Law Commons^™

The Collection Due Process Rights: A Misstep Or A Step In The Right Direction?, Leslie Book

Working Paper Series

This article defends one of the more controversial parts of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 98) the collection due process (CDP) provisions. CDP gives taxpayers the right to independent administrative and judicial review of IRS decisions to use its awesome administrative collection powers, powers that have long made the IRS a feared creditor.

Prior to CDP’s enactment, the IRS had the power to collect taxes from taxpayers without judicial review of administrative collection determinations. This power, atypical for creditors which often must get judicial approval for summary collection action, led many observers to …

Preemption Under The Securities Litigation Uniform Standards Act: If It Looks Like A Securities Fraud Claim And Acts Like A Securities Fraud Claim, Is It A Securities Fraud Claim?, Jennifer O'Hare

Working Paper Series

This Article addresses the removal and preemption provisions of the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”). In SLUSA, Congress preempted class actions alleging “an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security.” SLUSA clearly applies to preempt the typical state securities fraud action, forcing plaintiffs into federal court where they will be subject to the rigorous procedural requirements of the Private Securities Litigation Reform Act of 1995. Preemption of false corporate publicity cases was expected and, in fact, intended by SLUSA. However, many courts have also extended …

The Next Era Of Sentencing Reform, Steven L. Chanenson

Working Paper Series

This article charts a path for criminal sentencing in the wake of the Supreme Court’s recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O’Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that “Over 20 years of sentencing reform are all but lost.” All is most assuredly not lost. Blakely, properly viewed, is an opportunity – albeit a disruptive one – to re-think and improve our sentencing systems.

The Blakely court interpreted the Sixth Amendment to require that any fact, other than the fact of prior conviction, …

Hoist With Their Own Petard?, Steven L. Chanenson

Working Paper Series

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet pro-government interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislatively-enacted sentencing guidelines in …

The Legacy Of The Prompt Complaint Requirement, Corroboration Requirement, And Cautionary Instructions On Campus Sexual Assault, Michelle J. Anderson

Working Paper Series

No abstract provided.

Competing Visions Of The Corporation In Catholic Social Thought, Mark A. Sargent

Working Paper Series

Catholic Social Thought (CST) is coherent body of principles concerning the organization of social and economic life drawing on the inspiration of natural law, Thomism, the Gospel and the tradition of Christian personalism. While valuing the creative energy of capitalism and its contributions to the production of wealth, it is often highly critical of the inequalities generated by capitalism, its tendency to promote materialistic consumerism and capital's devaluation of the dignity of work. While not easily characterizable as "right" or "left", CST thinking about corporate social responsibility and corporate governance has become split between interpretations emphasizing the importance of economic …

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Working Paper Series

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection – which the article contends it is – …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

Working Paper Series

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

Why It Is Essential To Teach About Mental Health Issues In Criminal Law (And A Primer On How To Do It), Richard E. Redding

Working Paper Series

Studies consistently show a high prevalence of mental disorders among criminal defendants. Forensic mental health issues thus arise frequently in the criminal justice system and are commonly encountered by prosecutors, defense attorneys, and judges—much more so than some criminal law doctrines (e.g., necessity, duress, impossibility) routinely taught in criminal law courses. Yet rarely are students taught about mental illness, how to represent mentally ill clients, adjudicative competence, the mental health needs of various offender groups and how these unmet needs may contribute to criminal behavior, or the use of mental health mitigation evidence at sentencing. If taught at all, such …

Deconstructing Development, Ruth E. Gordon, Jon H. Sylvester

Working Paper Series

Whether it is being praised or excoriated, defended or condemned, the concept of development shapes and dominates our thinking about the Third World. Indeed development has evolved into an essentially incontestable paradigm with such a hold on our collective imaginations, that it is almost impossible to think around or beyond it. This article, however, interrogates development to its very core, demonstrating that although it is presented as something that is universal, natural and inevitable, in truth it is part of the Western political and cultural imagination. Moreover, the interlocking ideological assumptions that support this paradigm are inherently hierarchical and by …

Lawyers In The Moral Maze , Mark A. Sargent

Working Paper Series

This article overviews the various forms of lawyer complicity in illegal or immoral behavior by corporate managers in the corporate scandals of the last three years, but focuses primarily on the question of why lawyers so often seemed willing to engage in or ignore behavior that presumably violated their own personal moral codes (whether religious or secular) as well as their professional role morality. The article draws on Robert Jackall's Moral Mazes (1988) for an answer derived from the sociology of corporate bureaucracies. Jackall's case studies of corporate managers found that managers adhered to the moral "rules-in-use" developed in their …

Get The Facts, Jack! Empirical Research And The Changing Constitutional Landscape Of Consent Searches, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.

