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Full-Text Articles in Law

Creative Assessment: Connecting Legal Research Training And Instruction To Results (Review Of Aall Program), Kimberly Mattioli Oct 2015

Creative Assessment: Connecting Legal Research Training And Instruction To Results (Review Of Aall Program), Kimberly Mattioli

Articles by Maurer Faculty

As academic law librarians, we should all be concerned with identifying whether our students are meeting AALL’s Principles and Standards for Legal Research Competency. I was excited to attend this session on Creative Assessment so that I could learn new ways in which librarians can evaluate their students to see if they are adequately trained in these core competencies. The panelists were Pamela Rogers Melton, Associate Director for Administration at the University of South Carolina, Gail Partin, Interim Director at the Dickinson School of Law Library, and Barbara Gabor, Senior Research and Reference Specialist at WilmerHale.


Big Data, Bigger Dilemmas: A Critical Review, Hamid Ekbia, Michael Mattioli, Inna Koupe, G. Arave, Ali Ghazinejad, Timothy Bowman, Venkatq R. Suri, Tsou Andrew, Scott Weingart, Cassidy R. Sugimoto Aug 2015

Big Data, Bigger Dilemmas: A Critical Review, Hamid Ekbia, Michael Mattioli, Inna Koupe, G. Arave, Ali Ghazinejad, Timothy Bowman, Venkatq R. Suri, Tsou Andrew, Scott Weingart, Cassidy R. Sugimoto

Articles by Maurer Faculty

The recent interest in Big Data has generated a broad range of new academic, corporate, and policy practices along with an evolving debate among its proponents, detractors, and skeptics. While the practices draw on a common set of tools, techniques, and technologies, most contributions to the debate come either from a particular disciplinary perspective or with a focus on a domain-specific issue. A close examination of these contributions reveals a set of common problematics that arise in various guises and in different places. It also demonstrates the need for a critical synthesis of the conceptual and practical dilemmas surrounding Big …


Practical Tips For Interpreting Statutory Overrides, Deborah A. Widiss Jul 2015

Practical Tips For Interpreting Statutory Overrides, Deborah A. Widiss

Articles by Maurer Faculty

No abstract provided.


Lessons From Pollution Control: Response To Heller And Hobbs 2014, Robert L. Fischman, James Salzman Jun 2015

Lessons From Pollution Control: Response To Heller And Hobbs 2014, Robert L. Fischman, James Salzman

Articles by Maurer Faculty

Heller and Hobbs (2014) provide an incisive analysis of the challenges inherent in setting endpoint states as conservation goals. The social construct of nature, nonequilibrium ecosystems, global climate change, large-scale transformations of the landscape, and increasing population and economic activity confound efforts to establish conservation goals. Stakeholders often disagree on endpoint targets, whereas competing notions of historic fidelity and future flexibility frustrate our ability to articulate success, never mind actually achieve it. As Heller and Hobbs describe, this leaves managers in the bind of finding the “balance between future-looking management emphasizing change and past-looking management emphasizing persistence.” As a result, …


Advantages Of A Polycentric Approach To Climate Change Policy, Daniel H. Cole Jan 2015

Advantages Of A Polycentric Approach To Climate Change Policy, Daniel H. Cole

Articles by Maurer Faculty

Lack of progress in global climate negotiations has led scholars to reconsider polycentric approaches to climate policy. Several examples of subglobal mechanisms to reduce greenhouse-gas emissions have been touted, but it remains unclear why they might achieve better climate outcomes than global negotiations alone. Decades of work conducted by researchers associated with the Vincent and Elinor Ostrom Workshop in Political Theory and Policy Analysis at Indiana University have emphasized two chief advantages of polycentric approaches over monocentric ones: they provide more opportunities for experimentation and learning to improve policies over time, and they increase communications and interactions — formal and …


State Court Protection Of Reproductive Rights: The Past, The Perils, And The Promise, Dawn E. Johnsen Jan 2015

State Court Protection Of Reproductive Rights: The Past, The Perils, And The Promise, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.


Labor Law 2.0: The Impact Of New Information Technology On The Employment Relationship And The Relevance Of The Nlra, Kenneth G. Dau-Schmidt Jan 2015

Labor Law 2.0: The Impact Of New Information Technology On The Employment Relationship And The Relevance Of The Nlra, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as "employee," "employer," and "appropriate bargaining unit" were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of …


Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla Jan 2015

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Articles by Maurer Faculty

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …


When Faith Falls Short: Bankruptcy Decisions Of Churches, Pamela Foohey Jan 2015

When Faith Falls Short: Bankruptcy Decisions Of Churches, Pamela Foohey

Articles by Maurer Faculty

What does a church do when it is about to go bust? Religious organizations, like any business, can experience financial distress. Leaders could try to solve their churches’ financial problems on their own. Perhaps leaders do not view the problems as addressable with law. Or perhaps they do not think, as a moral or spiritual matter, that they should resort to the legal system, such as bankruptcy, to deal with their churches’ inability to pay its debts. Yet about ninety religious organizations seek to reorganize under the Bankruptcy Code every year. This Article relies on interviews with forty-five of these …


