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Articles 1 - 13 of 13
Full-Text Articles in Law
The Origins Of Legislation, Ganesh Sitaraman
The Origins Of Legislation, Ganesh Sitaraman
Notre Dame Law Review
Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …
The Contraceptive Mandate: Compelling Interest Or Ideology?, Karen A. Jordan
The Contraceptive Mandate: Compelling Interest Or Ideology?, Karen A. Jordan
Journal of Legislation
In the wake of the administrative rule requiring employee health benefit plans to cover contraceptive services, many employers are pursuing religious liberty claims against the federal government. In claims under the Religious Freedom Res- toration Act, a prima facie showing by a plaintiff that a federal law substantially burdens the exercise of religion shifts the burden to the government to justify the burden by showing that the law is the least restrictive means of advancing a compel- ling governmental interest. This article focuses on the compelling interest prong of the government's burden. The text of RFRA and judicial gloss make …
A Return To Rehabilitation: Mandatory Minimum Sentencing In An Era Of Mass Incaraceration, Matthew C. Lamb
A Return To Rehabilitation: Mandatory Minimum Sentencing In An Era Of Mass Incaraceration, Matthew C. Lamb
Journal of Legislation
In 2013 Senators Richard Durbin (D-IL), Patrick Leahy (D-VT), and Mike Lee (R-UT) introduced the Smarter Sentencing Act to decrease mandatory minimum sentences for federal drug crimes and enlarge the existing safety valve for federal drug offenses.1 The Smarter Sentencing Act reduces the statutory minimum sentence of specific federal drug offenses and permits judges to deviate from mandatory minimum sentences for controlled sub- stance offenses under certain circumstances.2 Similarly in 2013, Senators Leahy and Rand Paul (R-KY), as well as Representatives Bobby Scott (D-VA) and Thomas Massie (R-KY), introduced the Justice Safety Valve Act.3 The Justice Safety Valve Act would …
Remembering The Lessons Of 9/11: Preserving Tools And Authorities In The Fight Against Terrorism, Congressman Peter T. King
Remembering The Lessons Of 9/11: Preserving Tools And Authorities In The Fight Against Terrorism, Congressman Peter T. King
Journal of Legislation
As Chairman of the Subcommittee on Counterterrorism and Intelligence, a Member of the House Permanent Select Committee on Intelligence, and a Con- gressman from New York, 9/11 was a very personal experience that continues to resonate with me. I lost over 150 neighbors, friends and constituents on September 11th, but no one has a monopoly on grief. This issue went to the soul of the entire country, and touches our lives nearly 15 years later. That day forces us to acknowledge, whether some of us want to or not, that we have an unyielding enemy, vicious and bitter, that will …
The Uniform Act On Prevention Of And Remedies For Human Trafficking: State Law And The National Response To Labor Trafficking, Erin N. Kauffman
The Uniform Act On Prevention Of And Remedies For Human Trafficking: State Law And The National Response To Labor Trafficking, Erin N. Kauffman
Journal of Legislation
Human trafficking* is one of the most lucrative criminal enterprises in the world, with illicit profits rivaling those of the global drug and arms trades. A 2014 survey by the International Labour Organization estimated that revenue from human trafficking grosses as much as $150 billion annually.Yet, unlike with drugs and weapons, the minimal cost of “purchasing” a human trafficking victim, combined with the fact that the same victim may be sold again and again, makes human trafficking a high-reward, low-risk enterprise.
