Law Commons^™

Through A Lens Of Genocide: A Different Approach For Hate Crimes Legislation, Bruce Ching

Journal Articles

Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents …

Holding U.S. Corporations Accountable: The Convergence Of U.S. International Tax Policy And Human Rights, Jacqueline Lainez Flanagan

Journal Articles

International human rights litigation underscores the inverse relationship between corporate power and corporate accountability, with recent Supreme Court decisions demonstrating increased judicial protections of corporate rights and decreased corporate accountability. This article explores these recent decisions through a tax justice framework and argues that the convergence of international human rights law and U.S. international tax policy affords alternate methods to hold corporations accountable for violations of international law norms. The article specifically proposes higher scrutiny of foreign tax credits and an anti-deferral regime targeting the international activity of U.S. corporations that use subsidiaries to shelter income and decrease taxation while …

Our Constitutional Commons, Blake Hudson, Brigham Daniels

Journal Articles

While much has been written about the U.S. Constitution, very little, if anything at all, has been said about the ways in which the Constitution shares attributes with the commons. This article examines the Constitution and the efforts to influence the shape and scope of its application through the lenses developed by scholars for assessing both common good and public good resources. Focusing on these interrelated lenses provides a unique perspective on both the U.S. Constitution and those attempting to influence its text and its interpretation. The synergy and interaction between the common good and public good dimensions of the …

Isolated Wetland Commons And The Constitution, Blake Hudson, Michael Hardig

Journal Articles

Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This Article makes a normative argument that, in the absence of state or local programs providing holistic isolated wetland protection, federal action is needed. The …

Should The Irs Never "Target" Taxpayers? An Examination Of The Irs Tea Party Affair, Philip T. Hackney

Journal Articles

This article is part of a symposium held at Valparaiso University Law School entitled "Money in Politics: The Good, the Bad and the Ugly."

In 2013, the Treasury Inspector General for Tax Administration faulted the Internal Revenue Service for the appearance of impartiality because it used names and policy positions such as “Tea Party” and conservative ideology to pick applications for tax-exempt status for greater scrutiny. The Inspector General's review came after members of Congress accused the Service of "targeting" conservative organizations. This Article finds the Inspector General's claim lacks a firm foundation. The use of names to select organizations …

Young V. United Parcel Service, Inc.: Mcdonnell Douglas To The Rescue?, William Corbett

Journal Articles

The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not require such accommodations. In Young v. United Parcel Service, Inc., the Supreme Court held that in some cases employees may be able to prove intentional pregnancy discrimination based on an employer's failure to make accommodations for the pregnant employee when the employer makes accommodations for other disabled employees. Rather than reaching this result by interpreting the statute to require reasonable accommodations, however, the Court held that plaintiffs with "indirect evidence" of …

Rules Against Rulification, Michael Coenen

Journal Articles

The Supreme Court often confronts the choice between bright-line rules and open-ended standards — a point well understood by commentators and the Court itself. Far less understood is a related choice that arises once the Court has opted for a standard over a rule: May lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several recent cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.” Rules against …

Spillover Across Remedies, Michael Coenen

Journal Articles

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which …

Institutional Preconditions For Policy Success, Blake Hudson

Journal Articles

Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure. Yet, lessons learned from policy failures are necessarily ex post observations. Not only has the policy failed to achieve its purposes, but a great deal of political, institutional, temporal, and economic capital has been wasted. A new body of literature on policy success undertakes ex ante analysis of successful policy designs, instrument choices, and other policy-making variables to establish a framework for more effective policy making. Though policy success may be inhibited by a variety of procedural, programmatic, or political factors, institutional …

Recent Developments In Hydraulic Fracturing Regulation And Litigation, Keith B. Hall

Journal Articles

No abstract provided.

