Law Commons^™

President Obama And The Changing Cyber Paradigm, Eric Talbot Jensen

Faculty Scholarship

Among the most important issues for American National Security is the national response to the growing threat from cyber activities. This threat is both ubiquitous and potentially catastrophic as recently demonstrated by both the recent decision by the UK to prioritize cyber capabilities over putting in service an air-capable aircraft carrier and the targeted effectiveness of the STUXNET worm. The evolving cyber paradigm will force the United States to reevaluate the way in which it thinks of both national security and the concept of armed conflict. To combat this threat, President Obama must refocus America’s attention, by both reallocating the …

A Decade After 9/11, Ignorance Persists, Dawinder S. Sidhu

Faculty Scholarship

While our soldiers do their job in Iraq and elsewhere, we as members of this society possess our own solemn responsibility to eradicate ignorance and discrimination, and extend social acceptance and respect to all Americans – irrespective of skin color or ethnic origin.

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Hotel, Inc. V. United States, Linda C. Mcclain

Faculty Scholarship

In Heart of Atlanta Motel v. United States (1964), the U.S. Supreme Court unanimously affirmed Congress’s power under the Commerce Clause to pass Title II, the public accommodations component of the Civil Rights Act of 1964 (CRA). The Johnson Administration expressed hope that this unanimous decision would aid the “reasonable and responsible acceptance” of the CRA. A less familiar legacy of this case is the role played by the Thirteenth Amendment and its declaration that “neither slavery and involuntary servitude . . . shall exist within the United States.” The owner of the Heart of Atlanta Motel unsuccessfully invoked this …

Pay For Regulator Performance, Frederick Tung, M Todd Henderson

Faculty Scholarship

Few doubt that executive compensation arrangements encouraged the excessive risk taking by banks that led to the recent Financial Crisis. Accordingly, academics and lawmakers have called for the reform of banker pay practices. In this Article, we argue that regulator pay is to blame as well, and that fixing it may be easier and more effective than reforming banker pay. Regulatory failures during the Financial Crisis resulted at least in part from a lack of sufficient incentives for examiners to act aggressively to prevent excessive risk. Bank regulators are rarely paid for performance, and in atypical cases involving performance bonus …

Challenging Detention: Why Immigrant Detainees Receive Less Process Than Enemy Combatants And Why They Deserve More, Faiza Sayed

Faculty Scholarship

No abstract provided.

Accessing Justice: The Availability And Adequacy Of Counsel Removal Proceedings: New York Immigrant Representation Study Report, Stacy Caplow, Peter L. Markowitz, Jojo Annobil, Peter Z. Cobb, Nancy Morawetz, Oren Root, Claudia Slovinsky, Zhifen Cheng, Lindsay C. Nash

Faculty Scholarship

No abstract provided.

Confounding Identities: The Paradox Of Lgbt Children Under Asylum Law, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Faculty Scholarship

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …

Neither Rules Nor Standards, Steven Dean

Faculty Scholarship

Specifying the content of a requirement or a prohibition up front-e.g. replacing a "reasonable speed" requirement with a fifty-five miles per hour speed limit-can make life easier for enforcers and citizens alike. Recent efforts to substitute international tax rules for decades-old standards may do just the opposite, jeopardizing the "miracle" that is today's international tax regime. Enhanced information exchange and formulary apportionment will undermine the legitimacy that is essential to the success of any international legal regime. A better solution would overhaul the century-old benefits principle to weave enforcement deep into the fabric of the international tax regime. Only then …

Free Speech Versus Free Education: First Amendment Considerations In Limiting Student Athletes' Use Of Social Media, Mary Margaret Penrose

