Law Commons^™

The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the constitutionality …

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho

Dale E Ho

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

Can The Federal Reserve Adopt An Inflation Targeting Regime Under The Current Statutory Arrangements?, Hong Kyoon Cho

Hong Kyoon Cho

This paper discussed legal perspectives in institutional framework of central banking, keyed to monetary policy framework. The statutory objectives of monetary policy provide an environment under which the central bank can design its monetary policy framework, in that the choice of the monetary policy framework could lie within the scope of the spirits embodied in the statutory objectives of monetary policy. Monetary policy framework could illuminate legal aspects of debate, as specifically seen in the Federal Reserve’s case that has adopted not an explicit but an implicit monetary policy framework, namely the Just-Do-It approach. Under the current legal mandate, i.e., …

The Kinston Ruling: Black Preferred Candidates And The Meaning Of The 15th Amendment, Brandon F. Douglass

Brandon F Douglass

Since the 1960s, section five of the Voting Rights Act requires covered jurisdictions to seek preclearance before making certain changes to their political structure. Recently, the United States Department of Justice ruled that Kinston, North Carolina’s attempt at removing partisan labels from its ballots for municipal posts violated section five of the Voting Rights Act, based on the premise that absent a partisan cue, Kinston’s African-American voters will not be able to elect their candidate of choice. This paper presents a summary of the preclearance process and an analysis of the Department’s ruling regarding Kinston’s attempt at removing the partisan …

Non-Compactness And Voter Exchange; Towards A Constitutional Cure For Gerrymandering, Shlomo Angel

Shlomo Angel

No abstract provided.

Law, Institutions And Corruption Cleanups In Africa, John Mukum Mbaku

JOHN MUKUM MBAKU

ABSTRACT Since independence, virtually all African countries have suffered and continue to suffer from extremely high rates of bureaucratic corruption. Today, corruption remains one of the most important constraints to social, political and economic development. Despite the efforts made, in several countries, to deal with corruption and other forms of political opportunism (e.g., rent seeking), these phenomena remain entrenched in these countries and continue to constrain entrepreneurship and creation of the wealth that is needed to deal with extremely high rates of poverty and material deprivation. Part of the reason why many African countries have not been able to effectively …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good . In the current environment, the tax bar should take up the call to be public educators with …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation ABSTRACT Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good. In the current environment, the tax bar should take up the call to be public educators with …

A Lay Word For A Legal Term: How The Popular Definition Of Charity Has Muddled The Perception Of The Charitable Deduction, Paul J. Valentine

Paul J Valentine

In the United States there is a deeply held conviction “that taxpayers who donate to charity should generally not be subject to the same income tax liability as similarly situated taxpayers.” This innate sense about the Internal Revenue Code’s section 170, otherwise known as the charitable deduction, resonates with the Americans’ sense of fairness and creates strong barriers to curtailing its function. This same sense of fairness is tied to the perceived effects of the charitable deduction. Yet, how “charitable” is the charitable deduction and how charitable do we expect it to be? This paper argues that the discrepancy between …

Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay

Patrick A McKay

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover …

Engaging Law Students In Leadership, Faith Rivers James

Faith R Rivers James

The new challenge of legal education is preparing civic-minded lawyers to assume leadership roles in their communities, law firms, the legal profession, and in the public square. Defined as the process of influencing and persuading others to achieve a common purpose, leadership describes the lawyers’ task with individual and organizational clients; considered as a characteristic of people in positions of power, lawyers often assume the mantle of leading organizations. Whether defined as process or position, lawyering involves leadership in the private sector or in the public realm. This article considers the progressive structure of a comprehensive law & leadership program, …

Was Selden Right? The Expansion Of Closed Seas And Its Consequences, Scott Shackelford

Scott Shackelford

This Article focuses on the relationship between the legal regimes governing offshore resources in the continental shelves and the deep seabed, particularly in reference to the extent to which continental shelf claims are encroaching on the deep seabed. The question of how well these respective legal regimes regulate resource exploitation will also be considered, along with an analysis of the underlying reasons driving change in these governance structures. I argue that the primary issue is one of whether vague rules, particularly UNCLOS Article 76, are working in terms of incentivizing sustainable, peaceful development of offshore resources.

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

Rationing Justice?: The Effect Of Caseload Pressures On The U.S. Courts Of Appeals In Immigration Cases, Anna O. Law

Anna O. Law

Beginning in late 2003, the U.S. Courts of Appeals for the Second and Ninth Circuits experienced a deluge of immigration cases caused by changes in another part of the immigration bureaucracy. How did these two circuits, especially the Ninth circuit and its personnel, which handle more than 50% of all immigration appeals nationwide, respond to the "immigration surge" as it came to be called? Using interview data from 25% of the active judges on the court and some central staff, the article examines the series of internal experiments in case management that the Ninth Circuit was forced to undertake in …

Non- Profit Charitable Tax Exempt Hospitals- Wolves In Sheep's Clothing:To Increase Fairness And Enhance Compition All Hospitals Should Be For Profit And Taxable, George A. Nation Iii

George A Nation III

Most hospitals in the United States are not-for-profit tax exempt institutions. Legally these hospitals are deemed to be charities and are exempt from federal, state and local taxes, raise money through tax exempt bond offerings and receive charitable contributions that are tax deductible to the donors. Today it is estimated that 47 million Americans lack access to healthcare.5A Moreover, even when the new Patient Protection and Affordable Care Act5B is fully operational, which is estimated to be around 2019, there will still be millions of Americans without health insurance and thus without reliable access to healthcare.5C Notwithstanding the millions of …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

Reconsidering Federalism And The Farm: Toward Including Local, State, And Regional Voices In America’S Food Syste, Margaret Sova Mccabe

Margaret Sova McCabe

The American food system has pressing problems that affect us all. Our food system's structure contributes to public health problems including obesity, food safety, and environmental degradation. This relationship between the food system and pubic health necessitates understanding the federal government's role in the food system. Federalism contributes to alienating people from food production and consumption. This essay argues that to address public health problems successfully, we must question the federal government's pervasive role in the food system and institute greater state and local roles. The essay reviews the rise of federalism in agriculture. It then examines three recent developments …

Insulating Agencies: Avoiding Capture Through Institutional Design, Rachel E. Barkow

Rachel E Barkow

So-called independent agencies are created for a reason, and often that reason is a concern with agency capture. Agency designers hope that a more insulated agency will better protect the general public interest against interest group pressure. But the conventional approach to independent agencies in administrative law largely ignores why agencies are insulated. Instead, discussions about independent agencies in administrative law have focused on three features that have defined independent agencies: whether their heads are removable at will or for cause by the President, whether they must submit regulations to the President’s Office of Information and Regulatory Affairs for cost-benefit …

Stopping A Vicious Cycle: The Problems With Credit Checks In Employment And Strategies To Limit Their Use, Sharon Goott Nissim

Sharon Goott Nissim

This paper explores a new and increasingly common phenomenon: the use of credit checks by employers to evaluate potential and current employees. This practice has profound implications in this current weak economy, as those who most need jobs often are the ones turned away due to bad credit. The use of credit checks also has a disproportionate effect on racial minorities as statistically they tend to have worse credit than non-minorities. Employers often assert that credit checks are necessary, despite the lack of hard data proving a link between poor credit and poor job performance.

This paper examines two ways …

Resurrecting The Argument For Judicial Empathy: Can A Dead Duck Be Successfully Repackaged For Sale To A Skeptical Public?, Tobin Sparling

Tobin Sparling

President Obama's campaign to promote judicial empathy has proved a failure, rejected by his own judicial nominees and the public at large. Based on an examination of current popular conceptions of justice and a survey of scientific understanding of what empathy is and how it works, this article examines whether judicial empathy is a cause worth saving and, if so, whether it can, indeed, be saved. It argues that the advocacy of judicial empathy can and should be revived and suggests a strategy for politicians, judges, and others who desire to promote it. This strategy operates from two basic presumptions. …

How Powerful Is The Ioc? – Let’S Talk About The Environment, Marc A. R. Zemel

Marc A. R. Zemel

The International Olympic Committee (IOC) is in a unique position as the supreme administrator of an immensely popular international mega-event and a self-proclaimed champion of environmental issues and sustainable development. Every two years, cities from all over the world spend millions of dollars for the mere privilege of competing to host the Olympic Games, and those cities must play by the IOC’s rules. In addition, Article 2 of the Olympic Charter, the constitution-like instrument governing the IOC and the Olympic Movement, requires the IOC to ensure that the Olympics are held to promote sustainable development and show concern for the …

The Art Of Discretion: Umpires As Judges, Carrie Leonetti

Carrie Leonetti

This Essay posits that those who object to the oft-employed judges-as-umpires analogy (not to mention many of those who employ it) do not really understand what umpires do because calling balls and strikes is highly complicated, nuanced, and discretionary, involving determinations of the intents of the pitcher and batter and the reasonableness of the batter’s actions at the plate. It argues that the core of the judges-as-umpires analogy – the idea that the parameters of the strike zone are fixed and not a matter of personal judgment – is faulty because, while the definition of the strike zone is fixed …

Sunlight’S Glare: How Overbroad Open Government Laws Chill Free Speech And Hamper Effective Democracy, Steven Mulroy

Steven Mulroy

SUNLIGHT’S GLARE: HOW OVERBROAD OPEN GOVERNMENT LAWS CHILL FREE SPEECH AND HAMPER EFFECTIVE DEMOCRACY Steven J. Mulroy ABSTRACT In this Article, Prof. Mulroy argues that the broadest of state “open meetings laws” violate the free speech rights of covered government officials. The Article focuses on those laws which ban substantive discussion of government business by any two or three legislators outside of a publicly noticed official meeting (far less than a quorum), and those laws which admit no exceptions for matters involving individual privacy, personnel matters, consultation with counsel, ongoing financial negotiations, or other sensitive topics where confidentiality is warranted. …

The Rise Of The Corporation, The Birth Of Public Relations, And The Foundations Of Modern Political Economy, Donald J. Smythe

Donald J. Smythe

The rise of the modern corporation was an integral part the Second Industrial Revolution. This important economic and social transformation would not have occurred if business firms had been unwilling to make the large investments necessary to implement the new technologies that drove the industrial growth and development, and business firms would have been reluctant to make the investments without the shield of limited liability and the opportunity to spread their risks across diversified portfolios of corporate stocks. Nonetheless, the rise of the modern corporation created problems. The most successful corporations grew to unprecedented proportions, and the public’s concerns about …

The Red And Blue Golden State: Why California’S Proposition 11 Will Not Produce More Competitive Elections, Anthony E. Chavez

Anthony E Chavez

No abstract provided.

Democracy At The Corner Of First And Fourteenth: Judicial Campaign Spending And Equality, James Sample

James Sample

This Article posits that the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc., which recognized that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions, suggests that guaranteeing due process of law in state courts presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court’s landmark decision in Buckley v. Valeo is understood to hold that only an “anti-corruption” rationale can justify campaign finance regulations, and to draw a rigid distinction between political campaign “expenditures” and “contributions,” holding …

Financial Crisis And Civil Society, Claire R. Kelly

Claire R. Kelly

International financial law institutions struggle to confront financial crises effectively and flexibly, playing the role of both regulator and rescuer. At the same time these institutions confront demands for greater legitimacy in light of the public policy implications of their actions. Some might argue that greater participation by civil society may serve to foster greater legitimacy by improving representativeness, transparency, accountability, and reasoned decision making. But greater civil society access also has costs that can undermine both regulation and rescue efforts. I argue that we should not take it as a given that greater civil society participation lends greater legitimacy …

A Review Of The 2011 And 2013 Digital Television Energy Efficiency Regulations Developed And Adopted By The California Energy Commission, Christopher P. Wazzan

Christopher P Wazzan

In December 2009, the California Energy Commission (“CEC”) adopted on-mode standards for power consumption of televisions, (e.g., watts used) which will go into effect in 2011. Proposed standards are subject to Section 25402(c) of the California Public Resources Code (“CPRC”) which requires that proposed regulations must “not result in any added total costs to the consumer over the designed life of the appliances concerned.” In order to comply with the CPRC, in September 2009, the CEC issued a report alleging consumers would save $8.1 billion from reduced energy consumption. We find that the CEC study is critically flawed and that …

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 …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …