Law Commons^™

Agenda: The Future Of Natural Resources Policy, University Of Colorado Boulder. Natural Resources Law Center

The Future of Natural Resources Policy (December 6)

This forum will provide a post-election perspective on some of the challenges and opportunities that natural resources, public lands, and energy policymakers in Washington are likely to face in the next four years. An expert panel will discuss the dynamics in the Department of the Interior, the Department of Agriculture, and Congress, and how their evolving policies are likely to affect Colorado in the coming years.

Moderator: Dean Phil Weiser, University of Colorado Law School

Panelists:

Jay Jensen, Associate Director for Land & Water Ecosystems, White House Council on Environmental Quality

Scott Miller, Visiting Assistant Professor, University of Colorado Law …

The Line-Item Veto: The Best Response When Congress Passes One Spending “Bill” A Year, L. Gordon Crovitz

Pepperdine Law Review

No abstract provided.

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.

United States V. Lopez: Artificial Respiration For The Tenth Amendment , Eric W. Hagen

Pepperdine Law Review

No abstract provided.

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton

Michigan Journal of Environmental & Administrative Law

Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of …

The Future Of Limitless Debate: The Filibuster In The 113th Congress, Mark Kogan

Legislation and Policy Brief

Human cloning, the caning of teen vandals, and the belief that aliens descend from space to abduct humans and livestock all hold something in common: they are more popular than Congress. With the 112th Congress bottoming out at a record-low 9% approval rating, it is clear that Americans are deeply unsatisfied with the gridlock gripping Washington. While it is popular, and even easy, to lambaste Republicans for blanket obstructionism and to condemn Democrats for failure to stand up to minority bullying, collective blame shifting will not breach the dam of a hyper-partisan Congress. Instead, individuals hoping to get Congress moving …

Determining The Proper Pleading Standard Under The Private Securities Litigation Reform Act Of 1995 After In Re Silicon Graphics , Erin Brady

Pepperdine Law Review

No abstract provided.

Effectively Curbing The Gst Exemption For Perpetual Trusts, Lawrence W. Waggoner

Articles

In "Effectively Curbing the GST Exemption for Perpetual Trusts," I criticized the Treasury Department’s proposal for dealing with perpetual trusts. My objection is that Treasury’s approach would leave many trusts and much wealth GST-exempt for much longer than Congress originally intended. For perpetual trusts created before enactment, Treasury’s approach would allow them to continue to be unburdened by a durational limit. For perpetual trusts created after the effective date of enactment, Treasury’s approach would still allow them to qualify for the GST exemption, but would have the exemption expire 90 years after the trust was created.

Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden

University of Michigan Journal of Law Reform

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes' ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law's disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on …

Utah V. Evans: How Census 2000'S "Sampling In Disguise" Fooled The Supreme Court Into Allocating Utah's Seat In The U.S. House Of Representatives To North Carolina, Nathan T. Dwyer

Pepperdine Law Review

No abstract provided.

S12rs Sgr No. 34 (Student Loan Act), Glorioso

Student Senate Enrolled Legislation

No abstract provided.

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

Inside Agency Preemption, Catherine M. Sharkey

Michigan Law Review

A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …

The Unjustified Subsidy: Sovereign Wealth Funds The Foreign Sovereign Tax Exemption, Jennifer Bird-Pollan

Fordham Journal of Corporate & Financial Law

The taxation of Sovereign Wealth Funds in the United States is outmoded and due for reconsideration. Offering a tax exemption to the billion dollar investment funds owned by foreign governments is both unfair and ineffective. Founded in the principles of sovereign immunity, the foreign sovereign tax exemption, codified in I.R.C. § 892, fails to satisfy the Congressional goals that motivated its creation. This Article explains the current taxation of foreign sovereigns and, by extension, Sovereign Wealth Funds. It then illustrates that the current exemption is simultaneously too broad, providing a tax exemption for activities that are clearly nongovernmental activities, and …

Argh, Matey! The Faux-Pas Of The Sopa (Stop Online Piracy Act), Anna S. Han

University of Michigan Journal of Law Reform Caveat

Earlier, I posted about a network neutrality case, Verizon v. FCC, which could have far-reaching consequences for the Internet industry. Another concerted attempt to regulate the Internet, disguised in the form of a piracy protection bill, recently came before the House Judiciary Committee and garnered widespread disapproval. Representative Lamar Smith (R-TX) and a bipartisan group of twelve co-sponsors introduced the “Stop Online Piracy Act” (“SOPA”) on October 26, 2011, which punishes websites that are accused of facilitating copyright infringement. Although touted by its supporters as a weapon against foreign sites that steal and sell American inventions, SOPA is problematic because …

How Jon Stewart And Lady Gaga Made Congress Less Lame: The Impact Of Social Media On The Passage Of Bills Through The "Lame Duck" Session Of The 111th Congress And Beyond, Onika K. Williams

Indiana Law Journal

The lame duck 111th Congress saw tremendous action in a relatively short period of time, and it was also witness to a phenomenon of social media. Users on websites such as Facebook and Twitter employed social media to send messages to their representatives and to actively participate in the lame duck session. Jon Stewart used television to advocate for Congress’s passing of the James Zadroga 9/11 Health and Compensation Act, and Lady Gaga employed Twitter to support the Don’t Ask, Don’t Tell Repeal Act of 2010. Both bills subsequently passed Congress. The social media phenomenon did not end with the …

The Politics Of Physical Education Reform, Ari Zyskind

CMC Senior Theses

The purpose of the paper is to determine why today's youth are so physically inactive by examining the role and efforts of physical education, and the state and federal governments responsibility in supporting these programs, in fighting today's obesity epidemic by creating generations of healthy and physically active children. Research led to the determination that states have failed to maintain and improve physical education resulting in a physically inactive youth. Therefore, the nation should look to federal legislation to support state-led physical education, which this paper found to be constitutional if the enactments followed the provisions established in South Dakota …

Deruglatory Riders Redux, Thomas O, Mcgarity

Michigan Journal of Environmental & Administrative Law

Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Recognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Republican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

Scholarly Works

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …

Obligatory Health, Noa Ben-Asher

Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …

Midnight Rulemaking And Congress, Nina A. Mendelson

Book Chapters

This chapter focuses on Congress, our most democratic federal institution. Congress is generally responsible for defining the authorities possessed by the administrative state, and congressional oversight is key to holding agencies accountable for their actions. Midnight rulemaking also has the potential to increase congressional engagement. Two commentators have recently argued that relative inattention from Congress can facilitate midnight rulemaking, because Congress may meet less frequently during the lame duck period and there is no “repeat player” relationship between the outgoing president and the Congress. To the contrary, however, Congress retains considerable formal power to respond to and override presidential decisions, …

A Decision Theory Of Statutory Interpretation: Legislative History By The Rules, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. …

Drafting Proper Short Bill Titles: Do States Have The Answer?, Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

Fiduciary Principles And Statutory Form In Relation To The Necessary And Proper Clause: Potential Constitutional Implications For Congressional Short Titles, Brian Christopher Jones

Brian Christopher Jones

This article explores the principles of fiduciary duty and statutory form in relation to the “proper” portion of the Necessary and Proper Clause, and especially in regard to congressional short titles for bills and laws. While the clause is one of the most influential and controversial constitutional phrases, its meaning remains shrouded in mystery. At some level amongst the founders, the Constitution was regarded as a grant of fiduciary duty from the government to its people; given this, the clause should be read from such a perspective, and the duties of loyalty and good faith, among others, come into play …