Law Commons^™

The Dna Default And Its Discontents: Establishing Modern Parenthood, Katharine Baker

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Most contemporary family law scholarship assumes that propriety of a DNA default for establishing parenthood - a presumption that, in the absence of marriage, whoever had the sex with the mother that resulted in the child should be the father of the child. This article problematizes that DNA default. It demonstrates how the DNA default necessarily magnifies the legal and social importance of sex, discounts the legal significance of women's reproductive labor, and marginalizes all children living outside the binary, heteronormative norm that a genetic regime necessarily edifies. When scrutinized, the DNA default looks just as moralistic and exclusionary as …

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.

Neutralizing The Stratagem Of "Snap Removal": A Proposed Amendment To The Judicial Code, Joan E. Steinman, Arthur Hellman, Lonny Hoffman, Thomas Rowe, Georgene Vairo

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The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule. The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

New Wine In Old Wineskins: Metaphor And Legal Research, Amy E. Sloan, Colin Starger

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We construct our conceptual world using metaphors. Yet sometimes our concepts are flawed and our metaphors do damage. This Article examines a set of metaphors currently doing damage in law – those for legal research. It shows that while technology has radically altered the material world of legal research, our dominant metaphors have remained static, and thus, become outmoded. Conceptualizing today’s reality using old metaphors fails; it is like pouring new wine in old wineskins. To address this problem, this Article first surfaces unwarranted assumptions buried in the metaphors we use when talking about research and then proposes new metaphors …

The Limits Of Isomorphism: Global Investment Law And The Asean Investment Regime, Sungjoon Cho, Jurgen Kurtz

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This article probes the unique ontogenetic path of ASEAN’s regulation of foreign investment by juxtaposing global investment law and the ASEAN context. While the former delivers a powerful heuristic on isomorphism that ASEAN exhibits in its strong reflection of global investment norms, the latter sheds critical light on ideological and analytical blind spots by exploring distinct heterogeneities in ASEAN’s investment regulation. Those heterogeneities are not simply outliers but reflect important historical and cultural values inherent to ASEAN and its members. The insights uncovered in this article invite scholars and policymakers to define a new form of global investment law that …

Campus Sexual Misconduct As Sexual Harassment: A Defense Of The Doe, Katharine Baker

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This article explains and defends the Department of Education’s campaign against sexual misconduct on college campuses. It does so because DOE has inexplicably failed to make clear that their goal is to protect women from the intimidating and hostile environment that results when men routinely use women sexually, without regard to whether women consent to the sexual activity. That basic point, that schools are policing harassing and intimidating behavior, not necessarily rape, has been lost on both courts and commentators. Boorish, entitled, sexual behavior that stops well short of rape, if pervasive enough, has been actionable as sexual harassment for …

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 …

The 21st Century Fight Over Who Sets The Terms Of The Charity Property Tax Exemption, Evelyn Brody

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Turning from the substantive issue of defining charity, this article considers the “who” question by examining the roles of the courts, legislatures, municipalities, and charities in determining exemption and payments in lieu of taxes. The three covered topics – constitutional power, statutory interpretation, and the “intermediate sanctions” of user fees and PILOTs – braid together to form the procedural framework for the financial relationship between nonprofit property owners and the taxing jurisdictions that host them. Change the parameters of one, and you change the others. Staying off the rolls or minimizing the tax bite often results from compromise – whether …

Class Warfare: Why Antitrust Class Actions Are Essential For Compensation And Deterrence, Robert H. Lande

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Recent empirical studies demonstrate five reasons why antitrust class action cases are essential: (1) class actions are virtually the only way for most victims of antitrust violations to receive compensation; (2) most successful class actions involve collusion that was anticompetitive; (3) class victims’ compensation has been modest, generally less than their damages; (4) class actions deter significant amounts of collusion and other anticompetitive behavior; and (5) anticompetitive collusion is underdeterred, a problem that would be exacerbated without class actions. Unfortunately, a number of court decisions have undermined class action cases, thus preventing much effective and important antitrust enforcement.

What Are Constitutional Rights For? The Case Of The Second Amendment, Christopher J. Peters

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District of Columbia v. Heller—the Supreme Court’s 2008 Second Amendment decision—was the occasion for a momentous national conversation that never happened. Heller sparked heated debates about the Court’s originalist interpretive methodology, but virtually nobody asked what should have been an obvious question: Even if the Court got the meaning of the Second Amendment right, why should we obey that amendment?

This is the curiously underexplored question of the authority of constitutional rights: Why, indeed whether, we have some obligation to respect those rights even when we disagree with them. The Second Amendment brings that question front and center in …

Medicaid Maximization And Diversion: Illusory State Practices That Convert Federal Aid Into General State Revenue, Daniel L. Hatcher

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For years, states have been using illusory schemes to maximize federal aid intended for Medicaid services-and then often diverting some or all of the resulting funds to other use. And states have help. Private revenue maximization consultants are hired by states to increase Medicaid claims, often for a contingency fee. We do not know the exact amount of federal Medicaid funds that has been diverted to state revenue and private profit each year, but it is in the billions.

