Law Commons^™

When Churches Reorganize, Pamela Foohey

Articles by Maurer Faculty

The article complements and expands the author’s prior article, Bankrupting the Faith. This article primarily relies on interviews with attorneys who represented religious organizations in chapter 11 bankruptcy to assess whether reorganization has the potential to offer an effective solution to religious organizations’ financial problems. In doing so, it makes three contributions. First, it tracks the post-bankruptcy outcomes of a portion of the debtors to find that approximately 65% remained operating post-bankruptcy; these outcomes contradict previous studies of small business bankruptcy and are important to current debates about reforming small business bankruptcy. Given this—and in keeping with the ABLJ’s …

Did The National Security Agency Destroy The Prospects For Confidentiality And Privilege When Lawyers Store Clients' Files In The Cloud--And What, If Anything, Can Lawyers And Law Firms Realistically Do In Response?, Sarah Jane Hughes

Articles by Maurer Faculty

No abstract provided.

Table Of Contents - Issue 1

Journal of Dispute Resolution

Table of Contents - Issue 1

Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin

Journal of Dispute Resolution

Today, 225 years after the Constitution was drafted, we can look back and see how the protection of individual property through our patent system has helped our country grow. In 2012 alone, there were more than 576,763 U.S. patents applications filed and 276,788 patents issued. These numbers don't include the tens of thousands of patents that were bought, sold, and licensed in the private market each year. Not surprisingly, an ever-increasing number of patents are challenged through litigation. In 2012, almost 5000 patent infringement cases were filed. Litigation expenses can easily cost each party in a dispute millions of dollars, …

Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman

Journal of Dispute Resolution

This article lays the groundwork for the development of such procedures and identifies several key areas requiring further study and deliberation. Particular attention is paid to fundamental questions such as whether SEP arbitration should be mandated by SDOs, which conflicts should be arbitrated, whether arbitral decisions should be confidential, and what form arbitration proceedings should take. While, at this early stage, these difficult questions cannot be answered definitively, this article offers a framework for further discussion that the authors hope will be useful for policy makers, industry participants, and commentators considering these important issues.

Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver

Journal of Dispute Resolution

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

Public Injunctions As A Way Around Concepcion: California's Continued Resistance To The Federal Arbitration Act, Elizabeth Kiesewetter

Journal of Dispute Resolution

This note outlines the general applicability of the FAA and preemption. Next, it examines the Supreme Court's precedent concerning preemption, as it relates to class actions and public policy. This note argues that California's public injunction exception does prohibit outright the arbitration of a particular type of claim and is, thus, preempted by the FAA. The Supreme Court will likely see this rule as being at odds with the FAA and as another repudiation from the California courts of their long-standing FAA jurisprudence. Finally, this note argues that, despite the likely preemption of California's rule, there are strong policy arguments …

Pressure To Plead: How Case-Management Mediation Will Alter Criminal Plea-Bargaining, Taylor C. Leonard

Journal of Dispute Resolution

This note first discusses the facts and proceedings in Milligan. Next, it explores the history and importance of plea-bargaining in the United States and how mediation has slowly become a part of criminal proceedings. Next, this note examines the Milligan court's reasoning for upholding the mediation plea bargain at issue in that case, in light of the legal landscape concerning ADR and the criminal justice system. Finally, this note argues in favor of using case-management mediation in criminal plea negotiations, and explores the proper methods and procedures to make these mediations successful.

Sexual Assault And The Meaning Of Power And Authority For Women With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

The sexual assault of persons with mental disabilities (also described as cognitive, intellectual and developmental disabilities) occurs at alarmingly high rates worldwide. These assaults are a form of gender-based violence intersecting with discrimination based on disability. Our research on the treatment of such cases in the Canadian criminal justice system demonstrates the systemic barriers these victims face at the level of both substantive legal doctrine and trial procedure. Relying on feminist legal theory and disability theory, we argue in this paper that abuses of trust and power underlie most sexual assaults of women with mental disabilities. We argue that existing …

Taxing Indirect Transfers: Improving An Instrument For Stemming Tax And Legal Base Erosion, Wei Cui

All Faculty Publications

Numerous countries (e.g. Canada, Australia and Japan) tax foreigners on the gain realized on their transfers of interests in foreign entities that invest in real estates in these countries. In the last few years, actions taken by tax authorities in India, China, Brazil, Indonesia and other non-OECD countries have highlighted the possibility of taxing a broader range of “indirect transfers” by foreigners. This Article argues taxing indirect transfers can have vital policy significance in countries where foreign inbound investments are actively traded in offshore markets: it may not only deter tax avoidance, but also stanch “legal base erosion” — the …

Opt-Out Education: School Choice As Racial Subordination, Osamudia James

Faculty Publications

No abstract provided.

Toward A Theory Of Equitable Federated Regionalism In Public Education, Erika K. Wilson

Faculty Publications

No abstract provided.

A Gathering Of Eagles, John V. Orth

Faculty Publications

No abstract provided.

How Environmental Review Can Generate Car-Induced Pollution: A Case Study, Michael Lewyn

Scholarly Works

The National Environmental Policy Act (“NEPA”) requires federal officials to draft an environmental impact statement (“EIS”) describing the environmental impact of proposed federal actions that significantly affect the environment, as well as analyze the environmental impacts of alternatives to the proposed action. Almost two dozen states have adopted “little NEPA” statutes imposing similar requirements upon state and/or local governments.

This article focuses on one of the strictest little NEPA statutes: New York's State Environmental Quality Review Act (“SEQRA”). While most little NEPA statutes cover only government projects,SEQRA also covers private sector projects requiring municipal permits. Furthermore, SEQRA requires the government …

How Real Is Gentrification?, Michael Lewyn

Scholarly Works

Some commentators argue that gentrification is turning many cities into a playground for the rich. This article rejects that view, pointing out that even relatively affluent cities are still poorer than the average suburb.

How To Make America Walkable, Michael Lewyn

Scholarly Works

Review of Walkable City, by Jeff Speck

Learning From Detroit, Michael Lewyn

Scholarly Works

Reviews a recent book about Detroit's problems.

Suburban Sprawl: Weaker But Still Alive, Michael Lewyn

Scholarly Works

Review of The End of the Suburbs, by Leigh Gallagher.

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

Scholarly Works

Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …

What Jurors Want To Know: Motivating Juror Cognition To Increase Legal Knowledge & Improve Decisionmaking, Sara Gordon

Scholarly Works

What do jurors want to know? Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision. But like all people, jurors who are asked to analyze information in a trial—even jurors who consciously want to reach a fair and accurate verdict—are unconsciously influenced by their internal goals and motivations. Some of these motives are specific to individual jurors; for instance, a potential juror with a financial interest in a case would be excluded from the jury pool. But other motivations, like the motive to understand the law …

Making The World In Atlanta's Image: The Student Nonviolent Coordinating Committee, Morris Abram, And The Legislative History Of The United Nations Race Convention, H. Timothy Lovelace

Articles by Maurer Faculty

No abstract provided.

Alumni Services: Strategies For Keeping The Law Library's Doors Open After Graduation, Michelle M. Trumbo

Articles by Maurer Faculty

No abstract provided.

Health Policy And The Syrian Chemical Weapons Crisis, David P. Fidler

Articles by Maurer Faculty

For health policy, armed conflicts constitute one of the most severe emergency contexts in which health, well-being, and determinants of health are threatened. The Syrian civil war has proved no different, as health experts re­peatedly lament the humanitarian debacle the Syrian conflict has become. The main distinguishing feature of the Syrian civil war has been the large-scale use of chemical weapons in August 2013. This essay analyzes the chemical weapons crisis and its diplomatic resolution from a health policy perspective, with particular attention on whether the handling of this crisis created positive health policy “spillover” opportunities for more effectively addressing …

Citizenship At Work: How The Supreme Court Politically Marginalized Public Employees, Ruben J. Garcia

Scholarly Works

Collective bargaining by public sector employees has been the subject of recent heated debates in the state legislatures of Wisconsin, Michigan, Ohio, and Indiana. The right of public sector employees to freedom of association, collective bargaining, and the right to participate in politics are among the “citizenship rights” of public employees. In many states, however, the citizenship rights of public employees are under threat both in state legislatures and in the courts. Paradoxically, the ability of public sector employees to change legislation has been hampered over the years by Supreme Court decisions, making it more difficult to organize politically by …

Buying Time? False Assumptions About Abusive Appeals, Michael Kagan, Fatma Marouf, Rebecca Gill

Scholarly Works

The federal government has expressed fear that immigrants abuse the appellate process to delay their deportations by filing meritless petitions for review with the federal courts. Some courts have responded to these concerns by imposing stricter standards for issuing stays of removal, so that the government can more easily deport petitioners even while their appeals remain pending. The risk with this approach is that immigrants who ultimately prevail may be erroneously deported. What is often overlooked is that the potential for abuse is really a function of time, with longer appeals posing a greater threat to immigration enforcement. This study …

Flexible Feminism And Reproductive Justice: An Essay In Honor Of Ann Scales, Lynne Henderson

Scholarly Works

Professor Ann Scales began her distinguished career by taking feminism and reproductive justice seriously. She became a leading feminist voice and influence on a number of topics. In later years, she returned to concerns about reproductive justice by presciently emphasizing the need to preserve women’s access to abortions.

This Essay discusses Professor Scales’s concerns and feminist method and then turns to reproductive justice. The Essay notes that, with Scales, a right to abortion is foundational for reproductive justice. The Essay then examines the increasing narrowing of access to abortion through law. The Essay next examines a current crisis over access …

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum

Scholarly Works

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. …

Dean's Column: Health Law At Unlv, Anne R. Traum, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Dean's Column: In Law School, It's Pro Bono From Day One, Anne R. Traum

Scholarly Works

No abstract provided.