Law Commons^™

Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong

Faculty Publications

This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Captured On Tape: Interrogation And Videotaping Of Detainees At Guantánamo, Mark Denbeaux, Joshua Denbeaux

Seton Hall Law Review

No abstract provided.

Recognizing The Public Schools' Authority To Discipline Students' Off-Campus Cyberbullying Of Classmates, Douglas E. Abrams

Faculty Publications

The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary. Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school …

Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert

Faculty Publications

This article asserts a comprehensive response to Elhauge’s provocative arguments. With respect to tying, the article shows that governing Supreme Court precedent does not deem the non-foreclosure “power” effects of the practice to be anticompetitive and that those effects are unlikely to reduce social welfare in the long run, especially after accounting for dynamic efficiencies. With respect to bundled discounting, the article shows that Elhauge’s proposed liability rule is both inapposite to consumer harm and inadministrable and that both “linked” market foreclosure and a form of below-cost pricing are necessary for anticompetitive harm and should therefore be prerequisites to antitrust …

The Roberts Court And The Limits Of Antitrust, Thom Lambert

Faculty Publications

This article first describes the fundamental limits of antitrust and the decision-theoretic approach such limits inspire. It then analyzes the Roberts Court’s antitrust decisions, explaining how each coheres with the decision-theoretic model. Finally, it predicts how the Court will address three issues likely to come before it in the future: tying, loyalty rebates, and bundled discounts.

Emerald Coal Resources, L.P. V. Commonwealth Of Pennsylvania, Department Of Environmental Protection: Letter Of Law Trumps Miner Safety, William Gallagher

Villanova Environmental Law Journal (1991 - )

No abstract provided.

When "The Evil Day" Comes, Will Title Vii's Disparate Impact Provision Be Narrowly Tailored To Survive An Equal Protection Clause Challenge?, Eang L. Ngov

Faculty Scholarship

"The road to hell is paved with good intentions." Employers must be careful about the intentional and unintentional effect of their employment practices, even when acting with good motive. Title VII’s disparate impact provision holds employers liable for employment practices that cause an adverse impact on racial groups, even when the employment practice applies equally to all groups and was not implemented to disadvantage a particular group. A prima facie case of disparate impact can arise solely based on numbers - a comparison between the rate at which one racial group passes a test or is selected for hiring or …

Unshackling Addiction: A Public Health Approach To Drug Use During Pregnancy, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Respecting Language As Part Of Ethnicity: Title Vii And Language Discrimination At Work, Carlo A. Pedrioli

Faculty Scholarship

This article argues that, in the absence of a legitimate, non-discriminatory reason or a business necessity, Title VII of the 1964 Civil Rights Act can protect employees from language-based discrimination in the workplace. Language is a part of one’s ethnicity, which refers to one’s culture. Ethnicity, much as race already does, should receive protection under Title VII. Plaintiffs, however, have the burden of proof in litigation, and so a plaintiff who sues under a discrimination theory should have to make his or her case to the appropriate fact-finder. Drawing upon the insights of critical theory, particularly to explore concepts like …

Suffering Without Suffrage: Why Felon Disenfranchisement Constitutes Vote Denial Under Section Two Of The Voting Rights Act, Matthew E. Feinberg

UC Law Journal of Race and Economic Justice

This article explores state felon disenfranchisement laws and proposes a new way for felons to challenge the legality of excluding them from the democratic process. Despite the seemingly explicit grant of authority in the Fourteenth Amendment to exclude felons from the voting process, this article posits that the Voting Rights Act provides an alternative, and more attractive, vehicle for felons to secure the right to vote. This article examines the current Circuit split on whether the Voting Rights Act even allows for or contains a cause of action to challenge felon disenfranchisement laws. Concluding that it does, the article moves …

Access To Justice: The Use Of International Law Clinics To Advance The Case For Vulnerable Members Of Society, Yvonne Dausab

Maryland Journal of International Law

No abstract provided.

The Pedagogy Of Guantánamo, Baher Azmy

Maryland Journal of International Law

No abstract provided.

From Pedagogy To Partnership: Leveraging The Law Clinic To Institutionalize Cutting Edge Strategies In Transactional Labor Advocacy, Rachel Micah-Jones

Maryland Journal of International Law

No abstract provided.

Experimenting With Clinical Legal Education To Address The Disconnect Between The Larger Promise Of Law And Its Grassroots Reality In India, Ajay Pandey

Maryland Journal of International Law

No abstract provided.

Swarna And Baoanan: Unraveling The Diplomatic Immunity Defense To Domestic Worker Abuse, Emily F. Siedell

Maryland Journal of International Law

No abstract provided.

Law In The Time Of Cholera: Teaching Disaster Law As A Research Course, Neal R. Axton

Faculty Scholarship

Disaster law is fun to teach but it has a serious purpose. Emergencies will inevitably arise but how society responds to them will determine whether or not they become full-blown disasters. Training law students to adapt to dynamic situations will give them the skills they need in a world facing global warming, resource depletion, and a burgeoning population. By creating a more robust legal system, we can create a more resilient society.

Originally published in the May 2011 issue of AALL Spectrum.

Annual Survey Of Periodical Literature, Nancy Ver Steegh

Faculty Scholarship

The Annual Review of Periodical Literature provides a sampling of law review articles published between November 1, 2009, and October 31, 2010. The survey highlights the variety and depth of family law scholarship produced during the year and calls attention to currently debated "hot topics." Readers are encouraged to read articles of interest in their entirety because the summaries included in the survey are necessarily abbreviated.

Drug Policy In Context: Rhetoric And Practice In The United States And The United Kingdom, Richard C. Boldt

Faculty Scholarship

The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period.  Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years.  In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a somewhat more …

Lawyer-Client Privilege: Exceptions Swallowing The Principle?, Abraham Dash

Faculty Scholarship

It is usually easy to criticize the work of committees, as the results of their work are usually a compromise between many philosophical and practical differences of opinions.  The American Bar Committee and the various state bar committees that fashioned the Rules of Professional Conduct dealt with complex ethical issues that are difficult to find practical answers for, under the many different factual situations that can arise, are no exceptions.  Therefore, the purpose of this article is not to criticize, but simply to note the questions and confusion that arise in one of the legal profession's most sacred principles: The …

Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller

Faculty Scholarship

This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations.  Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future.  The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …

Teaching To The Paradoxes: Human Rights Practice In U.S. Law School Clinics, Deena R. Hurwitz

Maryland Journal of International Law

No abstract provided.

Foreword: International Clinics And The Global Clinical Movement, Frank S. Bloch

Maryland Journal of International Law

No abstract provided.

Global Clinical Legal Education And International Partnerships: A Chinese Legal Educator's Perspective, Yanmin Cai

Maryland Journal of International Law

No abstract provided.

Black Carbon: The Most Important Ignored Contributor To Climate Change, Kate Deangelis

Maryland Journal of International Law

No abstract provided.

Re-Imagining The Human Rights Law Clinic, Arturo J. Carillo, Nicolás Espejo Yaksic

Maryland Journal of International Law

No abstract provided.

Sarei V. Rio Tinto: How An Exhaustion Requirement For The Alien Tort Statute Will Further Exhaust Remedies For Environmental Injuries, Cheryl Cortemeglia

Maryland Journal of International Law

No abstract provided.

The "Asian" Category In Mcas Achievement Gap Tracking: Time For A Change, Philip Lee

Journal Articles

Data gathered on Asian American students in public school by the Massachusetts Department of Education are aggregated into one general “Asian” category, which may skew the results, both perpetuating an enduring myth and masking any true gaps that may exist for certain Asian American subgroups. As explored in this article, achievement gap tracking for the Massachusetts Comprehensive Assessment System is an apt example.

In this article, I posit that this aggregation of many subgroups into one general “Asian” category perpetuates the myth of Asian Americans as a model minority, while downplaying any achievement gap that exists for certain Asian American …

Toward Integrated Law Clinics That Train Social Justice Advocates, Marcy L. Karin, Robin R. Runge

Journal Articles

The integrated approach to clinical legal education enables law students to explore and to utilize more than one legal advocacy strategy simultaneously to achieve social change. This framework facilitates law students’ ability to develop a range of essential lawyering skills including reflecting upon the connection between law and social justice by addressing the broader social problems impacting our communities. The integrated approach has been accepted as an effective clinic structure, and is being successfully developed and applied in a range of ways that are best suited to specific legal issues and geographic regions. In this article the authors, who are …

Interrogation And The Roberts Court, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not …