Law Commons^™

Beyond The Sex- Ed Wars: Addressing Disadvantaged Single Women’S 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 …

Defining Death: Why All Fifty States Should Adopt The Uniform Definition Of Death Act With A Religious Exception, Rachel Delaney

Rachel Delaney

This article addresses the tension between the secular, American definition of death and the Jewish law definition of death. While the definition of death has been debated separately in both Jewish and American legal scholarship, the secular and Jewish law definitions of death have not been thoroughly analyzed in relation to one another. The secular definition of death—irreversible cessation of all functions of the entire brain—conflicts with the Jewish law definition of death—irreversible cessation of respiration. The conflict presents a First Amendment Free Exercise Clause challenge because state laws with strict secular definitions of death preclude Orthodox Jews from practicing …

The Hypocrisy Of The Acquiescence Canon, Blair C. Warner

Blair C Warner

The Court applies the acquiescence canon to infer that an agency or judicial statutory interpretation is correct when followed by Congressional inaction. This Article will argue that this practice is based on a number of faulty assumptions. Moreover, the canon is applied inconsistently and creates perverse incentives for the legislature. The Article will then explore the Court’s guidance to lower courts against deriving similar inferences from the denial of certiorari, a similar form of inaction. Drawing parallels between Congress and the Court, and noting the many reasons why conclusions should not be drawn from apparent inactivity, this Article will conclude …

Defragmenting The Regulatory Process, Stuart Shapiro

Stuart Shapiro

The regulatory process is often criticized for being cumbersome and slow, much like a computer whose hard drive is fragmented by files no longer used or useful. Like such a computer, the regulatory process contains many requirement of dubious utility. These include the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and numerous executive orders. While other parts of the regulatory process such as notice and comment and cost-benefit analysis have received much more academic attention, these other parts of the process deserve examination as well. This paper argues that such an examination will reveal that …

Harvey Milk, Jane Roe, And James Brady: Why Civic Organizing Matters, Palma Joy Strand

palma joy strand

This Article presents a view of the civic underpinnings of law by examining how civic interaction or the lack of such interaction facilitates or inhibits sociolegal change. The Article begins with empirical observations of civic experience and engagement, which ground more general conclusions about the importance of civic relationships and civic networks as well as the way personal stories contribute to the creation of both. The Article then applies these conclusions to three currently contentious and unsettled issues: gay rights, abortion, and guns. As to gay rights, the “coming out” process identified with Harvey Milk has transformed the civic landscape, …

The Art Of Statutory Interpretation: Identifying The Approach Of The Judges Of The United States Court Of Appeals For Veterans' Claims And The United States Court Of Appeals For The Federal Circuit, Linda D. Jellum

Linda D. Jellum

This article explores judicial approaches to statutory interpretation, a topic of interest to scholars, academics, and practitioners. Perhaps more than any other subject, understanding the theory of interpretation is critical to understanding statutory interpretation because theory drives every aspect of statutory interpretation. A judge’s theory of interpretation determines what information a judge will consider when searching for meaning. For example, some judges will not look at legislative history or social context for meaning unless the text of the statute is ambiguous or absurd. Assuming that the legislative history is helpful to their case, lawyers must learn to “talk the talk” …

Attitudes, Advocacy And Polarization: The New Iron Triangle Of American Public Policy, Roger L. Conner, Patricia Jordan

Roger L Conner

Electoral politics in the U.S. have always been nasty and brutish. Pervasive polarization in public policy disputes is a new an worrisome trend that has attracted considerable attention recently. Using insights gleaned from social psychology, this article finds that “strong", negative "attitudes," once attached to an “attitude object” such as the “other side” in a policy conflict, will operate subconsciously to distort cognition in ways that generate extreme and polarized thinking. Scholars from a different field, public policy studies, find that conversations about public policy increasingly occur inside of “advocacy coalitions,” vast and networks of people and groups that are …

Sunset 2010: The Sunshine State, In Space, Timothy M. Ravich

Timothy M Ravich

In light of the imminent retirement of the Space Shuttle fleet later this year, this article addresses the recent enactment of new laws in Florida and elsewhere, together with the emergence of a space tourism industry and burgeoning cadre of private aerospace entrepreneurs. The significance of this is that space law presents serious private commercial opportunities for all Americans. This article focuses on the particular role Florida has played in national human spaceflight missions and expresses sincere concern about the state’s current and future direction as spacefarers look to different jurisdictions and platforms to support the next phase of space …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend …

The Pursuit Of Perfection: Congressional Power To Enforce The Reconstruction Amendments, Aaron Christopher Bryant

