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Articles 31 - 60 of 95
Full-Text Articles in Law
Open Code Governance, Danielle Keats Citron
Open Code Governance, Danielle Keats Citron
Faculty Scholarship
Automated information systems offer an opportunity to improve the democratic legitimacy of the administrative state. Today, agencies transfer crucial responsibilities to computer systems. Computers gather and interpret important information. For instance, electronic machines record and calculate votes. Automated systems execute policy and render decisions about important individual rights, such as a person’s eligibility for public benefits. Computer systems store sensitive personal information. These systems’ closed architecture, however, shields vital agency decisions from view. No one can see how a system operates without a software program’s source code. Closed code hides programming errors that disenfranchise voters, under-count communities for the census, …
Suspect Symbols: Value Pluralism As A Theory Of Religious Freedom In International Law, Peter G. Danchin
Suspect Symbols: Value Pluralism As A Theory Of Religious Freedom In International Law, Peter G. Danchin
Faculty Scholarship
The grounds upon which states may limit the freedom to manifest religion or belief are divisive questions in constitutional and international law. The focus of recent inquiry has been on laws which proscribe the wearing of religious symbols in certain aspects of the public sphere, and on the claims more generally to religious and cultural freedom of Muslim minorities in European nation-states. Stepping back from these debates, this Article aims at a more rigorous theoretical treatment of the subject. It asks whether there is a coherent notion of religious freedom in international legal theory and, if not, why not? In …
Corporate Ethics, Agency, And The Theory Of The Firm, Robert J. Rhee
Corporate Ethics, Agency, And The Theory Of The Firm, Robert J. Rhee
Faculty Scholarship
This conference paper suggests that the problem of corporate ethics cannot be reduced to the autonomous person. Although the greatest influence on action and choice is one's moral constitution, it does not follow that the agent's behavior is the same within or without the firm. Ethics is a function of corporate form. The theory of agency cannot dismiss the firm as a fiction or metaphorical shorthand since that which does not exist should not be able to cause ethical breakdowns in corporate action. Thus, the theory of the firm, which emphasizes profit and wealth maximization, should incorporate a richer, more …
The Story Of Reynolds V. United States: Federal "Hell Hounds" Punishing Mormon Treason, Martha M. Ertman
The Story Of Reynolds V. United States: Federal "Hell Hounds" Punishing Mormon Treason, Martha M. Ertman
Faculty Scholarship
Part of the “Law Stories” series published by Foundation Press, this chapter in Family Law Stories tells the back story of the 1878 US Supreme Court case Reynolds v. U.S.. While the case held that Mormon polygamy was not protected as the free exercise of religion, this chapter shifts our focus away from sex and religion and toward the Court’s language linking Mormon polygamy with “Asiatic and African” peoples as well as political despotism. This close examination of the historical record shows that 19th century concerns about Mormon separatism – commercial, social and political separatism as well was religious – …
Trampling Whose Rights? Democratic Majority Rule And Racial Minorities: A Response To Chin And Wagner, Taunya Lovell Banks
Trampling Whose Rights? Democratic Majority Rule And Racial Minorities: A Response To Chin And Wagner, Taunya Lovell Banks
Faculty Scholarship
Gabriel Chin and Randy Wagner argue us that there were black majorities and pluralities in Deep South states during the Reconstruction era who were consciously disenfranchised by private and public entities, including the U.S. Supreme Court because of fears of black majority rule and the Court should take this history into account and recognize the lingering effects of this historic disenfranchisement on black Americans. This essay responds to their argument, contending that fear of black majority rule never was the sole reason for the disenfranchisement of black majorities and pluralities in the Deep South, rather the problem has always been …
The Role And Legal Status Of Health Care Ethics Committees In The United States, Diane E. Hoffmann, Anita J. Tarzian
The Role And Legal Status Of Health Care Ethics Committees In The United States, Diane E. Hoffmann, Anita J. Tarzian
Faculty Scholarship
Over a quarter of a century has passed since health care ethics committees (HCECs) in the United States received legal recognition as alternatives to the courts in resolving conflicts related to patient end-of-life care. By the mid to late 1980s HCECs had been established in over half of U.S. hospitals and had received a certain legitimacy in the health care system. Given their age and growth one could characterize them developmentally as emerging from adolescence and establishing themselves in young adult-hood. As a result, we might expect that they would have resolved the identify crisis characterizing the adolescent years. Yet, …
