Doctoring Discrimination In The Same-Sex Marriage Debates, 2014 Maurer School of Law: Indiana University
Doctoring Discrimination In The Same-Sex Marriage Debates, Elizabeth Sepper
Indiana Law Journal
As the legalization of same-sex marriage spreads across the states, some religious believers refuse to serve same-sex married couples. In the academy, a group of law and religion scholars frames these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. They model their proposal on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation ...
The Communication Decency Act Gone Wild: A Case For Renewing The Presumption Against Preemption, 2014 Seattle University School of Law
The Communication Decency Act Gone Wild: A Case For Renewing The Presumption Against Preemption, Ryan J.P. Dyer
Seattle University Law Review
Since its inception, the Internet has disseminated the most vital commodity known to man—information. But not all information is societally desirable. In fact, much of what the Internet serves to disseminate is demonstrably criminal. Nevertheless, in the effort to unbind the “vibrant and competitive free market” of ideas on the Internet, Congress enacted section 230 of the Communications Decency Act, which essentially grants immunity to interactive computer service providers from liability for information provided by a third party. This Comment suggests that, in certain contexts, courts applying section 230 immunity should reexamine the preemptive effect Congress intended section 230 ...
You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa
Francisco D Zornosa
No abstract provided.
Whether A Standard Legislated Framework Should Govern Public-Private Partnerships For Finance And Maintenance Of Public Infrastructure In The Modern Economy?, Anika Guevara
No abstract provided.
In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider
Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections ...
The Smokable Goods Tax: Crafting A Constitutional Marijuana Tax, 2014 SelectedWorks
The Smokable Goods Tax: Crafting A Constitutional Marijuana Tax, Nima H. Mohebbi, Samuel T. Greenberg
Nima H. Mohebbi
Marijuana legalization and decriminalization has become a hot policy issue. Roughly twenty U.S. states have partially legalized marijuana (generally for medicinal purposes) and two states – Colorado and Washington – have legalized it for general adult recreational use. Given the likely hyper-growth of the cannabis market in view of the possible wide-scale legalization of marijuana, states might enjoy a potential budgetary windfalls from marijuana excise taxes.
Marijuana, however, remains a federally controlled substance, the sale or use of which is subject to substantial penalties. For the states, this presents a potential problem in collecting excise taxes on marijuana – namely, if an ...
Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones
Brian Christopher Jones
Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.
The Unintended Consequences Of Safety Regulation, 2014 SelectedWorks
The Unintended Consequences Of Safety Regulation, Sherzod Abdukadirov
This study examines how risk trade-offs undermine safety regulations. Safety regulations often come with unintended consequences in that regulations attempting to reduce risk in one area may increase risks elsewhere. The increases in countervailing risks may even exceed the reduction in targeted risks, leading to a policy that does more harm than good. The unintended consequences could be avoided or their impacts minimized through more careful analysis, including formal risk trade-off analysis, consumer testing, and retrospective analysis. Yet agencies face strong incentives against producing better analysis; increased awareness of risk trade-offs would force agencies to make unpalatable and politically sensitive ...
C(R)Ap And Trade: The Brave New World Of Non-Point Source Nutrient Trading And Using Lessons From Greenhouse Gas Markets To Make It Work, Victor B. Flatt
Victor B Flatt
After several decades of improvement, water quality in the United States is getting worse, and the problem is primarily caused by run-off from non-point sources, such as farms and urban development. These non-point sources have never had regulatory mandates in the Clean Water Act, and have proven very difficult to control. With little likelihood of comprehensive statutory changes, the EPA and the states that administer the Clean Water Act have looked to other regulatory means to address this problem. One of the most prominent has been the use of markets in pollution (particularly for nutrient pollution from run-off) to provide ...
Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella
Jennifer M. Pacella, Esq.
In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who ...
Implementing The Policy Of The U.N. Declaration On The Rights Of Indigenous Peoples, 2014 Western University
Implementing The Policy Of The U.N. Declaration On The Rights Of Indigenous Peoples, Roxanne T. Ornelas
The International Indigenous Policy Journal
On September 13, 2007, the United Nations General Assembly voted to adopt the Declaration on the Rights of Indigenous Peoples (UNDRIP). This was an historic event as work on UNDRIP had been ongoing for 30 years before its passage. Today, UNDRIP provides a framework for addressing human rights protections for Indigenous peoples globally. This article examines the significance of UNDRIP as a public policy tool for developing national policy to support future resource and land management consultations that are based on free, prior, and informed consent.
Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin O. Hoerner
Benjamin O Hoerner
In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry ...
The Fourth Zone Of Presidential Power: Analyzing The Debt-Ceiling Standoff Through The Prism Of Youngstown Steel, Chad Deveaux
In this Article, I use the Youngstown Steel Seizure Case to assess the reoccurring debt-ceiling standoffs between Congress and the White House. If the Treasury reaches the debt limit and Congress fails to act, the president will be forced to choose between three options: (1) cancel programs, (2) borrow funds in excess of the debt limit, or (3) raise taxes. Each of these options violates a direct statutory command. In Youngstown, Justice Jackson asserted that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template which ...
Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case
Jennifer L. Case
More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.
In their ...
Guardianship For Young Adults With Disabilities As Contrary To The Language And Purpose Of The Individuals With Disabilities Education Improvement Act, Arlene S. Kanter
Arlene S. Kanter
The Individuals with Disabilities Education Improvement Act (IDEIA) was originally enacted in 1975 as the Education for All Handicapped Children’s Act to “provide a free appropriate public education” to children with disabilities. The current version of the IDEIA also strives to prepare children and young adults with disabilities for “full participation [in society], independent living, and economic self-sufficiency.” Under the IDEIA, students who approach the age of majority, are required to have a transition plan to facilitate their movement from high school to life after high school. Although the transition planning process does not require parents to become guardians ...
Hierarchically Variable Deference To Agency Interpretations, 2014 Notre Dame Law School
Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl
Notre Dame Law Review
When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.
The Politics Of Statutory Interpretation, 2014 Notre Dame Law School
The Politics Of Statutory Interpretation, Margaret H. Lemos
Notre Dame Law Review
In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows ...
Why Should We Care About An Agency’S Special Insight?, 2014 Notre Dame Law School
Why Should We Care About An Agency’S Special Insight?, Stephen M. Degenaro
Notre Dame Law Review
This Note offers some additional thoughts on the outer limits of Seminole Rock deference. Part I discusses the three concerns associated with unchecked Seminole Rock deference that comprise the self-delegation problem—violation of constitutional norms, exploitation of a statutory loophole, and perverse incentives. It explores the potential for abuse they create and recommends what the limitations should look like in order to avoid this potential. Part II explains the two rationales for Seminole Rock deference: the pragmatic and originalist rationales. It describes how the two rationales relate to each other, explains how courts use pragmatic and originalist arguments in their ...
Legislating Incentives For Attorney Representation In Civil Rights Litigation, 2014 SelectedWorks
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Sean Farhang, Douglas M. Spencer
Douglas M. Spencer
In this paper we investigate whether, when Congress relies upon private lawsuits to implement a law, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. We ask: In statutes with private rights of action, can Congress substantially affect the degree to which plaintiffs are represented by counsel? Using an original and novel dataset based upon review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981 to 2000, we examine the effects of the Civil ...
Tyranny By Proxy: State Action And The Private Use Of Deadly Force, 2014 Notre Dame Law School
Tyranny By Proxy: State Action And The Private Use Of Deadly Force, John L. Watts
Notre Dame Law Review
The Article begins in Part I with a discussion of the Supreme Court’s opinion and holding in Tennessee v. Garner. It then describes the continuing application of the fleeing felon rule to private actors despite the Court’s holding in Garner.
Part II describes the state action doctrine, examines its history, and clarifies its purpose. It explains why the Court’s early focus on enhancing individual autonomy and federalism as the purpose of the state action doctrine was only partially correct. In fact, the doctrine enhances many of the familiar constitutional strategies for the prevention of tyranny including: separation ...