securities market, are required to have an independent analysis from a credit rating agency or a Nationally Recognized Statistical Rating Organization (NRSRO) prior to the sale of the securities to investors. This rating is not …

Book Review: The History Of The Death Penalty In Colorado, John Bessler

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No abstract provided.

Voting Realism, Gilda R. Daniels

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Since Shelby County v. Holder, the country has grown accustomed to life without the full strength of the Voting Rights Act. Efforts to restore Section 4 have been met with calls to ignore race conscious remedies and employ race neutral remedies for modern day voting rights violations. In this new normal, the country should adopt “voting realism” as the new approach to ensuring that law and reality work to address these new millennium methods of voter discrimination.

Restoring The Legitimacy Of Private Antitrust Enforcement, Robert H. Lande, Joshua P. Davis

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This is a draft chapter from the American Antitrust Institute's 2017 recommendations to the 45th President of the United States. It contains a brief but well-deserved defense of the benefits of private antitrust enforcement and a critique of the claims that private enforcement in the United States is excessive, that it leads to overdeterrence, and that the courts are plagued with widespread frivolous antitrust lawsuits. It also offer a number of specific recommendations for the new administration to implement in the private antitrust enforcement area, including:

* Educate the courts, the public, and federal and state legislatures about the virtues …

Realizing Dispute Resolution: Meeting The Challenges Of Legal Realism Through Mediation, Robert Rubinson

All Faculty Scholarship

No abstract provided.

Cities, Inclusion And Exactions, Audrey Mcfarlane, Randall K. Johnson

Articles

Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction. Drawing from the experience of Baltimore, …

Implementing A First-Year Research Assessment, Savanna L. Nolan

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University of Baltimore Law librarians do not have a formal role in teaching legal research, but are frequent guest lecturers and recognized research experts. As such, we volunteered to administer UB's first summative assessment in accordance with the recent implementation of ABA Standard 314. This poster shows the steps taken to design, execute, and grade this legal research assessment, as well as how we reported the results to stakeholders.

The assessment had an objective true/false and multiple-choice section, and a subjective essay question. The librarians selected objective questions considering the core legal research competencies identified by RIPS-SIS following the MacCrate …

Unconventional Refugees, Elizabeth Keyes

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Refugees are a flash point for political divisions in the United States and abroad. The enormous personal, moral, and legal challenges posed by the displacement of refugees around the world reveal the dire inadequacies of our current policies toward refugee protection. Children running to border agents at the U.S. southern border are treated as a security threat to be deterred, instead of a vulnerable population needing some level of protection. The numbers of people seeking safety in the United States, while not objectively high, places further strain on an already under-resourced and heavily burdened immigration system, which at the end …

Another Look At The Need For Family Law Education Reform: One Law School's Innovations, Barbara A. Babb

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The pressing need to change family law education stems from increased numbers and types of family law matters before the courts, changing legal standards, and the evolution of family law practice. The Family Law Education Reform Project, the Families Matter Report, and the IAALS Family Bar Summit recommend that traditional family law education be supplemented to reflect the importance of a holistic blend of theory and practice. This involves expanding student clinical or experiential programs, incorporating interdisciplinary studies specific to the context of family law, and enhancing continuing legal education opportunities. As one law school example, the University of Baltimore …

Solomonic Judgments And The International Court Of Justice, Nienke Grossman

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This chapter, in a forthcoming book on legitimacy and international courts, analyzes the impact of Solomonic or "split the baby" judgments on the normative and sociological legitimacy of the International Court of Justice.

Introduction: Legitimacy And International Courts, Harlan Grant Cohen, Andreas Follesdal, Nienke Grossman, Geir Ulfstein

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Legitimacy and International Courts examines the underpinnings of legitimacy, or the justification of the authority, of international courts and tribunals. It brings together an esteemed group of authors, noted for both their expertise in individual courts, tribunals, or other adjudicatory bodies, and their work on legitimacy, effectiveness, and governance more broadly, to consider the legitimacy of international courts from a comparative perspective. Authors explore what strengthens and weakens the legitimacy of various different international courts, while also considering broader theories of international court legitimacy. Some chapters highlight the sociological or normative legitimacy of specific courts or tribunals, while others address …

Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele E. Gilman, Karen Levy, Alice Marwick

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This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions …

Comment On “The Empirical Basis For Antitrust: Cartels, Mergers, And Remedies”, John M. Connor, Robert H. Lande

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In this journal, James Langenfeld critically reviewed four of the present authors’ articles that analyze the size of cartel overcharges and their antitrust policy implications. In this comment, we explain why we believe Langenfeld errs in his criticism of our work. In particular, this comment discusses the variation in research quality of the sources used to compile a large sample of historical cartel overcharges; the advisability of trimming outliers or large estimates from the sample; alleged publication bias; why our 25% median estimate is much more likely to be correct than the US Sentencing Guideline’s 10% presumption; and the implications …

Parallel State, Gregory Dolin, Irina D. Manta

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Alternatively glamorized and reviled, Rio de Janeiro’s shantytowns, known as “favelas,” have become a fixture of the city’s architecture and life. It is estimated that about a million and a half people reside in these informal settlements that are scattered in the center and outskirts of Brazil’s second-largest metropolitan area. Operating in the shadow of the law and lacking formal ownership title, favela residents have constructed an intricate set of informal rules to buy, sell, rent, and bequeathe property that is often administered by the residents’ associations of individual neighborhoods, which also assist in mediating related conflicts. While largely untested …

Temporary And Proposed Section 752 Regulations: Progress Or Regress?, Walter D. Schwidetzky

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In October, 2016, the Internal Revenue Service issued temporary and proposed regulations under Internal Revenue Code Sections 752 and 704 (“the 2016 Regulations”). The author reviews and analyzes these regulations, and concludes that the 2016 Regulations properly deny economic risk of loss for unduly remote bottom dollar guarantees. He also concludes, however, that the IRS exceeded its regulatory authority when it also denied economic risk of loss on bottom-dollar guarantees where the risk to the guarantor was not remote. In addition, he observes that the 2016 Regulations lead to an inappropriate disjuncture with Section 465 and create rules that are …

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, …

Defending Breakthrough Innovation: The History And Future Of The State Of Patent Law, Max Oppenheimer

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Congress, while enacting at least six major revisions to patent law since 1793, has left the definition of patentable subject matter essentially unchanged. The Supreme Court, on the other hand, has been uncomfortable with the concept for more than a century. Despite this long-standing discomfort, it has struggled to advance a theoretical basis for its concern. In a series of recent cases, it has finally developed a theory as to why certain types of inventions, although embraced by the statutory definition, are nonetheless unpatentable. The theory, in effect, abandons the federal government’s role in protecting those inventions. This article explores …

Testimony Before The House Committee On Science, Space And Technology, Charles Tiefer

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Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,)

So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various …

Exploring Federal Diversity Jurisdiction: Testimony In Front Of The House Of Representatives Committee On The Judiciary, Subcommittee On The Constitution And Civil Justice, Ronald Weich

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Good morning Chairman Franks, Ranking Member Cohen and members of the Subcommittee. My name is Ronald Weich and I am the dean of the University of Baltimore School of Law. Thank you for the opportunity to testify at this hearing entitled “Exploring Federal Diversity Jurisdiction.”

The subject of today’s hearing is technical, complex, little-understood by the general public, and yet fundamental to the administration of justice in this country. Federal diversity jurisdiction touches on profound questions of federalism, state sovereignty and the proper functioning of the federal courts.