Law Commons^™

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

Interpretation And The Internet, Cameron J. Hutchison

Cameron J Hutchison

Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of …

The Extent To Which "Yellowstone Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

Running For Cover: The Brac Commission As A Model For Spending Reform, Jerry Brito

Jerry Brito

With record spending and deficits come calls for reform. Spending reform, however, is easier said than done, and independent commissions are often suggested as a way to tackle intractable political problems. Not all commissions are created the same, however. While baseball and basketball both employ balls, they are entirely different animals. The same applies to congressionally created commissions. The Base Realignment and Closing (BRAC) commissions of the late 80s and early 90s were successful because of their peculiar structure—not simply because they were independent commissions. In this Article we first look at the roots of BRAC’s success and then compare …

Saying “I’M Sorry” Is Not So Simple: Embracing The Complexity Of The Apology With A New Evidentiary Rule, Amy Poyer

Amy Poyer

Apologies are everywhere. In day-to-day life, when a person apologizes, they must deal with a myriad of consequences for that apology. These may include vulnerability to the victim, embarrassment, a bruised ago, or even rejection of the apology by the victim. However, when the wrong one apologizes for turns into a lawsuit, the one apologizing has an additional penalty. Piled on to the emotional consequences that accompany any apology, a potential defendant must also worry about his apology’s use against him in court to prove that he is liable. Recently, a debate has developed over whether or not the law …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

The Myth Of Religious Freedom: The Implications Of State Control Of Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

Serious Disagreement: Same-Sex Marriage, Judicial Review, And The Quality Of Debate, Rob Goodman

Rob Goodman

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took …

Using Cognitive Neuroscience As A Basis Upon Which To Accurately Predict The Future Dangerousness Of Violent Criminals And Thus Provide A Procedure For The Involuntary Commitment Of Such Individuals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello

Adam Lamparello

No abstract provided.

I Fought The Law And The Law Lost: The Case For Congressional Oversight Over Systemic Doj Discovery Abuse In Criminal Cases, Christopher R. Smith

Christopher R Smith

ABSTRACT I Fought the Law and the Law Lost: The Case for Congressional Oversight Over Systemic DOJ Discovery Abuse in Criminal Cases This article addresses the need for congressional oversight over systemic DOJ criminal discovery abuse. The first section of the article outlines a sample group of cases across multiple federal districts, which represent the most highly publicized systemic DOJ criminal discovery abuse cases over the last two years. This first section of the article also examines the statistical record of DOJ’s Office of Professional Responsibility (“OPR”) in terms of investigating federal prosecutorial abuse in criminal matters and enforcement of …

Excuse Me, Sir, Can You Spare Some Certiorari? Why Downtown “No Panhandling” Zones Are Constitutionally Suspect, Noah J. Kores

Noah J Kores

Panhandlers are becoming increasingly prevalent in urban areas across the United States. Many cities have taken action to regulate where, when, and how panhandling may be performed. One particular trend raises many First Amendment questions: downtown panhandling bans. As panhandling is a form of free speech, the question is whether downtown bans go too far.

Under the First Amendment, many downtown bans fail both intermediate and strict scrutiny. Specifically, St. Petersburg, Florida’s ordinance fails because it places content-based restrictions on speech -- meaning it restricts speech based on what an individual is attempting to say. Panhandling bans are content-based because …

Promoting Self-Sufficiency?, Matthew Main

Matthew Main

The New York City Human Resources Administration has implemented a policy that will have a disproportionate impact on poor families of color. The policy departs from the legislative mandate to support New York’s neediest and most at-risk by arbitrarily excluding incarceration from the definition of “temporary absence,” as it applies to the Cash Assistance program. Aside from the discriminatory impact on poor children and families, the policy decision comes at a higher cost to New York taxpayers in the midst of a financial crisis. This Comment evaluates the legal flaws in the policy, the persons it targets, the families it …

The United Kingdom’S Human Rights Act: Using Its Past To Predict Its Future, Joanne Sweeny

