Law Commons^™

Damned For Their Judgment: The Tort Liability Of Standard Development Organizations, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

The Unappreciated Inportance, For Small Business Defendants, Of The Duty To Settle, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

Religion, Science And The Secular State: Creationism In American Public Schools, Gene Shreve

Articles by Maurer Faculty

This Article examines the current debate whether creationism may be taught in American schools given the constraints of the Establishment Clause of the First Amendment of the U.S. Constitution. The author considers some of the social and political consequences of the U.S. Supreme Court's leading cases. The article concludes by questioning whether the Supreme Court has succeeded in justifying its restrictive decisions in this controversial area.

Adaptive Management In The Courts, Robert L. Fischman, J. B. Ruhl

Articles by Maurer Faculty

Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with …

Reducing Information Gaps To Reduce The Tax Gap: When Is Information Reporting Warranted?, Leandra Lederman

Articles by Maurer Faculty

A core problem for enforcement of tax laws is asymmetric information. The taxpayer knows the facts regarding the relevant transactions it engages in during the year-or at least has ready access to that information. The government is forced to play catch-up, obtaining that information either from the taxpayer or from third parties. Information reporting is routinely used to address this information gap. The government obtains information about the taxpayer's tax situation from a third party and-equally important-the taxpayer knows that the government has received that information. This fosters taxpayer honesty. Information reporting is not a panacea, however. It imposes costs …

Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Special Introduction: October 2010, Lauren K. Robel

Articles by Maurer Faculty

No abstract provided.

Globetrotting Law Firms, Jayanth K. Krishnan

Articles by Maurer Faculty

Despite the current financial crisis, prestigious American and British law firms continue to maintain a presence in Continental Europe, Latin America, and China. Yet, in one economically fertile, democratic country - India - such global legal powerhouses are scarcely found. This study seeks to understand empirically why there is a general absence of these and other foreign law firms practicing in India. Based on fieldwork and compiled interview data of lawyers, judges, government officials, activists, and clients from India, the United States, and Britain - the latter two being the foreign countries most interested in gaining access to the Indian …

The Joint Law Venture: A Pilot Study, Jayanth K. Krishnan

Articles by Maurer Faculty

This pilot study evaluates the effectiveness of law firms entering into joint ventures, an increasingly eyed business model particularly by American and British lawyers seeking to expand into promising financial markets. One country at the center of the joint venture experiment has been Singapore. With the strong encouragement of the Singaporean government (which has long embraced foreign investment), various elite law firms from the United States and Britain have been partnering with domestic Singaporean law firms for over the past decade. Because these foreign firms were traditionally barred from practicing Singaporean law on their own, the ‘joint law venture,’ or …

Protecting Privacy In Health Research: The Limits Of Individual Choice, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Police "Science" In The Interrogation Room: Seventy Years Of Psuedo-Psychological Interrogation Methods To Obtain Inadmissible Confessions, Brian R. Gallini

UC Law Journal

Nearly all confessions obtained by interrogators nationwide are inadmissible, but nonetheless admitted. In the process, police arrest the wrong suspect and allow the guilty to go free. An unshakeable addiction to pseudo-scientific interrogation methods-initially created in the 1940s-is to blame. The so-called "Reid technique" of interrogation was initially a welcome and revolutionary change from the violent "third degree" method it replaced. But we no longer live in the 1940s and, not surprisingly, we no longer drive 1940s automobiles, practice early-twentieth-century medicine, or dial rotary phones. Why, then, are police still using 1940s methods of interrogation?

Moreover, the outdated Reid technique …

One Is The Loneliest Number: The Single Taxpayer In A Joint Return World, Lily Kahng

UC Law Journal

The United States is one of the few developed countries to retain the joint income tax return, available for heterosexual married couples only. Since its adoption in 1948, its underlying assumptions have been challenged on many valid grounds, and yet it remains firmly embedded in mainstream political and policy discourse. In recent years, most of the debate surrounding the joint return has focused on reducing marriage penalties, bonuses, and determining who among the universe of couples ought to be extended the benefit of the marriage bonuses. The treatment of single people has received almost no attention.

