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Articles 1 - 30 of 32
Full-Text Articles in Law
When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson
When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson
University of Michigan Journal of Law Reform
This Note argues that courts should interpret 28 U.S.C. § 1441, which permits removal from state court to federal court, to allow removal from state administrative agencies when the agency performs “court-like functions.” Circuits that apply a literal interpretation of the statute and forbid removal from state agencies should adopt this “functional” approach. The functional approach, which this Note calls the McCullion-Floeter test, should be modified to comport with legislative intent and public policy considerations: first, state agency adjudications should not be removable when the adjudication requires technical expertise, which federal courts cannot obtain because they adjudicate cases in a …
Why Isn’T Congress More Corrupt?: A Preliminary Inquiry, Richard L. Hasen
Why Isn’T Congress More Corrupt?: A Preliminary Inquiry, Richard L. Hasen
Fordham Law Review
In the aftermath of the indictment of New York State Assembly Speaker Sheldon Silver on corruption charges, law professor (and recent reformist gubernatorial candidate) Zephyr Teachout published an op-ed in the New York Times entitled “Legalized Bribery.” In it, she argued that campaign contributions are a “gateway drug” to bribes and that politicians are “pre- corrupted” by taking campaign contributions and doing favors for contributors. She wants campaign finance limits, public financing, and limits on outside income for legislators. Although Teachout used powerful rhetoric and suggested worthy reforms, I see her as offering an empirical hypothesis about the relationship between …
Book Review Of "The Once And Future King: The Rise Of Crown Government In America" By F.H. Buckley, Ronald Rotunda
Book Review Of "The Once And Future King: The Rise Of Crown Government In America" By F.H. Buckley, Ronald Rotunda
Journal of Legal Education
No abstract provided.
Book Review Of "Judging Statutes" By Robert Katzmann, Peter Strauss
Book Review Of "Judging Statutes" By Robert Katzmann, Peter Strauss
Journal of Legal Education
No abstract provided.
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Michigan Law Review
Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …
An Administrative Meter Maid: Using Inter Partes Review And Post-Grant Review To Curb Exclusivity Parking Via The "Failure To Market" Provision Of The Hatch-Waxman Act, Brian T. Apel
Michigan Law Review
Congress created the unique Hatch-Waxman framework in 1984 to increase the availability of low-cost generic drugs while preserving patent incentives for new drug development. The Hatch-Waxman Act rewards generic drug companies that successfully challenge a pharmaceutical patent: 180 days of market exclusivity before any other generic firm can enter the market. When a generic firm obtains this reward, sometimes drug developers agree to pay generic firms to delay entering the market. These pay-for-delay agreements give rise to exclusivity parking and run counter to congressional intent by delaying full generic drug competition. The Medicare Prescription Drug, Improvement, and Modernization Act created …
Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey
Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey
Catholic University Law Review
One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …
Mainstreaming Equality In Federal Budgeting: Addressing Educational Inequities With Regard To The States, Elizabeth K. Hinson
Mainstreaming Equality In Federal Budgeting: Addressing Educational Inequities With Regard To The States, Elizabeth K. Hinson
Michigan Journal of Race and Law
Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme …
The Judicial Duty To Scrutinize Legislation, Randy E. Barnett
The Judicial Duty To Scrutinize Legislation, Randy E. Barnett
Valparaiso University Law Review
No abstract provided.
Aumf Panel Transcript, Rosa Brooks, Benjamin Wittes
Aumf Panel Transcript, Rosa Brooks, Benjamin Wittes
Pepperdine Law Review
No abstract provided.
Back To The Congressional Drawing Board: Inapplicability Of The Aumf To Al-Shabaab And Other New Faces Of Terrorism, Pierce Rand
Back To The Congressional Drawing Board: Inapplicability Of The Aumf To Al-Shabaab And Other New Faces Of Terrorism, Pierce Rand
Loyola of Los Angeles International and Comparative Law Review
No abstract provided.
