Law Commons^™

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

The Italian Agreement Between The Government And The Regional Authorities: National Guidelines For Aai And Institutional Context, Martina Simonato, Marta De Santis, Laura Contalbrigo, Daniele Benedetti, Elisabetta Finocchi Mahne, Vincenzo Ugo Santucci, Silvio Borrello, Luca Farina

People and Animals: The International Journal of Research and Practice

Animal-assisted interventions (AAI) have developed considerably in the last half century, prompting various private and public realities dealing with AAI worldwide to work on and establish standards and best practice. However, AAI are still far from being regulated harmoniously. In this context, Italy offers a unique example at world level: here the spread of AAI has set in motion an ethical and legal reflection that led to the creation of the Italian National Reference Centre for AAI (NRC AAI) by ministerial decree in 2009 and the approval of National Guidelines for AAI in 2015. The Italian legislation on AAI is …

Survey Of Legislation: 2017 Arkansas General Assembly, Amie Alexander, Sarah Giammo

University of Arkansas at Little Rock Law Review

No abstract provided.

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Anthony O'Rourke

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

The Death Of Rules And Standards, Anthony J. Casey, Anthony Niblett

Indiana Law Journal

Scholars have examined the lawmakers’ choice between rules and standards for decades. This Article, however, explores the possibility of a new form of law that renders that choice unnecessary. Advances in technology (such as big data and artificial intelligence) will give rise to this new form—the microdirective—which will provide the benefits of both rules and standards without the costs of either. Lawmakers will be able to use predictive and communication technologies to enact complex legislative goals that are translated by machines into a vast catalog of simple commands for all possible scenarios. When an individual citizen faces a legal choice, …

Open Source: The Enewsletter Of Rwu Law 09-22-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Governor Raimondo On Rwu Law 09-19-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black

Akron Law Review

Deaths of children due to vehicle accidents have drastically decreased since 1985, the year in which all states enacted laws requiring children to be secured in child safety restraints when traveling in a vehicle. Yet, vehicle accidents remain the leading cause of death for children in this country, with at least three children under the age of fourteen dying each day and 462 suffering from severe injuries due to vehicle accidents. In 2011, the American Academy of Pediatrics set forth recommendations seeking to lower these troubling statistics, but thus far, only four states have enacted legislation that mirrors, at least …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group

All Faculty Scholarship

In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors …

Symposium On A Free Press And A Fair Trial - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

High-Stakes Interpretation, Ryan D. Doerfler

All Faculty Scholarship

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …

New Hampshire Juvenile Sex Trafficking Survivor Urges Representatives To Vote Against Decriminalized Prostitution, Darlene Pawlik, Donna M. Hughes Dr.

Donna M. Hughes

Sex Industry Advocates Aim To Decriminalize Prostitution In New Hampshire, Kelly Roy-Williams, Lisa Thompson, Donna M. Hughes Dr.

Donna M. Hughes

Up In Smoke? Unintended Consequences Of Retail Marijuana Laws For Partnerships, Lauren A. Newell

Law Faculty Scholarship

When Colorado citizens petitioned in 2012 to legalize the retail sale of marijuana in their state, Colorado Governor John Hickenlooper publicly opposed the ballot measure. He knew that state legalization of retail marijuana sales would be risky because the federal Controlled Substances Act makes selling marijuana a crime. He worried that being the first state to legalize retail marijuana sales would make Colorado the “experiment.” Governor Hickenlooper knew that this experiment would come with “unintended consequences.”

Governor Hickenlooper’s concerns were well founded. Scholars have identified a host of practical and legal problems caused by the combination of state marijuana legalization …

Dead Or Alive? The Law, Policy, And Market Effects Of Legislation On Unclaimed Life Insurance Benefits, James M. Carson, Robert E. Hoyt, Tim R. Samples

Notre Dame Journal of Law, Ethics & Public Policy

A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, …

Dynamic Regulatory Constitutionalism: Taking Legislation Seriously In The Judicial Enforcement Of Economic And Social Rights, Richard Stacey

Notre Dame Journal of Law, Ethics & Public Policy

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts …

Legislating The First Amendment: A Trio Of Recommendations For Lawmakers Targeting Free Expression, Clay Calvert

UF Law Faculty Publications

This Article offers three recommendations for lawmakers attempting to restrict expression that is presumptively protected by the First Amendment. The proposals include: (1) embracing a ''prism of protection" through which all potential laws affecting expression are filtered prior to drafting; (2) mandating inclusion of sunset clauses in all statutes that may detrimentally impact free expression; and (3) adopting a comprehensive legislative oversight and review process for determining if an expired statute should be renewed, revised or abandoned. Although far from creating what Dean Roscoe Pound more than 100 years ago called a "science of legislation, " the proposals here nonetheless …

Human Rights Hero: Abner J. Mikva, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Should Medical Assistance In Dying Be Extended To Incompetent Patients With Dementia? Research Protocol Of A Survey Among Four Groups Of Stakeholders From Quebec, Canada, Gina Bravo, Claudie Rodrigue, Vincent Thériault, Marcel Arcand, Jocelyn Downie, Marie-France Dubois, Sharon Kaasalainen, Cees M. Hertogh, Sophie Pautex, Lieve Van Den Block

Articles, Book Chapters, & Popular Press

Background: Alzheimer’s disease and related disorders affect a growing number of people worldwide. Quality of life is generally good in the early stages of these diseases. However, many individuals fear living through the advanced stages. Such fears are triggering requests for medical assistance in dying (MAiD) by patients with dementia. Legislation was recently passed in Canada and the province of Quebec allowing MAiD at the explicit request of a patient who meets a set of eligibility criteria, including competence. Some commentators have argued that MAiD should be accessible to incompetent patients as well, provided appropriate safeguards are in place. Governments …

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Publications

No abstract provided.

Teaching Public Policy Drafting In Law School: One Professor's Approach, Lisa A. Rich

Faculty Scholarship

This article provides an overview of the Drafting for Public Policy course offered at the Texas A&M University School of Law. The article addresses the theoretical and pedagogical underpinnings of the course, including how such a course easily encompasses the teaching of cultural context and awareness, as well as professional identity, and encourages students to engage deeply in the policymaking process. It also explores the continued relevance of the work of Harold D. Lasswell, as well as that of Myres McDougal and Anthony Kronman. These works, from 1943 and 1993 respectively, resonate now because they called on law schools to …

Foreword: The Workplace Law Agenda Of The Obama Administration, Ruben J. Garcia

Scholarly Works

Professor Ruben Garcia introduces a Symposium issue of the Employee Rights and Employment Policy Journal focused on an assessment of several key aspects of the workplace law record thus far of President Barack Obama.

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …

Constraining Monitors, Veronica Root

Faculty Scholarship

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory form. …

The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.

All Faculty Scholarship

In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.

I start with corporate law doctrine, and find …