Law Commons^™

Technologically Distorted Conceptions Of Punishment, Jessica M. Eaglin

Articles by Maurer Faculty

Much recent work in academic literature and policy discussions suggests that the proliferation of actuarial — meaning statistical — assessments of a defendant’s recidivism risk in state sentencing structures is problematic. Yet scholars and policymakers focus on changes in technology over time while ignoring the effects of these tools on society. This Article shifts the focus away from technology to society in order to reframe debates. It asserts that sentencing technologies subtly change key social concepts that shape punishment and society. These same conceptual transformations preserve problematic features of the sociohistorical phenomenon of mass incarceration. By connecting technological interventions and …

States Should Conform To Gilti, Part 3: Elevator Pitch And Q & A, David Gamage, Darien Shanske

Articles by Maurer Faculty

This essay argues that the states should conform to the post-2017 federal tax law's provision for Global Intangible Low-Taxed Income (or “GILTI”). This essay is directed at state legislators and their staffs and presents the argument as succinctly as possible.

Our argument can be summarized in three sentences. First, states should conform to GILTI because there is significant evidence that profit shifting is substantially eroding their corporate tax bases. Second, GILTI is a tool for identifying shifted profits. Third, there are many legally and analytically sound ways to apportion GILTI income to a state.

We also - briefly - counter …

The Hidden Fences Shaping Resegregation, Jeannine Bell

Articles by Maurer Faculty

This Article offers a window into the experiences that inform the neighborhood choices of middle-class and upper-middle-class Blacks. As I suggest below, there are many hidden fences, walling off white neighborhoods and restricting Blacks’ housing choices in de facto ways. These hidden fences exist in the form of the many challenges Blacks face when moving to white neighborhoods. The obstacles to easy, contented lives range from police harassment to anti-integrationist violence that push Blacks into less affluent neighborhoods. Ultimately, this Article demonstrates how race can circumscribe housing choice and social mobility, even in the absence of legal barriers restricting where …

Calling For A Community Economic Development Code Of Ethics, Michele Alexandre, Patience A. Crowder, Audrey Mcfarlane

Scholarly Works

No abstract provided.

Copyrightx [Course Review], Jill Cirasella

Publications and Research

Review of the free online course CopyrightX.

Brown At 65: How Does The Changing Racial And Ethnic Ancestry Of Blacks Impact The Interpretation Of School Desegregation, Kevin D. Brown

Articles by Maurer Faculty

INTRODUCTION ...............................................................................................2

I.RISE AND FALL OF SCHOOL DESEGREGATION.........................................7

A.The Rise of School Desegregation ............................................................... 7

B.The Fall of School Desegregation................................................................ 11

II. CHANGING RACIAL ANCESTRY OF BLACKS IN THE UNITED STATES AND WHY IT MATTERS IN TERMS OF SCHOOL DESEGREGATION...................16

A. Increases in Interracial Marriage Rates ...................................................... 18

B. Demise of the One-Drop Rule and the Recognition of Black Multiracials .. 21

C. Impact of Increasing Numbers of Black Multiracials ................................... 24

III. CHANGING ETHNIC ANCESTRY OF BLACKS ........................................ 28

CONCLUSION: IMPACT OF THE CHANGING RACIAL AND ETHNIC ANCESTRY OF BLACKS ON HOW TO THINK ABOUT SCHOOL DESEGREGATION ..........31

Drug-Induced Homicide: Challenges And Strategies In Criminal Defense, Valena Beety, Alex D. Kreit, Anne Boustead, Jeremiah Goulka, Leo Beletsky

Articles by Maurer Faculty

Nearing the end of its second decade, the crisis of fatal opioid-involved overdoses in the United States has gone from bad to worse. In 2017, approximately 72,000 people died of a drug overdose in the United States. Overdose is now the leading cause of death for people under fifty. There is broad agreement that reducing opioid overdose deaths requires wider distribution of the opioid antidote naloxone, rapid scale-up in evidence-based treatment, and reducing the stigma associated with substance use and addiction. However, progress on these and other vital public health interventions remains abysmally slow. Meanwhile, there is a new and …

Oklahoma’S State Question 780: Criminal Justice Reform And Resistance, Stephen R. Galoob, Colleen Mccarty, Ryan Gentzler

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Detecting And Preventing Insurance Fraud: State Of The Nation In Review, Johnny C. Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Freedom To Hack, Ido Kilovaty

Articles, Chapters in Books and Other Contributions to Scholarly Works

Swaths of personal and nonpersonal information collected online about internet users are increasingly being used in sophisticated ways to manipulate them based on that information. This represents a new trend in the exploitation of data, where instead of pursuing direct financial gain based on the face value of the data, actors are seeking to engage in data analytics using advanced artificial intelligence technologies that would allow them to more easily access individuals’ cognition and future behavior. Although in recent years the concept of online manipulation has received some academic and policy attention, the desirable relationship between the data-breach law and …

Legally Cognizable Manipulation, Ido Kilovaty

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Schools As Training Grounds For Harassment, Ann C. Mcginley

Scholarly Works

This article deals with the schools’ role in permitting and encouraging peer sex- and gender-based harassment of children and the law’s role in failing to hold schools accountable for their negligent and intentional behavior in sanctioning it. Part I discusses the evidence of rampant sex- and gender-based harassment in schools. Part II analyzes the problem through the lens of masculinities theory and explains how cultural notions of masculinity create incentives for boys (and some girls) to engage in peer sex- and gender-based harassment.

Part III analyzes court cases and OCR decisions and explains the serious disconnect between the two; it …

Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, Daniel O. Conkle

Articles by Maurer Faculty

In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of constitutional principle. …

Judicial Ethics: A New Paradigm For A New Era, Charles G. Geyh

Articles by Maurer Faculty

As the preamble to the Model Code of Judicial Conduct indicates, traditional notions of judicial ethics operate within a rule of law paradigm, which posits that the "three I's" of judicial ethics-independence, impartiality, and integrity-enable judges to uphold the law. In recent decades, however, social science, public opinion, and political commentary suggest that appointed judges abuse their independence by disregarding the law and issuing rulings in accord with their biases and other extralegal impulses, while elected judges disregard the law and issue rulings popular with voters, all of which calls the future of the three I's and judicial ethics itself …

Mitigating Climate Change Through Transportation And Land Use Policy, Alejandro E. Camacho, Melissa L. Kelly, Nicholas J. Marantz, Gabriel Weil

Scholarly Works

A number of U.S. state and local governments have adopted strategies for reducing greenhouse gas (GHG) emissions from transportation and land development. Although some have made significant progress in reducing GHG emissions from the power sector, transportation emissions in most states continue to rise. This Article details the range of existing and proposed state interventions to reduce transportation sector GHG emissions, analyzes the trade offs of these strategies, and offers recommendations to improve and supplement such initiatives, including strategic use of planning mandates and funding and technical assistance. Additionally, regulating land use, shifting transportation spending, removing barriers to implementing road …

David Williams Ii, In Memoriam 1948-2019, Nicholas S. Zeppos

Vanderbilt Law Review

On February 15, 2019, hundreds of people gathered at the Temple Church in Nashville to celebrate the life and impact of David Williams II. As remembrances were spoken from the pulpit, and as tearful exchanges occurred between friends in the crowd, it was clear that people, communities, institutions, and lives were forever molded by this man—this fearless leader who left us unexpectedly.

In remembering my dear friend David, it is impossible not to think big. Words like “leader,” “trailblazer,” and “revolutionary” may seem diffuse on their own, but they are clear in their description of a man who always thought …

Confronting The Sexual Assault Of Teenage Girls: The Mistake Of Age Defence In Canadian Sexual Assault Law, Isabel Grant, Janine Benedet

All Faculty Publications

Teenage girls experience high rates of sexual assault. The Criminal Code permits the Crown to substitute proof of young age for proof of non-consent for sexual assault and related offences applicable to young complainants. This paper focuses on the defence of mistaken belief in age. It provides a defence where the accused honestly believed that the complainant was at or above the age of consent and where the accused took all reasonable steps to ascertain her age. A review of the cases considering the defence indicates that it is often applied incorrectly, where the accused does not have any belief …

Decentralizing Legislation In China’S Law On Legislation Amendment, Wei Cui, Jiang Wan

All Faculty Publications

We present a novel account of China’s recent move to decentralize legislation through amending the Law on Legislation (LL). Conventional wisdom pervading both Chinese political discourse and social scientific scholarship on China portrays law as incompatible with experimentation and as only suitable for codifying policies adopted after experimentation. Moreover, the value of legislatures is viewed as lying in their independence from the executive branch. We highlight rationales offered by the Chinese Communist Party for the LL amendment that repudiate these assumptions: the Party proclaimed the intention to promote lawmaking as a central instrument of policy experimentation; moreover, the Party’s intervention …

The Exclusionary Rule In The Age Of Blue Data, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: how can defendants demonstrate sufficient recurring or systemic negligence to warrant exclusion? The Supreme Court has never answered the question, although the absence of systemic or recurring problems has figured prominently in two recent exclusionary rule decisions. Without the ability to document recurring failures, or patterns of police misconduct, courts can dismiss …

The New Social Contracts In International Supply Chains, David Snyder

Scholarly Articles in Law Reviews & Journals

This Article considers, from legal, practical, moral, and policy perspectives, Model Contract Clauses (MCCs) to protect the human rights of workers in international supply chains. The product of the ABA Business Law Section Working Group to Draft Human Rights Protections in International Supply Contracts, the MCCs are an effort to provide companies with carefully researched and well-drafted clauses to incorporate human rights policies into supply contracts (purchase orders, master vendor agreements, and the like). The Article discusses the impetus, goals, and strategies of the MCCs and explains the paradigm of the corporate, operational, and political landscape for which they are …

Manufactured Emergencies, Robert Tsai

Scholarly Articles in Law Reviews & Journals

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a concern. The erosion of democratic norms has led not only to the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also to the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To …

Interdisciplinary Projects-Based Community Entrepreneurship Courses, Brandon Weiss, Anthony J. Luppino

Scholarly Articles in Law Reviews & Journals

Over the last approximately fifteen years, the University of Missouri Kansas City (UMKC) School of Law has developed a multifaceted set of courses, including interdisciplinary courses, pro bono clinics, and other programs and events relating to for-profit entrepreneurship and economic development, and social and civic entrepreneurship. This presentation will describe two recent interdisciplinary additions to these offerings-- the Law, Technology and Public Policy (LT&PP) course and the Entrepreneurial Urban Development (EUD) course. Both have strong elements of increased access to law and justice, with particular focus on presently disadvantaged and underrepresented individuals, groups, and communities. They significantly enhance the training …

Internet Of Infringing Things: The Effect Of Computer Interface Copyrights On Technology Standards, Charles Duan

Scholarly Articles in Law Reviews & Journals

You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of …

Speech Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …

Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Steven Salop, Fiona M. Scott Morton, Nancy Rose

Scholarly Articles in Law Reviews & Journals

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Who Owns The Rules Of War In Today's Post-Post-Cold War?, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of …

Copyright And The Progress Of Science: Why Text And Data Mining Is Lawful, Michael Carroll

Scholarly Articles in Law Reviews & Journals

This Article argues that U.S. copyright law provides a competitive advantage in the global race for innovation policy because it permits researchers to conduct computational analysis — text and data mining — on any materials to which they have access. Amendments to copyright law in Japan, and the European Union’s recent addition of limitations on copyright to legalize some TDM research, implicitly acknowledge the competitive benefits provided by the fair use provision of U.S. copyright law. Focusing only on U.S. law, this Article makes two general contributions to the literature on fair use: (1) in cases involving archiving, the user’s …

For Fear Of The Fans: An Argument For Holding Sports Teams Accountable For Fans' Post-Match Conduct, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Vital Role Of The Wto Appellate Body In The Promotion Of Rule Of Law And International Cooperation: A Case Study, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

No abstract provided.