Law Commons^™

Punitive Damages Claims And The Illinois Survival Act, Catherine M. Masters

Catherine M Masters

Abstract: Under the common law, which is the law of Illinois unless modified by the legislature, all claims abated on the death of the claimant. The Illinois legislature chose to enact limited modifications of the common law, allowing only compensatory and not punitive damages in survival and wrongful death actions. The Illinois Supreme Court has repeatedly interpreted the terms of the Survival Act and Wrongful Death Act as authorizing only compensatory damage claims. By reenacting the statutes subsequent to this judicial interpretation, and by rejecting amendments to allow punitive damages, the legislature has confirmed and ratified the Illinois Supreme Court’s …

Why Limit Charity?, Miranda P. Fleischer

Miranda P. Fleischer

In the wake of Hurricane Katrina, Congress temporarily lifted one of the most puzzling limits in the tax Code: the cap that prevents an individual from claiming a charitable deduction greater than 50% of her income, even if she gives more than half her income to charity. Although scholars often criticize the cap in passing for creating unnecessary complexity, few have explored its theoretical underpinnings or the broader question of whether an individual who gives all her income to charity should still pay some tax. Those who have appear hard-pressed to find a satisfactory answer to that question.

This Article …

Usury Law, Payday Loans, And Statutory Sleight Of Hand: An Empirical Analysis Of American Credit Pricing Limits, Christopher L. Peterson

Christopher L Peterson

In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. In order to understand the evolution of American usury law, this paper presents a systemic empirical analysis of all fifty state usury laws in two time periods: 1965 and the present. The highest permissible price of a typical payday loan authorized under each state’s usury law was calculated. These prices were …

Representation Reinforcement And The Court-Congress Dialogue: A Process-Based Solution To A Processed-Based Problem, Anita S. Krishnakumar

Anita S. Krishnakumar

One of the most valuable — and disturbing — insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars have offered up a host of John Hart Ely-inspired representation-reinforcing “canons of construction,” designed to encourage judges to use their role as statutory interpreters to …

Liberal Justices' Reliance On Legislative History: Principle, Strategy, And The Scalia Effect, James J. Brudney

James J. Brudney

Abstract for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect”

This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

Zvi S Rosen

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Time Well Spent: Congressional Daylight Saving Time Legislation Saves Lives, Not Just Oil, Steve P. Calandrillo

Steve P. Calandrillo

Abstract: Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and Congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last 30 years. While Congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored. This …

All Sprawled Out: How The Federal Regulatory System Has Driven Unsustainable Growth, Chad Emerson

Chad Emerson

No abstract provided.

The Road Not Considered, Robert Blecker

robert blecker

“The Road Not Considered” suggests a morally refined death penalty statute as an alternative to abolition or keeping New Jersey’s presently flawed legislation.

The Choice-Necessity Paradigm: Rethinking Debtor-Creditor Relationships In The Consumer Context, David Fuller

David Fuller

The choice-necessity paradigm is a new approach to understanding the problem of rising rates of consumer bankruptcy. The choice-necessity paradigm uses an analytical structure that is based on a combination of the two dominant analytical models for explaining the increased rate of consumer bankruptcy filings: the structural model and the cultural model. The structural model emphasizes social and economic factors that cause debtors to rely on consumer credit, and increase the risk of bankruptcy filing. Although the structural model defines the problem and identifies the risk to consumers, it does not solve the problem, because it does not adequately balance …

Fitting The Pension Protection Act Of 2006 Into The Defined Contribution Paradigm, Crystal L. Lyons

Crystal L. Lyons

No abstract provided.

Evolution Of Environment Legislation In India, Krishna Kumari Areti

Krishna Kumari Areti prof

For any country the effective way of control pollution and degradation of resources is to combine traditional laws, with modern legislation. A country should adopt relevant environmental safeguards- designed to protect their limited resources. As far as India is concerned, the Ministry of Environment and Forests is the nodal agency at the Central level for planning, promoting and coordinating the environmental programmes, apart from policy formulation. A number of enforcement agencies assist the Ministry of Environment and Forests, in executing the assigned responsibilities.