Aaron Christopher Bryant

ABSTRACT In June the Supreme Court avoided a decision on the constitutionality of the Voting Rights Act’s pre-clearance requirement, while at the same time managing to foreshadow that provision’s ultimate demise. In a separate opinion, Justice Thomas announced that he would have reached the issue and invalidated the pre-clearance requirement. Conceding that unconstitutional racial discrimination in the administration of elections continued to be an unfortunate reality, he asserted that Congress was not permitted to pursue “perfect compliance” with the Constitution’s mandate via the use of “broad prophylactic legislation.” Justice Thomas’s statement accurately, though to be sure rather starkly, expressed an …

Lawyers, Guns, And Money: Why The Tiahrt Amendment’S Ban On The Admissibility Of Atf Trace Data In State Court Actions Violates The Commerce Clause And The Tenth Amendment, Colin Miller

Colin Miller

The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as …

Trust And The Reform Of Securities Regulation, Ronald J. Colombo

Ronald J Colombo

Trust is a critically important ingredient in the recipes for a successful economy and a well-functioning securities market. Due to scandals, ranging in nature from massive incompetence, to massive irresponsibility, to massive fraud, investor trust is in shorter supply today than in years past. This is troubling, and commentators, policy makers, and industry leaders have all recognized the need for trust's restoration.

As in times of similar crises, many have turned to law and regulation for the answers to our problems. The imposition of additional regulatory oversight, safeguards, and remedies, some advocate, can help resuscitate investor trust. These advocates have …

Evaluating Children’S Competency To Testify: Developing A Rational Method To Assess A Young Child’S Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse, Laurie Shanks

Laurie Shanks

There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many …

Is "Best Mode" The Worst? Dueling Arguments, Empirical Analysis, And Recommendations For Reform, Wesley D. Markham

Wesley D Markham

The “best mode” requirement, which mandates that an inventor disclose in her patent application the best way to practice her invention, has become a polarizing force as Congress endeavors to comprehensively revamp U.S. patent law. In this article, I examine the “best mode” requirement through a variety of lenses. In doing so, my ultimate goal is to recommend the ideal course of action for “best mode” reform – to fix “best mode,” if it is indeed broken, or to scuttle it if it is beyond repair. To begin, I set forth and evaluate the arguments advanced by both proponents and …

A Million Little Takings, Dru Stevenson

Dru Stevenson

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics). IOLTA takings also highlight a …

Congress’S Right To Counsel In Intelligence Oversight, Kathleen Clark

Kathleen Clark

This article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice-Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained …

Understanding Vague Signing Statements, Michael J. Mccarthy

Michael J. McCarthy

This paper identifies and assesses vagueness as a reoccurring feature of modern signing statements. It analyzes how vagueness affects a signing statement’s ability to achieve a variety of objectives, from preserving executive prerogatives to shaping how the judiciary construes statutory language. While vagueness consistently decreases a signing statement’s effectiveness, specificity may unintentionally frustrate the signing statement’s purpose. The interplay between the risks of specificity and the inefficiency of vagueness may suggest that the signing statement is not as powerful a presidential tool as is commonly thought.

Congress’S Right To Counsel In Intelligence Oversight, Kathleen Clark

Kathleen Clark

This article examines Congress’s ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch’s insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial connection with the Bush administration’s warrantless surveillance program. Senate Intelligence Committee Vice-Chair Jay Rockefeller noted the “profound oversight issues” implicated by the surveillance program and lamented the fact that he felt constrained …

Anna Nicole Smith Goes Shopping: The New Forum Shopping Problem In Bankruptcy, Gilbert Marcus Cole, Todd J. Zywicki

Gilbert Marcus Cole

The American bankruptcy system is a hybrid of state law and federal bankruptcy law. Under the Butner principle, federal bankruptcy courts preserve substantive non-bankruptcy law entitlements in bankruptcy unless bankruptcy policies compel a contrary result. This hybrid system, however, gives rise to the threat of forum-shopping if parties attempt to invoke bankruptcy jurisdiction for improper purposes, namely to rearrange non-bankruptcy entitlements to advance no coherent bankruptcy policy. Modern developments in bankruptcy law, as exemplified in the case of Marshall v. Marshall raise a novel threat of bankruptcy forum-shopping. Marshall involved the bankruptcy of tabloid starlet Anna Nicole Smith and her …

Should Employees Have To Choose Between Enduring Pain And Keeping Their Jobs?, Reka Bala

Reka Bala

For patients in constant pain, medical marijuana is often the only substance that offers complete relief. Yet these individuals and their employers are still at risk of job-related concerns as cannabis legislation consistently neglects employment issues. In a controversial 2008 decision, Ross v. RagingWire Telecommunications, Inc. forced California cannabis patients to cruelly decide between alleviating pain and staying employed. This Note argues that Ross contradicts legislative intent and violates state and federal law, all of which call for broader rights to medical marijuana users. It also recommends changing California law or designing a judicial remedy to better protect patients from …

Should Employees Have To Choose Between Enduring Pain And Keeping Their Jobs?, Reka Bala

Reka Bala

For patients in constant pain, medical marijuana is often the only substance that offers complete relief. Yet these individuals and their employers are still at risk of job-related concerns as cannabis legislation consistently neglects employment issues. In a controversial 2008 decision, Ross v. RagingWire Telecommunications, Inc. forced California cannabis patients to cruelly decide between alleviating pain and staying employed. This Note argues that Ross contradicts legislative intent and violates state and federal law, all of which call for broader rights to medical marijuana users. It also recommends changing California law or designing a judicial remedy to better protect patients from …

Power And Law, Bait And Switch: Debunking “Law” As A Tool Of Societal Change The Disappearing Act Of Affordable Housing In The District Of Columbia, Samuel Jefferson

Samuel Jefferson Jr.

ABSTRACT

POWER AND LAW, BAIT AND SWITCH:

DEBUNKING “LAW” AS A TOOL OF SOCIETAL CHANGE

The Disappearing Act of Affordable Housing in the District of Columbia

by Samuel L. Jefferson, Jr.

I. Introduction

“It was a typical sunny, hot and hazy July afternoon in Washington, D.C. when I, as a 17-year-old, walked down the hill towards my apartment complex. As I approached, I noticed people gathered in the street in front of my building. I also noticed that someone had been evicted. As I moved closer, I noticed that the belongings were mine and my family’s. That’s when, at least …

Reality Meets Perception For Federal Rule Of Civil Procedure 11: An Empirical Study Of Practice Under The 1983 And 1993 Versions., David B. Owens

David B. Owens

The claim that frivolous litigation is an “epidemic” plaguing our civil justice system strikes a chord with many Americans. Legal ethicists and other academics have responded by emphasizing that incidents like the McDonald’s coffee case are distorted by sensationalist media coverage and, more fundamentally, that they are not representative of civil litigation. Against the backdrop of this persistent social controversy, Rule 11 of the Federal Rules of Civil Procedure has been twice significantly amended in the last 30 years—in 1983 and 1993. The most recent amendments in 1993 did not quell political concern about frivolous litigation. Indeed, as recently as …

Sexual Abuse Of Power, Michal Buchhandler-Raphael

michal buchhandler-raphael

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex. The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual …

Special Incentives To Sue, Margaret H. Lemos

Margaret H. Lemos

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when those incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

Sexual Abuse Of Power, Michal Buchhandler-Raphael

michal buchhandler-raphael

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex. The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual …

Sexual Abuse Of Power, Michal Buchhandler-Raphael

michal buchhandler-raphael

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex. The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual …

The Aftermath Of Ruiz V. Mero: Why The New Jersey Legislature Must Rekindle The Firefighters’ Rule, Nicholas Mangold

Nicholas Mangold

This Note explores the history, common law expansion, and statutory abrogation of the firefighters’ rule in New Jersey tort law. For decades, the rule protected Garden State homeowners from civil liability for injuries to first responders. In its original form, the rule barred tort claims based only on the very negligence that necessitated the first responders’ presence on scene. However, the courts slowly expanded the reach of the rule until it eventually was used to bar recovery for injuries caused by acts of negligence completely separate from that which prompted the emergency response. In response, the state legislature sweepingly abrogated …

Maintaining Incentives For Healthcare Innovation: A Response To The Ftc's Report On Follow-On Biologics, Christopher M. Holman

Christopher M Holman

Congress is considering legislation that would create an abbreviated FDA approval process for follow-on biologics (FOBs), which proponents anticipate will promote competition and lower prices in the market for biologic drugs. In June of 2009 the FTC published a report on FOBs (“the FTC Report”), which attempts to forecast the nature of competition between innovator biologics and FOBs, and offers a number of substantive recommendations regarding specific provisions of the various FOB bills. In particular, the FTC Report concludes that there is essentially no justification for the inclusion of a substantial data exclusivity period (“DEP”) for innovators in pending FOB …