Law Commons^™

Revitalizing The Presumption Against Preemption To Prevent Regulatory Gaps: A Case Study Of Judicial Tolerance Of Illegal Railroad Waste Transfer Stations, Carter H. Strickland Jr.

Rutgers Law School (Newark) Faculty Papers

This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing …

Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi

ExpressO

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other – especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused …

The New Federal Indian Law, Matthew L.M. Fletcher

ExpressO

Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases – and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear …

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

ExpressO

Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases …

Using Ethanol As A Fuel To Reenergize Free Trade Area Of The Americas Negotiations, Marcel De Armas

ExpressO

Currently the United States imposes a 2.5 percent ad valorem tax along with a 14.27 cents per liter tax on imported ethanol from countries with normal trade relations under the harmonized tariff schedule. However, the United States exempts many countries from this tariff or reduces the tariff under various free trade agreements or initiatives. The issues that resulted in Doha’s failure also caused FTAA negotiations to temporarily stall since both Brazil and the United States wanted certain FTAA issues negotiated at the WTO level. The United States could initiate this process with a discussion of reducing or eliminating its ethanol …

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome determinative.

Justice Kennedy has …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Yukos Risk: The Double Edged Sword, Joseph Tanega, Dmitry Gololobov

ExpressO

Abstract The article focuses on elucidating the meaning of Yukos risk mainly in terms of corporate bankruptcy litigation in multiple jurisdictions, including, the U.S., U.K., The Netherlands, and Russia. The emphasis is on understanding the various legal theories and the court decisions reached so far in this continuing legal saga.

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Hemp ... Why Not?, Jared B. Kahn

ExpressO

Hemp ... Why Not?

By: Jared Kahn

(Abstract)

Industrial hemp has been utilized as a commodity crop for centuries in the United States, and for millennia throughout the world. Today, the crop is cultivated for industrial uses in thirty countries, but not the United States. United States citizens may import hemp, eat hemp, wear hemp, and do whatever they please with a manufactured hemp product, but nobody grows the valuable crop in the U.S. Several states have legalized industrial hemp cultivation, however, the federal Drug Enforcement Agency (DEA) interprets the Controlled Substances Act (CSA) to prohibit the growing of hemp …

Content On The Fly: The Growing Need For Regulation Of Video Content Delivered Via Cellular Telephony, Jacob M. Chapman

ExpressO

Technological advancements in the last twenty years have substantially altered the ways in which people work, communicate, and are entertained. Many of these advancements have occurred in areas generally thought to fall under the regulatory purview of the Federal Communications Commission (FCC). These advancements have included the personal computer, the internet, digital cable, direct broadcast satellites (DBS), and cellular phones. Of all these increasingly available and inexpensive technologies, perhaps the most ubiquitous is the cellular phone. Thus far, the FCC has struggled to apply its public interest mandate to the ever shifting sands of technological development with varying degrees of …

The Reason Behind The Rules: The Archaeological Resources Protection Act Of 1979 And Scientific Study, Ryan M. Seidemann

ExpressO

What are the federal agencies’ powers under the Archaeological Resources Protection Act of 1979 (ARPA) to limit or control the scientific study of archaeological materials? The research for this article has led to an ultimate conclusion that ARPA does not provide federal agencies with the power to limit the scope of scientific study on covered archaeological materials. No provision of ARPA provides federal agencies with the authority to act as scientific dictators with ARPA-covered archaeological materials.

Privatization And The Law And Economics Of Political Advocacy, Alexander Volokh

ExpressO

A common argument against privatization is that private providers, motivated by self-interest, will advocate changes in substantive policy. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating incarceration.

This “political influence” argument applies at least as well to public provision: Government agencies, too, lobby for changes in substantive law. In the prison industry, for instance, it is unclear whether private firms advocate incarceration to any significant extent, but public guard unions are known to do so …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Reforming Mexico’S Labor Law For Independent Labor Unions, Mischa H. Karplus

ExpressO

Reforming Mexico’s Labor Law for Independent Labor Unions analyzes the legal difficulties Mexican independent labor unions face in establishing themselves and proposes a legislative solution. The methodology used examines the institutionalized behaviors of the administrative labor boards and businesses, which prevent the formation of independent labor unions. The discretion that Mexican labor law affords the labor boards and businesses explains, in large measure, the obstacles facing independent labor unions. Having analyzed the relevant legal framework this article proposes specific legislation to strengthen these independent labor unions. Within the context of a developing country, Reforming Mexico’s Labor Law for Independent Labor …

Whistleblower Protections Under The Sarbanes-Oxley Act: A Primer And A Critique, Valerie J. Watnick

ExpressO

In the wake of scandals involving Enron Corporation, Arthur Andersen and other corporations, Congress enacted the landmark Sarbanes-Oxley Act of 2002, the Corporate and Criminal Fraud Accountability Act of 2002 (hereinafter the “Act” or “Sarbanes-Oxley”).This article critically examines the whistleblower protections afforded employees under Sarbanes-Oxley. Part I of the article considers the statutory language, the legislative history, and the regulations pursuant to the Act. Part II of the article examines recent decisions by the U.S. Department of Labor in Sarbanes-Oxley whistleblower cases (cases under the Act are initially adjudicated by the Department of Labor) and the overall framework for implementation …

Tribal-State Gaming Compacts And Revenue Sharing Provisions: Are The States Upping The Ante? , Richard L. Skeen

ExpressO

In the ten years following, the Supreme Court’s ruling in the Seminole Tribe v. Florida, Indian Gaming has grown to over a $19 billion a year industry, in 26 States, involving over 241 Approved Class III Tribal Gaming Ordinances. States have been eager to get a piece of this ever-increasing pie. Some commentators have predicted that States will be reluctant to enter into new compacts or renew existing compacts, however, other’s have indicated that States will continue to demand a percentages of Gaming revenues.

This comment addresses the central issue of whether the Tribal-State compacts entered into subsequent to the …

The Use And Misuse Of Disclosure As A Regulatory System, Paula J. Dalley

ExpressO

Over the past several decades, legislators and regulators have increasingly turned to disclosure schemes, rather than substantive regulation, to accomplish regulatory goals. Most of these schemes are either expressly or impliedly based on the disclosure-based regulatory system established by the securities acts, which is primarily intended to provide information to traders in an established market and thereby to enhance the operation of the market. A secondary purpose of the securities acts is to alter the behavior of firms and individuals through the operation of the market. Other disclosure schemes usually have similar purposes, but they rarely operate in a market …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

Undoing The Native American Graves And Repartriation Act, Lori N. Wight

ExpressO

No abstract provided.

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity” …

Peeking Behind The Iron Curtain: How Law "Works" Behind Prison Walls, Donald F. Tibbs

ExpressO

The prison disciplinary process plays a major role in maintaining institutional order. It starts from the premise that the safety of the institution trumps the punishment of the inmate. Given the massive incarceration rates in virtually every part of the United States, most prisons are overcrowded and, therefore, forced to place a premium on order and safety. The only way to maintain order and safety is to have prison rules that deter inmate behavior; and the only way to enforce those rules is fairly and humanely.

Peeking Behind the Iron Curtain is a study of the law-in-action. Using a variety …

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition has never …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck

ExpressO

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

ExpressO

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

Crisis Bureaucracy: Homeland Security And The Political Design Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion. We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are …

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in …

Sherman's March (In)To The Sea, Andrew S. Oldham

ExpressO

This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute—which has been described as the Magna Carta of free enterprise—raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.