Delaware's Familiarity, Brian J. Broughman, Darian M. Ibrahim Jan 2015

Delaware's Familiarity, Brian J. Broughman, Darian M. Ibrahim

Articles by Maurer Faculty

Why do corporations choose to incorporate in Delaware over other states? The existing literature primarily falls into two camps — the “race-to-the-top” and the “race-to-the-bottom” — both of which credit Delaware’s success to the quality of its corporate law and the expertise of its judges. We consider an alternative explanation for Delaware’s continued success: familiarity. After decades of dominance, business parties have become increasingly familiar with Delaware law. Using data from a sample of startups financed by venture capital, we find that firms domicile in Delaware as much for familiarity reasons as for its substantive features. The Article finishes by …


Race, Federalism, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles Jan 2015

Race, Federalism, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

No abstract provided.


Conceiving Of Products And The Products Of Conception: Reflections On Commodification, Consumption, Art, And Abortion, Jody L. Madeira Jan 2015

Conceiving Of Products And The Products Of Conception: Reflections On Commodification, Consumption, Art, And Abortion, Jody L. Madeira

Articles by Maurer Faculty

This paper rejects the dichotomy between patient and consumer roles and focuses instead on how attributes of each are meaningful to those seeking health care. Arguing that health care is already commodified, it suggests that both medicine and the market offer strategies for handling commodification. The important questions are how we understand these attributes and their role in care relationships, and which attributes we should encourage. The medical profession and patient role have long accommodated commodification, using fiduciary roles, flat fees and opaque pricing to distance payment and pricing from care provision. In contrast, the market and consumer role emphasize …


The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh Jan 2015

The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.


Cyber War Crimes: Islamic State Atrocity Videos And The Laws Of War, David P. Fidler Jan 2015

Cyber War Crimes: Islamic State Atrocity Videos And The Laws Of War, David P. Fidler

Articles by Maurer Faculty

The Islamic State has combined its extreme violence with digital and cyber technologies to produce and distribute globally videos recording atrocities it commits. This article argues that those in the Islamic State who make and distribute these atrocity videos are committing war crimes under international law. After introducing the unprecedented phenomenon the atrocity videos represent (I.), the article first examines the relationship between international law and propaganda in war and peace (II.) The article then argues the atrocity videos violate prohibitions in international humanitarian law and constitute war crimes (III.). The article concludes by presenting criticisms of this argument and …


Review Of Covering The United States Supreme Court In The Digital Age, Susan David Demaine Jan 2015

Review Of Covering The United States Supreme Court In The Digital Age, Susan David Demaine

Articles by Maurer Faculty

No abstract provided.


The Problem Of Shared Irresponsibility In International Climate Law, Daniel H. Cole Jan 2015

The Problem Of Shared Irresponsibility In International Climate Law, Daniel H. Cole

Articles by Maurer Faculty

States have treaty-based and customary international law-based responsibilities to ensure that greenhouse gas emissions emanating from their territory do not cause transboundary harm. However, those international legal responsibilities conflict with the observed behavior of states, which suggests a general rule of irresponsible treatment of the global commons. This paper, written for a conference (and eventual book) on shared responsibility in international law, examines that conflict and two potential mechanisms for resolving it: (1) international litigation and (2) various types of polycentric approaches to climate governance.

Several international legal scholars have been advocating litigation as a means of compensating victims and …


There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell Jan 2015

There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell

Articles by Maurer Faculty

At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas — the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces — social media and employment where …


Using Taxes To Improve Cap And Trade, Part I: Distribution, David Gamage, Darien Shanske Jan 2015

Using Taxes To Improve Cap And Trade, Part I: Distribution, David Gamage, Darien Shanske

Articles by Maurer Faculty

In this article, the first of a series, we analyze the distributional issues involved in implementing U.S. state level cap-and-trade regimes. Specifically, we will argue that the structure of California’s AB 32 regime will unnecessarily disadvantage lower-income Californians under the announced plan to give away approximately half of the permits to businesses and pollution-emitting entities.


The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke Jan 2015

The State Of Recusal Reform, Charles G. Geyh, Myles Lynk, Robert S. Peck, Toni Clarke

Articles by Maurer Faculty

No abstract provided.


Are These Game Changers? Developments In The Law Affecting Virtual Currencies, Prepaid Payroll Cards, Online Tribal Lending, And Payday Lenders, Sarah Jane Hughes, Stephen T. Middlebrook Jan 2015

Are These Game Changers? Developments In The Law Affecting Virtual Currencies, Prepaid Payroll Cards, Online Tribal Lending, And Payday Lenders, Sarah Jane Hughes, Stephen T. Middlebrook

Articles by Maurer Faculty

In the year since our last survey, there have been significant legal developments in the areas of virtual currencies, prepaid payroll cards, online tribal lending, and payday lending. What connects some of these topics is an increasingly common strategy by federal banking regulators to influence and control the actions of entities that are not directly subject to their supervision through the relationships such entities have with regulated financial institutions. These developments also demonstrate robust state legislative and regulatory action relating to the provision of electronic payments and financial services, and document class actions alleging violations of federal and state laws. …


Rubin V. Islamic Republic Of Iran, 1997-2015, Gabrielle Goodwin Jan 2015

Rubin V. Islamic Republic Of Iran, 1997-2015, Gabrielle Goodwin

Articles by Maurer Faculty

The case of Rubin v. Islamic Republic of Iran reads like a blockbuster movie with an all-star cast. A terrorist organization blows up a crowded shopping mall in Jerusalem, killing and injuring Americans in the process. Some of those severely injured sue the nation of Iran for their part in supporting Hamas, who carried out the bombing. Iran never makes a court appearance, so the plaintiffs win a default judgment for hundreds of millions of dollars. However, in trying to get some money out of Iran, the plaintiffs try to attach property in the United States, which may or may …


Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss Jan 2015

Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss

Articles by Maurer Faculty

Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language.

The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written …


Prison Privatization And Inmate Labor In The Global Economy: Reframing The Debate Over Private Prisons, Alfred C. Aman, Carol J. Greenhouse Jan 2015

Prison Privatization And Inmate Labor In The Global Economy: Reframing The Debate Over Private Prisons, Alfred C. Aman, Carol J. Greenhouse

Articles by Maurer Faculty

The pragmatics of privatization offer terrain for a critical understanding of the relationship between government and business under the conditions associated with the globalization of neoliberal capitalism. Prison privatization is especially significant in this context, given the fact that—for privatization advocates and critics alike, in the United States and elsewhere—prisons represent a bellwether for broader questions about the scope of government. We review the recent history of prison privatization in the United States from the vantage point of the policy responses to the privatization movement more generally, to highlight the various factors that, over time, made private prisons iconic of …


The Seductive Power Of Patriarchal Stories, Aviva A. Orenstein Jan 2015

The Seductive Power Of Patriarchal Stories, Aviva A. Orenstein

Articles by Maurer Faculty

This essay develops a theme introduced in Rape and Culture of the Courtroom written by Andrew Taslitz. It examines the cases in which judges allow evidence of the victim’s sexual history and proclivities because, in their estimation, excluding such evidence would violate the constitution (an exception to rape shield in Fed. R. Evid 412). The review of these cases demonstrates the persistent power of patriarchal stories and documents how the constitutional exception sometimes indicates a resistance to the entire enterprise of rape shield. In particular, it focus on Gagne v. Booker, an en banc decision from the Sixth Circuit, …


Still Kickin’ After All These Years: Sutton And Toyota As Shadow Precedents, Deborah A. Widiss Jan 2015

Still Kickin’ After All These Years: Sutton And Toyota As Shadow Precedents, Deborah A. Widiss

Articles by Maurer Faculty

Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents—what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation …


Forfeiture Of Confrontation Rights And The Complicated Dynamics Of Domestic Violence: Some Thoughts Inspired By Myrna Raeder, Aviva A. Orenstein Jan 2015

Forfeiture Of Confrontation Rights And The Complicated Dynamics Of Domestic Violence: Some Thoughts Inspired By Myrna Raeder, Aviva A. Orenstein

Articles by Maurer Faculty

In this essay and memorial to my friend and colleague, Myrna Raeder, I examine forfeiting the right of confrontation in the context of domestic violence cases. In 2004, Crawford v. Washington the United States Supreme Court reinterpreted the Sixth Amendment, requiring that for “testimonial statements” to be offered against the accused, the speaker must appear in court, or, if unavailable, must have been subject to cross-examination previously. The practical effect of Crawford was to exclude many out-of-court statements that had previously been admissible. Nowhere was the effect of Crawford more striking than in domestic violence cases, where victims often make …


King V. Burwell: What Does It Portend For Chevron's Domain?, Leandra Lederman, Joseph C. Dugan Jan 2015

King V. Burwell: What Does It Portend For Chevron's Domain?, Leandra Lederman, Joseph C. Dugan

Articles by Maurer Faculty

In King v. Burwell, the U.S. Supreme Court affirmed the Fourth Circuit’s decision, upholding regulations that extend the Premium Tax Credit (the Credit) to qualifying taxpayers who purchase health insurance on the Internet-based “Marketplace” operated by the federal Department of Health and Human Services (HHS), despite statutory language extending the subsidy to individuals who purchase through “an Exchange established by the State.” This was the second time in just three years that the Roberts Court engaged in what one critic called “linguistic acrobatics” that rescued President Obama’s signature healthcare law, the Affordable Care Act (ACA)—or, as Justice Scalia …


What The Jobs Are: New Tech, New Client Needs Create A New Field Of Legal Operations, William D. Henderson Jan 2015

What The Jobs Are: New Tech, New Client Needs Create A New Field Of Legal Operations, William D. Henderson

Articles by Maurer Faculty

No abstract provided.


Taking The Measure Of Nations: Testing The Global Norm Of Territorial Integrity, Timothy W. Waters Jan 2015

Taking The Measure Of Nations: Testing The Global Norm Of Territorial Integrity, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.


The Data Protection Credibility Crisis, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey Jan 2015

The Data Protection Credibility Crisis, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson, Orla Lynskey

Articles by Maurer Faculty

No abstract provided.