Maryland law review (Baltimore, Md. : 1936)最新文献

{"title":"Navigating 21st Century Tax Jurisdiction","authors":"H. Holderness","doi":"10.2139/SSRN.3314272","DOIUrl":"https://doi.org/10.2139/SSRN.3314272","url":null,"abstract":"Hailed as a massive victory for the states, the Supreme Court’s 2018 decision in South Dakota v. Wayfair, Inc. brought dated state tax jurisdiction standards into the twenty-first century, freeing the states to tax internet vendors. However, the decision left the larger state tax jurisdiction doctrine undertheorized and at a crossroads: should the doctrine concern itself only with notice and fairness issues akin to those found in the due process personal jurisdiction realm, or should it also concern itself with protecting interstate commerce from undue state tax burdens? \u0000 \u0000This Article argues for the latter path by developing a robust theory of state tax jurisdiction that focuses on the potential undue burdens of tax compliance costs, burdens that a threshold jurisdictional standard is uniquely able to address. From this compliance burden theory emerges a jurisdictional standard which would protect interstate commerce — particularly the activities of small businesses and entities that facilitate the commerce of others, such as online marketplaces, payment intermediaries, and common carriers — from the chilling effects of heavy state tax compliance costs. The Article concludes by demonstrating how unanswered questions from Wayfair provide opportunities to incorporate the proposed standard into the state tax jurisdiction doctrine, detailing the way forward from Wayfair.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"102 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2019-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85959066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Passive-Aggressive Executive Power","authors":"C. Lain","doi":"10.31228/osf.io/9h6ru","DOIUrl":"https://doi.org/10.31228/osf.io/9h6ru","url":null,"abstract":"What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act (�DOMA�) have in common, besides the letter �d�? The answer is passive-aggressive executive power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I mean. When those charged with enforcing the law would prefer not to, what they do is not so different from what the rest of us do when pushed. At least five passive-aggressive responses easily come to mind�and at the outset, I set aside the �Just say no� response, which is an exercise of executive power but is not in the passive-aggressive category (because it is just plain aggressive). Here are the five responses: (1) do nothing, and hope nobody notices; (2) do something silly, and make a mockery of the whole enterprise; (3) say that you would do something, but you are too busy; (4) say that you would do something, but you are not competent; and say, in a moment of rare clarity and self-awareness, �Fine, I�ll do it, but let�s just be clear�I don�t want to.� In the discussion that follows, I first flush out these responses with my five examples�the death penalty, driving violations, drugs, deportation, and DOMA. I then offer some normative thoughts about each of these responses using the standard of a reasonably prudent thirteen-year-old and parallel institutional considerations in the realm of executive power.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"35 3","pages":"227"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72488221","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislative Design and the Controllable Costs of Special Legislation","authors":"E. C. Zoldan","doi":"10.2139/SSRN.3259678","DOIUrl":"https://doi.org/10.2139/SSRN.3259678","url":null,"abstract":"Legislation that singles out an identifiable individual for benefits or harms that do not apply to the rest of the population is called “special legislation.” In previous work, I have argued that the text, history, and jurisprudential underpinnings of the Constitution suggest that special legislation is constitutionally suspect. In this Article, I explore the normative consequences of special legislation, assessing both the costs it imposes and the benefits that it can provide. Drawing on constitutional theory, public choice theory, and the history of special legislation in state legislatures, I argue that the enactment of special legislation leads to the corruption of the political process, low-quality legislation, unjustifiably unequal treatment, and legislative encroachment on the judicial and executive functions. By contrast, special legislation is more normatively attractive when it addresses a problem that is unique, when it addresses matters of general concern, when it reduces rather than exacerbates disuniformity in the law, and when it provides for relief for underrepresented political minorities. After considering these costs and benefits, I conclude by suggesting modifications to the legislative process that will diminish the costs associated with special legislation while still preserving some of its benefits.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"35 1","pages":"415"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83506706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Drawing Trump Naked: Curbing the Right of Publicity to Protect Public Discourse","authors":"T. Kadri","doi":"10.2139/SSRN.3247273","DOIUrl":"https://doi.org/10.2139/SSRN.3247273","url":null,"abstract":"From Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their “right of publicity”—a state-law tort, grounded in privacy concerns, that prohibits the unauthorized use of a person’s name, likeness, and other identifying characteristics. This Article provides a new framework to reconcile publicity rights with a robust commitment to free speech under the First Amendment. After describing the current landscape in the courts, this Article scrutinizes the “educative” First Amendment theory that has motivated many of the past decisions confronting the right of publicity—a listener-focused theory that relies on the public’s right to receive information. This Article then reframes the doctrine in a new way: as four distinct educative defenses that have developed to assuage concerns about publicity rights interfering with speech on matters of public concern. These four defenses might seem encouraging to those who worry that publicity rights impair expressive rights. But all too often they have instead complicated and undermined the opposition to publicity rights and, as a result, they pose an unexpected and underestimated threat to free speech. To combat this threat, this Article recalibrates First Amendment theory as it relates to the right of publicity. \u0000 \u0000To adequately protect creators and their expressive works, this Article argues that we must abandon educative models of the First Amendment and instead adopt an approach that also protects the speaker as a central part of enabling public discourse. Failure to adopt this speaker-focused theory in publicity doctrine will perpetuate confusion in the courts and state legislatures, an outcome that will have a chilling effect on creators who seek to portray real people in their work. Yet we must also recognize the interests that publicity rights can serve. As we move into an era of new technology and innovation—from “deep fakes” to nonconsensual pornography—this challenge will only intensify. To address it, courts should refer to the constitutional concept of “public discourse” when publicity rights face off against expressive rights—a concept that not only empowers free expression, but also considers the narrow interests that we should all have in preventing certain uses of our images.