Law Commons^™

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Echostar-Directv In The 2011 Technological And Competitive Climate, Peter J. White

Peter J White

The birth of satellite television took place in the late 1970s, and since then, the Direct Broadcast Satellite (DBS) industry has grown to over 30 million subscribers. In 2008, DirecTV and EchoStar—the leaders in the DBS market—had 20.1 million and 13.8 million subscribers respectively. DBS networks work by broadcasting digital signals from medium- and high-power satellites (100 to 400 watts per transponder) to receiver dish antennas as small as 18 inches. These satellites are placed in geosynchronous orbits, which means that they are always in the same position relative to the rotating earth. In the United States, the Federal Communications …

Alliance Compliance: The Divergence In Us–Eu Airline Alliance Review Policies, Peter J. White Jd

Peter J White

Throughout the late twentieth century and into recent years, the airline industry has been characterized by a vast increase in global airline alliances. However, due to strict ownership restrictions, air carriers cannot take advantage of international mergers or takeovers. As a result, many air carriers enter into alliances with other air carriers in order to create an extensive international network, allowing them to benefit from economies of scope and density. An alliance also may allow an air carrier to operate more efficiently by eliminating duplication of costs, thereby allowing the air carrier to perform a better service for its customers. …

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

Prospects For ‘Cooperation V. Dispute’ Over Water In The Middle East, Yaser Yousef Khalaileh

yaser yousef khalaileh

This paper addresses the prospects of the applicability of Watercourse international regime to achieve cooperation in the Middle East region. In so doing, an assessment of the environmental status of the water medium in the Middle East, and the main reasons for its deterioration, is to be made; an illustration of the basic international law rules that are specifically related to the use of international watercourses is to be deciphered; the extent of protection afforded to this medium under international law is then analysed; and an attempt to discuss the available possibility for applying international laws related to watercourse to …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

The Times They Are A-Changin’: The “Sexting” Problem And How The Intrusiveness Of A Cell Phone Search Determines The (Un)Constitutionality Of Suspicion-Based And Suspicionless Searches In The Public School Setting, Andrew T. Moore

Andrew T Moore

In the past decade cell phone use amongst teenagers has gone from luxury to perceived necessity. With the expanded abilities of modern cell phones, students are able to easily participate in social sexual behavior such as sending explicit images of themselves or others to other cell phone users, an activity known as “sexting.” While schools may want to do all they can to eradicate this behavior, school administrators must not violate the constitutional rights of their students in the process of doing so. When a school administrator comes to suspect “sexting” behavior, he or she must follow existing Fourth Amendment …

What's Wrong With Forum Shopping? An Attempt To Identify And Assess The Real Issues Of A Controversial Practice, Markus A. Petsche

markus a petsche

In this article, I revisit the question posed by Professors Juenger and Maloy in earlier contributions: what is wrong with (international) forum shopping? Despite doctrinal efforts to determine the origins and effects of forum shopping, the desirability of this practice remains a highly controversial topic. In this article, I show that the adverse impact of forum shopping is limited and that existing policies addressing forum shopping (including the doctrine of forum non conveniens) should thus be reevaluated in light of this finding. First, I identify the criteria by which the potentially detrimental impact of forum shopping (or rather forum selection) …

What If The Wolf Wasn’T Really The Big Bad In All Those Fairy Tales But Was Just Misunderstood?: Techniques For Maintaining Narrative Rationality While Altering Stock Stories That Are Harmful To Your Client’S Case, Jennifer L. Sheppard

Jennifer L. Sheppard

This article explores the cognitive effects of narrative, including the effects that stock stories have on judges and jurors. It also explores what a lawyer can do when an unfavorable stock story is so pervasive that it will not allow a lawyer to ignore it and a more favorable alternative story does not exist. This article posits that a lawyer can present the client’s story from an alternative perspective that will not evoke the embedded knowledge structures triggered by the unfavorable stock story by manipulating the various threads of narrative rationality (the traits that makes one story more persuasive than …

A Sticky Situation: Tar Sands, Alternative Fuels, Energy Security And The Eisa Section 526 Petroleum Procurement Problem, Surya Gablin Gunasekara

Surya Gablin Gunasekara

The Department of Defense (DOD) is one of the world’s single largest consumers of energy. To support two wars in hostile parts of the world, the DOD’s energy procuring agency, the Defense Logistics Agency Energy (DLA Energy), has been forced into the difficult position of doing business with sheikdoms and petro-dictatorships. This dependence on foreign oil, and the critical need for energy security, has prompted several legislative initiatives aimed at promoting renewable energy and alternative fuels. While much of this legislation has been transformative for DOD energy policy, one provision, in application, has complicated the petroleum procurement process. This article …

State Contractual Liabilities And The Contract Clause; What Now?, Robert J. D'Agostino

Robert J D'Agostino

No abstract provided.

When Parallel Tracks Cross: Applying The New Insider Trading Regulations Under Dodd-Frank Derails, Gregory J. Melus

Gregory J Melus

Abstract: When Parallel Tracks Cross: Applying the New Insider Trading Regulations under Dodd-Frank Derails On March 11, 2011, the U.S. Securities and Exchange Commission (SEC) brought an administrative proceeding against former Goldman Sachs Director, Rajat Gupta for participating in the insider trading scheme of Raj Rajaratnam. The complaint was the first application of the SEC’s expanded authority under the Dodd-Frank Act to charge an unregistered entity for securities violations in an SEC enforcement hearing. This Comment argues that bringing an SEC administrative proceeding against Rajat Gupta would not succeed because the retroactive application of the Dodd-Frank law would fail the …

Crude Decisions: Re-Examining Degrees Of Negligence In The Context Of The Bp Oil Spill, Blaine Lecesne

