Law Commons^™

Federal Courts At The Boyd School Of Law, Anne R. Traum

Scholarly Works

No abstract provided.

Insights From A National Conference: "Conflicts Of Interest In The Practice Of Medicine", David Orentlicher

Scholarly Works

No abstract provided.

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

Scholarly Works

No abstract provided.

Perverse Incentives Arising From The Tax Provisions Of Healthcare Reform: Why Further Reforms Are Needed To Prevent Avoidable Costs To Low- And Moderate-Income Workers, David Gamage

Articles by Maurer Faculty

Called “Obamacare” by some, the Affordable Care Act (or “ACA”) is the most extensive reform to the American healthcare system since the creation of Medicare and Medicaid in 1965. The ACA promises many improvements to American health care. While recognizing the importance of these improvements, this Article focuses on how the ACA’s tax provisions will create avoidable costs for low- and moderate-income workers.

This Article argues that – once key tax-related provisions of the ACA come into effect in 2014 – the ACA will create perverse incentives with respect to a number of important decisions affecting low- and moderate-income Americans, …

L'Embarras Du Choix: A Year Of Developments In The Laws Affecting Remittance Transfers, Credit Cards, And Certain Prepaid Cards, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.

Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Systematic Government Access To Private-Sector Data, Fred H. Cate, James X. Dempsey, Ira S. Rubenstein

Articles by Maurer Faculty

No abstract provided.

The Supreme Court And Information Privacy, Fred H. Cate, Beth E. Cate

Articles by Maurer Faculty

Advances in technology—including the growing use of cloud computing by individuals, agencies, and organizations to conduct operations and store and process records—are enabling the systematic collection and use of personal data by state and federal governments for a variety of purposes.

These purposes range from battling crime and terrorism to assessing public policy initiatives and enforcing regulatory regimes. To aid these efforts, governments are promoting mandatory retention and reporting of data by online service providers and the expansion of laws that facilitate wiretaps to greater portions of the web.

The legal framework for protecting individual privacy within this growing world …

First Amendment, Fourth Estate, And Hot News: Misappropriation Is Not A Solution To The Journalism Crisis, Joseph A. Tomain

Articles by Maurer Faculty

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. …

Unfinished Business: A Discussion Of Remedies For Victims Of Involuntary Dismissal Under Don't Ask, Don't Tell And Its Predecessor, Toward A True Reconciliation, Robert I. Correales

Scholarly Works

By examining another dark chapter in American history-the internment of Japanese Americans during World War II-this Article makes a moral and legal case for a more complete resolution of harms to victims of anti-gay military discrimination. The successful reparations campaign waged by Japanese Americans who were interned during World War II has provided both inspiration and a helpful blueprint for reparation movements worldwide. This article seeks to show that by observing the parallels between these two dark periods, it is clear that DADT's historical chapter cannot be closed until reparations are paid to those who were victimized by the policies …

Introduction: Masculinities, Multidimensionality, And Law: Why They Need One Another, Ann C. Mcginley, Frank Rudy Cooper

Scholarly Works

No abstract provided.

Survival Of The Standard: Today's Public Interest Requirement In Television Broadcasting And The Return To Regulation, Drew Simshaw

Scholarly Works

No abstract provided.

Introduction: Guaranteeing The Rights Of Public Employees, Kenneth G. Dau-Schmidt, Ann. C. Mcginley

Articles by Maurer Faculty

No abstract provided.

Resolving The Ip Disconnect For Small Businesses, Leah Chan Grinvald

Scholarly Works

Small businesses are an important component of the American economy. In fact, the jobs created by small businesses could assist the United States in overcoming its most recent economic downturn. Paradoxically, though, the failure rate of small businesses is quite high. Although various factors contribute to this high failure rate, one of the factors the U.S. government has focused on has been the disproportionate impact that intellectual property laws, policies, and their enforcement may have on small businesses. While the U.S. government has paid attention to the impact of domestic intellectual property laws on small businesses, the government has paid …

Book Review. The Legacy Of The International Criminal Tribunal For The Former Yugoslavia Edited By B. Swart, A. Zahar And G. Sluiter, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Admonitions Or Accountability?: U.S. Implementation Of The Hague Adoption Convention Requirements For The Collection And Disclosure Of Medical And Social History Of Transnationally Adopted Children, Marianne Blair

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

Convergence And Divergence In International Dispute Resolution Symposium, Peter Rutledge

Journal of Dispute Resolution

This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages …

United States Supreme Court And Class Arbitration: A Tragedy Of Errors, The Symposium, Gary Born, Claudio Salas

Journal of Dispute Resolution

This Essay describes and critiques the U.S. Supreme Court's recent misadventures with class arbitration. First, the Essay reviews the origins and rise of class arbitration under the FAA, particularly following the Supreme Court's Bazzle decision. In Part II, the Essay discusses application of the unconscionability doctrine to class action waivers, under the California courts' Discover Bank doctrine. In Part III, the Essay recounts the Supreme Court's retrenchment from class arbitration in Stolt-Nielsen and, more fully, in Concepcion. It also critiques the Court's apparent analysis in Concepcion and offers an alternative analysis for the Concepcion result that is more consistent with …

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Journal of Dispute Resolution

In many ways, the relationship between litigation and international commercial arbitration is a curious one, with experts adopting diametrically opposed positions on how the two procedures do or should interact. For example, some people take the view that international commercial arbitration is a uniquely self-contained dispute resolution mechanism that proceeds entirely independent of state control.'

Interference Of The Court Of The Seat With International Arbitration, The Symposium, Giulia Carbone

Journal of Dispute Resolution

This article looks upon two fundamental questions: (1) whether arbitrators should comply with a local court's order aimed at suspending or interrupting the running of arbitral proceedings, and (2) what type of remedies should a party receive when courts unjustly interfere with their right to arbitrate. This article will explore these two questions in four parts. Part II focuses on the interference with international commercial arbitration by the court at the place of the arbitration. It does so by taking into account ICC cases, some relevant national judgments, and deals with the solutions offered by Articles 8 and 16 of …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong

Journal of Dispute Resolution

Finally, the purpose of this Article is not to provide answers to particular questions, since far too much depends on the individual facts and circumstances of a particular dispute to allow for abstract generalizations. Instead, the goal is to identify a useful framework for analysis of matters relating to international commercial arbitration so that newcomers and infrequent participants in this area of law can approach their specific concerns with a higher degree of understanding and sophistication.

Originalist Ideology And The Rule Of Law, Ian C. Bartrum

Scholarly Works

This essay contends that one of the basic tenets of the "New Originalism" -- the so-called "contribution thesis" -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, the essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation.

Post-Racialism And Searches Incident To Arrest, Frank Rudy Cooper

Scholarly Works

For 28 years the Court held that an officer's search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court's requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court's requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil …

Guaranteeing The Rights Of Public Employees, Ann C. Mcginley, Kenneth Dau-Schmidt

Scholarly Works

In this Essay, Professors Ann McGinley and Kenneth G. Dau-Schmidt introduce the important issues to be examined in this Symposium Issue examining the erosion of rights guaranteed to public employees by recent state legislation.

On Tax Increase Limitations: Part Ii -- Evasion And Transcendence, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this essay, the second of a series, we continue our evaluation of state Tax Increase Limitations (TILs) – special rules that limit state legislatures’ ability to raise taxes, such as by requiring supermajority votes. We analyze two strategies whereby majority parties can evade TILs to the extent they so desire. We further argue that these strategies have some positive normative features. The strategies designed to evade TILs may ultimately lead toward a more effective means for controlling the size of state government than TILs themselves are able to provide.

Vendor Compensation As An Approach For State "Amazon" Laws: Part 2, David Gamage, Devin J. Heckman

Articles by Maurer Faculty

In this essay, the second of a two-part series, we propose an approach for the U.S. states to tax interstate e-commerce. If the states adequately compensate remote e-commerce vendors for all tax compliance costs, we argue that the states can constitutionally impose use tax collection obligations on the remote vendors in a manner compatible with the Quill framework.

The Saga Of State "Amazon" Laws: Reflections On The Colorado Decision, David Gamage, Darien Shanske

Articles by Maurer Faculty

We analyze the Colorado district court’s decision in Direct Marketing Association v. Huber – a decision that permanently enjoined Colorado’s "Amazon" law. Had it not been enjoined, the Colorado law would have mandated information reporting by remote e-commerce vendors so that Colorado could levy its sales and use tax on the e-commerce purchases made by Colorado residents. We evaluate the applicability of the Tax (Anti-)Injunction Act and whether the Colorado statute and regulations should be reviewed as a tax or as a regulation. We also suggest alternative approaches that state legislatures might use in order to levy taxes on remote …

Vendor Compensation As An Approach For State "Amazon" Laws: Part 1, David Gamage, Devin J. Heckman

Articles by Maurer Faculty

In this Essay, the first of a two-part series, we analyze the approaches U.S. states have been using in their attempts to tax interstate e-commerce. We argue that these existing approaches are unlikely to be effective. In our companion Essay, the second in the series, we outline a novel approach that states might employ in order to more effectively tax interstate e-commerce – based on adequately compensating remote vendors for all tax compliance costs. But before we can argue for our new approach, we must first survey the current constitutional and statutory landscape.

How (Not) To Implement Cost As A Sentencing Factor, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.