Lock-Up Creep, Christina M. Sautter, Steven M. Davidoff

Journal Articles

The article discusses a reported increase in the number of merger agreement lock-ups that have occurred as of June 2013, focusing on the causes of lock-up creep and its potential impact on the takeover market. It states that lock-up creep is a phrase that is used to describe a rise in the number and type of merger agreement contractual devices that buyers and sellers negotiate in an acquisition agreement. Attorney negotiations, bidders, and various legal cases are examined.

Constitutional Privileging, Michael Coenen

Journal Articles

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment — in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more …

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 …

Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen

Journal Articles

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …

Government Rx--Back To The Future In Science Funding? The Next Era In Drug Development, Michael J. Malinowski

Journal Articles

The roles of government, industry, and academia in science research have been recast repeatedly since the U.S. began infusing tremendous funding during WWII. Recently, the National Institutes of Health (NIH) proposed a billion-dollar center to intervene in commercial drug development with the objective of lifting it out of a frightening fifteen-year slump in productivity. This article questions the role of the U.S. government in pharmaceutical development after completion of a map of the human genome (the touchstone of the Human Genome Project, HGP), a research undertaking spearheaded by the U.S. Government that spanned more than a decade. Specifically, the article …

Drug Development--Stuck In A State Of Puberty?: Regulatory Reform Of Human Clinical Research To Raise Responsiveness To The Reality Of Human Variability, Michael J. Malinowski

Journal Articles

Scathing critiques of the Food and Drug Administration's (“FDA”) performance by the Government Accountability Office and Institutes of Medicine, a plummet in innovative new drug approvals in spite of significant annual investment increases in biopharmaceutical research and development (“R&D”), and market controversies such as the painkiller Vioxx and the diabetes drug Avandia (both associated with significantly escalated risks of heart attacks and strokes) have raised doubts about the sufficiency of FDA *364 regulation. This Article questions how prescription medicines reach the market and proposes law-policy reforms to enhance the FDA's science standard for human clinical trials and new drug approvals. …

Adversarial No More: How Sua Sponte Assertion Of Affirmative Defenses To Habeas Wreaks Havoc On The Rules Of Civil Procedure, Katherine Macfarlane

Journal Articles

In every federal civil case, a defendant must raise its affirmative defenses in the pleading that responds to a plaintiff's complaint. According to Federal Rule of Civil Procedure 8(c), failure to properly plead, for example, a statute of limitations defense, waives the defense for good. Rule 8(c) does not exempt any category of affirmative defense, nor does it forgive unintentional omissions of certain defenses. It also does not prefer governmental defendants to others. Yet in habeas corpus cases, the most significant affirmative defenses to habeas petitions need not comply with Rule 8(c). Instead, federal courts may raise the affirmative defenses …

Federal Constitutions: The Keystone Of Nested Commons Governance, Blake Hudson

Journal Articles

The constitutional structure of a federal system of government can undermine effective natural capital management across scales, from local to global. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain types of natural capital appropriation — such as resources appropriated by private forest management or other land-use-related economic development activities — entrench a legally defensible natural capital commons in those jurisdictions. For example, the same constitution that may legally facilitate poor forest-management practices by private landowners in the southeastern United States may complicate international negotiations related to forest management and climate change. Both the local and international …

Localism And Involuntary Annexation: Reconsidering Approaches To New Regionalism, Christopher J. Tyson

Journal Articles

No abstract provided.

Abolishing State Trademark Registrations, Lee Ann Lockridge

Journal Articles

No abstract provided.