The scant attention paid …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

UC Law Journal

This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian "invention," absent in the common law. Drawing on an influential strand offunctionalist comparative law, the Article identifies the "functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and earlytwentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in the …

Benchmark Legislation: A Measured Approach In The Fight Against Counterfeit Pharmaceuticals, Adam Powell

UC Law Journal

Pharmaceutical counterfeiting is unique in the field of counterfeiting because criminals only attempt to copy the appearance of a drug, not its actual effect. Because such counterfeit drugs are cheap to make and ineffective or dangerous, counterfeiters see immense profits without regard for the potential for injury or death. Furthermore, the complexity of distribution channels and lax penalties result in little risk for criminals.

One potential tool to address this problem is an electronic pedigree system that would track shipments of drugs and reduce the opportunity for counterfeiters to infiltrate the supply chain. Unfortunately, such a system is years away …

Hoffman V Red Owl Stores And The Limits Of The Legal Method, Robert E. Scott

UC Law Journal

According to the overwhelming majority view, promissory estoppel is not an appropriate ground for legally enforcing statements made during preliminary negotiations unless there is a "clear and unambiguous promise" on which the counterparty reasonably and foreseeably relies. Bill Whitford and Stewart Macaulay were among the first scholars to note the apparent absence of such a promise in the case of Hoffman v. Red Owl Stores. Several years ago, after studying the trial record, I concluded that the best explanation for the breakdown in negotiations was the fundamental misunderstanding between the parties as to the amount and nature of Hoffmann's equity …

Hoffman V. Red Owl Stores: The Rest Of The Story, William C. Whitford, Stewart Macaulay

UC Law Journal

Hoffman v. Red Owl Stores is one of the most famous twentieth-century cases in American contract law, usually credited both with expanding the reach of the promissory estoppel doctrine and with opening up the issue of liability for precontractual reliance. It is a staple in contracts casebooks. By fortunate circumstance, we have located the plaintiff, who retains a vivid memory about many of the circumstances in his famous case. We have interviewed him and we have examined the full trial record, as well as the briefs on appeaL In this Article we tell the story of what we have learned …

Engquist And The Erosion Of The Equal Protection Clause: An Attempt To Stop The Creep Of Irrational Dicta, Darien Shanske

UC Law Journal

This Article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court's decision in Engquist v. Oregon Department of Agriculture. Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found …

Assessing The Constitutionality Of Reproductive Technologies Regulation: A Bioethical Approach, Elyse Whitney Grant

UC Law Journal

Current reproductive technologies have given parents the means to select against unwanted genetic characteristics by discarding or aborting genetically undesirable embryos or fetuses. Technologies such as preimplantation genetic screening and prenatal genetic testing allow parents to test embryos and previable fetuses, respectively, for genes associated with an array of nontherapeutic and therapeutic characteristics from eye color to sex to disease. Because regulation of access to these technologies seems likely, the Supreme Court will be called upon to address the constitutionality of these regulations. The Court will face difficult questions about the balance between the procreative liberty interest in accessing information …

The National Impact Test: Applying Principled Commerce Clause Analysis To Federal Environmental Regulation, David M. Metres

UC Law Journal

Current doctrine limits Congress's commerce power to regulation of "economic" activities. Because many environmental laws regulate noneconomic objects, some have argued that the Constitution does not grant Congress power to enact these environmental laws.

This Note rejects analysis of whether an object of regulation is "economic," and substitutes a test inspired by the principles underlying the Commerce Clause to demarcate the proper spheres of federal and state regulatory authority. Under the "national impact test," courts should evaluate whether federal legislation regulates activities with a nationwide impact or which the states cannot regulate on their own. If Congress does not make …

Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Charitable donations fund social goods that the state and markets undersupply. Despite widespread belief in the importance of private charity, most Americans donate little or nothing. Experiments in behavioral economics show that anonymity, not human nature, causes low contributions. Anonymity poses a particular challenge for charity because of the special character of the obligation. Charity is a disjunctive social norm, meaning the obligation is owed to ‘A or B or C or …’. Disclosure of each individual’s aggregate conduct is necessary for the effectiveness of any disjunctive social norm. To revitalize charity we propose a public registry where each taxpayer …

Sodom's Shadow: The Uncertain Line Between Public And Private Morality, Todd E. Pettys