When Do The Ends Justify The Means?: The Role Of The Necessary And Proper Clause In The Commerce Clause Analysis, David Loudon
When Do The Ends Justify The Means?: The Role Of The Necessary And Proper Clause In The Commerce Clause Analysis, David Loudon
University of Massachusetts Law Review
This Article discusses the interplay between the Necessary and Proper Clause and the Commerce Clause, particularly in light of the landmark decision of National Federation of Independent Business v. Sebelius. First, this Article reviews the historical interaction between the two clauses, discussing the instances in which the two may have been considered together, and introducing the Supreme Court jurisprudence of each clause, setting the legal landscape for the NFIB v. Sebelius decision. Next, this Article details the three opinions from the NFIB v. Sebelius decision, Chief Justice Roberts’ holding, the joint concurrence, and Justice Ginsberg’s dissent, specifically as they …
James Madison And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson
James Madison And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson
Akron Law Review
The last of the limited-subject interstate gatherings is today the most famous. The Annapolis Convention of 1786 was to focus on “the trade and Commerce of the United States.” Its limited scope induced Madison, who served as a delegate, explicitly to distinguish it from a plenipotentiary convention. For the most part, all of these conventions—today we might call them “task forces”—remained within the scope of their calls. If there was an exception, it was the abortive assembly at Annapolis, and that exception was solely to express the “wish” and “opinion” that another convention be held to consider defects in the …
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
Michigan Law Review
With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Michigan Journal of Environmental & Administrative Law
The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …
Instrument Choice, Carbon Emissions, And Information, Michael Wara
Instrument Choice, Carbon Emissions, And Information, Michael Wara
Michigan Journal of Environmental & Administrative Law
This Article examines the consequences of a previously unrecognized difference between pollutant cap-and-trade schemes and pollution taxes. Implementation of cap-and-trade relies on a forecast of future emissions, while implementation of a pollution tax does not. Realistic policy designs using either regulatory instrument almost always involve a phase-in over time to avoid economic disruption. Cap-and-trade accomplishes this phase-in via a limit on emissions that falls gradually below the forecast of future pollutant emissions. Emissions taxation accomplishes the same via a gradually increasing levy on pollution. Because of the administrative complexity of establishing an emissions trading market, cap-and-trade programs typically require between …
Auxiliary Protections: Why The Founders’ Bicameral Congress Depended On Senators Elected By State Legislatures, Vince Eisinger
Auxiliary Protections: Why The Founders’ Bicameral Congress Depended On Senators Elected By State Legislatures, Vince Eisinger
Touro Law Review
No abstract provided.
The Problem Of Presidential Inability—Will Congress Ever Solve It?, John D. Feerick
The Problem Of Presidential Inability—Will Congress Ever Solve It?, John D. Feerick
Fordham Law Review
One of the most critical and intriguing constitutional questions ever presented for solution is: What happens when the President of the United States becomes incapable of discharging the powers and duties of his office? Does the Vice-President "become President" for the remainder of the term or does he merely "act as President" during the period of the inability? The Constitution is not explicit..
Congress's International Legal Discourse, Kevin L. Cope
Congress's International Legal Discourse, Kevin L. Cope
Michigan Law Review
Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over …
Proposed Congressional Limitations On State Taxation Of Multinational Corporations, Kristen Gustafson
Proposed Congressional Limitations On State Taxation Of Multinational Corporations, Kristen Gustafson
Georgia Journal of International & Comparative Law
No abstract provided.
Setting Congress Up To Fail, Margaret B. Kwoka
Setting Congress Up To Fail, Margaret B. Kwoka
Journal of Race, Gender, and Ethnicity
No abstract provided.