State Legislative Update, J. Matthew Belz, Caleb Lewis, Remington Smith, Peter Wilder

Journal of Dispute Resolution

Collaborative law is a relatively new dispute resolution method by which parties mutually agree to negotiate a settlement in good faith. Either party may terminate the collaborative process at will and present the matter to a court for a decision. Upon termination of the collaborative process, both attorneys must withdraw and cease all participation in the case. The continuing saturation of court dockets and the expense of litigation require the promotion of viable, alternative means to resolve disputes. Collaborative law as authorized under Texas Senate Bill 942 is an especially attractive process because it demands cooperation between the disputing parties …

The Perils Of Marriage As Transcendent Ontology: National Pride At Work V. Governor Of Michigan, William B. Turner

William B Turner

National Pride at Work v. Governor of Michigan provides a unique opportunity to watch as courts struggle to define “marriage.” This is not a suit seeking recognition of same-sex marriages. It presents the question of whether an amendment to the Michigan state constitution prohibiting recognition of same-sex marriages or any “union” that is “similar” to marriage also prohibits public employers in the state from conferring benefits on the same-sex partners of their employees. The trial and appeals courts came to exactly opposite conclusions, and their respective positions nicely demarcate the options in what promises to be an ongoing debate in …

Demolition By Neglect: Repairing Buildings By Repairing Legislation, Anna Martin

Georgetown Law Historic Preservation Papers Series

One of the biggest problems today facing communities with historic preservation ordinances is delinquent owners who don’t have the will or the finances to maintain their historic properties and landmarks. Historic preservation law plays an important role in building a sense of patriotism and community togetherness, fostering education and providing incentives for aesthetically pleasing architecture. When residents can identify with a community, this creates a dialogue and sense of belonging. There are also environmental and psychological impacts of preserving old buildings, since human beings are positively affected by their surroundings when they feel a "sense of place." When buildings in …

Immigration, Anti-Terrorism Measures, And National Security: Exploring The Use Of Security Certificates Under Canada’S Immigration And Refugee Protection Act (Irpa), Kamaal Zaidi

Kamaal Zaidi

In the wake of the 9-11 attacks, several nations have introduced security legislation in various forms that affected their immigration system. Security certificates are administrative tools designed to safeguard the national security of Canada by detaining individuals suspected of having links to terrorism or other forms of serious criminality. This form of detention has provided few due process rights for accused non-citizens, forming the basis of much criticism. In addressing this concern, the judiciary (through the Supreme Court of Canada and Federal Courts) has recognized the lack of due process protections afforded to these individuals, particularly in the context of …

Point Of Order: An Insider's Guide To Congressional Investigations, Don R. Berthiaume, Raymond Shepherd

Don R Berthiaume

This CONTEMPORARY LEGAL NOTE provides some insight into the different phases of a congressional investigation; the critical differences between criminal proceedings and congressional investigations; the legal devices committees and subcommittees utilize in their investigations; and the basic rules of congressional hearings.

The Cia’S Public Operational Files: Accessing Files Exempt From The Cia Information Act Of 1984 Because Of Investigations Into Illegal Or Improper Activity., Hannah H. Bergman

Hannah H Bergman

The CIA Information Act of 1984 was a deal made to speed the CIA’s processing of Freedom of Information Act requests while protecting information unlikely to be released because of national security concerns. But today, the CIA refuses to abide by Congress’s intent as it routinely refuses to search its operational files – particularly the files which have been subject to an investigation and which Congress intended to be public. This paper examines the legislative history behind the 1984 Act, focusing on arguments CIA officials made before Congressional committees while pushing for the Act’s passage. The paper then explores the …

The Check Isn't In The Mail: The Inadequacy Of State Prompt Pay Statutes, Michael Flynn

Faculty Scholarship

No abstract provided.

Military Commissions In America? Domestic Liberty Implications Of The Military Commissions Act Of 2006, Sean C. Riordan

Sean C Riordan

The Military Commissions Act of 2006 (MCA) has potentially far-reaching negative implications for the liberties of aliens in the United States. This article examines the new military commissions as a parallel scheme for the preventative incapacitation of alleged alien terrorists and terrorist supporters. It finds that a broad group of aliens in the United States perceived to threaten national security could be subject to military commission jurisdiction and deprived of adequate protections against indefinite detention and unjust conviction. This finding is illustrated through two hypothetical domestic military commission cases taken from recent immigration and criminal decisions. In light of the …

The Individuals With Disabilities Education Improvement Act - Why Considering Only One Individual At A Time Creates Untenable Situations For Students And Educators, Megan M. Roberts

Megan M. Roberts

Under the Individuals with Disabilities Education Improvement Act (IDEIA), teachers must modify the classroom environment and lessons to meet the individual needs of each child with a disability. When more than one child with a disability is present in a given classroom, this required individual consideration can be problematic, as the special arrangements for one student may undermine the arrangements for another. Despite the vast growth in the number of students with disabilities and the pressure on schools to comply with the IDEIA requirements, the law has not yet addressed these increasingly frequent situations. This article reviews how the IDEIA …

Noncontemporaneous Lawmaking: Can The 110th Senate Enact A Bill Passed By The 109th House, Seth Barrett Tillman

Cornell Journal of Law and Public Policy

No abstract provided.

Against Mix-And-Match Lawmaking, Aaron-Andrew P. Bruhl

Cornell Journal of Law and Public Policy

No abstract provided.

Defending The (Not So) Indefensible, Seth Barrett Tillman

Cornell Journal of Law and Public Policy

No abstract provided.

Legal Certainty And Legal Methods: A European Alternative To American Legal Indeterminacy?, James Maxeiner

All Faculty Scholarship

Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty.

High Speed Rail Transit: Developing The Case For Alternative Transportation Schemes In The Context Of Innovative And Sustainable Global Transportation Law And Policy , Kamaal Zaidi

Kamaal Zaidi

This paper examines high-speed rail transit in the context of global transportation law and policy. Given increasing traffic congestion and rising pollution from existing forms of transportation, the author argues that high-speed rail transit is gaining popularity, and is quickly becoming a part of the transportation sector in several nations. The rise of this form of alternative has much to do with a strong commitment from legislators, and from growing partnerships between public and private entities. This commitment comes in the form of funding mechanisms, technological research and development, and application of environmental measures designed to reduce the impact of …

Reforming Redistricting: Why Popular Initiatives To Establish Redistricting Commissions Succeed Or Fail, Nicholas Stephanopoulos

Nicholas Stephanopoulos

There are several ways in which redistricting reform could in theory be achieved. State legislatures could voluntarily cede control over district-drawing, courts could invalidate especially egregious gerrymanders, or popular initiatives could be launched to create redistricting commissions. However, thanks to the self-interest of legislators as well as the Supreme Court’s unfortunate recent decisions in Vieth v. Jubelirer and LULAC v. Perry, the redistricting initiative is now the only realistic way to curb political gerrymandering. This Article provides the first detailed empirical and normative examination of redistricting initiatives. The Article begins by making the case for the popular initiative in the …

A Pedestrian Transit Mall On Peachtree? How History, Policy, And Legislation Can Recreate A Proud Town, Collin R. Glidewell

Collin R Glidewell

This paper seeks to provide one solution to Atlanta's auto-oriented development problem. With its history as a streetcar town as inspiration, by shutting down a portion of Peachtree Street to cars and making it a transit-only thoroughfare, Atlanta can form a model for the South of dense retail and residential development. Using Denver's 16th Street Mall as a starting point, this paper looks at the legislative and regulatory hurdles the project would encounter. Hopefully, other cities in the U.S. could explore the viability of a similar project.

Effective Implementation Of The Trafficking Of Persons And Involuntary Servitude Articles: Lessons From The Criminal Justice System Response To The Illinois Domestic Violence Act, Alison L. Stankus, Jennifer A. Kuhn

Alison L Stankus

When the Illinois Domestic Violence Act was enacted in 1986, the General Assembly acknowledged that “the legal system has ineffectively dealt with family violence in the past … and has not adequately acknowledged the criminal nature of domestic violence; that, although many laws have changed, in practice there is still widespread failure to appropriately protect and assist victims.” However, despite these stated purposes, the criminal justice system response to the Act in the last twenty years has been slow to correct this failure. Last year, the Trafficking of Persons and Involuntary Servitude Articles were added to the Illinois Criminal Code. …

Housing Policy In The People's Republic Of China: Successes And Disappointments, Joyce Palomar, Jianbo Lou

Joyce Palomar

ABSTRACT: This paper is written and submitted by Peking University (Beijing University) Center for Real Estate Law, Director, Prof. Lou Jianbo, and Assistant Director, Prof. Joyce Palomar, authors. The paper examines the People's Republic of China's national approaches beginning in 1948 to the nation's urban housing crisis. The paper focuses on policy approaches and strategies for activating the private sector as a means to improve housing conditions. It presents recent statistical results of the application of housing as a leading economic development sector.