Using Actual Legal Work To Teach Legal Research And Writing, Michael A. Millemann
Using Actual Legal Work To Teach Legal Research And Writing, Michael A. Millemann
Faculty Scholarship
Legal research and writing (LRW) teachers should use actual legal work to teach their courses, including (indeed, especially) first-year courses. The legal work might come from a planned or ongoing lawsuit, transaction, or other matter. What is important is that it is real, although in my model, the teacher can add hypothetical features to customize the legal work to the particular LRW course. For example, in an appellate advocacy course, the teacher could present the legal issues arising out of a pretrial matter by summarily “deciding” them in a hypothetical trial court opinion, thus allowing the students to fully explore …
Nepad And The Rebirth Of Development Theory And Praxis, Maxwell O. Chibundu
Nepad And The Rebirth Of Development Theory And Praxis, Maxwell O. Chibundu
Faculty Scholarship
The Black man’s burden again has become the world’s. Not since the early part of the 1960s has the well-being of the Dark Continent attracted the level of attention that it is now generating. Spurred by a variety of motives, including humanitarianism and concerns over the potential of so-called failed states as safe harbours for transnational terrorism, the welfare of the continent has become the special concern of G8 summit meetings. The United Nations Security Council now routinely adopts mandatory resolutions under Chapter VII that expressly and in fine detail regulate military, diplomatic, legal and even commercial interactions with the …
Beyond Rationalism And Instrumentalism: The Case For Rethinking U.S. Engagement With International Law And Organization, Peter G. Danchin
Beyond Rationalism And Instrumentalism: The Case For Rethinking U.S. Engagement With International Law And Organization, Peter G. Danchin
Faculty Scholarship
This Essay advances an argument for rethinking the current terms of engagement of U.S. foreign policy with international law and institutions so as to avoid the current two extremes of power politics and imperial moralizing. First, it is necessary to distinguish between force and the status of political domination on the one hand, and consensus and the status of normative meaning on the other. While it may be possible for a superpower to exercise factual authority and control over foreign states and peoples through sheer assertions of force and will, the attainability of such a situation should not be confused …
Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2007-2008, Juliet M. Moringiello, William L. Reynolds
Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2007-2008, Juliet M. Moringiello, William L. Reynolds
Faculty Scholarship
In this survey, we discuss electronic contracting cases decided between July 1, 2007 and June 30, 2008. In addition to cases adding to the literature on the enforceability of online contracts, this survey includes cases discussing modification of online contracts, incorporation by reference, and unconscionability. We conclude that our common law is developing nicely to address the issues presented by internet contracting.
Insurance For Acts Of Terrorism, Robert J. Rhee
Insurance For Acts Of Terrorism, Robert J. Rhee
Faculty Scholarship
This chapter discusses insurance case law arising from acts of terrorism, including those arising from the September 11 attacks. It analyzes the Terrorism Risk Insurance Act of 2002 (TRIA), as amended by the Terrorism Risk Insurance Act of 2005 and the Terrorism Risk Insurance Program Reauthorization Act of 2007, as well as the administrative program created by the legislation. Examples are provided and NAIC Policyholder Disclosure Notice forms are included. Policy considerations surrounding TRIA are also discussed including insurance industry strategies, the difficulties of assessing terrorism risks, the effect of TRIA subsidized insurance on the market, and the benefits and …
To Kill A Mockingbird Perspectives, Sherrilyn A. Ifill
To Kill A Mockingbird Perspectives, Sherrilyn A. Ifill
Faculty Scholarship
"To Kill a Mockingbird" is one of the most influential and widely acclaimed legal novels in American history. It tells the story of a small-town white lawyer who is appointed to defend a black man accused of raping a white woman in 1930s Alabama. The lawyer, Atticus Finch, is one of the great legal heroes of American fiction. The story, told from the perspective of Atticus' daughter Scout, explores race, class, gender, family and law. Most of all it is a both critical and loving account of the white South. This article is a personal story about the influence of …
Collateral Consequences Of Criminal Convictions To Noncitizens, Fernando A. Nuñez
Collateral Consequences Of Criminal Convictions To Noncitizens, Fernando A. Nuñez
Faculty Scholarship
The criminal defense attorney's intuitive pursuit of freedom for a client is almost always the best approach in the representation of individuals charged with a crime. When representing noncitizens, however, the prudent practice is to deemphasize immediate freedom and instead to focus on the collateral consequences the conviction will have on the noncitizen's immigration status.
