Digital Commons Network^™

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has this responsibility been more tested than in the Middle East, where for over a half-century …

A Theoretical Justification For Special Solicitude: States And The Administrative State, Matthew Melamed

Matthew S Melamed

In Massachusetts v. EPA, the Court declared that the state of Massachusetts, because it sought to protect a quasi-sovereign interest, was “entitled to special solicitude in our standing analysis.” The discussion of special solicitude consisted of little more than one page in the Court’s opinion. This paper addresses the question of whether a theoretical justification for special solicitude for state standing exists, and finds that it does.

The strongest argument for special solicitude is rooted in federalist concerns, though not the concerns that provide the foundation for originalist states’ rights theories. While traditional states’ rights arguments seek to restrict federal …

Legal Theory And The Anthropocene Challenge: The Implications Of Law, Science, And Policy For Weapons Of Mass Destruction And Climate Change, Winston P. Nagan, Judit K. Otvos

Winston P Nagan

No abstract provided.

Looking Into The Crystal Ball—The Jurisprudential Possibilities For Buxton V. City Of Plant City, Brandon Thompson

Brandon M Thompson

The paper addresses what process is due for government employees who have been terminated. It focuses specifically on what opportunity the employee will have for a name-clearing hearing after their job has ended. The central thesis is that the test laid down by the 11th Circuit is open to various interpretations but that courts should be mindful of the rights-granting nature of the process when applying this law.

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

An Originalist Theory Of Precedent: The Epistemic And Metaphysical Attitudes Toward Originalist Precedent, Lee Strang

Lee J Strang

No abstract provided.

No Tears For Creon, Marc O. Degirolami

Marc O DeGirolami

This essay critiques Professor Martha Nussbaum’s recent book, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (Basic Books 2008). Nussbaum’s thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of “Equal Respect” – that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that Equal Respect runs like a thread throughout the tradition and that all other conceivable values of religious liberty are subordinate to …

Should The Hvcc Settlement Be Treated As An Agency Rulemaking?, Ted C. Koshiol

Ted C. Koshiol

Abstract On March 3, 2008, the New York Attorney General’s reached an important settlement with Fannie Mae, Freddie Mac, and the Office of Federal Housing Enterprise Oversight. Under the terms of the agreement, Fannie and Freddie agreed to only purchase mortgages from banks that would abide by a new set of appraisal standards. Observers immediately recognized that the impact of the agreement would be widespread, effectively imposing new rules on every mortgage lender in America. The scenario raises a novel legal issue: is a settlement agreement always an adjudicatory action, or are there instances where it should be required to …

The Procedural Annihilation Of Structural Rights, Steven G. Gey

Steven G. Gey

For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed …

Section 529 Prepaid College Tuition Scholarships: Help In Uncertain Economic Times, Carol Zeiner

Carol Zeiner

The economy is wretched. The United States’ economic recovery is dependent in part on the country’s position in a global economy. If we as a nation wish to remain competitive in a knowledge-based economy that requires a higher level of education, we must facilitate greater access to postsecondary education. Unfortunately, in the last two decades, the United States has fallen from first to tenth place in the world in the proportion of its population that has obtained that all important postsecondary education. President Obama has set a goal of restoring the United States to first place by 2020. The United …

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

Legislative Supremacy In The United States?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article revisits the “enrolled bill” doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the “enrolled bill” as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine’s main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, …

Understanding The Prop 8 Litigation: The Scope Of Direct Democracy And Role Of Judicial Scrutiny, Ronald Steiner

Ronald L. Steiner

Once the California Supreme Court decision is handed down, the precise contours of the battle over Proposition 8 and marriage equality will change, but nothing on the political horizon will make moot many of the fundamental issues direct democracy raises for California and the nation. A special and enduring element of the Prop 8 controversy is the role of judicial review in the scrutiny of the results of ballot propositions. A slice of conventional wisdom seems to suggest that the results of plebiscites should be nearly immune from judicial review. On the other hand, many political and legal scholars are …

A Commentary On The Old Saw That Same-Sex Marriage Threatens Civilization, Ronald L. Steiner

Ronald L. Steiner

Discussions of same-sex marriage frequently entertain the notion that civilization is somehow at stake were a society to award legal sanction to it, and to gay rights more generally. Typically, those who express concern for negative civilizational consequences have in mind Western civilization, and more specifically Christian civilization. This civilizational concern will often be amplified by the implication that opposite-sex, or opposite-sex monogamous marriage is a timeless human universal. Any other marital regime is presumed to be an aberration, most likely the result of grave moral depravity of a sort supposedly facilitated by the modern rights-based society. This chapter subjects …

Wealth V. Democracy: The Unfulfilled Promise Of The Twenty-Fourth Amendment, David A. Schultz

David A Schultz

The adoption of the Twenty-Fourth Amendment banning poll taxes in federal elections was intended to protect franchise rights and increase voter turnout. However, since its adoption and initial use in Harman v. Forssenius, it has yet to be successfully invoked to invalidate any practice, most recently voter photo IDs. This article seeks to resurrect the Twenty-Fourth Amendment and to make the case for a broader interpretation of it. Specifically, the Article seeks to disconnect the poll tax from a narrow reading of its legacy during the Jim Crow era when its primary purpose was to disenfranchise African-Americans. Instead, the poll …

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Things Fall Apart: The Illegitimacy Of Property Rights In The Context Of Past Theft, Bernadette Atuahene

Bernadette Atuahene

More Private Equity, Less Government Subsidy, And More Tax Efficiency In Urban Revitalization, Roger M. Groves

Roger M. Groves

MORE PRIVATE EQUITY, LESS GOVERNMENT SUBSIDY, AND MORE TAX EFFICIENCY IN URBAN REVITALIZATION: Modeling Profitable Philanthropy and Investment Incentives In hopes of revitalizing depressed urban areas, US tax policy has been to use tax credits as a major incentive to induce private equity re-investment. But those give away subsidies to private investors have failed to have transformative effects, and come at a price in the billions to the public treasury. This article seeks a shift in the tax policy paradigm to increase the private equity investment, while reducing tax subsidy dependence. For the philanthropic urban investor, the short term incentive …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

The Architecture Of Law: Building Law On A Solid Foundation The Eternal And Natural Laws, Brian M. Mccall

Brian M McCall

Constituting Vanuatu: Societal, Legal And Local Perspectives,, Benedict Sheehy, Jackson Maogoto

Benedict Sheehy

Governance in Vanuatu has been a source of concern for Australia as it forms part of Australia’s ‘Arc of Instability.’ Vanuatu has adopted a modified Westminster system as that system is often advocated as the model for constitutions and governance around the world. In various former colonies local populations were expected to simply absorb its liberal democratic principles apparently on some assumption that such principles were an innate part of human nature. Most readings of history would come to a different conclusion. Vanuatu illustrates this error and the complexities of a society that not only creates a broad challenge for …

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

Mark Fenster

Through The Looking Glass: The Politics Of Estate Tax Reform, Edward J. Mccaffery

Edward J McCaffery

This brief article summarizes an argument that the estate tax reform or repeal debate has always been about money: not the government’s money from the tax, which is modest at best, but the politicians money from campaign contributions elicited to retain or repeal the tax. The article uses that theory to predict likely short term legislative developments.

Fitting Punishment, Juliet P. Stumpf

Juliet P Stumpf

Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration law relies on one sanction – deportation – as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration law stands alone in the legal landscape in this respect. Criminal punishment incorporates proportionality when imposing sentences that are graduated based on the gravity of the offense; contract and tort law provide for damages that are graduated based on the harm to others or to society. This Article represents …