Blaine LeCesne

CRUDE DECISIONS: RE-EXAMINING DEGREES OF NEGLIGENCE IN THE

CONTEXT OF THE BP OIL SPILL

Blaine LeCesne

Abstract

The blowout of the Macondo well caused the worst environmental disaster in history and the ensuing high-stakes litigation is the largest ever mass tort case. The pivotal issue in the case is whether this cataclysmic event was caused by the “gross negligence” or “willful misconduct” of the responsible parties. Such a determination could result in exponentially increased compensatory and punitive damages, augmented environmental sanctions and potential criminal liability. These heightened degrees of fault are frequently used in regulatory statutes, like the Clean Water …

Arizona’S Support Our Law Enforcement And Safe Neighborhoods Act: Its Likely Consequences On Latino Communities And What To Do About Them, Elena Llamas

elena llamas

The U.S. has seen a recent wave of legislative efforts to empower state and local law enforcement officers with anti-illegal immigration responsibilities. The purpose of this article is to suggest community policing changes that police departments could enact to best enforce these types of laws and mantain good relations with Latinos.

Cost Shifting In E-Discovery: A Comparative Analysis Between America And Europe, Umar Bakhsh

Umar Bakhsh

E-discovery is quickly becoming a prominent consideration when dealing with traditional discovery requests. The costs of producing e-discovery, however, have grown exponentially due to the voluminous and fragmented nature of electronically stored information. The current standard used by courts, in UBS v. Zubulake, has mistakenly and non-uniformly been applied by courts in spite of Congress’ attempt to create its own standard via FRCP Rule 26. In comparison, Europe’s “loser of litigation pays all court costs” has not adequately met the particular problem created by e-discovery. My article proposes a more manageable alternative standard to Zubulake, FRCP 26, and the European …

Incommensurability, Practices And Points Of View: Revitalizing H.La. Hart’S Practice Theory Of Rules, Eric J. Miller

Eric J. Miller

The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law. That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law. Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are wholesale incommensurable with them.

Wholesale incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the …

Application Of Forensics Technology In Identification Of A Person, Vyacheslav Tulskikh

Vyacheslav Tulskikh

SUMMARY Terrorism is the plague of the 21st century. In the man-made world of today, with its nuclear power plants, subways, airplanes, with accumulation of large numbers of people in one and the same place, terrorism (terror is Latin for fear and horror) poses serious threat not only to security of a certain state, but also to entire world community. Under these conditions, the measures to be taken against terrorists, including preventive measures, should ever be effective. In the article there have been considered various methods of identification of a person, including iris and retina recognition, fingerprint identification, hand and …

There’S No Place Like Home – The Lost Children Of Foster Care, Kevin Simpson

Kevin Simpson

The main analysis of this paper centers around the foster care system and the effects of foster care on the children who are thrust into it. The jurisdiction will be focused on the United States as a whole, with some State comparison. In Part II, a general description of foster care will be looked at. Part III distinguishes the two different types of foster care, kinship and non-relative foster care. Part IV contains discussions dealing with the process generally, and what leads children to foster care. Following that section, Part V extensively deals with the effects on the children, including …

Fitness Tax Credits: Costs, Benefits, And Viability, Daniel Reach

Daniel Reach

As the number of overweight and obese Americans rises, it becomes increasingly clear that Americans need further incentives to stimulate lasting lifestyle changes. Tax incentives focused on exercise, which have been largely unexplored to this point, are an effective response to the growing obesity problem in the United States that would largely avoid the special-interest opposition that tax policies focused on diet have encountered. In addition, they would also provide a more palatable solution for the taxpayer beneficiaries with a relatively low impact on government revenues. Viable tax incentives to encourage greater fitness include tax credits and sales tax breaks, …

The Invisible Man: How The Sex Offender Registry Results In Social Death, Elizabeth B. Megale

Elizabeth B. Megale

This Article establishes that overcriminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits …

Giving Life To The Dead: The Patient Protection And Affordable Care Act's Impact On Freedom Of Contract As A Substantive Due Process Right, Jesse D. Kershner Mr.

Jesse D Kershner Mr.

This article examines the constitutional implications of the Patient Protection and Affordable Care of 2010. Particularly, whether the substantive due process right of freedom of contract is recognized yet again as a fundamental right. This paper argues while Muller and West Coast Hotel overturned Lochner procedurally, the substance of the fundamental right concerning contracts still exists; specifically the notion that citizens have a right to be free from forced contracts.

Giving Life To The Dead: The Patient Protection And Affordable Care Act's Impact On Freedom Of Contract As A Substantive Due Process Right, Jesse D. Kershner Mr.

Jesse D Kershner Mr.

This article examines the constitutional implications of the Patient Protection and Affordable Care of 2010. Particularly, whether the substantive due process right of freedom of contract is recognized yet again as a fundamental right. This paper argues while Muller and West Coast Hotel overturned Lochner procedurally, the substance of the fundamental right concerning contracts still exists; specifically the notion that citizens have a right to be free from forced contracts.

Skewed Incentives: How Offshore Drilling Policies Fail To Induce Innovation To Reduce Social And Environmental Costs, Gaia J. Larsen

Gaia Larsen Esq.

The accident at the Deepwater Horizon platform in the Gulf of Mexico in April of 2010 showed the potentially catastrophic damage associated with offshore oil drilling. It also highlighted both the technological advances that have made drilling in deeper and more dangerous waters feasible and affordable, and the lack of similar advances in technology to prevent harm resulting from such drilling. In light of that disaster and current debate over offshore oil drilling, this article looks at the failure of current policies to adequately incentivize investment in innovation to reduce the environmental and social costs associated with offshore drilling. It …