The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis

Journal Articles

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, …

Reconstituting Land Use Federalism To Address Transitory And Perpetual Disasters: The Bimodal Federalism Framework, Blake Hudson

Journal Articles

Scholars analyzing the intersection of federalism and disaster law and policy have primarily focused on the difficulties federalism poses for interjurisdictional coordination of disaster response. Though scholars have highlighted that rising disaster risks and costs are associated with “land-use planning that exacerbates, rather than mitigates, disaster risk,” a more holistic analysis of land-use-related disaster law and policy is needed. This Article provides a more comprehensive framework within which to analyze prospective mitigation or prevention of disaster risk and costs through a rebalancing - or reconstituting - of the respective roles of the federal and state governments in land-use planning. The …

Commerce In The Commons: A Unified Theory Of Natural Capital Regulation Under The Commerce Clause, Blake Hudson

Journal Articles

Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeal have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable - key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized …

The Improper Dismissal Of Title Vii Claims On "Jurisdictional" Exhaustion Grounds: How Federal Courts Require That Allegations Be Presented To An Agency Without The Resources To Consider Them, Katherine Macfarlane

Journal Articles

Title VII of the Civil Rights Act of 1964 represents a watershed moment in American history. With Title VII's passage, Congress acknowledged the need to “back” the civil rights movement with “federal legislative power.” Title VII was meant to eliminate practices that inhibit employment opportunity equality. Beyond eliminating those practices, Title VII was also designed to assure equality of employment opportunities and to eliminate conduct that “fostered racially stratified job environments to the disadvantage of minority citizens.” This Title renders unlawful the refusal or failure to hire or “otherwise to discriminate against any individual with respect to his compensation, terms, …

International Remedies In National Criminal Cases: Icj Judgment In Germany V. United States, Douglass Cassel

Journal Articles

In Germany v. United States (2001), the International Court of Justice ruled that the Vienna Convention on Consular Relations confers judicially enforceable rights on foreign nationals detained for prolonged periods or sentenced to severe penalties without notice of their right to communicate with their consulates. The Court also ruled that states which fail to give timely notice cannot later invoke procedural default to bar individuals from judicial relief. However, the Court did not clearly address other issues, such as requiring individuals to show prejudice to the outcome of the trial, or denial of certain remedies for Convention violations, which may …

Empowering United States Courts To Hear Crimes Within The Jurisdiction Of The International Criminal Court, Douglass Cassel

Journal Articles

United States courts have only incomplete and uneven jurisdiction, most acquired piecemeal and only in recent years, to prosecute genocide, war crimes and crimes against humanity committed outside our borders. Recent developments in international law and practice-especially the heightened commitment of democracies including the United States to end impunity for atrocities, and the imminent prospect of a permanent International Criminal Court (ICC) with worldwide jurisdiction-suggest the need to expand and rationalize the jurisdiction of U.S. courts to make it coextensive with that of the ICC.

It now appears all but certain that the ICC will come into being in the …

Commercialization Of Genetic Testing Services: The Fda, Market Forces, And Biological Tarot Cards, Michael J. Malinowski, Robin J.R. Blatt

Journal Articles

No abstract provided.

Globalization Of Biotechnology And The Public Health Challenges Accompanying It, Michael J. Malinowski

Journal Articles

No abstract provided.

Lawyers As Assimilators And Preservers, Thomas L. Shaffer, Mary M. Shaffer

Journal Articles

The United States, more than most nation-states, has a history of confrontations between one culture and another, and of law as a means of ending cultural confrontations. Again and again in America, our dominant Anglo-Saxon Protestant culture has dealt with an alien culture and, as the story is usually told, overcome it. The dominant culture has used the law to bring the vulnerable culture into conformity to what we have referred to as "the American way."

We want to suggest that such a legal figure has two ways of using his legal power to deal between cultures—ways that are different …

Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley

Journal Articles

Our Framers through the Establishment Clause sought to prevent the government from preferring one religious sect to another. However, the Supreme Court in Everson v. Board of Education abandoned that meaning of nonestablishment and created a general prohibition on all nondiscriminatory aid to religion, a decision later reinforced in Lemon v. Kurtzman. This Article discusses the Founder’s worldview and looks at other Establishment Clause cases to illustrate that the historical evidence is inconsistent with Everson. Rather, the founders intended to assure that religion would be aided only on a nondiscriminatory, or sect-neutral, basis and does not stand for …