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"29 1","pages":"899"},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88230042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Candidates' Right to Lie","authors":"Nat Stern","doi":"10.2139/SSRN.2939829","DOIUrl":"https://doi.org/10.2139/SSRN.2939829","url":null,"abstract":"A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source — judicial elections themselves \u0000If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles. \u0000[A] State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"42 1","pages":"774"},"PeriodicalIF":0.0,"publicationDate":"2017-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82596253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Telescoping and Collectivizing Religious Free Exercise Rights","authors":"Chambers, L. Henry","doi":"10.31228/osf.io/9exmj","DOIUrl":"https://doi.org/10.31228/osf.io/9exmj","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"20 1","pages":"392"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91011937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'A Sordid Case': Stump v. Sparkman, Judicial Immunity, and the Other Side of Reproductive Rights","authors":"Laura T. Kessler","doi":"10.2139/SSRN.2417972","DOIUrl":"https://doi.org/10.2139/SSRN.2417972","url":null,"abstract":"This Article presents a new historical account of Stump v. Sparkman, one of the most controversial Supreme Court decisions in the past fifty years. Stump is the 1978 judicial immunity opinion in which the Supreme Court declared that judges are absolutely immune from liability for their official judicial acts. The case involved the involuntary sterilization of a fifteen-year-old girl pursuant to an ex parte court order issued by a state judge. The basic project of the Article is to show why this largely overlooked case is important in American constitutional law beyond the narrow issue of judicial immunity, recovering it as a canonical decision relevant to contemporary debates about constitutional reproductive rights and procedural due process. Stump emerged from an ongoing set of discussions about the nature and scope of then-nascent constitutional protections for reproductive rights, as well as access to the federal courts by civil rights claimants. These issues continue to be a matter of intense debate, as states and courts reign in the scope of reproductive rights, and as federal judges increasingly employ procedural rules limiting the ability of civil rights victims to pursue their claims and receive a decision on the merits in federal court. This Article’s close examination of the historical antecedents to these trends, as reflected in Stump, can help courts envision more just alternatives to the present course on these fundamentally important procedural and substantive questions.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"37 1","pages":"833"},"PeriodicalIF":0.0,"publicationDate":"2014-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85036609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dynamic Energy Federalism","authors":"H. Osofsky, H. Wiseman","doi":"10.2139/SSRN.2138127","DOIUrl":"https://doi.org/10.2139/SSRN.2138127","url":null,"abstract":"U.S. energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges — such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy — we need a more dynamic, holistic understanding of energy law. Examining the energy system as a whole reveals patterns across substantive areas and allows them to learn from one another. This Article provides the first systematic account of energy federalism, proposing a novel model for understanding the energy system and its federalism dynamics. It begins by describing the U.S. energy system as comprised of interacting physical, market, and regulatory dimensions. The Article next explains why this complex system requires a federalism model that moves beyond disputes over federal versus state authority; it describes the many vertical interactions (those across levels of government, from the local to the international) and horizontal interactions (those among actors within the same level of government) within different types of energy regulation. The Article then considers the governance challenges created by these interactions, with a focus on inadequate regulatory authority, simultaneous overlap and fragmentation of regulation and institutions, and the difficulties of including key public and private stakeholders while avoiding inappropriate regulatory capture, such as when powerful utilities or oil companies gain control of regulatory processes to protect their private interests at the expense of the public. The Article concludes by proposing dynamic federalism principles for designing institutions that are responsive to these governance challenges through (1) creating needed authority; (2) reducing fragmentation; and (3) allowing for high levels of involvement from key public and private stakeholders that allow for meaningful input without capture. It also introduces our companion article, Hybrid Energy Governance, which applies these principles through detailed case studies to assess institutional innovation in areas critical to energy transformation.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"39 1","pages":"773"},"PeriodicalIF":0.0,"publicationDate":"2013-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90739969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Remedies Unified in Nine Verses","authors":"Caprice L. Roberts","doi":"10.2139/SSRN.2273613","DOIUrl":"https://doi.org/10.2139/SSRN.2273613","url":null,"abstract":"This work aims, in nine verses of poetry, to demonstrate both the art and craft of Remedies and the plural unity of the field in general.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"57 1","pages":"199"},"PeriodicalIF":0.0,"publicationDate":"2013-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88599941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Compelling Images: The Constitutionality of Emotionally Persuasive Health Campaigns","authors":"Nadia N Sawicki","doi":"10.2139/SSRN.2184963","DOIUrl":"https://doi.org/10.2139/SSRN.2184963","url":null,"abstract":"Legislation requiring the display of emotionally compelling graphic imagery in medical and public health contexts is on the rise – two examples include the FDA’s recently abandoned tobacco labeling regulations, which would have imposed images of diseased lungs and cancerous lesions on cigarette packaging, and state laws requiring physicians to display and describe ultrasound images to women seeking abortions. This Article highlights the disconnect between the constitutional challenges to these laws, which focus on perils of compelling speakers to communicate messages with which they may disagree, and the public’s primary objections, which are grounded in ethical concerns about the state’s reliance on emotion to persuade. This Article argues that, despite inconsistent judicial precedent in the tobacco and ultrasound contexts, concerns about the emotional impact of images on viewers can and should be incorporated in First and Fourteenth Amendment analyses. In making this argument, the Article relies on the body of First Amendment jurisprudence in which the Supreme Court suggests that images are uniquely dangerous because they are less rational, less controllable, and more emotionally powerful than textual communications.[SSRN posted version is a pre-publication draft]","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"51 1","pages":"458"},"PeriodicalIF":0.0,"publicationDate":"2013-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74017091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}