Law Commons^™

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

“Not Reasonably Debatable”: The Problems With Single-Judge Decisions By The Court Of Appeals For Veterans Claims, James Ridgway

James D. Ridgway

The U.S. Court of Appeals for Veterans Claims (CAVC) has statutory authority—unique among the federal appellate courts—to allow individual judges to decide appeals. As the CAVC completes the first quarter century of operations since its creation, this article examines the court’s use of this authority. Based upon two years of data developed and analyzed by the authors, this article concludes that outcome variance in single-judge decisions is a serious problem at the CAVC. Not only is there a substantial difference in the outcomes of appeals assigned to the different judges, but there are clear examples of decisions that violate the …

Transatlantic Perspective On Judicial Deference In Administrative Law, Maciej Bernatt

Maciej Bernatt

The U.S. concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in the light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts. The paper analyzes whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts or both). As a starting point it is observed that it remains generally accepted in Europe that it is a role of courts …

The Privacy Dilemma In Digital Arrestee Mug Shots Under The Foia 7(C) And State And Local Policy Recommendations, Ahad Syed

Ahad Syed

This Article examines the purpose and interpretation by courts of Freedom of Information Act’s 7(C) Exemption. Specifically, the Article sets out to unravel the current federal circuit court split over Exemption 7(C) by examining its application to the digital privacy dilemma as applied to arrestee photographs, commonly known as “mug shots.” Automated data-scraping programs continuously scour the internet, reaping, replicating, and reposting photographs of arrestees who may or may not have had charges dismissed in order to shame them into paying website owners for removal. While other commentators have argued for state law penalizing pay-to-remove mug shot websites only, this …

King V. Burwell And The Chevron Doctrine: Did The Court Invite Judicial Activism?, Matthew A. Melone

Matthew A. Melone

No abstract provided.

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

At the Internet’s inception, carriers providing the bit switching and transmission function largely embraced expanding connections and users as a primary service goal. These ventures refrained from metering traffic and charging for carriage based on the assumption that traffic volumes roughly matched, or that traffic measurement was not worth the bother in light of external funding from government grants. Most Internet Service Providers (“ISPs”) bartered network access through a process known as peering in lieu of metering traffic and billing for network use. As governments removed subsidies and commercial carriers invested substantial funds to build larger and faster networks, identifying …

Déjà Vu All Over Again: Questions And A Few Suggestions On How The Fcc Can Lawfully Regulate Internet Access, Rob Frieden

Rob Frieden

This paper will examine the FCC’s March, 2015 Open Internet Order with an eye to assessing whether and how the Commission can successfully defend its decision in an appellate court. On two prior occasions, the FCC failed to convince a reviewing court that proposed regulatory safeguards do not unlawfully impose common carrier duties on private carriers. The Commission now has opted to reclassify broadband Internet access as common carriage, a decision sure to trigger a third court appeal. The FCC Open Internet Order offers several, possibly contradictory, justifications for its decision to apply Title II of the Communications Act, subject …

Mistakes, Airfares, And Consumers: Restoring The Department Of Transportation's Role In Regulating Unfair Trade Practices, Terence Lau

Terence Lau

This Article traces the problem of mistake airfares and the federal government’s response to airlines that cancel tickets for erroneous fares. Part I of the Article explores airline pricing generally, and argues that airline tickets are a unique form of commodity good, one where there is no consumer expectation of a reasonable price. The dynamic nature of airline yield management means that prices for the exact same seat on an airplane can range dramatically on a variety of circumstances and factors that are beyond the knowledge, control or comprehension of the ordinary consumer. The Article investigates several well-known examples of …

Note: The Case For Earmarks, Chelsea Fernandez Gold

Chelsea Fernandez Gold

Americans’ confidence in Congress has sunk to historical lows and it seems that dysfunction and ineptitude remain at an all-time high. But it is not just the public that is frustrated with Washington’s failures; it is members of the political elite themselves. While the dysfunction plaguing the Capitol can be attributed to any number of factors, it is the contention of this paper that one way to "fix" Washington is to end the ban on earmarks. The termination of earmarks in Congress, and their ultimate shift over to the executive branch, has contributed to the ineffectiveness of the legislature and …

The Federal Restore Act And Its Impact On The Gulf States Following The Deepwater Horizon Oil Spill, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. The harms that occurred were widespread and devastating: eleven people were killed, 1,000 miles of coastline was degraded, ocean life and beaches were destroyed, and the local economy of the region was adversely impacted, especially fishing and tourism industries. In response, Congress passed the federal RESTORE …

Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood

Joel Hood

Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

There are now over five-hundred federal agencies and departments. Some are …

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Downstream Inundations Caused By Federal Flood Control Dam Operations In A Changing Climate: Getting The Proper Mix Of Takings, Tort, And Compensation, Robert H. Abrams, Jacquiline Bertelsen

Robert H Abrams

The 2012 United States Supreme Court decision in Arkansas Game & Fish Commission v. United States (AG&FC) presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam’s pattern of releases. The Court held that that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection” and must instead be tested according to the Court’s usual precedents governing temporary physical invasions and regulatory takings.[1] On …

Market Corrective Rulemaking: Drawing On Eu Insights To Rationalize U.S. Regulation, Reeve T. Bull

Reeve T Bull

When justifying the government’s role in intervening in the free market, economists and legal scholars alike point to the problem of “market failures”: laissez-faire capitalism may not produce optimal outcomes in certain cases, and government interventions can promote overall market efficiency. The existence of such market failures is not terribly controversial; the question of whether government regulators can correctly identify these flaws and devise appropriate solutions, by contrast, is significantly more contentious. Unfortunately, under the existing regulatory framework, government officials are not especially well-positioned to make these difficult determinations. Congress does not, as a general matter, consider the economic costs …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

