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Articles 1 - 30 of 38
Full-Text Articles in Law
Funding For Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters Jr.
Funding For Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters Jr.
Faculty Publications
Congress spends hundreds of billions of dollars each year on social programs. Many don’t work. Congress and the President have called for greater reliance on evidence-based programs. Thus far, however, only one major federal program conditions state access to formula-based federal funding on the use of evidence-based practices: the Maternal, Infant, and Early Childhood Home Visiting Program. In this Article, I examine the extent to which this initial effort has succeeded and conclude that Congress has taken a promising first step, but attainment of its objective will require more demanding proof standards than those contained in the current Home Visiting …
The Canon At The Water's Edge, Thomas B. Bennett
The Canon At The Water's Edge, Thomas B. Bennett
Faculty Publications
What motivates substantive presumptions about how to interpret statutes? Are they like statistical heuristics that aim to predict Congress's most likely behavior, or are they meant to protect certain underenforced values against inadvertent legislative encroachment? These two rationales, fact-based and value-based, are the extremes of a continuum. This Note uses the presumption against extraterritoriality to demonstrate this continuum and how a presumption can shift along it. The presumption operates to diminish the likelihood that a federal statute will be read to extend beyond the borders of the United States. The presumption has been remarkably stable for decades despite watershed changes …
Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell
Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell
Faculty Publications
Part I of this article details the Bureau of Prisons' rules and policies governing inmate placement, including the most recent iteration. Part II examines Chevron27 and the Bureau of Prisons' extraordinary justification exception rule. Part III turns to the threshold matter of obtaining judicial access to challenge the Bureau of Prisons' new rule, with Part III.A arguing that the federal courts should relax their standards when faced with exceptions to the exhaustion requirement and Part III.B arguing for the adoption of a federal public importance exception to the mootness doctrine. The article concludes that these changes will further Congress' dual …
Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert
Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert
Faculty Publications
This article asserts a comprehensive response to Elhauge’s provocative arguments. With respect to tying, the article shows that governing Supreme Court precedent does not deem the non-foreclosure “power” effects of the practice to be anticompetitive and that those effects are unlikely to reduce social welfare in the long run, especially after accounting for dynamic efficiencies. With respect to bundled discounting, the article shows that Elhauge’s proposed liability rule is both inapposite to consumer harm and inadministrable and that both “linked” market foreclosure and a form of below-cost pricing are necessary for anticompetitive harm and should therefore be prerequisites to antitrust …
The Roberts Court And The Limits Of Antitrust, Thom Lambert
The Roberts Court And The Limits Of Antitrust, Thom Lambert
Faculty Publications
This article first describes the fundamental limits of antitrust and the decision-theoretic approach such limits inspire. It then analyzes the Roberts Court’s antitrust decisions, explaining how each coheres with the decision-theoretic model. Finally, it predicts how the Court will address three issues likely to come before it in the future: tying, loyalty rebates, and bundled discounts.
Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz
Legislating In The Light: Considering Empirical Data In Crafting Arbitration Reforms, Amy J. Schmitz
Faculty Publications
Consumer advocates and policymakers call for abolition of predispute arbitration clauses in consumer contracts, while proponents of arbitration claim such abolition would increase companies’ dispute resolution costs, leading to higher prices and interest rates. Policymakers on both sides of the debate, however, rarely consider the empirical research necessary for crafting informed arbitration disclosure rules. This article therefore focuses on how varied research, including my own empirical studies, may inform policies regarding arbitration disclosure regulations. The article also offers suggestions for regulations tailored to have the most impact for the cost in light of this research.
The Future Of Music: Reconfiguring Public Performance Rights, Gary Myers, George Howard
The Future Of Music: Reconfiguring Public Performance Rights, Gary Myers, George Howard
Faculty Publications
This article focuses on two concrete measures to improve the music industry prognosis. Public performance rights have long been an important piece of the economic pie that helps support the music business. This article suggests that the scope of public performance rights should be fundamentally reassessed and expanded. This expansion involves two specific and complementary reconfigurations.
Understanding Card-Check Organizing: The Public Sector Experience, Rafael Gely, Timothy D. Chandler
Understanding Card-Check Organizing: The Public Sector Experience, Rafael Gely, Timothy D. Chandler
Faculty Publications
The use of “card checks” as a method of union organizing has recently garnered considerable attention, much of it surrounding the proposed Employee Free Choice Act. The proposed legislation seeks to amend the National Labor Relations Act by requiring employers to recognize a union when the employer is presented with evidence of majority support for union recognition via card checks. Despite this recent interest in card checks, there is little empirical research on the topic due, in part, to the lack of available data. Although card-check organizing in the private sector is not rare, such organizing is voluntary, and does …
In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell
In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell
Faculty Publications
The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to …
Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri
Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri
Faculty Publications
In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.
Undermining Individual And Collective Citizenship: The Impact Of Exclusion Laws On The African-American Community, S. David Mitchell
Undermining Individual And Collective Citizenship: The Impact Of Exclusion Laws On The African-American Community, S. David Mitchell
Faculty Publications
The purpose of this article is to expose felon exclusion laws as a method for undermining the individual and collective citizenship rights of the African-American community, and to call for their abolition.
