Law Commons^™

Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley

Scholarly Works

Studies and articles examining tenured, tenure-track and contract faculty in law schools have exposed the inequalities that women face when compared with their male counterparts. This article asks the legal academic community to consider these conditions in light of established Title VII doctrine which forbids discrimination because of sex. This article offers a hypothetical about the fictitious National Law School, whose labor relationships mimic those of many real law schools in a number of ways. Based on the facts in this hypothetical, the article explores different possible causes of action, either systemic or individual, that employees could reasonably win against …

Lawyers, Democracy, And Dispute Resolution: The Declining Influence Of Lawyer-Statesmen Politicians And Lawyerly Values, Jeffrey W. Stempel

Scholarly Works

This Comment reviews the shrinking presence of lawyers in the arena of macrocosmic public policy. It also discusses the declining statesmanship of lawyer-politicians as part of a general decline of lawyer professionalism in the face of social and economic pressures tending to undermine lawyer professionalism. Furthermore, it addresses how the net impact of these factors undermines the potential of lawyers to act as a positive force for public policy dispute resolution.

Report Regarding The Pacific Mcgeorge Workshop On Globalizing The Law School Curriculum, Thomas O. Main

Scholarly Works

No abstract provided.

Cooperative Federalism And Natural Resources Law, Robert L. Fischman

Articles by Maurer Faculty

Cooperative federalism describes an arrangement under which a national government induces coordination from subordinate jurisdictions, such as states and tribes, through incentives rather than requirements. In environmental law, cooperative federalism highlights the divide between pollution control and resource management. This article examines the divide from both sides.

Even though almost all of the environmental law commentary on cooperative federalism focuses exclusively on the pollution control side, the basic elements of cooperative federalism can be combined in a wider variety of forms than are recognized by most pollution control programs or scholarship. This article reviews the ways in which resource management …

Envisioning The Modern American Fiscal State: Progressive-Era Economists And The Intellectual Foundations Of The U.S. Income Tax, Ajay K. Mehrotra

Articles by Maurer Faculty

At the turn of the twentieth century, the U.S. system of public finance underwent a dramatic, structural transformation. The late nineteenth-century system of indirect taxes, associated mainly with the tariff, was eclipsed in the early decades of the twentieth century by a progressive income tax. This shift in U.S. tax policy marked the emergence of a new fiscal polity - one that was guided not simply by the functional and structural need for government revenue but by concerns for equity and economic and social justice. This Article explores the paradigm shift in legal and economic theories that undergirded this dramatic …

The Judgment Of The Boss On Bossing The Judges: Bruce Springsteen, Judicial Independence, And The Rule Of Law, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Migrating Towards Minority Status: Shifting European Policy Towards Roma, Timothy W. Waters, Rachel Guglielmo

Articles by Maurer Faculty

During the 1990s, European policy towards Roma evolved from concern about migration toward rhetoric about rights. In this article we trace that shift across two OSCE reports. Following rhetorical-action models, we show how the EU's commitment to enlargement and "common values" compelled it to elaborate an internal approach to minority protection. Concerns about migration persist, but Europe now has to consider how to integrate Roma as minorities.

Regulating International Lawyers: The Legal Consultant Rules, Carole Silver

Articles by Maurer Faculty

No abstract provided.

German Legal Culture And The Globalization Of Competition Law: A Historical Perspective On The Expansion Of Private Antitrust Enforcement, Hannah Buxbaum

Articles by Maurer Faculty

One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic …

Protecting The Innocent: The Massachusetts Governor's Council Report, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

A Hard Look Or A Blind Eye: Administrative Law And Military Deference, Jonathan Masur

UC Law Journal

The subject of judicial deference to the military in time of war has spawned a rich and variegated literature. The vast majority of these articles have focused upon what one might term "legal deference," or courts' willingness to construe the military's statutory and constitutional authority broadly, while simultaneously narrowing the legal restraints upon its actions. This Article adopts a divergent approach, taking as its point of departure the argument that the modem wartime jurisprudence is defined as much by the manner in which courts treat the executive's factual assertions as the fashion in which those courts have construed the legal …

Some Bargain: How Bankruptcy Courts May Now Require A Debtor To Relinquish Expectations Of Privacy As A Condition Of The Bankruptcy Bargain, Jennifer Taylor

UC Law Journal

There was a time when incurring debt and becoming insolvent was considered a crime. Although those days are long gone, discharge of debt in bankruptcy continues to be premised upon the debtor's cooperation in the "bankruptcy bargain." Honesty and disclosure of certain relevant information is required in exchange for a "fresh start." This Note explores the level of scrutiny that an individual debtor must submit to as part of the bankruptcy bargain by asking and answering the Fourth Amendment question: What is society "prepared to recognize as reasonable?" Contrary to the recent opinion of one bankruptcy court that went so …

Road Rage And R.S. 2477: Judicial And Administrative Responsibility For Resolving Road Claims On Public Lands, Bret C. Birdsong

UC Law Journal

Throughout the west, efforts to protect wild lands are being hampered by counties' and states' assertions of road ownership on public lands. On several occasions in the past decade, rural westerners have climbed atop bulldozers and scraped roads across some of the nation's most pristine lands, including National Parks, National Forests, and National Monuments, in the latest battle of the "sagebrush rebellion." The cover of Time magazine made one bulldozing county commissioner, Dick Carver of Nye County, Nevada, a folk hero for many rural westerners. Other counties' deployment of bulldozers has landed them in court, where they defend against the …

Protecting Mutual Funds From Market-Timing Profiteers: Forward Pricing International Fund Shares, David Ward

UC Law Journal

It has been the worst crisis in the eighty-year history of the mutual fund industry. Beginning with a probe by New York Attorney General Eliot Spitzer, investigators and securities regulators have uncovered widespread improprieties in the $7.5 trillion mutual fund business. In case after case, hedge fund managers, brokers and mutual fund executives conspired to allow favored investors to rapidly trade in and out of mutual funds, taking advantage of pricing inefficiencies to reap hundreds of millions of dollars in profits at the expense of long-term shareholders. This Note examines the recently uncovered abuses within the industry and the responses …

The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill

UC Law Journal

This Article addresses the ongoing-and, indeed, accelerating process of sporadic, piecemeal, and unnecessary legislation leading to increasing inconsistencies and irrationalities in American criminal law. After a wave of modernization in the I960s and 1970s, the past generation has not witnessed further advances, but rather a serious and growing degradation of most criminal codes.

This Article offers several insights regarding criminal code degradation. First, it provides specific and concrete examples of degradation and its harmful effects. Second, drawing on their experiences as participants in the recent reform efforts of Illinois and Kentucky, the authors offer an insider's view of how the …

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

UC Law Journal

A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Curiously, leading critics of the Supreme Court's approach have not taken issue with neutrality itself, but instead have argued that the Court has adopted the wrong sort of neutrality principle. In this Article, the author argues that neutrality of any stripe will be insufficient to vindicate the critics' own vision because of a difficulty called the problem of symmetry. Liberty, by contrast, is asymmetrical and consequently it delivers more attractive outcomes in real cases. The author proposes a liberty rule, describes how it would work, and defends …

Two Wrongs Don't Make A Patent Right, David Catechi

UC Law Journal

Recent litigation over genetically modified corn reveals an increasing imbalance between the property rights of genetic seed manufacturers and the rights of individual farmers. Common-law property doctrines and traditional patent law fail to protect farmers leaving them exposed to both potential genetic contamination of their crops and costly patent infringement liability. This Note proposes a simple yet effective solution-Notice. Requiring patent holders to provide notice to alleged infringing farmers sufficient to enable the farmer to cease infringement balances the rights of both the patent holder and the farmer. Litigation in both the United States and Canada regarding gentically modified corn …

Recusal And The Supreme Court, Debra Lyn Bassett

UC Law Journal

From Laird v. Tatum to Bush v. Gore, the refusal of some Supreme Court Justices to recuse themselves in controversial cases has caused reactions ranging from confusion to disgust. The latest "duck hunting" recusal controversy, and the Court's seemingly callous response to the public outcry, seemed to suggest a deliberate indifference to the recusal standard. This Article examines the recusal provisions applicable to the Supreme Court. There is little doubt that Congress drafted the federal recusal statute broadly and intended to encompass Supreme Court Justices within the statute's reach. However, interesting questions surround recusal in the Supreme Court due to …

Persuasion, Transparency, And Government Speech, Gia B. Lee

UC Law Journal

Recent news reports indicate that federal, state, and local government entities and officials engage in pseudonymous or anonymous communications more often than we might imagine. Current trends, including advances in technology and the blurring of the public/private distinction, suggest that those types of communications will become only more frequent. Yet thus far there has been no sustained legal or constitutional analysis of such communications. This Article addresses that omission. It examines the issue of veiled government communications by drawing upon not only constitutional theory and case law but also social science research that explains how governments persuade and how citizens …

If The Hat Fits, Wear It, If The Turban Fits, Run For Your Life: Reflections On The Indefinite Detention And Targeted Killing Of Suspected Terrorists, Vincent-Joel Proulx

UC Law Journal

This Article analyzes and discusses some of the United States' unilateral policies in the war on terror, namely the indefinite detention and targeted killing of suspected terrorists. It posits that the legal community should resist recent arguments purporting to vindicate certain justifications for curtailing fundamental human rights. First, the Article rebuts recent attempts to subsume legally insulated aspects of the war on terror into one overriding security discourse, with particular resistance to the merger of human rights by the national security agenda. Second, the Article attempts to refute claims that the significance of the distinction between prisoners of war and …

Guest Worker Policy: A Critical Analysis Of President Bush's Proposed Reform, Camille J. Bosworth

UC Law Journal

The Note argues that the agricultural guest-worker program in the United States needs reform. U.S. President George W. Bush has talked publicly about the need for change since he first assumed office in 2ooo. The events of September II, 2001, however, brought what appeared to be promising discussions between President Bush and Mexican President Vicente Fox to an abrupt halt. Now, nearly five years later, meaningful changes are yet to be seen. Focusing on Mexican workers, the Note traces the historical roots of guest worker programs in the United States, analyzes the strengths and shortcomings of President Bush's proposal, and …

A Proposed Antitrust Approach To Buyers' Competitive Conduct, Thomas A. Piraino Jr.

UC Law Journal

This Article proposes a new means of regulating buyers' exercise of market power under the federal antitrust laws. The federal courts urgently need to adopt such an approach, because buyers have increased their market power in many domestic businesses. Wal-Mart's power to influence competition in retail markets is only one example of the increased market power of buyers in the United States economy. The courts' current approach to buyers' competitive conduct is confusing and inconsistent. As a result, business executives are uncertain as to the boundaries of legality for various types of buyer conduct.

This Article describes a comprehensive means …

Implementing Atkins: The Strengths & Weaknesses Of In Re Hawthorne, Christopher Scott Tarbell

UC Law Journal

In 2002, the United States Supreme Court decided the case of Atkins v. Virginia. In Atkins, the Court created a categorical exemption from the death penalty for the mentally retarded, holding that the execution of such individuals violates the Constitution's ban on cruel and unusual punishments. However, the Court left to the states the difficult task of implementing the newly announced exemption.

The California Supreme Court confronted this challenge in the case of In re Hawthorne. In Hawthorne, the court was forced to decide what standards and procedures a court should use in assessing claims for Atkins relief raised by …

A Road To Injustice Paved With Good Intentions: Maggie's Misguided Crackdown On Drowsy Driving, Joshua D. Levine

UC Law Journal

Sleep-deprived drivers pose a serious threat to the public, killing and injuring tens of thousands of Americans each year. Nevertheless, this problem was largely ignored until the summer of 2003, when the New Jersey legislature made national headlines by passing Maggie's Law. Maggie's Law is a unique revision to New Jersey's vehicular homicide statute that permits unprecedented criminal penalties for drowsy drivers who are involved in deadly automobile accidents. The law's passage has had an effect far outside New Jersey's borders, leading many other states and the federal government to consider similar legislation.

This Note details the history and language …

Civil Liability For Attorneys To Adverse Parties When A Settlement Agreement Is Breached In California, Daivd M. Lacy Kusters

UC Law Journal

When a settlement agreement is breached in California, the parties are generally solely liable for the breach. Occasionally, however, settlement agreements can create duties running between attorneys and adverse parties. In these situations, when a settlement agreement fails through no or negligible fault of the opposing party, the opposing party may be able to seek remedy through civil liability against the attorney. This Note provides an overview of the general duty that attorneys owe to third parties. It examines various causes of action available to plaintiffs and the various factors influencing liability. Lastly, this Note details a proposed virtual per …

The Political Marketplace Of Religion, Calvin Massey

UC Law Journal

Inherent in the two Religion Clauses is the possibility of conflict: some accommodations of religion in the name of free exercise may amount to forbidden establishments and some limits on religious accommodation in the name of avoiding prohibited establishments may impermissibly interfere with the free exercise of religion. Judicial mediation of the tension between the Establishment Clause and the Free Exercise Clause resolves into one of four patterns, each characterized by the degree of deference courts display toward the legislative choices of accommodation of religion. Courts may be deferential to legislative choices that arguably inhibit free exercise and foster religion; …

Progressive Consumption Taxes, Mitchell L. Engler

UC Law Journal

Recent intellectual and political forces have moved the consumption tax to the forefront of tax policy debate. Because traditional flat-rate consumption taxes, like the VAT, raise serious distributional concerns, tax scholars have responded with suggestions of innovative progressive consumption taxes. Two such proposed taxes-the Hybrid Approach and the X-tax-were independently analyzed in a recent symposium on fundamental tax reform. These two proposals contain striking similarities, as both would tax individuals at progressive rates on their wages with a separate tax on consumption less wages. However, there are significant differences. The Hybrid Approach would impose an individual tax on consumption less …

Antitrust Implications Of Casino Mergers: The Gamble Of Defining A Relevant Market, Melissa Fallon

UC Law Journal

In light of recent mergers in the casino industry, this Note examines what the FTC considers before approving or challenging a proposed merger. Defining a relevant market, a necessary step for merger analysis under the FTC and DOJ Merger Guidelines, is particularly challenging in the context of the casino industry given the array of basic products offered by casinos, the potential for submarkets of unique consumers, and the various geographic markets in which casinos compete for customers. This Note explores the frustratingly inconclusive case law available for guidance in this area and suggests what the FTC might have considered before …

The Next Step In Dna Databank Expansion? The Constitutionality Of Dna Sampling Of Former Arrestees, Jacqueline K. S. Lew

UC Law Journal

This Note examines current developments in state DNA databank laws and the controversy surrounding the passage of California's latest DNA databank statute to predict that the next step in DNA databank expansion has arrived-namely, the collection of DNA from former arrestees, who neither have been convicted of a felony nor remain in government custody. Ultimately, the Note suggests that despite the recent trend towards expanding DNA databases around the country, the DNA sampling of former arrestees crosses a bright line that represents the constitutional end of such expansion.

In pointing out that courts have often relied on a plaintiff's status …

Lifting Our Veil Of Ignorance: Culture, Constitutionalism, And Women's Human Rights In Post-September 11 America, Catherine Powell

UC Law Journal

This Article examines cultural arguments made in opposition to the ratification by the United States of the Convention on the Elimination of Discrimination Against Women (CEDAW). The failure of the United States to ratify CEDAW has been conventionally understood as grounded in concerns that the Convention is incompatible with U.S. constitutionalism- particularly notions of federalism and limited government. However, as this Article demonstrates, opponents of CEDAW who testified during the ratification debate grounded their objections explicitly in terms of culture and traditional gender roles. In particular, CEDAW opponents expressed fear that ratification would disrupt traditional cultural understandings of women's role …