Anti-Corruption Commissions In China:Panacea Or Cure-All Medicine To Fight Corruption, Chan Louis

Chan Louis

With the rapidly economic development and the overall social transformation, corruption has becoming a more prominent threat to China's long-term development. The CPC and Chinese government, while severely cracking down corruption, has proposed a series of strategic thinking to fundamentally solve the problem of corruption. The sharp weapons against corruption in China are generally two institutions, which are Commission for Discipline Inspection responsible for the inspection within the party and the People's Procuratorate, one of key functions of which is prevention and punishment of corruption. A popular saying among Chinese government officials goes: “Fear not the heavens or the earth, …

Regulation Of Chemical Risks: Lessons For Tsca Reform From Canada And The European Union, Adam Abelkop, John D. Graham

Adam Abelkop

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. …

Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler: The Future Of Government (2003)), David M. Driesen

David M Driesen

This essay discusses Cass Sunstein’s book, Simpler: The Future of Government, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that …

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Mark P Nevitt

The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear–until recently.A federal district court ruled …

Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler 2013)), David M. Driesen

David M Driesen

This essay discusses Cass Sunstein’s book, Simpler, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that complexity is a hallmark …

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

Jonathan C. Lipson

This paper uses “institutional analysis”—the study of the relative capacities of markets, courts, and regulators—to make three claims about financial crises.

First, financial crises are increasingly a problem of “regulatory displacement.” Through the ad hoc rescues of 2008 and the Dodd-Frank reforms of 2010, regulators displace market and judicial processes that ordinarily prevent financial distress from becoming financial crises. Because regulators are vulnerable to capture by large financial services firms, however, they cannot address the pathologies that create crises: market concentration and complexity. Indeed, regulators may inadvertently aggravate these conditions through resolution tactics that consolidate firms, and the volume and …

The Costs And Benefits Of Regulatory Intervention In Internet Service Provider Interconnection Disputes: Lessons From Broadcaster-Cable Retransmission Consent Negotiations, Rob Frieden

Rob Frieden

This paper considers what limited roles the FCC may lawfully assume to ensure timely and fair interconnection and compensation agreements in the Internet ecosystem. The paper examines the FCC’s limited role in broadcaster-cable television retransmission consent negotiations with an eye toward assessing the applicability of this model. The FCC explicitly states that it lacks jurisdiction to prescribe terms, or to mandate binding arbitration. However, it recently interpreted its statutory authority to ensure “good faith” negotiations as allowing it to constrain broadcaster negotiating leverage by prohibiting multiple operators, having the largest market share, from joining in collective negotiations with cable operators. …

Encouraging Cooperation: Harmonizing The Battle Of Association And Mortgagee Lien Priority In America’S Common Interest Communities, Christian J. Bromley

Christian J Bromley

As the United States grappled with millions of foreclosures in recent years, the delinquency of mortgage and community association payments threatened the sustainability of over 300,000 common interest communities that house 63.4 million Americans. When owners of residential property fall behind on mortgage and association assessments, a battle for lien priority emerges between the associations and mortgagees. Each respectively holds a lien on the property to secure the debt owed to them, but it is the priority of these liens that determines the amount the lienholder recovers from a foreclosure sale. There is no uniform approach to priority in the …

Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal

Yugank Goyal

Developing countries suffer from underperforming regulatory agencies compared to those in the developed world. The paper attempts to theorize general reasons behind such divergence. It argues that the differences lie in developing countries’ (a) higher priorities for redistribution, (b) structurally different institutional endowments, especially at informal level, and (c) limited informational channels. The paper proposes that a multi-stakeholder (with increased emphasis on judiciary and civil society) approach has potential to address the shortcomings. It tests these claims through studying cases of telecom and electricity regulation in India.

Revenue Adequacy: The Good, The Bad And The Ugly, John W. Mayo

John W Mayo

Abstract: The concept of “revenue adequacy” made its way into the legal governance of the rail industry prior to the industry’s substantial deregulation via the Staggers Rail Act in 1980. This seemingly quiet feature of rail legislation has, however, increasingly grown central to the regulatory-deregulatory fault line in the 21st century rail industry. This paper examines the concept of revenue adequacy, a benchmark of United States railroad firms' financial performance calculated annually by regulatory oversight bodies. The paper addresses questions around the origins, measurement, informational provisions, value and policy benefits and costs of revenue adequacy. An examination of the historical …

A Legal Approach To The Improvement Of Energy Efficiency In Europe And The United States: Greening The Existing Building Stock, Teresa -. Parejo

Teresa - Parejo

In large cities buildings are responsible for 40% of energy consumption and 36% of CO2 emissions in the EU, and 70% of energy consumption and 40% of CO2 emissions in the US. Hence, improving the energy performance of buildings is a very cost-effective way to fight against climate change.

Most of the potential for energy savings is in existing buildings so they provide the greatest opportunities and challenges, but the measures adopted until today to improve energy efficiency, despite some innovative proposals, have been insufficient and mainly focused in new buildings. All the actions developed either by the EU and …

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 …

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Seek Justice, Not Just Deportation: How To Improve Prosecutorial Discretion In Immigration Law, Erin B. Corcoran

Erin B. Corcoran

Bipartisan politics has prevented meaningful reform to a system in dire need of solutions: Immigration. Meanwhile there eleven million noncitizens with no valid immigration status who currently reside in the United States and the Department of Homeland Security (DHS) does not have the necessary resources to effect their removal. DHS does have the authority through prosecutorial discretion to prioritize these cases and provide relief to individuals with compelling circumstances that warrant humanitarian consideration; nonetheless, DHS’s exercise of prosecutorial discretion is underutilized, inconsistently applied and lacks transparency. This Article suggests a remedy – that the immigration prosecutor’s role should redefined to …