Maurice Clarett V. National Football League, Inc.: An Analysis Of Clarett's Challenge To The Legality Of The Nfl's Draft Eligibility Rule Under Antitrust Law, Shauna Itri

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

Working Paper Series

In light of increasing punitive damages awards, the United States Supreme Court formulated criteria for evaluating whether a punitive damages award is so unreasonably large that it violates substantive due process. Unfortunately, these "guideposts," which were first erected in BMW v. Gore and applied last term in State Farm v. Campbell, are difficult to use and have resulted in inconsistent decisions. Indeed, Justice Scalia stated that they "mark a road to nowhere." The authors argue that the problems with the guideposts can be fixed by refining the third guidepost, which compares the punitive damages award to the criminal (or civil) …

The Clean-Fuel Vehicle Tax Deduction: Will It Drive An Increase In Fuel Efficiency Standards, Heather Munoz

Villanova Environmental Law Journal

No abstract provided.

Increasing The Inherent Risks Of Baseball: Liability For Injuries Associated With High-Performance Non-Wood Bats In Sanchez V. Hillerich & (And) Bradsby Co., Amanda M. Winfree

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The Balancing Act: How Copyright And Customary Practices Protect Large Dance Companies Over Pioneering Choreographers, Krystina Lopez De Quintana

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

A Jurisdictional Nightmare: Determining When An Interdependent Copyright And Contract Claim Arises Under The Copyright Act In Scholastic Entertainment, Inc. V. Fox Entertainment Group, Inc., Christopher D. Birrer

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Give Us Your Tired, Your Poor, Your Wretched Works Of Art: American Museums Can Fix Them Up, Show Them, And Send Them Back With Help From The Arts Indemnity Act, Nicole Bednarski

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Sierra Club V. Meiburg: Out, Damned Pollutants - Out, We Say - What, Will Georgia's Water Ne'er Be Clean, Taylor L. Archambault

Villanova Environmental Law Journal

No abstract provided.

Borden Ranch Partnership V. U.S. Army Corps Of Engineers: A Barge In A Bucket - May Isolated Wetlands Be Considered Navigable Waters Under The Cwa, Adam Gerber

Villanova Environmental Law Journal

No abstract provided.

Air Quality Protection Using State Implementation Plans -Thirty-Seven Years Of Increasing Complexity, Arnold W. Reitze Jr.

Villanova Environmental Law Journal

No abstract provided.

Defenders Of Wildlife V. Hogarth: Has The Sun Set On Saving The Dolphins, Ashley Woodworth

Villanova Environmental Law Journal

No abstract provided.

Wetlands Regulatory Morass: The Missing Tulloch Rule, Anjali Kharod

Villanova Environmental Law Journal

No abstract provided.

The Mold Rush: The Onslaught Of Mold-Related Bad Faith Suits Against Insurers And The Price For Homeowners, Kellie Maccready

Villanova Environmental Law Journal

No abstract provided.

As Seen On Tv: The Normative Influence Of Syndi-Court On Contemporary Litigiousness, Kimberlianne Podlas

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

An Unimproved Lie: Gender Discrimination Continues At Augusta National Golf Club, Charles P. Charpentier

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Infringing A Fantasy: Future Obstacles Arise For The United States Patent Office And Software Manufacturers Utilizing Artificial Intelligence, Eric J. Schaal

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The 2003 Legislative Assault On Violent Video Games: Judicial Realities And Regulatory Rhetoric, Clay Calvert

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Website Operators And Misappropriators Beware - The California Supreme Court Holds A Preliminary Injunction Prohibiting Internet Posting Of Dvd Decryption Source Code Does Not Violate The First Amendment In Dvd Copy Control Association, Inc. V. Bunner, Nick Washburn

Jeffrey S. Moorad Sports Law Journal

No abstract provided.