Law Commons^™

Access To Print, Access To Justice, Kimberly Mattioli

Articles by Maurer Faculty

This article examines the relationship between self-represented litigants and digital literacy and how this particularly vulnerable patron group stands to be harmed by the elimination of print materials from public law libraries. An examination of the literature and a survey help to shed light on this growing problem.

Doing Right By Nevada: Adopting The Uniform Bar Exam, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Access To Consumer Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …

Patent Pool Outsiders, Michael Mattioli

Articles by Maurer Faculty

Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.

The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the …

State Responses To Federal Tax Reform: Charitable Tax Credits, David Gamage, Joseph Bankman, Jacob Goldin, Daniel Hemel, Darien Shanske, Kirk J. Stark, Dennis J. Ventry Jr., Manoj Viswanathan

Articles by Maurer Faculty

This paper summarizes the current federal income tax treatment of charitable contributions where the gift entitles the donor to a state tax credit. Such credits are very common and are used by the states to encourage private donations to a wide range of activities, including natural resource preservation through conservation easements, private school tuition scholarship programs, financial aid for college-bound children from low-income households, shelters for victims of domestic violence, and numerous other state-supported programs. Under these programs, taxpayers receive tax credits for donations to governments, government-created funds, and nonprofits.

A central federal income tax question raised by these donations …

"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin

Articles by Maurer Faculty

The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …

The False Allure Of Settlement Pressure, Nicholas Almendares

Articles by Maurer Faculty

The threat of “blackmail” or “in terrorem” settlements have shaped the law, leading courts to conclude that if the plaintiff does not appear likely to win the case, then the litigation should be halted at an early stage. This Article questions the established logic of settlement pressure. After clarifying the concept and presenting the strongest case for it, I show that it cannot serve as the basis for wide-ranging civil procedure doctrines. Doing so has perverse results, such as privileging the defendant’s idiosyncratic tastes and helping corporate managers hide important facts from their shareholders. In addition, settlement pressure is not …

Ethical Issues In Robo-Lawyering: The Need For Guidance On Developing And Using Artificial Intelligence In The Practice Of Law, Drew Simshaw

Scholarly Works

As in many other industries, artificial intelligence ("AI") is poised to drastically transform the legal services landscape. "Bots, " automated expert systems, and predictive analytics are already changing the way consumers seek, and lawyers provide, legal services. Among other impacts, AI has the potential to increase access to justice in the self-help, individual, and corporate law firm markets by lowering costs and expanding services to untapped markets. A prominent question in early literature on AI in law is whether these services constitute the unauthorized practice of law. Threshold questions of whether and by whom such services should be regulated are …

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

Federalism And Gender Equality, Susan H. Williams

Articles by Maurer Faculty

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and …

Judicial Selection And The Search For Middle Ground, Charles G. Geyh

Articles by Maurer Faculty

This Article seeks to transcend perennial election versus appointment debates-including debates over campaign finance and the impact of "dark money"-by taking a closer look at why judicial selection is a contentious mess and discussing how it might be fixed. First, I present the case for elective and appointive systems. Second, I show that the arguments for each system are exaggerated or flawed.Third, I explore why it has been hard for proponents of each system to perceive and acknowledge those exaggerations and flaws, and propose ways to narrow the divide. Although the divide can and should be narrowed, I conclude that …

Well-Timed Solutions For Legal Education And The Bar, William D. Henderson

Articles by Maurer Faculty

No abstract provided.

Platform Law And The Brand Enterprise, Sonia K. Katyal, Leah Chan Grinvald

Scholarly Works

The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship-the platform, or "macrobrand" and the platform service provider, or the …

Two Steps Forward, One Step Back: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

Our past surveys have observed that frequent changes in the rules surrounding electronic payments-spurred by both regulation and enforcement actions create uncertainty and make forward progress difficult for many providers. This survey year is no exception: regulators have taken "two steps forward, one step back" on a number of fronts. This survey reports on (1) the proposal by the Office of the Comptroller of the Currency ("OCC") regarding "fintech" charters, which states have challenged in actions still pending- (2) changes to Regulation CC regarding remote check deposit and disputes over altered or forged checks-(3) the Supreme Court's decision in Expression …

Innovation Diffusion In The Legal Industry, William D. Henderson

Articles by Maurer Faculty

This article is adapted from a series of blog posts originally found in my recently-started blog entitled Legal Evolution. The foundational material set forth in this article (and in those blog posts) applies to the legal services market insights gained from disciplines other than law. This article begins by setting forth the well-established theory of an "innovation diffusion curve" and the research that has identified the factors that affect the rate of adoption of innovations. This article identifies why innovation in the legal services market is desirable and applies to the legal services field insights drawn from this research in …

Reaching And Teaching Millennials: Designing The Future Of Student Services, Kimberly Mattioli, Brian Detweiler, Mike Martinez Jr.