The states' revenue strategies take advantage of the matching-grant structure of the Medicaid program. When state funds are spent on eligible …

Of Grids And Gatekeepers: The Socioeconomics Of Mediation, Robert Rubinson

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Mediation scholars have long debated which mediator “style” or “model” is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a “grid” of mediator orientations comprised of what came to be known as “facilitative mediation” and “evaluative mediation.” A more recent addition to the grid—and one that is almost universally recognized as a distinct model—is “transformative mediation.” These three models are so embedded in the literature of mediation that they have been called “the big three.” The influence of Riskin’s work cannot be overstated. It has resonated within the community of …

Moving Family Dispute Resolution From The Court System To The Community, Jane C. Murphy, Jana B. Singer

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Over the past three decades, there has been a significant shift in the way the legal system approaches and resolves family disputes. Mediation, collaboration, and other non-adversarial processes have replaced a traditional, law-oriented adversarial regime. Until recently, however, reformers have focused largely on the court system as the setting for innovations in family dispute resolution. But our research suggests that courts may not be the best places for families to resolve disputes, particularly disputes involving children. Moreover, attempting to turn family courts into multi-door dispute resolution centers may detract from their essential role as adjudicators of last resort and forums …

One Model Of Collaborative Learning For Medical And Law Students At The University Of Baltimore And Johns Hopkins University, Gregory Dolin, Natalie Ram

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Medicine, like law, is sometimes referred to as a “conservative” profession, as both can change slowly, stifling innovation. While the art of medicine has produced important advances, there is at least one part of medicine that has not changed much in more than 100 years. Nearly all American medical schools have followed much the same educational model since Abraham Flexner published his famous report on the state of American medical education in 1910. The educational model promoted by that report emphasizes teaching students the science of medicine, but it is not well equipped for teaching students about the practicalities of …

Recognizing Rights In Real Time: The Role Of Google In The Eu Right To Be Forgotten, Edward Lee

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No abstract provided.

Making Civilian Drones Safe: Performance Standards, Self-Certification, And Post-Sale Data Collection, Henry Perritt, Albert Plawinski

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With millions of small drones in private hands, the FAA continues its struggle to develop an effective regulatory regime to comply with Congress’s mandate to integrate them into the national airspace system. Thousands of individuals and small businesses have obtained authorization from the FAA—"section 333 exemptions"—allowing them to fly their drones commercially. Farmers, TV stations, surveyors, construction-site supervisors, real estate agents, people selling their properties, and managers seeking cheaper and safer ways to inspect their facilities, want to hire the exemption holders, but many are holding back until the FAA clarifies the groundrules.The FAA understands that its traditional approach for …

Ncp Starbucks Decision Helps Advance Compliance With Oecd Guidelines, César F. Rosado Marzán

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No abstract provided.

Coitus Defunctus, Lori Andrews

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No abstract provided.

The "Rabbi's Daughter" And The "Jewish Jane Addams": Jewish Women, Legal Aid, And The Fluidity Of Identity, 1890-1930, Felice Batlan

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This symposium article discusses an unexamined area of legal aid and legal history—the role that late nineteenth and early twentieth century Jewish women played in the delivery of legal aid as social workers, lawyers, and, importantly, as cultural and legal brokers. It presents two such women who represented different types and models of legal aid—Minnie Low of the Chicago Bureau of Personal Service, a Jewish social welfare organization, and Rosalie Loew of the Legal Aid Society of New York. I interrogate how these women negotiated their identities as Jewish professional women, what role being Jewish and female played in shaping …

Uncertain Futures In Evolving Financial Markets, Anita Krug

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Today’s publicly offered investment funds, including mutual funds, have ever more diverse investment strategies, as they increasingly invest in financial instruments that, in earlier years, had been the province of only the most sophisticated investors. Although the new landscape of investment possibilities may substantially benefit retail investors, one financial instrument attracting increasing amounts of retail investors’ assets is acutely troublesome: the commodity futures contract. Futures originated as a means for farmers and other producers of agricultural commodities to ensure that their products could be sold at reasonable prices. Early on, the goals of futures regulation centered on one particular risk …

An Arm And A Leg: Paying For Helicopter Air Ambulances, Henry Perritt

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An increase in Medicare reimbursement rates in 2002 caused the number of helicopter air ambulances in the United States to increase threefold. The vast majority of air ambulance flights are ultimately paid for through Medicare or private insurance reimbursement, although the patient often remains legally responsible for the cost of a flight. Average costs for helicopter air ambulance (HEMS) operators have increased much more rapidly than the reimbursement rate, mostly due to low utilization of the helicopters. New safety requirements imposed by the FAA, after a ten-year period of much higher accident rates for helicopter air ambulances than for the …

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

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We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that courts …

I'Ll See: How Surveillance Undermines Privacy By Eroding Trust, Richard Warner, Robert Sloan

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No abstract provided.

Preventing Preemption: Finding Freedom For States To Protect Their Citizens’ Personal History Information, Elizabeth De Armond

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The Great Recession awoke state legislators to the power of individuals’ credit reports to hinder their economic opportunities. Many legislators would like to assuage the effects of bad historical events on the futures of the citizens that they represent. Among the topics they can address are employers’ use of credit reports, the presence of criminal record information in credit reports, and the toxic effects of identity theft and medical debt on credit reports. However, the federal Fair Credit Reporting Act’s preemptive effects must be acknowledged and negotiated. This article evaluates potential state legislative efforts against the FCRA’s preemption provisions and …

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

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The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the …

Access To Capital Or Just More Blues? Issuer Decision-Making Post Sec Crowdfunding Regulation, Patricia Hureston Lee

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Crowdfunding is an alternative for Issuers seeking funds for their businesses. On October 2015, the Securities Exchange Commission (SEC) released final crowdfunding regulations that became effective May 20162 as a charge of the Jobs Act, Title III (the “Crowdfund Act”). Issuers can now secure crowdfunded investments without a securities registration.

This article evaluates investment-based crowdfunding from the perspective of one group that has been neglected from the crowdfunding scholarship — Issuers that seek financing under this new framework. In Section I, the author summarizes the new crowdfund regulations, which create a new financing opportunity vastly different from previous types of …

Dignity Takings And Dignity Restoration: Creating A New Theoretical Framework For Understanding Involuntary Property Loss And The Remedies Required, Bernadette Atuahene

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No abstract provided.