JoAnne Sweeny

The results of the recent General Election in the United Kingdom have both highlighted the flexible nature of the UK’s constitution and placed the UK’s existing bill of rights (the Human Rights Act 1998) in jeopardy. In order to predict the HRA’s future, it is useful to consider how and why the HRA was enacted. Through the use of primary data, this article shows that the HRA was enacted as a result of a unique combination of historical factors and the efforts of public interest groups. These two main elements are analyzed using Rational Choice Theory and Social Movement Theory, …

Crude Defenses? Liability Limits For Offshore Drilling Accidents And Oil Spills, Richard Faulk

Richard Faulk

All those who participate in realizing the benefits of exploration – including those who use the resulting products and depend on their safe handling to avoid harm – are subject to their dangers. When the risks are enormous, and when society’s demands are extraordinary, the situation is ripe for political compromise. The products of that compromise may not be popular at this time of crisis, but that does not lessen their importance as anchors of reason during difficult times. The Limitation Act and the OPA, as well as the procedures under Supplemental Rule F, form a foundation that enables the …

The More Things Change: Have Antievolutionists Charted Another Constitutional Collision Course In Louisiana?, David J. Jacobs

David J Jacobs

In Edwards v. Aguillard, the Supreme Court invalidated a Louisiana statute that attempted to weaken the teaching of evolution in the public schools by balancing it with “creation science.” This defeat was only a minor setback for evolution’s opponents, who quickly began devising new strategies with an increased emphasis on secular and scientific appeals. Now, these efforts have culminated in the passage of the Louisiana Science Education Act (“LSEA”), which authorizes teachers to introduce supplemental textbooks and other educational materials in the name of promoting “critical thinking skills and open discussion of scientific theories.” This Article outlines the development of …

Torture, American Style: A Recipe For Civil Tort Immunity, Matthew J. Jowanna

Matthew J. Jowanna

If someone is tortured, surely, at a minimum, an intentional tort has been committed against that person. This article specifically addresses the civil tort remedy, or lack thereof, for victims of torture at the hands of employees of the United States. In ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in its subsequent reporting to the United Nations Committee Against Torture, the United States has consistently denounced torture and proclaimed itself to be a nation that provides for civil remedies against torturers. However, this article will draw attention to the hypocrisy and self-protection …

Stretching The Boom? Limiting Liability For Offshore Drilling Disasters, Richard Faulk

Richard Faulk

Offshore drilling is a tremendously complicated and potentially lucrative process. Unfortunately, it is also dangerous. Harvesters of fossil fuels face massive risks, not only to their lives and properties, but also to our environment and the livelihoods of all those who depend upon it. On balance, our “modern” sense of justice might insist that those who realize wealth should bear the risks that their exploration and production poses to others. But when a product, like petroleum, is inextricably woven into our national fabric, legislators sometimes reach surprising compromises. So, it seems, the owner of the Deepwater Horizon will argue in …

Limiting Unlimited Government Through Constitutional Points Of Order, Justin T. Sigman

Justin T Sigman

This article identifies a salient feature of the recent health care debate that has been overlooked by the academy, historians and advocates of federalism: on December 23, 2009, for the first time in its history, the United States Senate directly debated and voted on the meaning of the Tenth Amendment. Equally unprecedented is the manner in which this came about: points of order, including constitutional points of order, had previously been a form of procedural objection to a bill or amendment; allowing a point of order that a bill or amendment violates a substantive provision of the Constitution is analogous …

Environmental Mitigation Aspects Of Water Resources In Geothermal Development: Using A Comparative Approach In Building A Law And Policy Framework For More Sustainable Water Management Practices In Canada, Kamaal Zaidi

Kamaal Zaidi

This paper examines environmental mitigation measures for water resources in the context of geothermal energy development among selected jurisdictions of the United States and New Zealand in the hopes of recommending a law and policy framework in Canada. These common law jurisdictions are chosen to reveal advances in the emerging area of geothermal law and policy. First, the geothermal energy process is explained, followed by a discussion of the legal aspects of geothermal energy development. Second, the benefits of geothermal law and policy are assessed from the experiences of the U.S. and New Zealand in terms of environmental mitigation measures …

A Proposed National Healthcare Information Network Architecture And Complementary Preemption Of State Health Information Privacy Laws, Arlen W. Langvardt, John W. Hill

Arlen W Langvardt

(Abstract is included with text of paper.)

