Law Commons^™

Natural Law, Natural Rights, And Same Sex Marriage, Shannon Holzer

Shannon Holzer

ABSTRACT The Definition of Rights and Same-Sex Marriage The claim that same-sex couples have the right to be married needs to be explained according to particular theories of rights. This presents a problem for same-sex marriage (SSM) advocates for two reasons. First, if SSM advocates suggest that they have a natural right to be married (as rights were understood by Thomas Jefferson in the Declaration of Independence), then they have the burden to prove that this is the case. Yet, Natural Rights entail Natural Law (NL), and NL tends to support teleological definitions of marriage. Thus, the SSM advocate must …

Profit Sharing: An Alternative Minimum Wage Model, Nicholas Parker

Nicholas Parker

No abstract provided.

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones

Brian Christopher Jones

Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.

The Unintended Consequences Of Safety Regulation, Sherzod Abdukadirov

Sherzod Abdukadirov

This study examines how risk trade-offs undermine safety regulations. Safety regulations often come with unintended consequences in that regulations attempting to reduce risk in one area may increase risks elsewhere. The increases in countervailing risks may even exceed the reduction in targeted risks, leading to a policy that does more harm than good. The unintended consequences could be avoided or their impacts minimized through more careful analysis, including formal risk trade-off analysis, consumer testing, and retrospective analysis. Yet agencies face strong incentives against producing better analysis; increased awareness of risk trade-offs would force agencies to make unpalatable and politically sensitive …

Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin Hoerner

Benjamin O Hoerner

In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry of …

The Fourth Zone Of Presidential Power: Analyzing The Debt-Ceiling Standoff Through The Prism Of Youngstown Steel, Chad Deveaux

Chad DeVeaux

In this Article, I use the Youngstown Steel Seizure Case to assess the reoccurring debt-ceiling standoffs between Congress and the White House. If the Treasury reaches the debt limit and Congress fails to act, the president will be forced to choose between three options: (1) cancel programs, (2) borrow funds in excess of the debt limit, or (3) raise taxes. Each of these options violates a direct statutory command. In Youngstown, Justice Jackson asserted that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template which evaluates …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Decorating The Structure: The Art Of Making Human Law, Brian M. Mccall

Brian M McCall

Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones

Brian Christopher Jones

This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.

State Session Freeze Laws—Potential Solution Or Unconstitutional Restriction?, Dru Swaim

Seattle University Law Review

Since the Citizens United decision in 2010 reduced Congress’s ability to constitutionally regulate money in elections, proponents of campaign finance reform have looked for alternative ways to achieve the goals of greater transparency and reduce the amount of money spent in federal elections. In the three years since Citizens United, the amount of money spent in federal campaigns has increased exponentially. In fact, the total amount of money spent in federal elections has nearly doubled since 2000. Citizens United represents a serious blow to the traditional methods used to restrict the amount of money in politics: limitations on the amounts …

Can America Govern Itself?: Deficits, Debt, And Delay, Ron Haskins

Brookings Scholar Lecture Series

America has now been in the throes of a deficit and debt crisis for nearly a decade. Over the last three years, the federal government has tied itself in knots trying to reach a long-term solution. Any effective solution will involve tax increases and entitlement cuts. But both parties have been unwilling to openly bargain about either the tax increases or spending cuts they are willing to consider as part of a grand bargain. Why are both parties being so intransigent? What are the prospects for a grand bargain and what might it look like? What are the consequences if …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings

Brett W Hastings

The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, dubbed the Sebelius Theory. The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the …

Don’T Be Silly: Lawmakers “Rarely” Read Legislation And Oftentimes Don’T Understand It . . . But That’S Okay, Brian Christopher Jones

Brian Christopher Jones

During the debate over the Patient Protection and Affordable Care Act ("Obamacare"), the reading and understanding of legislation became one of the most controversial issues mentioned in Congress and throughout the media. This led many to state that lawmakers should “read the bill,” and led one academic to propose a read-the-bill rule for Congress, where legislators would not vote or vote “no” if they had not read the full text of the legislation. My essay argues that in contemporary legislatures such proposals are unfeasible, and would ultimately produce lower quality legislation. In doing so, the piece uses interviews with legislative …

Personalized Bills As Commemorations: A Problem For House Rules?, Brian Christopher Jones

Brian Christopher Jones

The proliferation of personalized bills in Congress has occurred despite a prohibition on commemorations in the House of Representatives. This Essay provides a close examination of the wording behind the ban, especially the definition of “commemoration.” It uses examples from the Adam Walsh Child Protection and Safety Act of 2006 and other statutes to demonstrate how many contemporary personalized bills fall underneath the prohibition, and therefore should not be introduced or considered in the House.

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin

Ryan Valentin

No abstract provided.

Restoring The Right To Organize In The Private Sector, James Newell

James Newell

No abstract provided.

One Redeeming Quality About The 112th Congress: Refocusing On Descriptive Rather Than Evocative Short Titles, Brian Christopher Jones

Brian Christopher Jones

For all intents and purposes the 112th Congress has been deemed a massive failure by most; fewer laws enacted and contemptuous debates characterized the session’s most lambasted qualities. However, one redeemable aspect was present: a focus back on descriptive and technical words for short titles, rather than evocative or tendentious terms. When compared to the 111th Congress, the use of evocative words slowed while the use of technical terms increased. This is the first time this has happened since the 101st-102nd Congress (1989-1993). Additionally, it is the largest separation between technical and evocative words since the 103rd Congress (1993-1995). Yet …

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Battering The Poor: How Georgia’S Mandatory Family Violence Classes Deny Indigent Defendants Equal Protection Of The Law, Whitney Scherck

Whitney Scherck

Thirty years ago, the U.S. Supreme Court in Bearden v. Georgia held that the Equal Protection Clause of the Fourteenth Amendment prevents a court from incarcerating an individual for failure to pay a fine unless it first inquires into their reasons for failing to do so and determines that the defendant willfully failed to make bona fide efforts to pay. However, recently, a new kind of legal debt has emerged. As states’ budgets tighten, so-called user fees are becoming an increasingly common way for legislatures to toughen the criminal justice system without having to come up with funding for it. …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

"Health Care For All:" The Gap Between Rhetoric And Reality In The Affordable Care Act, Vinita Andrapalliyal

Vinita Andrapalliyal

The rhetoric of “universal health care” and “health care for all” that pervaded the health care debate which culminated in the Patient Protection and Affordable Care Act (ACA)’s passage. However, the ACA offers reduced to no protections for certain noncitizen groups, specifically: 1) recently-arrived legal permanent residents, 2) nonimmigrants, and 3) the undocumented. This Article explores how the Act fails to ensure “health care for all,” demonstrates the gap between rhetoric and reality by parsing the ACA’s legislative history, and posits reasons for the gap. The ACA’s legislative history suggests that legislators’ biases towards these noncitizen groups, particularly with respect …