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Full-Text Articles in Law

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan Jan 2011

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Articles

Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent ...


Overcoming Babel’S Curse: Adapting The Doctrine Of Foreign Equivalents, Jonathan Skinner Jan 2011

Overcoming Babel’S Curse: Adapting The Doctrine Of Foreign Equivalents, Jonathan Skinner

Articles

No abstract provided.


Implementing American Health Care Reform: The Fiduciary Imperative, Dayna Bowen Matthew Jan 2011

Implementing American Health Care Reform: The Fiduciary Imperative, Dayna Bowen Matthew

Articles

The success of health reform under the Patient Protection and Affordable Care Act of 2010 will depend upon the sustainability of a brand new and infrastructure of entities, relationships, and procedures. So far, neither jurists, legislators, policy-makers, providers, payers, nor patients have identified an organizing paradigm to implement or regulate this vast new infrastructure. Legal scholars have been curiously absent from this policy discussion, offering little if any insight into the role law plays beyond the familiar political debates about health reform. This article draws a legal chair to the table and takes a refined look at the legal basis ...


After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann Jan 2011

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

Articles

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons ...


Us Perpetual Trusts, Lawrence W. Waggoner Jan 2011

Us Perpetual Trusts, Lawrence W. Waggoner

Articles

In 2009, the UK reconfirmed tis long-standing public policy against perpetual trusts. America has been moving in the opposite direction. Recent years have seen a movement in the states to pass legislation allowing settlors to create family trusts that can last forever or for several centuries. Sadly, and embarrassingly, the American perpetual-trust movement has not been based on the merits of removing the traditional curb on excessive dead-hand control. The policy issues associated with allowing perpetual trusts have not been seriously discussed in the state legislatures. The driving force has been interstate competition for trust business.


Examining The Reality Of Foreign National Child Victims Of Human Trafficking In The United States, Bridgette A. Carr Jan 2011

Examining The Reality Of Foreign National Child Victims Of Human Trafficking In The United States, Bridgette A. Carr

Articles

Human traffickers prey on the vulnerabilities of other people. Poverty, lack of education, and language barriers are keys that human traffickers use to successfully exploit others. For foreign national children who have been trafficked in the United States, these same vulnerabilities are often ignored by the immigration system. From its inception, the Trafficking Victims Protection Act (TVPA) has been touted as a tool to combat grave human rights violations that affect children. In fact, the TVPA's legislative history is rife with stories, statistics, and anecdotes involving children-often young girls. The TVPA has always recognized the failure of a one-size-fits-all ...


Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff Jan 2011

Do Sex Offender Registration And Notification Laws Affect Criminal Behavior?, J. J. Prescott, Jonah E. Rockoff

Articles

Sex offenders have become the targets of some of the most far-reaching and novel crime legislation in the U.S. Two key innovations in recent decades have been registration and notification laws which, respectively, require that convicted sex offenders provide valid contact information to law enforcement authorities, and that information about sex offenders be made public. Using the evolution of state law during the 1990s and 2000s, we study how registration and notification affect the frequency of reported sex offenses and the incidence of such offenses across victims. We find evidence that registration reduces the frequency of sex offenses by ...


Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White Jan 2011

Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White

Articles

The passage of the Wagner (National Labor Relations) Act of 1935 represented an unprecedented effort to guarantee American workers basic labor rights--the rights to organize unions, to provoke meaningful collective bargaining, and to strike. Previous attempts by workers and government administrators to realize these rights in the workplace met with extraordinary, often violent, resistance from powerful industrial employers, whose repressive measures were described by government officials as a system of "industrial terrorism." Although labor scholars have acknowledged these practices and paid some attention to the way they initially frustrated labor rights and influenced the jurisprudence and politics of labor relations ...


Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz Jan 2011

Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz

Articles

In the 1960s and 1970s, American society came to the considered conclusion that if eighteen-year-olds can be drafted to fight and possibly die for their country, they should be treated as adults under the law. Thus, in 1971, the Twenty-Sixth Amendment to the United States Constitution, which lowered the voting age to eighteen from twenty one, was proposed and ratified in just three months, making it the fastest amendment in American history. The minimum age for federal and state jury service was also lowered to eighteen from twenty one. And, with regard to contract law, every state passed legislation reducing ...


Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner Jan 2011

Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner

Articles

Unnecessarily broad preemption ruling under the Energy Policy and Conservation Act discourages other states and municipalities from pursuing innovative, environmentally beneficial policies.


Child Pornography And Community Notification: How An Attempt To Reduce Crime Can Achieve The Opposite, J. J. Prescott Jan 2011

Child Pornography And Community Notification: How An Attempt To Reduce Crime Can Achieve The Opposite, J. J. Prescott

Articles

Community notification laws, designed to reduce the frequency of sex offenses by alerting potential victims to nearby threats and by encouraging citizen monitoring of potential recidivists, may make sense in the context of traditional sex offenses and sex offenders. But child pornography crimes and the individuals who commit them are different, and they differ from archetypal sex crimes and criminals in ways that may unintentionally cause community notification laws to facilitate crime rather than inhibit it. Child porn offenses typically involve money or trade, and their commission hinges on successfully conspiring with others. Markets and information are necessary building blocks ...


Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson Jan 2011

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes ...


Readers' Copyright, Jessica D. Litman Jan 2011

Readers' Copyright, Jessica D. Litman

Articles

My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems ...


Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah Jan 2011

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Articles

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.


Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard Jan 2011

Securities Law In The Roberts Court: Agenda Or Indifference?, Adam C. Pritchard

Articles

To outsiders, securities law is not all that interesting. The body of the law consists of an interconnecting web of statutes and regulations that fit together in ways that are decidedly counter-intuitive. Securities law rivals tax law in its reputation for complexity and dreariness. Worse yet, the subject regulated-capital markets-can be mystifying to those uninitiated in modem finance. Moreover, those markets rapidly evolve, continually increasing their complexity. If you do not understand how the financial markets work, it is hard to understand how securities law affects those markets.


Ability To Pay, John A. E. Pottow Jan 2011

Ability To Pay, John A. E. Pottow

Articles

The landmark Dodd-Frank Act of 2010 ("Dodd-Frank") transforms the regulation of consumer credit in the United States. Many of its changes have been high-profile, attracting considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau ("CFPB"). Even specific consumer reforms, such as a so-called "plain vanilla" proposal, drew hot debate and lobbying firepower. But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as plain vanilla or the CFPB did get into the law: imposing upon lenders a duty to assure a borrower's ability to repay. Ensuring a ...


Affirmative Action As Government Speech, William M. Carter Jr. Jan 2011

Affirmative Action As Government Speech, William M. Carter Jr.

Articles

This article seeks to transform how we think about “affirmative action.” The Supreme Court’s affirmative action jurisprudence appears to be a seamless whole, but closer examination reveals important differences. Government race-consciousness sometimes grants a benefit to members of a minority group for remedial or diversifying purposes. But the government may also undertake remedial or diversifying race-conscious action without it resulting in unequal treatment or disadvantage to non-minorities. Under the Court’s current equal protection doctrine, both categories of cases are treated as presumptively unconstitutional. Race-consciousness itself has become a constitutional harm, regardless of tangible effects.

Prior scholarship has suggested ...