Articles by Maurer Faculty

Today’s students have come to expect library services that are quite different from their predecessors and law librarians must evolve to meet their needs. As law libraries in the United States face the realities of declining enrolment and decreasing budgets, it is imperative that we find new and creative ways to build positive relationships with our students while also preparing them for the realities of practicing law in an environment driven by rapid technological change. Three law librarians from the United States, Brian Detweiler, Kimberly Mattioli, and Mike Martinez, Jr., discuss their successes and failures in reaching out to their …

Religious Arguments, Religious Purposes, And The Gay And Lesbian Rights Cases, Steve Sanders

Articles by Maurer Faculty

No abstract provided.

Criminalizing Battered Mothers, Courtney Cross

Scholarly Works

How a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she …

Is There A Future For Work?, Wendi S. Lazar, Nantiya Ruan

Scholarly Works

No abstract provided.

Climbing The Mountain Of Criminal Procedure: Comparative Legal Procedure, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

Book review of Comparative Criminal Procedure (Jacqueline E. Ross & Stephen C. Thaman eds., Edward Elgar, 2016)

The New Writs Of Assistance, Ian Samuel

Articles by Maurer Faculty

The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn, in principle, almost anything about anyone. That has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and …

Blockchain Versus Data Protection, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Caveat Irs: Problems With Abandoning The Full Deduction Rule, David Gamage, Joseph Bankman, Jacob Goldin, Daniel J. Hemel, Darien Shanske, Kirk J. Stark, Dennis J. Ventry Jr., Manoj Viswanathan

Articles by Maurer Faculty

Several states have passed — and many more are considering — new tax credits that would reduce tax liability based on donations made by a taxpayer in support of various state, local or non-profit programs. In general, taxpayer contributions to qualifying organizations — including public charities and private foundations, as well as federal, state, local, and tribal governments — are eligible for the federal charitable contribution deduction under section 170. In a previous article, we explained how current law supports the view that qualifying charitable contributions are deductible under section 170, even when the donor derives some federal or state …

Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe

Articles by Maurer Faculty

Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which …

Social Security Retirement Benefits Timing: A Model For Working Families, Francine J. Lipman, James E. Williamson

Scholarly Works

With more than 61 million individuals receiving Social Security benefits, one out of every four families in America receives monthly cash payments from the Social Security Administration (SSA). These monthly payments directly benefit 48.5 million retired workers, their current and former spouses, 10 million disabled adults, and include more than 3 million children. Several million more children and adults in the increasing number of multi-generational households in America benefit indirectly from Social Security retirement payments.

In addition to the broad reach of monthly Social Security retirement benefits these payments have ensured the financial well-being of millions of American families for …

Climate Change Challenges For Land Conservation: Rethinking Conservation Easements, Strategies, And Tools, W. William Weeks, Jessica Owley, Federico Cheever, Adena R. Rissman, M. Rebecca Shaw, Barton H. Thompson

Articles by Maurer Faculty

Climate change has significant consequences for land conservation. Government agencies and nonprofit land trusts heavily rely on perpetual conservation easements. However, climate change and other dynamic landscape changes raise questions about the effectiveness and adaptability of permanent conservation instruments like conservation easements. Building upon a study of 269 conservation easements and interviews with seventy conservation-easement professionals in six different states, we examine the adaptability of conservation easements to climate change. We outline four potential approaches to enhance conservation outcomes under climate change: (1) shift land-acquisition priorities to account for potential climate-change impacts; (2) consider conservation tools other than perpetual conservation …

Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein

Articles by Maurer Faculty

Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …

Legitimate Yet Manipulative: The Conundrum Of Open-Market Manipulation, Gina-Gail S. Fletcher

Articles by Maurer Faculty

Is manipulation possible in the absence of misconduct? This is the foundational inquiry at the heart of open-market manipulation. Open-market manipulation captures the attention of lawmakers and courts because it is market manipulation effected entirely through facially legitimate transactions. Whereas traditional, well-accepted forms of market manipulation involve deception, fraud, and monopolistic prices, open-market manipulation involves no objectively bad acts and, instead, is accomplished through permissible transactions executed on the open market. As enforcement of this form of manipulation increases, the question arises—when, if ever, is a legitimate transaction manipulative?

To the Securities Exchange Commission and the Commodity Futures Trading Commission …

Against Seminal Principles: Ethics, Hubris, And Lessons To Learn From Illicit Inseminations, Jody L. Madeira, Steven R. Lindheim Md, Mark V. Sauer Md

Articles by Maurer Faculty

This short essay addresses the ethical implications of Illicit inseminations, instances of fertility fraud in which a physician uses his own gametes to impregnate a patient.

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and …