Law Commons^™

Judging Statutes, Peter L. Strauss

Faculty Scholarship

Chief Judge Robert Katzmann has written a compelling short book about statutory interpretation. It could set the framework for a two- or three-hour legislation class, supplemented by cases and other readings of the instructor's choosing. Or it might more simply be used as an independent reading assignment as law school begins, to apprise 21st-century law students just how important the interpretation of statutes will prove to be in the profession they are entering, and how unsettled are the judiciary's means of dealing with them. It should be required reading for all who teach in the field.

Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber

Faculty Scholarship

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic equivalence …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

2013 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

No abstract provided.

Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth Clark

Faculty Scholarship

Religious freedom, among other human rights, has increasingly been restricted in Russia and Central Asia. Recent empirical research has shown that increased governmental regulation of religion causes increased social hostilities over religion and has shown the connections between religious freedom and numerous other civil rights and social goods. The U.S. government has particularly recognized the importance of religious freedom in Russia, mandating significant restrictions on aid based on the Russian interpretation of restrictive religion legislation passed in 1997. Since that time, however, virtually no attention has been given to draft legislation in this area in Russia and common trends seen …

Statutory Meanings: Deriving Interpretive Principles From A Theory Of Communication And Lawmaking, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

2009 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

No abstract provided.

The Notsogolden Years Why Hate Crime Legislation Is Failing A Vulnerable Aging Population, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Living In Interesting Times: President Obama And The Rebirth Of The Labor Movement, Daniel S. Bowling Iii

Faculty Scholarship

Legislation has been introduced in the United States that will allow workers to form unions without secret ballot voting among prospective members. This legislation, in its current form, is the most radical change in Federal law governing union recognition in its history. While passage of the legislation is far from certain, it has generated much discussion and argument, most of it polemical. This article examines the issue from a more academic perspective, reviewing the history of organizing and how management practices have developed that effectively use the current election process as a tool to resist organizing efforts, and the effect …

The Conscientious Legislator And Public Opinion On Taxes, Lawrence A. Zelenak

Faculty Scholarship

This essay examines some of the difficulties of understanding public opinion on taxes, and offers some suggestions as to how the conscientious legislator might proceed in light of those difficulties. The essay begins by describing two contexts in which public opinion appears to contradict itself, and suggests how the apparent contradictions might be resolved. It then offers three suggestions for the conscientious legislator whose goal is to discern (rather than to manipulate) public opinion on taxes - to be neither unduly optimistic nor despairing about the potential for educating the public on tax policy issues, to understand and guard against …

This Is The End… My Friend: Disgorgement, Dissolution And Sequestration As Remedies Under State Udap Statutes, Michael Flynn

Faculty Scholarship

No abstract provided.

Construing The National Labor Relations Act The Nlrb And Method Of Statutory Construction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Reincarnating The 'Major Questions' Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail Moncrieff

Faculty Scholarship

In a pair of cases declaring a major questions exception to Chevron deference, the Supreme Court held that executive agencies may not implement major policy changes without explicit authorization from Congress. But in Massachusetts v. EPA, the Court unceremoniously killed its major questions rule, requiring the EPA to implement one such major policy change. Because the scholarly literature to date has failed to discern a worthy justification for the major questions rule, the academy might be tempted to celebrate the rule's death. This Article, how-ever, argues that the rule ought to be mourned and, indeed, reincarnated. It offers a non-interference …

Agenda Power In The Italian Chamber Of Deputies, 1988-2000, Gary W. Cox, William B. Heller, Mathew D. Mccubbins

Faculty Scholarship

We find strong evidence that governing coalitions in Italy exercise significant negative agenda powers. First, governing parties have a roll rate that is nearly zero, and their roll rate is lower than opposition parties’ roll rates, which average about 20% on all final passage votes. Second, we find that, controlling for distance from the floor median, opposition parties have higher roll rates than government parties. These results strongly suggest that governing parties in Italy are able to control the legislative agenda to their benefit. We also document significantly higher opposition roll rates on decree-conversion bills and budget bills that on …

The Check Isn't In The Mail: The Inadequacy Of State Prompt Pay Statutes, Michael Flynn

Faculty Scholarship

No abstract provided.

Evaluating Katrina: A Snapshot Of Renters’ Rights Following Disasters, Olympia Duhart, Eloisa C. Rodriguez-Dod

Faculty Scholarship

Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them. This article focuses on the difficulties facing evacuee renters in New Orleans following the disaster. These renters face such obstacles as scarcity …

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court , James J. Brudney

Faculty Scholarship

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain's highest court has used previously excluded legislative history materials in its judicial decisions. Although the Law Lords opened the door to reliance …

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Entrenchment Of Ordinary Legislation: A Reply To Professors Posner And Vermeule, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Unhappy History Of Civil Rights Legislation, Fifty Years Later, Jack M. Beermann

Faculty Scholarship

Seldom, if ever, have the power and the purposes of legislation been rendered so impotent.... All that is left today are afew scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.

These words were written fifty years ago by Eugene Gressman, now William Rand Kenan, Jr. Professor Emeritus, University of North Carolina School of Law, as a description of what the courts, primarily the Supreme Court of the United States, had done with the civil rights legislation passed by Congress in the wake of the Civil War. Professor Gressman's article, The Unhappy History of …

Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib

Faculty Scholarship

In this article, I suggest that Congress re-pass its progressive legislation under the jurisdictional basis of its Guarantee Clause power. While arguments for justiciability continue to be made, a pragmatic way to achieve it has not been spelled out. Part II will lay out versions of republicanism I hope to see discussed in the context of the Guarantee Clause. Part III will explore republicanism's excessive attention on the courts, recommending the aforementioned approach of Jeremy Waldron. Part IV will briefly suggest how some of the legislation recently curtailed by the Supreme Court might be justified under a theory of legislative, …

Chevron's Domain, Thomas W. Merrill, Kristin E. Hickman

Faculty Scholarship

The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. dramatically expanded the circumstances in which courts must defer to agency interpretations of statutes. The idea that deference on questions of law is sometimes required was not new. Prior to Chevron, however, courts were said to have such a duty only when Congress expressly delegates authority to an agency "to define a statutory term or prescribe a method of executing a statutory provision.^" Outside this narrow context, whether courts would defer to an agency's legal interpretation depended upon multiple factors that courts evaluated in …

Abdication Or Delegation? Congress, The Bureaucracy, And The Delegation Dilemma, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

Justice In The Wake Of Genocide: The Case Of Rwanda, Madeline Morris

Faculty Scholarship

During three months in 1994, genocide was committed in Rwanda. Two years after those events, and notwithstanding efforts at both national and international levels to bring the perpetrators to justice, the first case has yet to go to trial. Over the past months, I have worked closely with the government of Rwanda on justice issues in the course of a research project that I am doing on the role of national and international tribunals in the former Yugoslavia, Ethiopia, and Rwanda. I would like to share with you some observations arising from that work. I will examine the approaches to …

Welfare Reform And Child Care: A Proposal For State Legislation, Clare Huntington

Faculty Scholarship

The shortage of subsidized child care creates three problems. First, it contributes to underemployment because job options are greatly reduced when child care is unavailable. Second, it erodes the wages of parents who do work because low-income families spend a debilitating percentage of their earnings to pay for the care of their children. Third, it relegates many children to poor quality child care settings, compromising their academic potential and social well-being, and placing them at risk for delinquency and dependency. Part I of this article discusses the current paucity of quality, affordable child care, and the effects of this shortage. …

The Pros And Cons Of A Self-Regulatory Organization For Advisers And Mutual Funds, Tamar Frankel

Faculty Scholarship

Congress is seriously considering bills to establish self-regulatory organizations (SROs) for investment advisers (advisers) and investment companies (Funds). These bills would require members of the investment management industry to regulate themselves under the watchful eye of the Securities and Exchange Commission, similar in approach to the regulation of broker-dealers by the National Association of Securities Dealers, Inc. (NASD) and the securities exchanges. Proposals to establish SRO for investment advisers have arisen before. However, those proposals did not cover Funds and their advisers,

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.²

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …

Positive Canons: The Role Of Legislative Bargains In Statutory Interpretation, Mathew D. Mccubbins, Roger G. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.