Law Commons^™

Sieracki Lives: A Portrait Of The Interplay Between Legislation And The Judicially Created General Maritime Law, Thomas C. Galligan Jr.

Journal Articles

In American maritime law, the interplay between the courts and Congress is complex and iterative. A significant body of American admiralty law, the general maritime law, has been judicially created and developed. But Congress has also enacted a number of important statutes governing maritime commerce and the rights of maritime workers, such as the Longshore and Harbor Worker’s Compensation Act (“LHWCA”). The back and forth between the courts and Congress in interpreting those statutes and gauging their impact on and consistency with the general maritime law is ongoing. One important area where the courts development of the general maritime law …

Marketing Authorization At The Fda: Paradigms And Alternatives, Adam I. Muchmore

Journal Articles

In many critical industries, the Food and Drug Administration’s (FDA’s) marketing authorization decisions determine the range of products available in the United States. Because of the broad scope of the FDA’s marketing authorization responsibilities, the existing scholarship focuses on individual product categories, or small groups of product categories, regulated by the agency. This Article identifies how the existing literature has overlooked important connections between the FDA’s different marketing authorization programs. These connections suggest both explanations for existing programs and strategies for potential reforms.

The Article sets forth a two-level framework for analyzing the FDA’s marketing authorization role. At the first …

Hidden Law: Taking The Comments More Seriously, Melissa T. Lonegrass

Journal Articles

No abstract provided.

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski

Journal Articles

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …

Business Lobbying As An Informational Public Good: Can Tax Deductions For Lobbying Expenses Promote Transparency?, Michael Halberstam, Stuart G. Lazar

Journal Articles

The view that “lobbying is essentially an informational activity” has persistently served the suggestion that lobbying provides a public good by educating legislators about policy and the consequences of legislation.

In this article, we link a proposed tax reform with a substantive disclosure requirement to promote the kind of “information subsidy” that serves the public interest, while mitigating – at least to some extent – the distortion that may result from the imbalance of financial resources on the business side and other institutional contraints identified in the literature. We argue that corporate lobbying should be encouraged – by allowing business …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Jurisdictional Standards (And Rules), Adam I. Muchmore

Journal Articles

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …

Constraining The Federal Rules Of Civil Procedure Through The Federalism Canons Of Statutory Interpretation, Margaret S. Thomas

Journal Articles

The doctrine for deciding when to apply the Federal Rules of Civil Procedure to state claims heard in federal court has become a quagmire of exceptions and ephemeral distinctions, in large measure due to the persistent difficulty courts have in separating substantive rules from procedural ones in an era where special procedural rules are often used as an essential regulatory tool in state governance. This article examines the power of Federal Rules of Civil Procedure to displace contrary state law in diversity cases by focusing on the limited functional competence of the Supreme Court and its Advisory Committee to displace …

Time Off For Military Families: An Emerging Case Study In A Time Of War...And The Tipping Point For Future Laws Supporting Work-Life Balance?, Marcy L. Karin

Journal Articles

No abstract provided.

Changing Federal Statutory Proposals To Address Domestic Violence At Work: Creating A Societal Response By Making Businesses A Part Of The Solution, Marcy L. Karin

Journal Articles

Over five million acts of domestic violence are committed every year.1 The prevalence of these acts makes domestic violence “the leading cause of injury to women.”2 Detrimental wherever they occur, these acts are not limited to the privacy of one’s home. Instead, domestic violence regularly and repeatedly spills over to the “public” workplace.For example, Francescia La Rose’s former boyfriend called her supervisor and threatened to come to the office to kill La Rose if she was not fired. Her employer responded by warning La Rose to keep her personal problems out of the workplace. The next day, the ex-boyfriend walked …

Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig

Journal Articles

This paper considers the affect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a best interests standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody.

After setting out the constitutional problem and describing the legislation in some detail, this paper tests the effects of the change …

Environmental Certification Systems And U.S. Environmental Law: Closer Than You May Think, Errol E. Meidinger

Journal Articles

Many industrial organizations are committing to achieve improved environmental performance through non-governmentally instituted environmental certification programs. Such programs typically define the environmental standards that firms must meet as well as the organizational mechanisms required to achieve and "certify" compliance. Well known examples include the chemical industry's "Responsible Care" program, the International Organization for Standardization's "ISO 14000" environmental management program, and the Forest Stewardship Council's well-managed forests program.

Because of their ostensibly private and voluntary nature, environmental certification programs are often presumed to be separate and distinct from law. In fact, however, they are deeply intertwined with law, and seem likely …

Shall - Take No. 2, Debra R. Cohen

Journal Articles

No abstract provided.

The Americans With Disabilities Act: Analysis And Implications Of A Second-Generation Civil Rights Statute, Robert L. Burgdorf Jr.

Journal Articles

Martin Luther King, Jr. once wrote that our nation's civil rights laws were a "sparse and insufficient collection of statutes ... barely a naked framework."' On their faces, many federal civil rights statutes constitute little more than broad directives that "Thou shalt not discriminate." Broadly worded statements outlawing discrimination were the optimal approach to statutory draftsmanship in light of the controversial nature of the civil rights laws passed in the 1960s and 1970s. The drafters of these statutes needed to craft language that would be palatable to a majority of the members of Congress while still having a meaningful impact …

Legislative Enforcement Of Equal Protection, Stephen F. Ross

Journal Articles

This Article explores the legislative role in enforcing the constitutional guarantee to equal protection. Part I describes the underenforcement principle that explains the restrictive judicial exercise of authority in constitutional matters. The Article then focuses on Congress' role in examining issues relating to the constitutional guarantee of equal protection that the courts have chosen to underenforce. Part II analyzes relevant constitutional provisions that may empower or limit congressional actions. Part III considers ways in which Congress can address state violations of equal protection through directives to the judiciary and through the legislative process. Part IV details how both federal and …

Linguistic Legislation And Transnational Commercial Activity: France & Belgium, Thomas E. Carbonneau

Journal Articles

For French and francophonic people, the continued vitality of their linguistic heritage is an integral part of their sense of national identity and cultural cohesiveness. The truth of this statement has been corroborated recently by legislative enactments in France and in Belgium which prescribe and/or recommend the use of French in certain private commercial and governmental activity taking place within these countries. This legislation represents an attempt to provide a partial remedy to what has been perceived generally as the syntactical and lexical "contamination" of the French language resulting from the dominance of English or, more precisely, American English, in …

Ill Effects Of A Well-Intentioned Law: The Rights Of The Handicapped Overlooked, Robert L. Burgdorf

Journal Articles

Indiana's Public Law No. 162, which was signed into law in 1972, is an admirable achievement. The statute consolidated and clarified the procedures to be employed by schools in suspending, expelling or excluding students. The rights of students were closely guarded through the clear enumeration of the requirements of due process in this area. Written notice, a relatively formal hearing, the right to be represented by counsel, the right to cross-examine witnesses, a written decision and record of the proceedings, and an appeal procedure are all specifically mandated by the law whenever a child may be suspended, expelled or excluded. …

Congressional Committee Reports: Their Role And History, Thomas F. Broden

Journal Articles

Most lawyers have an extremely limited understanding of the function of a congressional committee report. In general, lawyers think of such reports as aids to the interpretation of statutes on the books and much has been written about this role of the committee report. This role is considered by many as the committee report's primary, if not its only, function. Nothing could be further from the truth. It is the purpose of this article to explain its other, more important roles, those in the legislative process and to examine the historical development of the use of written committee reports in …