The Ambiguous Meaning Of Human Conception, Philip G. Peters Jr.
The Ambiguous Meaning Of Human Conception, Philip G. Peters Jr.
Faculty Publications
Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no "moment" of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point …
Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil
Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil
Faculty Publications
This Article attempts to resolve one such issue: the tax consequences of property abandonments by the bankruptcy trustee.
The New Mexico Uniform Trust Code, David M. English
The New Mexico Uniform Trust Code, David M. English
Faculty Publications
This article provides an overview of the New Mexico UTC, focusing on how its enactment either changes or clarifies existing New Mexico law.
The Kansas Uniform Trust Code, David M. English
The Kansas Uniform Trust Code, David M. English
Faculty Publications
Senate Bill 297, which was enacted by the Kansas legislature in 2002 and which became effective on January 1, 2003, is a substantial adoption of the Uniform Trust Code (2000) (“UTC”). The Kansas UTC is codified in a new chapter, Kansas Statutes Annotated chapter 58a. The UTC is the Uniform Law Commissioners' first effort to provide the states with a comprehensive model for codifying their law on trusts.
Analyzing The Trust Code, David M. English
Analyzing The Trust Code, David M. English
Faculty Publications
Uniform Acts have played a significant role in the development of the law on trusts and estates. While the Uniform Probate Code is perhaps the best known of such Acts, there are many others. The Uniform Trust Code (2000) ( “UTC”) continues in this tradition. Like the Uniform Probate Code, it provides the states with a comprehensive model for codifying their laws. It provides the states with an opportunity to update, fill out, and systematize their law on trusts.
The Uniform Trust Code (2000): Significant Provisions And Policy Issues, David M. English
The Uniform Trust Code (2000): Significant Provisions And Policy Issues, David M. English
Faculty Publications
This Article provides an overview of the UTC, describes how it responds to recent developments in American trust practice, and describes how its enactment would change the trust law prevailing in most American states.
The Uniform Trust Code (2000) And Its Application To Ohio, David M. English
The Uniform Trust Code (2000) And Its Application To Ohio, David M. English
Faculty Publications
This article provides an overview of the U.T.C., focusing on how its enactment would change existing Ohio law. The drafting of the U.T.C. was prompted by the much greater use of trusts in recent years. This greater use of the trust and consequent rise in the number of day-to-day questions involving trusts led to a recognition by the Commissioners that the trust law in most states is thin, leaving many gaps between the often few statutes and reported cases
The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii
The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii
Faculty Publications
This Article has four parts. First, it describes the general structure of the Federal Sentencing Guidelines and the approach to sentencing economic crimes in effect between 1987 and 2001. Second, it outlines the defects in the former economic crime guidelines that led to the call for reform. Third, it describes the process undertaken by the Sentencing Commission that led to the passage of the 2001 economic crime amendments and, in so doing, provides a roadmap to sources of legislative history. Fourth, it explains and analyzes the new guidelines in light of their legislative history, with primary emphasis on the consolidated …
State Constitutional Restrictions On Legislative Procedure: Rethinking Analysis Of Original Purpose, Single Subject, And Clear Title Challenges, Martha Dragich
State Constitutional Restrictions On Legislative Procedure: Rethinking Analysis Of Original Purpose, Single Subject, And Clear Title Challenges, Martha Dragich
Faculty Publications
Recognizing that state courts are beginning to review procedural challenges more rigorously, this Article attempts to provide guidance for the resolution of such cases. Part I examines the history, purposes, and standards of original purpose, single subject, and clear title restrictions, using Missouri's provisions as examples. Part I also identifies paradigmatic cases of each of the procedural violations with the hope of more sharply differentiating the three claims. Parts II through V present a case study of ten Missouri cases decided since 1994, supplemented with notable cases from other states. Part II begins with a brief description of the Missouri …
Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii
Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii
Faculty Publications
On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …
The Case Against Private Disparate Impact Suits, Thom Lambert
The Case Against Private Disparate Impact Suits, Thom Lambert
Faculty Publications
This article argues that the Third Circuit, and the courts that have implicitly approved private disparate impact suits, have erred in construing Title VI to permit private plaintiffs to sue federally funded entities for discrimination based on disparate impact alone. From a policy standpoint, permitting private disparate impact suits is a bad idea, for the threat of such suits will lead to deterrence of actions and decisions that have incidental disparate effects but are, on the whole, good.
Harming Future Persons: Obligations To The Children Of Reproductive Technology, Philip G. Peters Jr.
Harming Future Persons: Obligations To The Children Of Reproductive Technology, Philip G. Peters Jr.
Faculty Publications
Two paradigms dominate contemporary ethical and legal debate about the risks posed to children who owe their lives to reproductive technology. One asks whether the children have lives so tragic that life itself is harmful. The other approach asks whether children so conceived are likely to enjoy a minimally decent existence. Although the two approaches have quite different analytic foundations, they share one crucial trait. Each concludes that children who owe their lives to reproductive technology are harmed only when that technology causes genuinely catastrophic injuries.Because these conventional paradigms define harmful conduct exclusively by reference to the magnitude of the …
The Illusion Of Autonomy At The End Of Life: Unconsented Life Support And The Wrongful Life Analogy, Philip G. Peters Jr.
The Illusion Of Autonomy At The End Of Life: Unconsented Life Support And The Wrongful Life Analogy, Philip G. Peters Jr.
Faculty Publications
Overwhelming evidence indicates that physicians routinely ignore patient preferences about life-sustaining care. Yet, the ability of wrongfully treated patients to recover compensatory damages has recently been placed in doubt. Both courts and commentators have suggested that actions for unconsented life support are analogous to actions for wrongful life and should, for that reason, be rejected. In this article, Professor Philip Peters argues that the obvious similarity between the two kinds of claims is overshadowed by many factors that distinguish the two settings. As a result, Professor Peters concludes that a physician who wrongfully administers life-sustaining care over the objections of …
Crossing The Line: The Political And Moral Battle Over Late-Term Abortion, Rigel C. Oliveri
Crossing The Line: The Political And Moral Battle Over Late-Term Abortion, Rigel C. Oliveri
Faculty Publications
This paper focuses on the political and moral debate surrounding two pieces of federal legislation which sought to criminalize a particular late term abortion technique scientifically known as "intact dilation and extraction," and popularly known as "partial birth abortion." The Congressional "Partial Birth Abortion" Bans of 1996 and 1997 inflamed the already emotionally charged contest over abortion rights. The intense lobbying and advocacy efforts put pro-choice activists in the uncomfortable position of having to defend one of the most extreme positions on the abortion-rights spectrum. The advocacy was further complicated by the fact that very few women obtain late term …
Christian Constitutions: Do They Protect Internationally Recognized Human Rights And Minimize The Potential For Violence Within A Society? A Comparative Analysis Of American And Irish Constitutional Law And Their Religious Elements, S. I. Strong
Faculty Publications
Section II of this Article studies in greater detail the religio-legal debate currently being waged in American courts and legislatures, including a brief discussion of the religio-legal history of the United States. Section II also describes how the United States resembles and differs from Ireland such that subsequent comparisons will be more accurate. Section III compares the two constitutions by analyzing the provisions and policies most influenced by religion. First, general principles of sovereignty and constitutional interpretation are reviewed to understand the general constitutional framework of each nation. Second, the manner in which personal rights are treated by each nation's …
Appendix To Guest Editor's Observations: A Proposal For A Consolidated Theft/Fraud Guideline, Frank O. Bowman Iii
Appendix To Guest Editor's Observations: A Proposal For A Consolidated Theft/Fraud Guideline, Frank O. Bowman Iii
Faculty Publications
Professor Frank Bowman proposed the following consolidated theft/fraud guideline to the U.S. Sentencing Commission in October 1997. The proposal is explained in detail in a forthcoming law review article, Coping With Loss”: A Re-Examination of Federal Economic Crime Sentencing Under the Guidelines, 51 Vanderbilt L. Rev. -- (April 1998).
Quality Of Mercy Must Be Restrained, And Other Lessons In Learning To Love The Federal Sentencing Guidelines, Frank O. Bowman Iii
Quality Of Mercy Must Be Restrained, And Other Lessons In Learning To Love The Federal Sentencing Guidelines, Frank O. Bowman Iii
Faculty Publications
In the remarks that follow, I do four things. First, for those unfamiliar with the Federal Sentencing Guidelines, I begin by explaining briefly how the Guidelines work. Second, I endeavor to show why Judge Cabranes is wrong, absolutely wrong in declaring the Guidelines a failure, and mostly wrong in the specific criticisms he and others level against the Guidelines. Third, after jousting with Judge Cabranes a bit, I discuss some problems with the current federal sentencing system, most notably the sheer length of narcotics sentences. Finally, I comment briefly on some of the implications of the Guidelines, and the principles …
Health Care Rationing And Disability Rights, Philip G. Peters Jr.
Health Care Rationing And Disability Rights, Philip G. Peters Jr.
Faculty Publications
This article explores the extent to which federal disability rights law limits the use of effectiveness criteria to allocate health care, either alone or as a part of cost-effectiveness analyses. To be more precise, it considers the circumstances in which disability-based classifications by health plans which would otherwise violate the anti-discrimination laws can be legally and ethically defended by proof that the excluded treatments are less effective than those which are provided. Part I introduces the expanding use of effectiveness analysis in health care, explains its discriminatory potential, and reviews the Oregon experience. Part II outlines the current federal law …
Small Numbers, Black Men, Precipitous Responses, Big Problems, Michael A. Middleton
Small Numbers, Black Men, Precipitous Responses, Big Problems, Michael A. Middleton
Faculty Publications
Professor Culp has aptly warned us that in our discussion of employment discrimination we should not lose sight of the need to address the spectrum of policies affecting the status of African-Americans. Without serious efforts in all aspects of American life (e.g., housing, education, health care, political and economic empowerment) our chances of significantly improving the future for African-American men are slim.