Law Commons^™

Just-Right Government: Interstate Compacts And Multistate Governance In An Era Of Political Polarization, Policy Paralysis, And Bad-Faith Partisanship, Jon Michaels, Emme M. Tyler

Indiana Law Journal

Those committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Evaluating The Performance And Accountability Of Regulators, Colin Scott

Seattle University Law Review

The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. In this Article, I follow the logic of an argument that regulation necessarily has political dimensions, even where it may appear technical. I am asking questions about how we might …

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Touro Law Review

Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.

Political Factors And Enforcement Of The Nursing Home Regulatory Regime, Philip C. Aka, Lucinda M. Deason, Augustine Hammond

Journal of Law and Health

This study analyzes the influence of political factors, oversight, and nursing home affiliation or ownership status on the enforcement of the nursing home regulatory regime, signified by the Nursing Home Reform Act ("NHRA") and its progeny. Specifically speaking, it measures, using the statistical technique of regression analysis, factors that account for variations across states in the number of deficiencies (or violations of quality standards) cited by nursing home inspectors across the states. This work is a first of its kind, an analysis not government-related, by a set of public administration scholars that systematically studies the influence of political forces on …

Tax Relief In The American Recovery And Reinvestment Act Of 2009, Steven Gassert

Legislation and Policy Brief

On February 17, 2009, less than thirty days after his inauguration, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA). This new law was one of many measures from the new administration designed to quickly stimulate the ailing American economy. The $789 billion package was divided between direct government spending, tax reductions and financial relief to states and individuals. The bill contains $285.6 billion in tax reductions, which is about 36.3% of the legislation. In this article, I will analyze some of the tax provisions that were written into ARRA, and attempt to assess their …

Breathing New Life Into Old Technological Infrastructure: Broadband Internet As A Means Of Jump-Starting The Economy And Connecting The Country, Elizabeth Chernow

Legislation and Policy Brief

This paper examines the current structure of universal service and the FCC’s Universal Service Fund, recent pushes to expand the definition of and funding for universal service to include broadband access, and how broadband internet can contribute to saving the ailing economy. This paper concludes by calling for the inclusion of broadband internet in the Universal Service Fund.

The Model Rules Of Professional Conduct And Political Campaign Activities, Lauren Gilius

Legislation and Policy Brief

This article will examine whether the American Bar Association’s (“ABA”) Model Rules of Professional Conduct (“Model Rules”) should apply to lawyers in situations where a lawyer-candidate or a lawyer involved in a disingenuous political campaign activity, particularly when the lawyer was not convicted on criminal charges. Though the American Bar Association said that the Model Rules apply to dishonesty, fraud, deceit or misrepresentation by lawyers, even when acting in a non-professional capacity, the support for applying the Rules in this context is lacking.

This article will first briefly discuss the development of applying the Model Rules to the non-professional conduct, …

Help America Vote Act Enforcement, Tiana Butcher

Legislation and Policy Brief

Although the Help America Vote Act of 2002 (HAVA) features extensive mandates, its enforcement provisions of are weaker than those found in previous federal election reform laws, including the Voting Rights Act and the National Voter Registration Act. Activists argue this limited enforcement power is a failing of the Act. Congress may have chosen to adopt weak enforcement mechanisms due to political posturing, lack of funding, faulty technology, or lobbying by the states. Regardless of the reason behind this choice, stronger enforcement mechanisms in HAVA would, paradoxically, fail to encourage election reform or deter election reform altogether.

The Politics Of Competition: Review Of Clifford Winston's Government Failure Versus Market Failure: Microeconomics Policy Research And Government Performance And Mark K. Landy, Martin A. Levin & Martin Shapiro, Eds., Creating Competitive Markets: The Politics Of Regulatory Reform, Russell P. Hanser

Federal Communications Law Journal

Two recent books focus attention on the role of regulation in the modem economy and the reasons why efforts at deregulation succeed or fail. Clifford Winston's Government Failure Versus Market Failure: Microeconomics Policy Research and Government Performance reviews empirical studies of regulation and its alternatives, arguing that economic regulation has quite often done more harm than good. In Creating Competitive Markets: The Politics of Regulatory Reform, editors Mark K. Landy, Martin A. Levin and Martin Shapiro collect essays addressing the political dangers faced by those pursuing market liberalization, both before and (especially) after reform is enacted. Read together, these books …

Politics And Telecommunications, Larry Pressler

Federal Communications Law Journal

No abstract provided.

The Continuing Role Of State Policy, Jeffrey A. Hart

Federal Communications Law Journal

A review of Hernan Galperin's New Television, Old Politics: The Transition to Digital TV in the United States and Britain, Cambridge University Press, 2004. Based on comparative case studies in Britain and the United States, this book analyzes the transition to digital television in both countries, considers governmental regulatory strategies, and focuses on the impact of various factors, including political influence and market and technological changes.

Stomaching The Burden Of Dietary Supplement Safety: The Need To Shift The Burden Of Proof Under The Dietary Supplement Health And Education Act Of 1994, Morgan J. Wais

Seattle University Law Review

This article gives a brief historical perspective on dietary supplement regulation and discusses the evolution of drug regulation by the FDA. Part II concludes with a discussion of the political environment in which these regulations occur. Part III gives examples and show how the current system has caused injury and harm to consumers of dietary supplements. Part IV discusses the current burden of proof and how it was applied in the case of ephedra. Part V discusses how, under the current regulatory structure, consumers cannot be adequately protected, either by the FDA or the tort system. Part VI discusses the …

The Role Of The Commission Secretary, David M. Grenville

Dalhousie Law Journal

Royal commissions of inquiry are generally set up to address an urgent public concern that is almost certainly politically sensitive. The task that they are given to do is not an easy one, and they are expected to deal with it competently, economically and, above all, expeditiously. Inevitably, some controversy will be generated by their activities as they operate under intense public scrutiny. There are, in fact, two kinds of inquiries: one is the quasijudicial investigation which has as its purpose to establish the facts and to determine whether any act was contrary to the law or the public interest, …

An Important Study Of The Interstate Commerce Commission

Michigan Law Review

A review of THE INTERSTATE COMMERCE COMMISSION - A STUDY IN ADMINISTRATIVE LAW AND PROCEDURE. By I. L. Sharfman