Faculty Scholarship

This article considers the First Amendment implications regarding limitations placed on student athletes' use of social media. Schools have a vested interest in controlling their athletes' public expressions, whether such expressions are found in tattoos, public interviews or tweets. Like it or not, a great deal of damage can occur in "140 words or less." And, displeased student-athletes have choices. Twitter or touchdowns. Facebook from your dorm or facetime on television hitting three-pointers. While universities are generally places that encourage robust speech and debate, there are defensible, and arguably lawful, reasons why schools should limit student-athletes' use of social media. …

Federalizing Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid fosters constant tension between the federal government and the states, and that friction has been exacerbated by its expansion in the Patient Protection and Affordable Care Act of 2010 (PPACA). Medicaid was an under-theorized and underfunded continuation of existing programs that retained two key aspects of welfare medicine as it developed: bias toward limiting government assistance to the “deserving poor,” and delivery of care through the states that resulted in a strong sense of states’ rights. These ideas regarding the deserving poor and federalism have remained constants in the program over the last forty-six years, but PPACA changes one …

Response To House Memorial 41 Requesting A Study Of The Use Of Natural Gas As A Transportation Fuel, Kevin Washburn, Kevin Boberg, Jeffrey Kendall

Faculty Scholarship

This paper addresses legal, logistical and technological issues related to the use of compressed natural gas (CNG) as a transportation fuel in New Mexico. It was prepared at the request of the NM State legislature in House Memorial 41.

German Vat Compliance - Moving One Step Closer To Automated Third-Party Solutions, Richard Thompson Ainsworth

Faculty Scholarship

Recent developments in German VAT compliance, notably (a) the imposition of criminal penalties for failing to immediately amend a preliminary return that is known to be in error [Bundesgerichtshof decision of March 17, 2009, No. BGH 1 StR 342/08], when considered in tandem with (b) amendments to the voluntary disclosure rules, Gesetz zur Vebesserung der Bekämpfung von Geldwäsche und Steuerhinterziehung, it is clear that the German VAT compliance landscape has changed dramatically in the past year.

Taken as a whole, the German rules strongly encourage internal audits, self-reviews, and immediate self-disclosures of errors in previously filed returns and taxes paid. …

Advising Clients After Critical Legal Studies And The Torture Memos, Milan Markovic

Faculty Scholarship

One of the most fundamental tasks attorneys perform is to advise clients as to what the law is. Yet, Model Rule 2.1 (“Rule 2.1”), the chief ethical rule addressing attorneys qua advisors, is rarely enforced in the absence of other ethical violations. Although attorneys comply with the ethical rules for reasons apart from a fear of being sanctioned, it is often against the self-interest of attorneys to “exercise independent professional judgment and render candid advice” as contemplated by Rule 2.1. When attorneys calculate that their legal advice is unlikely to be challenged, they may be prone to advance tendentious legal …

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh

Faculty Scholarship

This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.

The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary …

Direct Concern In Regional Policy: The European Court Of Justice And The Southern Question, Daniela Caruso

Faculty Scholarship

For a few years, the European Court of Justice (ECJ) has declared inadmissible, for lack of direct concern, a number of annulment actions initiated by sub-state actors in the context of regional policy. This article compares the ECJ's holdings with the General Court's more generous application of the ‘direct concern’ standard in some of the same disputes, and argues in favour of the General Court's approach. The cases hereby analysed pertain to the implementation of structural funds in Southern Italy. Relating regional policy to the historical unfolding of the ‘Southern Question’, this article examines the unexpected opportunity for civic and …

Combating Antibiotic Resistance Through The Health Impact Fund, Kevin Outterson, Thomas Pogge, Aidan Hollis

Faculty Scholarship

The Health Impact Fund (Hollis & Pogge 2008) is an innovative financing mechanism for global drug discovery and dissemination, separating the reward for successful R&D from the market price of the drug, also known as de-linkage. Aaron Kesselheim and Kevin Outterson have recently proposed a mechanism to reimburse companies for antibiotics according to their social value, but conditioned on achieving conservation goals to limit resistance (Kesselheim & Outterson 2010, 2011). This paper will explore whether this antibiotic resistance conservation proposal can be adapted to the framework of the Health Impact Fund. If these proposals can be meshed, then antibiotics might …

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Misogynistic Cyber Hate Speech, Danielle Keats Citron

Faculty Scholarship

In her testimony, Professor Citron provided a picture of misogynistic cyber hate, from the very worst abuses involving the harassment of individuals to less virulent forms of misogyny.