Tributes To Professor Andy King, Karen H. Rothenberg, William L. Reynolds, Jana B. Singer, Gordon G. Young, David Rosen
Tributes To Professor Andy King, Karen H. Rothenberg, William L. Reynolds, Jana B. Singer, Gordon G. Young, David Rosen
Faculty Scholarship
Tributes to Professor Andrew King upon his retirement from the University of Maryland School of Law.
Nonmarital Children And Post-Death Parentage: A Different Path For Inheritance Law?, Paula A. Monopoli
Nonmarital Children And Post-Death Parentage: A Different Path For Inheritance Law?, Paula A. Monopoli
Faculty Scholarship
Historically, nonmarital children were treated as “filius nullius,” the child of no one. American jurisprudence has evolved to embrace these children and to err on the side of treating them in the same manner as marital children. Much of inheritance law is concerned with establishing a parent-child relationship in order to determine one’s eligibility to inherit. The 1970s saw several United States Supreme Court cases address the issue of state inheritance statutes that imposed a higher burden on nonmarital children in establishing a parent-child relationship for purposes of inheritance. Some of these state statutes incorporated “surrogate” rules for divining whether …
Rethinking "Effective Remedies": Remedial Deterrence In International Courts, Sonja Starr
Rethinking "Effective Remedies": Remedial Deterrence In International Courts, Sonja Starr
Faculty Scholarship
One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human …
The Right Of Public Participation In The Law-Making Process And The Role Of The Legislature In The Promotion Of This Right, Karen Czapanskiy, Rashida Manjoo
The Right Of Public Participation In The Law-Making Process And The Role Of The Legislature In The Promotion Of This Right, Karen Czapanskiy, Rashida Manjoo
Faculty Scholarship
In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate …
In A Different Voice: Lessons From Ledbetter, Paula A. Monopoli
In A Different Voice: Lessons From Ledbetter, Paula A. Monopoli
Faculty Scholarship
Women in academia—among some of the best educated women in America—suffer from the same salary inequities as other women in society. The American Association of University Professors (AAUP) has found that women faculty “earn lower salaries on average even when they hold the same rank as men.” Thus, the recent United States Supreme Court decision on pay equity, Ledbetter v. Goodyear Tire & Rubber Company, holds a number of important lessons for women in academia. This article explores the intersection of these findings with the Court’s opinion in Ledbetter. The article examines the revealing rhetorical choices in the majority opinion, …
Professional Responsibility In Crisis, Douglas L. Colbert
Professional Responsibility In Crisis, Douglas L. Colbert
Faculty Scholarship
Some rare, often catastrophic, events present in stark terms a need for careful reflection over the role of attorneys in our society and their ethical duties as members of the legal profession. The devastation caused by both Hurricane Katrina in 2005 and the terrorist attacks on September 11, 2001 certainly falls within this category. Professor Colbert uses these events as a backdrop to examine the legal profession’s ethical obligation when crisis compromises the most basic elements of our system of justice. Acknowledging that numerous members of the bar and thousands of volunteer law students courageously stepped forward in those challenging …
Conversations On "Community Lawyering:" The Newest (Oldest) Wave In Clinical Legal Education, Karen Tokarz, Nancy L. Cook, Susan Brooks, Brenda Bratton Blom
Conversations On "Community Lawyering:" The Newest (Oldest) Wave In Clinical Legal Education, Karen Tokarz, Nancy L. Cook, Susan Brooks, Brenda Bratton Blom
Faculty Scholarship
This Article explores the pedagogical and professional challenges and rewards of community lawyering and clinical legal education. The authors are clinical law faculty who self-identify as community lawyers and teachers of community lawyering clinics. They have gathered in recent years with a larger group of similarly engaged colleagues to discuss what is meant by community lawyering, how it is taught, and how it is practiced. This Article seeks to capture some of those conversations, crystallize some of the ideas that have arisen out of the discussions, and examine the implications of these ruminations for future directions in clinical legal education.
Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Lovell Banks
Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Lovell Banks
Faculty Scholarship
Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …
Justifying Motive Analysis In Judicial Review, Gordon G. Young
Justifying Motive Analysis In Judicial Review, Gordon G. Young
Faculty Scholarship
Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or “designed to strike” at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the …
Memorial: David Currie And German Constitutional Law, Peter E. Quint
Memorial: David Currie And German Constitutional Law, Peter E. Quint
Faculty Scholarship
This essay discusses Professor David Currie's contributions to the American study of German constitutional law and particularly his magisterial treatise, "The Constitution of the Federal Republic of Germany."
Shareholder Democracy On Trial: International Perspective On The Effectiveness Of Increased Shareholder Power, Lisa M. Fairfax
Shareholder Democracy On Trial: International Perspective On The Effectiveness Of Increased Shareholder Power, Lisa M. Fairfax
Faculty Scholarship
Shareholder democracy – efforts to increase shareholder power within the corporation – appears to have come of age, both within the United States and abroad. In the past few years, U.S. shareholders have worked to strengthen their voice within the corporation by seeking to remove perceived impediments to their voting authority. These impediments include classified boards, the plurality standard for board elections, and the inability to nominate directors on the corporation’s ballot. Shareholders’ efforts have also extended to seeking a voice on the compensation of corporate officers and directors. Advocates of shareholder democracy believe that such efforts are critical to …
Mr. Justice Miller's Clause: The Privileges Or Immunities Of Citizens Of The United States Internationally, David S. Bogen
Mr. Justice Miller's Clause: The Privileges Or Immunities Of Citizens Of The United States Internationally, David S. Bogen
Faculty Scholarship
Justice Miller’s list in the Slaughter-House Cases of privileges or immunities of citizens of the United States includes a significant number of international ones. This article examines the international dimensions of the Fourteenth Amendment’s privileges or immunities clause. These include the ability to engage in international trade and commerce; the protection of person and property abroad; the rights secured to individual citizens by treaties of the United States; and the privileges and immunities available under customary international law to the extent that the federal government behaves consistently with such rights. In addition to describing the privileges or immunities, the article …
Privatization, Policy Paralysis, And The Poor, David A. Super
Privatization, Policy Paralysis, And The Poor, David A. Super
Faculty Scholarship
No abstract provided.
The Price Of Fame: Brown As Celebrity, Mark A. Graber
The Price Of Fame: Brown As Celebrity, Mark A. Graber
Faculty Scholarship
This essay examines the history of Brown I, Brown II, and Bolling in the Supreme Court of the United States. Enduring precedents, the analysis suggests, go through three stages. In the first stage, they fight for survival. This describes Brown during the first decade after that decision was handed down. No Supreme Court Justice asserted, “Brown should be overruled,” but many citations to Brown came in the context of political efforts to reverse or marginalize that decision. In the second stage, precedents fight for extension. This describes Brown in the later Warren and Burger years. Civil rights activists insisted …
The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber
The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber
Faculty Scholarship
This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and …
Achieving Quality And Responding To Consumers - The Medicare Beneficiary Complaint Process: Who Should Respond?, Diane E. Hoffmann, Virginia Rowthorn
Achieving Quality And Responding To Consumers - The Medicare Beneficiary Complaint Process: Who Should Respond?, Diane E. Hoffmann, Virginia Rowthorn
Faculty Scholarship
No abstract provided.
What Documentary Films Teach Us About The Criminal Justice System - Introduction, Taunya Lovell Banks
What Documentary Films Teach Us About The Criminal Justice System - Introduction, Taunya Lovell Banks
Faculty Scholarship
Film . . . has been used effectively to shape public perceptions about the criminal justice system. . . . [and] the documentary form has power to convict or release a defendant, as well as to disclose the positive and negative aspects of the criminal justice system. . . . Three articles on this subject appear in this issue of the UNIVERSITY OF MARYLAND LAW JOURNAL OF RACE, RELIGION, GENDER AND CLASS and add to this body of scholarship. . . .Our goal was to foster a series of dialogues among and between a number of individuals: filmmakers....