Expanding The Renewable Energy Industry Through Tax Subsidies Using The Structure And Rationale Of Traditional Energy Tax Subsidies, Blake Harrison
Expanding The Renewable Energy Industry Through Tax Subsidies Using The Structure And Rationale Of Traditional Energy Tax Subsidies, Blake Harrison
University of Michigan Journal of Law Reform
Just as the government invested in oil and gas, it must now invest in new energy sources. In a sense, Americans need history to repeat itself. This Note suggests that Congress should amend the United States Tax Code to further subsidize the renewable energy industry. Congress should use subsidies historically available to the oil and gas industries as a model in its amendments. These subsidies serve as a model for promoting the renewable energy industry because such subsidies were fundamental in facilitating the oil and gas industries’ dominance today. Ultimately, Congress must further subsidize the renewable energy industry to avoid …
Congress And The 1980 International Sales Convention, Peter Winship
Congress And The 1980 International Sales Convention, Peter Winship
Georgia Journal of International & Comparative Law
No abstract provided.
Congress' Role In The International Unification Of Private Law, Peter H. Pfund, George Taft
Congress' Role In The International Unification Of Private Law, Peter H. Pfund, George Taft
Georgia Journal of International & Comparative Law
No abstract provided.
Combatting International Terrorism: The Role Of Congress, Dante B. Fascell
Combatting International Terrorism: The Role Of Congress, Dante B. Fascell
Georgia Journal of International & Comparative Law
No abstract provided.
The President, The Congress, And The Panama Canal: An Essay On The Powers Of The Executive And Legislative Branches In The Field Of Foreign Affairs, Griffin B. Bell, H. Miles Foy
The President, The Congress, And The Panama Canal: An Essay On The Powers Of The Executive And Legislative Branches In The Field Of Foreign Affairs, Griffin B. Bell, H. Miles Foy
Georgia Journal of International & Comparative Law
No abstract provided.
Conflicting Requirements Of Notice: The Incorporation Of Rule 9(B) Into The False Claims Act's First-To-File Bar, Brian D. Howe
Conflicting Requirements Of Notice: The Incorporation Of Rule 9(B) Into The False Claims Act's First-To-File Bar, Brian D. Howe
Michigan Law Review
Intended to prevent fraud against the government, the False Claims Act (“FCA”) contains a qui tam provision allowing private individuals, known as relators, to bring suits on behalf of the government and receive a portion of the damages. At the heart of the qui tam provision lies the first-to-file bar, which provides that, once a first relator has filed a complaint, subsequent relators are prohibited from coming forward with complaints based on the facts underlying the first relator’s pending action. A circuit split has recently emerged regarding the incorporation of Federal Rule of Civil Procedure 9(b)’s heightened pleading standard into …
Party Polarization And Congressional Committee Consideration Of Constitutional Questions, Neal Devins
Party Polarization And Congressional Committee Consideration Of Constitutional Questions, Neal Devins
Northwestern University Law Review
No abstract provided.
Congressional Arbitrage At The Executive's Expense: The Speech Or Debate Clause And The Unenforceable Stock Act, Anna Fodor
Northwestern University Law Review
No abstract provided.
Eliminating Arbitrary Age Descrimination In 401(K) And Pension Plan Eligibility Requirements: A Simple Fix To Encourage Younger Workers To Save For Retirement, Andrew J. Clopton
Eliminating Arbitrary Age Descrimination In 401(K) And Pension Plan Eligibility Requirements: A Simple Fix To Encourage Younger Workers To Save For Retirement, Andrew J. Clopton
University of Michigan Journal of Law Reform Caveat
Current federal law allows companies to exclude their youngest workers from participating in 401(k) and other pension plans. Public policy should encourage young workers to contribute to retirement as early as practicable, rather than impose obstacles to saving. Workers who begin saving even a few years earlier improve their retirement security and reduce the likelihood they will be dependent on the government later in life. While “age discrimination” is conventionally thought of as the mistreatment of older workers, this concept applies equally to employees who are differentiated based solely on their young age. Thus, Congress should amend the Internal Revenue …