Law Commons^™

Rehnquist's Fourth Amendment: Be Reasonable, Craig M. Bradley

Articles by Maurer Faculty

"The Fourth Amendment: Be Reasonable," is a chapter in a book, The Rehnquist Legacy, published by Cambridge University Press in 2006. The book is a comprehensive legal biography of the Chief Justice in which leading scholars examine his legacy in diverse areas of constitutional law, including criminal procedure. This chapter examines Rehnquist's voluminous Fourth Amendment jurisprudence. While Rehnquist has not authored any single path-breaking case in this area, the chapter shows his success, across the board, in achieving his stated goal of calling a halt to the pro-defendant rulings of the Warren Court in the criminal procedure area. However, Rehnquist …

Le Principe De Transparence Et Les Nouvelles Technologies Aux États-Unis, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

State Court International Human Rights Litigation: A Concerning Trend?, Austen L. Parrish

Articles by Maurer Faculty

The brief symposium contribution explores human rights litigation in U.S. state courts under state law. Faced with higher hurdles to successfully asserting Alien Tort Statute claims in U.S. courts and reluctant to re-embrace more traditional international lawmaking, human rights advocates have begun to experiment with alternative strategies for redressing human rights violations. One strategy involves state court litigation. Some commentators believe that state courts may prove more amenable to enforcing and advancing human rights. This symposium contribution explores the parallels between the recent willingness to consider state court litigation to remedy human rights violations occurring abroad and other state court …

Book Review. Epstein, L., Et. Al., The Behavior Of Federal Judges: A Theoretical And Empirical Study Of Rational Choice, Ashley A. Ahlbrand

Articles by Maurer Faculty

No abstract provided.

Reclaiming Our Essential Freedom To Determine Who May Be Admitted To Study Law, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Peel-Off Lawyers: Legal Professionals In India's Corporate Law Firm Sector, Jayanth K. Krishnan

Articles by Maurer Faculty

This study is about hierarchy within the legal profession – how it presents itself, how it is retained, and how it is combated. The socio-legal literature on this subject is rich, with many roots tracing back to Professor Marc Galanter’s famous early 1970s article on the ‘Haves’ and ‘Have-Nots.’ Galanter’s piece and the work of those influenced by him rightly suggest that resources – institutional, financial, and demographic – contribute to whether lawyers are, and remain as, part of the ‘Haves.’ Yet, while resources of course greatly matter, as this study will argue other forces are significant as well. One …

Carrots And Sticks: How Vcs Induce Entrepreneurial Teams To Sell Startups, Brian J. Broughman, Jesse M. Fried

Articles by Maurer Faculty

Venture capitalists (VCs) usually exit their investments in a startup via a trade sale. But the entrepreneurial team – the startup’s founder, other executives, and common shareholders – may resist a trade sale. Such resistance is likely to be particularly intense when the sale price is low relative to VCs’ liquidation preferences. Using a hand-collected dataset of Silicon Valley firms, we investigate how VCs overcome such resistance. We find, in our sample, that VCs give bribes (carrots) to the entrepreneurial team in 45% of trade sales; in these sales, carrots total an average of 9% of deal value. The overt …

The Employment And Economic Advancement Of African-Americans In The Twentieth Century, Kenneth G. Dau-Schmidt, Ryland Sherman

Articles by Maurer Faculty

In this article we examine the progress of African–Americans in the American labour market over the course of the twentieth century. We trace their progress as African-Americans moved from low-skill low-wage jobs in southern agriculture to a panoply of jobs including high-skill, high-wage jobs in industries and occupations across the country.We also document the migrations and improvements in educational achievement that have made this progress possible. We examine the progress yet to be made and especially the problems of lack of education and incarceration suffered by African–American males. Finally, we examine the importance of anti-discrimination laws and affirmative action in …

The Dimensions Of Judicial Impartiality, Charles G. Geyh

Articles by Maurer Faculty

Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This Article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when "we are all legal realists now," perfect impartiality-the complete absence of bias or prejudice-is at most an ideal; "impartial enough" has, of necessity, become the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: a procedural dimension, in which impartiality affords parties a fair hearing; a political dimension, in which …

The Changing Nature Of The Dominant Justifications That Legitimated The Oppression Of African-Americans In The United States, Kevin D. Brown

Articles by Maurer Faculty

The original justifications for the oppression of both African–Americans in the United States and Dalits in India were drawn from the religious systems of thought of both societies. However, over the centuries, the basic justifications for the oppression of African–Americans changed, while the primary rationale for the oppression of Dalits still remains rooted in religion. This essay sketches out the dominant forms that made and continue to make the oppression of African–Americans appear to be part of the natural order of things. It shows how the primary justifications for the oppression of Blacks changed over time. In so doing, this …

The American Judicature Society And Judicial Independence: Reflections At The Century Mark, Charles G. Geyh

Articles by Maurer Faculty

A logical starting point in a symposium commemorating AJS at the century mark is with judicial independence – a sweeping topic with a complex architecture that gives structure to the AJS mission. The many and varied contributions that AJS has made to the administration of justice over the past one hundred years can best be understood and appreciated as means to further the overarching objective of promoting an independent and accountable judiciary.

Enforcement As Substance In Tax Compliance, Leandra Lederman, Ted Sichelman

Articles by Maurer Faculty

It is well known that the government's complete failure to enforce a law can nullify that law. But what are the effects of partial enforcement? This Article shows that imperfect enforcement can alter the de facto content of the written law in predictable and beneficial ways. Specifically, in the tax compliance context, even if perfect enforcement were costless, it would not always be socially optimal. When improving the substantive law is infeasible, the enforcement agency can effect beneficial changes in the law by adopting a probabilistic enforcement scheme that varies according to the category of taxpayer and type of transaction. …

Book Review. Music & Copyright In America: Toward The Celestial Jukebox By Kevin Parks, Michelle M. Botek

Articles by Maurer Faculty

No abstract provided.

Introductory Remarks. Arctic Law: The Challenges Of Governance In The Changing Arctic, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

The Skeptic's Guide To Information Sharing At Sentencing, Ryan W. Scott

Articles by Maurer Faculty

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from …

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

Scholarly Works

Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.

Cognitive Illiberalism, Summary Judgement, And Title Vii: An Examination Of Ricci V. Destefano, Ann C. Mcginley

Scholarly Works

No abstract provided.

Conflicts Of Interest In Medicine, Research, And Law: A Comparison, Stacey A. Tovino

Scholarly Works

Several of the remarks and articles presented in this symposium have addressed conflicts of interest arising during the provision of legal counsel to individuals who are elderly, including specific conflicts of interest implicated by estate planning, retirement planning, and long-term care planning. Topics examined thus far include conflicts of interest with respect to the application of rules of confidentiality within state rules of professional conduct to elderly clients with impaired decision-making capacity; conflicts of interest involving representative payees for Social Security benefits; conflicts of interest in distributions when parents enter into marriages that are unprotected by law; and conflicts of …

A "Common" Proposal, Stacey A. Tovino

Scholarly Works

The Federal Policy for the Protection of Human Subjects (the “Common Rule”) is codified in separate regulations by seventeen federal departments and agencies, including the Department of Health and Human Services (HHS). HHS’s version of the Common Rule currently contains a basic policy for the protection of all human subjects, codified at Subpart A of the Common Rule, as well as special provisions governing human subjects research involving three sets of vulnerable populations, including pregnant women, fetuses, and neonates (Subpart B); prisoners (Subpart C); and children (Subpart D). This Article proposes that HHS amend the Common Rule to add a …

Across The Curriculum: Integrating Transactional Skills Instruction, Jean M. Whitney, Lori D. Johnson, Richard A. Rawson

Scholarly Works

No abstract provided.

Rethinking U.S. Legal Education: No More "Same Old, Same Old", Nancy B. Rapoport

Scholarly Works

In this Essay, I suggest that we should think about how to create a curriculum that encourages students to develop a variety of skill sets. Law students simply don’t need three years of Socratic questioning regarding the fine details of court opinions. They need a wide range of experiences, preferably building on skill sets (like the twenty-six Berkeley factors) that effective lawyers have developed. A law school’s curriculum should have courses that focus on different factors in each year of law school. Ultimately, what we should be teaching law students is how to develop the judgment to advise clients. Teaching …

Managing U.S. News & World Report--The Enron Way, Nancy B. Rapoport

Scholarly Works

No abstract provided.

Wagging, Not Barking: Statutory Definitions, Jeanne Price

Scholarly Works

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader's understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some …

Mandating Precontractual Disclosure, Eric H. Franklin

Scholarly Works

Parties negotiating an arm's-length contract are generally not required to disclose facts to one another. Although this default rule is supported by both centuries of common law and freedom of contract principles, courts and legislatures treat certain transactions differently. This is particularly true in circumstances in which the default rule results in an unacceptable harm suffered by a broad group of persons. In such cases, lawmakers have acted to impose precontractual disclosure obligations. These decisions and statutes are largely reactive: A harm is identified in a certain transaction's precontractual period and disclosure is mandated to rectify the harm. These reactive …

What Do Clients Want From Their Lawyers, Clark D. Cunningham

Journal of Dispute Resolution

This article, however, will show how the research upon which the ABA story was based–as well as substantial research with other clients ranging from large organizations to individuals–indicates that what clients want most from their lawyers is an aspect of legal services given too little attention both in legal education and professional development: effective lawyer-client communication. After reviewing extensive social science research on causes of client dissatisfaction, this article will conclude by suggesting a variety of ways–from easy to ambitious initiatives—that law schools and law firms can provide greater emphasis on the importance of effective communication with clients, teach effective …

Determining Arbitrability Of The Dispute: The Clear And Unmistakable Standard For Choice Of Law In Arbitration Agreements , Kristen Sanocki

Journal of Dispute Resolution

This note will also address the "clear and unmistakable" standard adopted by the Ninth Circuit and used to determine whether or not parties have agreed to apply non-federal arbitrability law. Based on the Ninth Circuit's reasoning in Cape Flattery Ltd. v. Titan Mar., LLC, this Note concludes that the court properly extracted a standard normally used to determine whether a court decides arbitrability as applicable to determining whether parties have sufficiently contracted for non-federal arbitrability law. Lastly, this Note will address the interpretation of arbitration clauses under federal law.

Labor-Relations Privilege: How Far Can We Tip The Scales To Hide The Truth, The, Joanna L. Byrne

Journal of Dispute Resolution

In order to understand the precise effect the Peterson holding will have on labor-relations law and privilege creation, it is important to first understand how privileges have been created in the past, both traditionally and divergently. Next, it is important to apply the historical context of privilege creation to understand the critical thinking that determines when and how a new privilege should apply. Further, it is important to compare and contrast labor-relations privileges with other privileges in order to create proper limits and application of the labor-relations privilege. Applying this analytical framework to the facts, holding, and reasoning of the …

You Can't Have Your Trust And Defeat It Too: Why Mandatory Arbitration Provisions In Trusts Are Enforceable, And Why State Courts Are Getting It Wrong, Rachel M. Hirshberg

Journal of Dispute Resolution

This note addresses a recent decision by the Texas State Court of Appeals concerning the enforceability of mandatory arbitration provisions found in testamentary instruments, and specifically, inter vivos trusts. After analyzing the legal background of arbitration, the use of contract principles to analyze both arbitration and trust agreements, and statutory enactments making trust arbitration provisions enforceable, this note will discuss the nuanced relationship between contract principles of construction, arbitration agreements, and trust instruments, and specifically the relationship between trust agreements and contracts. In analyzing these relationships, this note will also address the differences between the statute at issue in Rachal …

Read Between The Lines: Considering The Party Agreement When Determining Arbitrability In Bilateral Investment Treaties, Ryan Nichols

Journal of Dispute Resolution

This note will discuss the impact party autonomy and limited judicial review of arbitral awards have on the issue of arbitrability, concluding that parties should be held to their agreement despite strict judicial review limitations. It will also discuss the implications of BG Group for the manifest disregard of law doctrine. Furthermore, this note will also attempt to examine the future ramifications this decision may have on other courts and arbitration panels facing a similar issue. It will primarily focus on the role of party autonomy in arbitration and how such party interest analysis should and does supersede other legal …

Out Of The Shadows: What Legal Research Instruction Reveals About Incorporating Skills Throughout The Curriculum , Barbara Glesner Fines

Journal of Dispute Resolution

The article first examines the politics of curricular reform. Before a law school will be able to increase or improve any skills instruction, the targeted skill must be important to enough to affect the curriculum. For example, sometimes law schools send inconsistent messages about the importance of legal research instruction. While external voices such as ABA accreditation standards and surveys of the practicing bar have long-recognized importance of the skills of legal research, evidence of the importance of the skill in the law school curriculum is mixed. If asked, most faculty members will agree that a given skill, such as …