New Adventures Of The Old Bureau: Modern-Day Reclamation Statutes And Congress' Unfinished Environmental Business, Reed D. Benson

Reed D. Benson

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address today’s water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant …

Striving For Greenhouse Gas Mitigation In Pennsylvania : How Law And Biodiesel Can Play A Part, Jon W. Johnson

Jon W Johnson

An analytical review of federal and Pennsylvania law and its possible use to mitigate greenhouse gases through state legislation. Additional review is conducted to determine the feasibility of using biodiesel as a fuel to help reduce GHGs from Diesel powered equipment including heavy weight trucks. Proposed Legislation would require the mandatory implementation of Biodiesel in the Commonwealth at levels much higher than ever will be achieved under current law. Additionally, recommendations to impose strict regulations on manufactures of diesel type equipment to allow such use of high concentration of Biodiesel fuel in equipment without voiding existing or new warranties. Lastly, …

Marriage And Law Reform: Lessons From The Nineteenth Century Michigan Married Women’S Property Acts, Ellen Dannin

Ellen Dannin

If law reform had the neat trajectory of a bullet from a smoking gun, life and law would be neater – but less interesting. This article began as a simple empirical study to test whether Michigan’s 1844 Married Women’s Property Act affected conveyancing.

When the results showed that it had no effect – that married women were included as grantors even before the MWPA made it legal for them to own property – the study expanded into a quest to identify the processes that led to its enactment and explained its operation on the family, a fundamental social institution. In …

A Theory Of Direct Democracy And The Single Subject Rule, Robert D. Cooter, Michael D. Gilbert

Michael D. Gilbert

Citizens in many states use direct democracy to make laws on everything from soda bottles and horse meat to affirmative action and same-sex marriage. Does direct democracy save citizens from corrupt legislators, or does it enfeeble competent representatives and empower an ignorant crowd? These ideological extremes often collide in court over a state constitutional provision—the single subject rule—that limits ballot initiatives to one “subject.” Opponents can invalidate an initiative by convincing a court that it contains two subjects (say, marriage and domestic partnerships), while proponents can prevail by showing that it contains only one (say, same-sex unions). Despite hundreds of …

Interregional Recognition And Enforcement Of Civil And Commercial Judgments: Lessons For China From Us And Eu Laws, Jie Huang

Jie Huang

Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This article focuses on what lessons China may draw from the US and the EU to develop its interregional JRE laws. It first discusses the status quo of the interregional JRE in China. Then it explores how the interregional economic integration demands the establishment of a multilateral interregional JRE arrangement in China. Finally it points out the four most crucial challenges in developing this arrangement: the challenge relating to the socialist characteristics …

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …

Father-Absence, Social Equality, And Social Progress, Helen M. Alvare

helen m alvare

Abstract: Father-Absence, Social Equality and Social Progress

The future of the male half of the U.S. population is less certain than it once was. News outlets now regularly report that women outnumber men in college and in the workforce. These reports rightly grab attention. Men’s growing absence from the lives of their own biological children, however, is too little explored. The 2007 Census update reported that of the nineteen million children living in lone-parent households, sixteen and one-half million lived with their mothers alone. Fewer than 30 percent of these fathers have even weekly contact with their children. Poor and …

Beyond The Sex- Ed Wars: Addressing Disadvantaged Single Mothers’ Search For Community, Helen M. Alvare

helen m alvare

Abstract: Beyond the Sex-Ed Wars

By Helen M. Alvaré

There is bi-partisan alarm over recent reports that our nation’s nonmarital birth rate has reached nearly 40%. Policymakers worry not only about fiscal effects, but also about the welfare of children reared in single-parent households and the fact that marriage and childbearing patterns are beginning to diverge sharply on the basis of race and socioeconomic status. Yet there is little new in recent proposals to address the phenomenon. Supporters of abstinence-only sex education, and of “comprehensive” sex-education, continue to trade accusations. Federal and state agencies promise to work harder but intend …