Law Commons^™

Commonwealth And Constitution, Robert S. Claiborne Jr.

University of Richmond Law Review

No abstract provided.

Taking Slippage Seriously: Noncompliance And Creative Compliance In Environmental Law, Daniel A. Farber

Daniel A Farber

Environmental law is examined in light of the slippage between regulatory standards and the actual conduct of regulated parties. Two forms of slippage are identified: negative, which describes the situation where something that is legally mandated to happen fails to happen; and affirmative, which describes the situation where required standards are renegotiated rather than ignored. This concept of slippage is explored in terms of how it might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. Slippage is good in the context that it can ameliorate the sometimes impractical demands found in statues, and bad in the context that …

Risk Regulation In Perspective: Reserve Mining Revisited, Daniel A. Farber

Daniel A Farber

The Reserve Mining v. EPA case involved the disposal of iron ore mine tailings containing asbestos in Lake Superior over an extended period. The case litigation is described, and the decision forcing the Reserve Mining Co to spend over $200 million to eliminate asbestos from the drinking water of Duluth, MN, is assessed in light of uncertain risk assessment. It is concluded that the court decision was the prudent one on the basis of both cost/benefit and feasibility analysis. Cost/benefit analysis focuses on the possible number of lives saved vs. the total cost of control, while feasibility analysis stresses factors …

Australian Counter-Terrorism Offences: Necessity And Clarity In Federal Criminal Law Reforms, G. L. Rose, D. Nestorovska

Professor Gregory Rose

This article analyses the wide-ranging reform of Australian criminal law related to terrorism. It compares the definition of terrorism utilised in recent legislation to the emerging international standard and tests the new federal crimes against the criteria of legislative necessity and clarity. It concludes that the reforms were in fact necessary in the sense of filling prior gaps and inadequacies in the criminal law but that some of the new provisions lack clarity and will pose conundrums for law enforcement.

To Administer Justice On Behalf Of All The People: The United States District Court For The Eastern District Of New York 1965-1990, Jeffrey Morris

Jeffrey B. Morris

No abstract provided.

Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Jeffrey Morris

Jeffrey B. Morris

No abstract provided.

Law Of The Land – Year In Review, Patricia E. Salkin

Patricia E. Salkin

This column reviews trends and interesting cases in land use law as reported on “Law of the Land” during the last half of 2007. “Law of the Land” is a blog created to be of interest to land use lawyers, planners, developers, professors, and students. The blog is updated daily with a review of a recent land use case decided by a state or federal court. In addition, the site has reported on relevant gubernatorial executive orders, offered book reviews, and occasionally starts a discussion on current events issues, such as climate change and has led to robust debate about …

Why Federal Rule Of Evidence 403 Is Unconstitutional, And Why That Matters, Kenneth S. Klein

University of Richmond Law Review

No abstract provided.

Sentence Appeals In England: Promoting Consistent Sentencing Through Robust Appellate Review, Briana Lynn Rosenbaum

Scholarly Works

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency. The deferential approach to federal sentence appeals is …

Science, Politics, And Administrative Legitimacy , Louis J. Virelli Iii

Missouri Law Review

Administrative agencies in the United States and other constitutional democracies around the world are continually faced with difficult questions about the legitimacy of their decisions.1 Each of these legitimacy questions in turn raises important second-order questions about how agencies should view their role within a constitutional democracy: How closely should agency decisions reflect popular political will? When and to what degree are deviations from popular opinion justified, and what measures should be taken to reduce the gap between regulators and the governed? What other sources of information are critical to agency decision making, and how should those inputs be treated …

The Sanctity Of The Attorney-Client Relationship – Undermined By The Federal Interpretation Of The Right To Counsel - People V. Borukhova, Tara Laterza

Touro Law Review

No abstract provided.

State Preemption Of Cable Television Regulation — Whatever Happened To The Sanctity Of Contract?, William M. Marticorena, Lynda E. Marticorena

Pepperdine Law Review

California Government Code section 53066.1 as recently amended gives cable television operators the right to obtain rate increases even in the face of the city or county franchisor opposition. Since most cable franchise agreements allow the franchisor to control rates for the cable service, there is a conflict between the statute and the franchise contracts. This article examines the issue of whether the statute violates the constitutional provisions against the impairment of contracts and whether the franchisor or a subscriber of the service has the necessary standing to assert the constitutional argument.

The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler

Pepperdine Law Review

Federal bankruptcy law offers a refuge to the honest debtor who is unable to pay his creditor's when his debts are due. Here, the twin aims of bankruptcy law, to give the debtor a fresh start and to provide roughly equal treatment for his! Creditors, are laudably accomplished. But what policies support the use of federal bankruptcy law when the "debtor" is in fact solvent and apparently seeks refuge only to escape liability for the products it manufactures? This comment examines the recent filing of the Manville Corporation for Chapter 11 protection under bankruptcy law with this question in mind.

Simplifying Federal Criminal Laws , Robert H. Joost

Pepperdine Law Review

No abstract provided.

Implications Of The Supreme Court's Decision In Pliva, Inc. V. Mensing: Why Generic And Brand-Name Pharmaceuticals Must Be Treated Equally Under The Federal Food, Drug, And Cosmetic Act

Marquette Elder's Advisor

No abstract provided.

State Medical Marijuana Implementation And Federal Policy, Karen O'Keefe

Journal of Health Care Law and Policy

No abstract provided.

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Using The Scientific Method In The Law: Examining State Interlocutory Appeals Procedures That Would Improve Uniformity, Efficiency, And Fairness In The Federal Appellate System, Hannah M. Smith

Cleveland State Law Review

[T}he current use of the federal interlocutory appeal process operates much like an appeal-less system. A pretrial motion is filed, the interlocutory order is given, and the petition for interlocutory review is usually denied. Thus, the case continues. It may continue into settlement negotiations or go to trial where the losing party files an appeal. That final appeal could find that the lower court erred, rendering that trial meritless. In reaching any of those stages, the adversely affected party more than likely devoted unnecessary time, resources, and finances in the case. Additionally, the parties are often unable to predict success …

Reviving The Federal Crime Of Gratuities, Sarah N. Welling

Law Faculty Scholarly Articles

The federal crime of gratuities prohibits people from giving gifts to federal public officials if the gift is tied to an official act. Both the donor and the donee are liable. The gratuities crime is dysfunctional in two main ways. It is overinclusive in that it covers conduct indistinguishable from bribery. It is underinclusive in that it does not cover conduct that is clearly dangerous: gifts to public officials because of their positions that are not tied to a particular official act.

This Article argues that Congress should extend the crime of gratuities to cover gifts because of an official’s …

Small Business Disaster Assistance, Peggy Maisel, Natalie Roman

Faculty Scholarship

When a disaster hits, it affects the entire community. A small business is especially vulnerable because it does not necessarily have the resources to respond to a disaster or to catastrophic damage. In fact, it is reported that approximately 25 percent of small businesses that close due to a disaster never reopen, and 40 percent of small businesses hit directly by a serious natural disaster do not recover. This is true regardless of what kind of disaster is involved, from a hurricane, a tornado, an earthquake, flooding, winter storms, or even civil unrest or terrorism.

Small businesses experience a number …

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …