Law Commons^™

Book Review: "Gustav Shpet’S Contribution To Philosophy And Cultural Theory", Francis J. Mootz Iii

Scholarly Works

The author reviews Gustav Shpet’s Contribution to Philosophy and Cultural Theory edited by Galin Tihanov. The volume provides a comprehensive introduction to the significance of the Russian philosopher Gustav Shpet (1879-1937) in the development of phenomenology, hermeneutics, semiotics, literary theory, psychology, and cultural criticism.

Changing The Modal Law School: Rethinking U.S. Legal Education In (Most) Schools, Nancy B. Rapoport

Scholarly Works

This essay argues that discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same. A better description of the educational opportunities provided by ABA-accredited law schools would group the schools into three rough clusters: the “elite” law schools, the modal (most frequently occurring) law schools, and the precarious law schools. Because the elite law schools do not need much “reforming,” the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools …

All Illnesses Are (Not) Created Equal: Reforming Federal Mental Health Insurance Law, Stacey A. Tovino

Scholarly Works

This Article is the second, and most important, installment in a three-part series that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness. The basic impetus for this historical, medical, and legal project is a belief that there exists no rational or consistent method of distinguishing physical and mental illness in the context of health insurance law. The first installment in this series narrowly inquired as to whether a particular set of disorders, the postpartum mood disorders, are or should be classified as physical or mental illnesses in a range of health law contexts.* This second …

The “Ethical” Surplus Of The War On Illegal Immigration, Francis J. Mootz Iii, Leticia M. Saucedo

Scholarly Works

The Aristotelian philosopher, Gene Garver, suggests that rhetorical claims have an "ethical surplus" that extends beyond the specific claim being advanced at the moment. This follows from the fact that rhetoric includes not only logos, but also pathos and ethos. We adopt the thesis of "ethical surplus," but in a negative context. The "war on illegal immigration" has generated an ethical surplus that leads its promoters beyond the specific claim of securing borders against unlawful entry. After demonstrating that there is an express rhetoric of "war" used in connection with Arizona's adoption of recent anti-immigrant legislation, we explore …

Law, Politics, And Cost-Benefit Analysis, Daniel H. Cole

Articles by Maurer Faculty

This Article explores the significant role cost–benefit analysis (CBA) plays in facilitating or impeding legislative and regulatory policy decisions. The Article centers around three case studies of CBAs the EPA prepared under three different presidents: (1) Clinton Administration changes to Clean Air Act air quality standards for ozone and particulate matter; (2) President Obama’s recent decision to suspend the EPA’s reconsideration of the Bush Administration’s air quality standard for ozone; and (3) the George W. Bush Administration’s “Clear Skies” legislative initiative. The first two case studies demonstrate, between them, how well-constructed CBAs can facilitate social-welfare-enhancing and impede welfare-reducing rules, even …

The Obama Administration’S Decision To Defend Constitutional Equality Rather Than The Defense Of Marriage Act, Dawn E. Johnsen

Articles by Maurer Faculty

When President Barack Obama announced his view that the Defense of Marriage Act1 (DOMA) violated the Fifth Amendment’s guarantee of equal protection,2 he joined a storied line of Presidents who have acted upon their own constitutional determinations in the absence of, and on rare occasion contrary to, those of the U.S. Supreme Court. How best to proceed in the face of a federal statute the President considers unconstitutional can involve complex judgments, as was true of the difficult decision to enforce but not defend DOMA. Ordinarily the Department of Justice should adhere to its tradition of defending statutes against constitutional …

"The Essence Of A Free Society": The Executive Powers Legacy Of Justice Stevens And The Future Of Foreign Affairs Deference, Dawn E. Johnsen

Articles by Maurer Faculty

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law—the very “essence of a free society.” Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by …

Degree Pedigree: Assessing The Effect Of Degree-Granting Institutions’ Ranks On Prospective Employment At Academic Law Libraries, Ashley A. Ahlbrand, Michael Johnson

Articles by Maurer Faculty

In the academic law library hiring process, candidates are assessed based on a variety of factors. The study conducted here focuses on education—specifically the institutional rank of degree-granting law and library science institutions—to explore how the rank of one’s graduate education might influence hiring decisions at academic law libraries.

Do Vcs Use Inside Rounds To Dilute Founders? Some Evidence From Silicon Valley, Brian Broughman, Jesse Fried

Articles by Maurer Faculty

In the bank-borrower setting, a firm's existing lender may exploit its positional advantage to extract rents from the firm in subsequent financings. Analogously, a startup's existing venture capital investors (VCs) may dilute the founder through a follow-on financing from these same VCs (an “inside” round) at an artificially low valuation. Using a hand-collected dataset of Silicon Valley startup firms, we find little evidence that VCs use inside rounds to dilute founders. Instead, our findings suggest that inside rounds are generally used as “backstop financing” for startups that cannot attract new money, and these rounds are conducted at relatively high valuations …

Book Review. Legal Education In Asia: Globalization, Change And Contexts, Carole Silver

Articles by Maurer Faculty

No abstract provided.

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Articles by Maurer Faculty

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …

Reconfiguring Sex, Gender, And The Law Of Marriage, Deborah Widiss

Articles by Maurer Faculty

This article brings together legal, historical, and social science research to analyze how couples allocate income-producing and domestic responsibilities. It develops a framework—what I call the marriage equation—that shows how sex-based classifications, (non-sex-specific) substantive marriage law, and gender norms interrelate to shape these choices. Constitutional decisions in the 1970s ended legal distinctions between the duties of husbands and wives but left largely in place both gender norms and substantive rights within marriage, tax, and benefits law that encourage specialization into breadwinning and caregiving roles. By permitting disaggregation of the marriage equation, the new reality of same-sex marriage can serve as …

Academic Sailers: The Ford Foundation And The Efforts To Shape Legal Education In Africa, 1957-1977, Jayanth K. Krishnan

Articles by Maurer Faculty

This study examines a major law-and-development project in Africa undertaken by the New York-based Ford Foundation in the decades following the Second World War. By the 1960s, many countries in Africa freed themselves of colonial rule, and Ford eagerly sought to assist these newly emerging states in the nation-building process. One area towards which Ford contributed considerable resources was legal education. Labeling its program ‘SAILER’ – or the Staffing of African Institutions of Legal Education and Research – Ford engaged in a range of initiatives, including sending American lawyers to teach in several different African countries and bringing Africans to …

The Use Of Voluntary Disclosure Initiatives In The Battle Against Offshore Tax Evasion, Leandra Lederman

Articles by Maurer Faculty

The federal government has engaged in a number of well-publicized enforcement efforts in an attempt to collect back taxes owed on offshore bank account and other offshore assets. Among those efforts are special offshore “voluntary disclosure” initiatives — essentially tax amnesties — offered by the Internal Revenue Service. One such program closed in September 2011, and another opened in January 2012. After discussing the history of voluntary disclosure programs, particularly the offshore initiatives of 2003, 2009, 2011, and 2012, this essay evaluates the government’s approach to voluntary disclosure of offshore evasion in light of the literature on optimal tax amnesties. …

Is This The Beginning Of The End Of The Second Reconstruction?, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This article discusses the history, present, and possible future of the Voting Rights Act.

Can The Rule Of Law Survive Judicial Politics?, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

UC Law Journal

Ever since Brandenburg v. Ohio, departures from content neutrality under the First Amendment have received strict scrutiny. However, in Holder v. Humanitarian Law Project (“HLP”), the Supreme Court decided that the perils of content regulation were less pressing than was the need to curb the human capital of groups, such as Hamas, designated as foreign terrorist organizations (“DFTOs”). As a result, the Court upheld a statute that bars “material support” of terrorist organizations, ruling that the statute bars speech coordinated with DFTOs, including training in negotiation or the use of international law. Some commentators have labeled HLP as heralding a …

Guilty By Proxy: Expanding The Boundaries Of Responsibility In The Face Of Corporate Crime, Amy J. Sepinwall

UC Law Journal

The BP oil spill and financial crisis share in common more than just profound tragedy and massive clean-up costs. In both cases, governmental commissions have revealed widespread wrongdoing by individuals and the entities for which they work. The public has demanded justice, yet the law enforcement response in both cases has been underwhelming. In particular, no criminal indictments have been sought for any of the corporations responsible for the Macondo oil-rig explosion or for the Wall Street banks involved in the financial meltdown. This governmental restraint reflects a deep-seated ambivalence about corporate criminal liability. Though scholars have been debating the …

Note – Playing Hot Potato In The Market: The Ninth Circuit’S Better Approach To Calculating Loss For Securities Fraud Sentencing, Erica Connolly

UC Law Journal

In United States v. Berger, the Court of Appeals for the Ninth Circuit departed from the Second and Fifth Circuits regarding the standard required to determine loss for securities fraud under the Federal Sentencing Guidelines. Unlike its sister circuits, the Ninth Circuit held that the Supreme Court’s reasoning in Dura Pharmaceuticals, Inc. v. Broudo for loss causation in civil securities fraud actions did not apply to the criminal sentencing context. Instead, the Ninth Circuit endorsed price inflation, which was rejected in Dura Pharmaceuticals, as a method of determining loss under the Guidelines. This Note examines the circuits’ decisions in light …

Judicial Mindsets: The Social Psychology Of Implicit Theories And The Law, Victor D. Quintanilla

Articles by Maurer Faculty

This article introduces Dr. Carol Dweck’s seminal and significant line of psychological research on the phenomenon of implicit theories and draws on this research as a lens through which we might better understand judicial decision-making. In particular, the article focuses on the implications of two types of implicit theories – whether people believe that phenomena are static and fixed versus dynamic and malleable. By introducing this research, this article aims to forward a research agenda designed to examine how social, contextual, and situational forces influence judicial behavior.

An entity theory reflects the mindset that phenomena are fixed and unlikely to …

Chapter 11 Reorganization And The Fair And Equitable Standard: How The Absolute Priority Rule Applies To All Nonprofit Entities, Pamela Foohey

Articles by Maurer Faculty

In recent years, nonprofit entities increasingly have sought bankruptcy protection. Though the Bankruptcy Code does not prevent nonprofits from reorganizing, Chapter 11 was designed for and applies best to for-profit businesses. This creates challenges for courts evaluating a nonprofit’s reorganization plan. This Article focuses on one crucial aspect of a court’s evaluation — the fair and equitable standard, a necessary, but not sufficient condition of which is satisfaction of the absolute priority rule.

The few courts addressing absolute priority claims in nonprofit reorganizations have held that the rule is categorically inapplicable to nonprofit entities except in limited circumstances. These courts …

The Great Recession, The Resulting Budget Shortfalls, The 2010 Elections And The Attack On Public Sector Collective Bargaining In The United States, Kenneth G. Dau-Schmidt, Winston Lin

Articles by Maurer Faculty

American public sector unions and collective bargaining have been subjected to a vicious attack under the auspices of balancing government budgets, promoting "equity" between private and public employees and limiting the impact of "special interests" on government policy. The American and world financial crisis of 2007 resulted in the Great Recession of 2008 and substantial budget shortfalls for local and national governments world-wide. This financial crisis and the resulting disintegration of aggregate demand and employment are eerily similar to the financial crisis and collapse that led to the Great Depression of the 1930’s. However, unlike the calamity of the 1930’s, …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Articles by Maurer Faculty

Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars' use of a "desperate woman" stereotype denies women's ability to critically assess the health risks and …

Gat, Solvay, And The Centralization Of Patent Litigation In Europe, Marketa Trimble

Scholarly Works

No abstract provided.

On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main

Scholarly Works

No abstract provided.

Shadow Citizens: Felony Disenfranchisement And The Criminalization Of Debt, Ann Cammett

Scholarly Works

The disenfranchisement of felons has long been challenged as anti-democratic and disproportionately harmful to communities of color. Critiques of this practice have led to the gradual liberalization of state laws that expand voting rights for those who have served their sentences. Despite these legal developments, ex-felons face an increasingly difficult path to regaining the franchise. This article argues that, for ex-felons in particular, criminal justice debt can serve as an insurmountable obstacle to the resumption of voting rights and broader participation in society. This article uses the term “carceral debt” to identify criminal justice penalties levied on prisoners, “user fees” …

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Mandatory Binding Arbitration Clauses Prevent Consumers From Presenting Procedurally Difficult Claims, Jean R. Sternlight

Scholarly Works

The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated altogether as a result of companies’ use of mandatory arbitration clauses. The United States Supreme Court’s recent decision in AT&T Mobility v. Concepcion brings …

Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency, And Acceptable Justice, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Evading Legislative Jurisdiction, Austen L. Parrish

Articles by Maurer Faculty

In the last few years, and mostly unnoticed, courts have adopted a radically different approach to issues of legislative jurisdiction. Instead of grappling with the difficult question of whether Congress intended a law to reach beyond U.S. borders, courts have side-stepped it entirely. Courts have done so by redefining the definition of extraterritoriality. Significant and contentious decisions in the Ninth and D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. And then suddenly, last term, the U.S. Supreme Court breathed life into the practice. In its landmark Morrison v. National Australia Bank …