A Tax Response To The Executive Pay Problem, David I. Walker

Faculty Scholarship

Many observers believe that that the public company executive labor market is deficient and results in systematically excessive compensation. This Article accepts that premise and considers potential regulatory responses. Specifically, this Article proposes and analyzes a two-pronged tax response to the problem of excessive executive pay – the imposition of a surtax on executive pay in excess of a threshold combined with investor tax relief. These two prongs respond to the chief concerns raised by excessive executive pay. The imposition of a surtax would reduce the after-tax income of executives, which would directly address the unfairness of excessive pay and …

An Industry-Specific Vat In Michigan - Objective Valuation In The Retail Gasoline Trade, Richard Thompson Ainsworth

Faculty Scholarship

New York adopted an industry-specific value added tax (VAT) to solve problems with virtual intermediaries (room remarketers) under its hotel accommodations tax. The New York VAT resembles the VAT used in the European Union (EU). It is a credit-invoice VAT that subjectively values supplies.

Michigan has also adopted an industry-specific credit-invoice VAT, however the targeted industry is the retail gasoline trade. The valuation method is objective, rather than subjective. In valuing supplies objectively rather than subjectively, the Michigan VAT resembles the exception provisions that are found in most VATs around the globe. Objective valuations are used in VATs when dealing …

The Imperative Of Returning To The Fundamental Principles Of The "Three Gongs" [Openness, Fairness, And Justice], Daniel J. Mitterhoff

Faculty Scholarship

This commentary highlights the failure to set policy priorities under China’s near decade old government procurement system and bemoans the consequences of China's mixed policy signals. The author calls for China to return focus upon the guiding principles of the three “gongs”--“gongkai,” “gongping” and “gongzheng” (translated as “openness, fairness and justice) . Before China can rationally and successfully pursue secondary socio-economic policies through government procurement, or alternatively open its public procurement market to foreign suppliers, it must first master the art of maximizing competition for public contracting opportunities in its domestic public purchasing regime.

Proving Racial Discrimination And Monitoring Fair Lending Compliance: The Missing Data Problem In Nonmortgage Credit, Winnie F. Taylor

Faculty Scholarship

No abstract provided.

The Law School Firm, Bradley T. Borden, Robert J. Rhee

Faculty Scholarship

No abstract provided.

An Orderly Liquidation Authority Is Not The Solution To Too-Big-To-Fail, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Making Sense Of "Moral Rights" In Intellectual Property, Brian A. Lee

Faculty Scholarship

No abstract provided.

Series Llcs In Real Estate Transactions, Bradley T. Borden, Mathews Vattamala

Faculty Scholarship

No abstract provided.

Lawyering Beyond Without Leaving Individual Clients Behind, April Land

Faculty Scholarship

As clinical teachers answer the exciting call to move beyond the traditional model of individual client representation, we should not leave behind the vital lessons that law students learn from individual clients. Individual representation is ideal for teaching law students lawyering skills and values in a human context. Representing individual clients gives students the opportunity to experience full ownership over representation, to experience the role of the attorney, and to feel the profound weight of professional responsibility. Representationof individual clients also grounds the social justice objectives that clinical programs seek to achieve. As clinical programs and other areas of law …

2011 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

Atypically, the Supreme Court of Florida was not active during the past year, deciding no cases in the juvenile law field. On the other hand, the intermediate appellate courts were active both in the delinquency area and in the dependency field. As in the past, decisions in the delinquency area involving generic issues of criminal procedure not unique to juvenile delinquency are not covered in this article.