UC Law Journal

In citizens' debates about issues of public policy, we frequently encounter what this Article calls the "divine accountability thesis"-the controversial claim that the divine realm will punish a city, state, or nation unless it performs or proscribes certain forms of conduct. Many of us reject that claim, but its persistent usage in numerous societies over the past five thousand years teaches us a great deal about citizens' political selfconceptions. This Article begins by arguing that the divine accountability thesis illustrates human beings' deeply ingrained tendency to regard their political communities as discrete moral entities, individually deserving of punishment or reward. …

The "New" Presumption Against Preemption, Mary J. Davis

UC Law Journal

Is there or isn't there a "presumption against preemption"? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court's preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a "new" presumption in the sense that it is born of the Court's active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The "new" presumption is stronger …

Copyright Infringement And Harmless Speech, Christina Bohannan

UC Law Journal

Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes real harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right-of-publicity laws, require that the defendant's speech is likely to cause harm, copyright law does not make harm a requirement of infringement. Copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, but harm is not always required and …

Immoral Immunity: Using A Totality Of The Circumstances Approach To Narrow The Scope Of Section 230 Of The Communications Decency Act, Ali Grace Zieglowsky

UC Law Journal

In an effort to remove the disincentives to self-regulation created by the decision in Stratton Oakmont, Inc. v. Prodigy Services Co., and to avoid the onslaught of litigation that would otherwise likely have ensued, Congress passed § 230 of the Communications Decency Act in 1996. With the tremendous and unforeseeable growth the internet experienced immediately thereafter, and continues to encounter today, what should have been a simple mechanism to allow innocent internet service providers (ISPs) to edit and delete content without fear of being charged as publishers has evolved into a relentlessly broad shield that protects contemptible conduct by ISPs …

Inequitable Sentencing For Possession Of Child Pornography: A Failure To Distinguish Voyeurs From Pederasts, Jesse P. Basbaum

UC Law Journal

This Note identifies several infirmities of United States Sentencing Guideline section 2 G2.2, the sentencing scheme for possession of child pornography. The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (r) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors …

Public Opinion, Cultural Change, And Constitutional Adjudication, Calvin Massey

UC Law Journal

When do courts pay attention to public opinion in deciding constitutional issues? When should courts do so? This Article provides a limited answer to those questions. Courts often pay attention to public opinion when deciding constitutional issues, especially when the issue is one that involves a challenge to a long-standing cultural norm. That pattern is present, for example, in each of Plessy v. Ferguson and Brown v. Board of Education. The Court changed its view of equal protection because public opinion about racial segregation changed. Today, the long-standing cultural understanding of marriage is challenged by those who claim that its …

The Case For Returning Politicians To The Supreme Court, Robert Alleman, Jason Mazzone

UC Law Journal

In the past few decades, prior service in the federal judiciary has become an increasingly important qualification for appointment to the Supreme Court. As a result, the Court has lost one kind of Justice who was very nearly a constant on the Court for 170 years: the politician who joins the Court after distinguished and prominent service in public life. Politicians of national prominence should be returned to the Supreme Court. These statesmen give legitimacy to the Court in an age when confirmation hearings are unrevealing. They have a history of accountability on concrete legal and political issues. They bring …

The Supreme Court And Public Opinion In Times Of War And Crisis, Gordon Silverstein, John Hanley

UC Law Journal

Observers have long speculated about the effect of war on judicial behavior. While common lore maintains that courts are reluctant to affirm claims against the government in wartime, over the past sixty years a number of notable cases have gone against the U.S. government. Recently, empirical research has suggested that the Supreme Court does not rule differently on war-related cases which reach the Court during wartime versus those which reach the Court after the relevant war has ended. We consider the role of public opinion as a possible explanatory variable in wartime cases, noting that in a number of important …

Judicial Independence: Under Attack Again?, Ming W. Chin

UC Law Journal

No abstract provided.

America's New Glass Ceiling: Unpaid Internships, The Fair Labor Standards Act, And The Urgent Need For Change, Jessica L. Curiale

UC Law Journal

Unpaid internships are increasing in the United States, and one can surmise that they will become even more common as the economy continues to deteriorate. Most internships are not paid, especially in "glamorous fields," such as politics or entertainment. Instead of wages, the company offering the internship promises the candidate "great experience" and an opportunity to get his foot in the door. Because employers respond favorably to internship experience on a resume, individuals see internships as increasingly necessary to be competitive in the job market. But without being paid, low-income individuals often cannot afford to take them. This raises a …