The Principle Of Subsidiarity In Eu Judicial And Legislative Practice: Panacea Or Placebo?, Gabriél A. Moens, John Trone
The Principle Of Subsidiarity In Eu Judicial And Legislative Practice: Panacea Or Placebo?, Gabriél A. Moens, John Trone
Journal of Legislation
This paper considers the failure of subsidiarity as a judicial review principle and its somewhat more successful record as a legislative review principle in the European Union. Although the founding Treaties make clear that subsidiarity is a legally binding principle, the European Court of Justice has adopted an excessively deferential approach to its judicial enforcement. The Treaty provisions have been rendered essentially meaningless platitudes so far as judicial enforcement is concerned. The European Court's under-en- forcement of subsidiarity should be contrasted with the Court's history of judicial activism. While the Court has often fashioned novel legal doctrines without express support …
The New Novelty: Defining The Content Of “Otherwise Available To The Public”, Caroline A. Schneider
The New Novelty: Defining The Content Of “Otherwise Available To The Public”, Caroline A. Schneider
Journal of Legislation
The "Leahy-Smith America Invents Act" (America Invents Act) was enacted on September 16, 2011.1 The purpose of the Act was to provide greater harmony between the U.S. patent system and patent systems of our international trading partners.2 A patent gives an inventor a monopoly in the issuing country to make, use, and sell the invention for a limited term in exchange for the disclosure of how to make and use the invention. In the United States, the granting of monopolies for limited terms is justified mainly on utilitarian grounds. The patent system is seen as the best way to incentivize …
Benefit Corporations: Increased Oversight Through Creation Of The Benefit Corporation Commission, Thomas J. White Iii
Benefit Corporations: Increased Oversight Through Creation Of The Benefit Corporation Commission, Thomas J. White Iii
Journal of Legislation
Traditional for-profit and nonprofit corporate forms do not provide the appropriate framework for an organization pursuing both profits and social responsibility. In response, state legislatures have begun to take initiative by offering new business forms to accommodate for an increased demand in social responsibility. These hybrid forms seek to offer an organization the optimal platform by which to meet their dynamic goals. This Note will analyze the recently popular hybrid form of a benefit corporation. Further, this Note will dissect the Model Benefit Corporation Legislation and explain how benefit corporations provide a solution to the theory of shareholder wealth maximization. …
Diazepam Discord: A Competent Minor's Constitutional Right To Seek And Refuse Psychotropic Medication, Alexa E. Craig
Diazepam Discord: A Competent Minor's Constitutional Right To Seek And Refuse Psychotropic Medication, Alexa E. Craig
Journal of Legislation
Our legal system values independence, individualism, and personal choice, but we have been slow to cultivate these values in the arena of children's rights. Too much of the focus has been on efficiency: arbitrary cut-off ages provide a simple means for ascertaining a person's competence to exer- cise rights, but they are not always an accurate means to such an end. Spe- cifically, the law regarding mental health has struggled to reconcile parents' rights in custody and management of their children, the State's interest in raising members that will contribute to society, and competent children's rights of privacy and self-determination. …
Funding Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters, Jr.
Funding Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters, Jr.
Journal of Legislation
Congress spends hundreds of billions of dollars each year on social programs. Many don't work. Congress and the President have called for greater reliance on evidence-based programs. Thus far, however, only one major federal program conditions state access to formula-based federal funding on the use of evidence-based practices: the Maternal, Infant, and Early Childhood Home Visiting Program.2 In this Article, I examine the extent to which this initial effort has succeeded and conclude that Congress has taken a promising first step, but attainment of its objective will require more demanding proof standards than those contained in the current Home Visiting …
Open Face: Striking The Balance Between Privacy And Security With The Fbi's Next Generation Identification System, Christopher Delillo
Open Face: Striking The Balance Between Privacy And Security With The Fbi's Next Generation Identification System, Christopher Delillo
Journal of Legislation
Privacy in the United States has never been an explicit general right for every citizen.I Federal grants of privacy protection exist for specific instances or areas, but generally have been left to the province of the States.2 Some states, but not all, have general privacy laws granting citizens privacy rights beyond the scope of con- tent-specific legislation.3 Thus, the privacy law regime in the United States is best characterized as a patchwork: rights or protections exist in numerous areas without much to connect those areas together as an interlocking protective framework for national citizenry.
Providing Plaintiffs With Tools: The Significance Of Eeoc V. United Airlines, Inc., Michelle Letourneau
Providing Plaintiffs With Tools: The Significance Of Eeoc V. United Airlines, Inc., Michelle Letourneau
Notre Dame Law Review
This Note will analyze the language of the United Airlines II decision, in light of Barnett, Seventh Circuit precedents regarding the reasonable accommodation of reassignment, and cases from other circuits that the Seventh Circuit cited in relevant part in its United Airlines II decision. Part I will provide an introduction to the relevant provisions of the ADA. Part II will summarize relevant portions of a series of cases predating United Airlines II that deal with the concept of reassignment as a reasonable accommodation under the ADA. These cases are discussed in considerable detail in order to highlight in Part III …
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Journal Articles
There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …