Law Commons^™

Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz

Michigan Law Review

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee's termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities Act of …

The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal

Michigan Law Review

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …

The Political Economy Of The Bankruptcy Reform Act Of 1978, Eric A. Posner

Michigan Law Review

These are the goals of this article. In particular, this article analyzes the legislative history of the Bankruptcy Reform Act of 19783 and related materials, in the hope of describing the influence of interest groups on the final statute. It has, of course, long been assumed that certain narrow provisions of the 1978 Act reflect the influence of interest groups - for example, the section that gives special protection to security and lease interests in aircraft. This article goes farther and argues that fundamental elements of the 1978 Act reflect political compromises among competing interest groups. In particular, I claim …

The "Solely Criminal Purpose" Defense To The Enforcement Of Irs Summonses, Darius J. Mehraban

Michigan Law Review

Recent years have witnessed a gradual erosion of the practical distinctions between the civil and criminal investigations performed by federal administrative agencies. This trend arose naturally from a growing number of federal statutes and regulations that carry both civil and criminal penalties for their violation. Administrative agencies today wield investigative summons power almost as expansive as the grand jury subpoena power and can use that power to investigate without first deciding whether criminal or civil liability ultimately will be sought. The Internal Revenue Service (IRS) has participated to some extent in this intermingling of civil and criminal inquiry - with …

Government Lawyers And Their Private “Clients” Under The Fair Housing Act, Eugene R. Gaetke, Robert G. Schwemm

Law Faculty Scholarly Articles

In strengthening enforcement of the federal Fair Housing Act, Congress in the 1988 Fair Housing Amendments Act ("FHAA") authorized government lawyers from the Justice Department, the Department of Housing and Urban Development, and state and local civil rights agencies to prosecute cases "on behalf of” persons aggrieved by housing discrimination. This new enforcement scheme has led to a heightened level of administrative complaints and litigated cases in which government lawyers are put in the potentially difficult position of having to represent both their agency and private complainants.

The "triangular" relationships created by the FHAA between government lawyers and their public …

Treasury Regulations And Judicial Deference In The Post-Chevron Era, David A. Brennen

Law Faculty Scholarly Articles

Analysis of several post-Chevron cases indicates that every major Supreme Court case since 1984 involving the validity of a Treasury regulation is consistent with Chevron. Indeed, since 1984 every challenged Treasury regulation interpreting a statute in which Congress failed to address a specific tax issue has been upheld by the Court. In fact, no Supreme Court case since 1984 could be discovered in which the Court invalidated a Treasury regulation on the grounds that it was an unreasonable interpretation of a statute. Several post-Chevron Supreme

Court decisions, however, rejected the Treasury's application of a tax regulation to …

Privileges And Immunities, Criminal Court New York County, People V. Moore

Touro Law Review

No abstract provided.

A Twentieth Amendment Parable, John C. Nagle

Journal Articles

The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the …

State And Local Taxation: When Will Congress Intervene?, Kathryn L. Moore

Law Faculty Scholarly Articles

This article examines congressional activity in the state and local tax area to determine when, if ever, Congress will enact legislation mandating uniformity in state and local taxation. The article begins by briefly describing our current system of state and local taxation and explaining why we need more uniformity therein.

The article then provides an empirical study of congressional activity in the state and local tax area between January, 1971 and May, 1996. Specifically, it focuses first on four discrete but representative areas in which Congress has enacted legislation regulating state and local taxation, and, second, on four discrete but …

Blue Sky Laws And The Recent Congressional Preemption Failure, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Laws regarding the sale of securities may be understood as responses to perceived bargaining failures. The most extreme examples of these bargaining failures are seen in instances in which investors are intentionally misled or defrauded regarding the quality of the investments they receive for their money. Even without the presence of such culpability, however, bargaining failures are likely anytime the trading parties lack sufficient, accurate information necessary to effect value-enhancing trades. When that occurs in trades for capital, the parties to the transaction are misinformed respecting the trade, expectations are not protected, and that precious commodity, capital, may be turned …

Throwing Away The Key: Limits On The Plenary Power?, Richard A. Boswell

Michigan Journal of International Law

Review of From Welcomed Exiles to Illegal Immigrants: Cuban Migration to the U.S., 1959-1995 by Felix Masud-Piloto and The Abandoned Ones: The Imprisonment and Uprising of the Marial Boat People by Mark S. Hamm.

Necessary And Proper, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author maintains that, if the courts are to hold Congress to the exercise of its enumerated powers, then they must come to grips with the congressional power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." While the Necessary and Proper Clause has long been used to greatly expand congressional power, he argues that, to the contrary, it provides a two-part standard against which all national …

Chief Justice Hughes' Letter On Court-Packing, Richard D. Friedman

Articles

After one of the great landslides in American presidential history, Franklin D. Roosevelt took the oath of office for the second time on January 20, 1937. As he had four years before, Chief Justice Charles Evans Hughes, like Roosevelt a former governor of New York, administered the oath. Torrents of rain drenched the inauguration, and Hughes’ damp whiskers waved in the biting wind. When the skullcapped Chief Justice reached the promise to defend the Constitution, he “spoke slowly and with special emphasis.” The President responded in kind, though he felt like saying, as he later told his aide Sam Rosenman: …

Fame, The Founding, And The Power To Declare War, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power ... To declare War, [and] grant Letters of Marque and Reprisal." During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek …