Law Commons^™

Jurisdiction Revisited: The Inherent Supervisory Power Of The Courts To Review Administrative Decisions - The Case Of R (Ignaoua) V Sshd [2013] Ewca Civ 1498, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The Court of Appeal handed down its decision in R (Ignaoua) v SSHD on 21 November. Ignaoua emphasizes that Parliament does not purport to remove the court’s jurisdiction to entertain judicial review proceedings under Section 15 of the Justice and Security Act 2013. This paper argues that the provisions in both the primary and secondary legislation in Ignaoua are clear enough to convey Parliament’s intention to give the Home Secretary the power to terminate judicial review proceedings or appeal from judicial review proceedings relating to a direction to exclude a foreign national from the United Kingdom. However, the Court of …

Become A Rulemaking Ninja: Exploring The Oira Web Portal, Robert R.M. Verchick

Robert R.M. Verchick

No abstract provided.

La Natura E L'Onere Di Motivazione Delle Sanzioni Pecuniarie In Materia Edilizia, Valentina Gastaldo

Valentina Gastaldo

Gli artt. 135 e 128 della legge provinciale del Trentino Alto Adige n. 22 del 1991, modificati con legge provinciale 4 marzo 2008, n. 1, nel prevedere la possibilità per il Comune di applicare le sanzioni pecuniarie ‘‘previste dai commi 4 e 5 dell’art. 135’’ se le opere abusive ‘‘non contrastino con rilevanti interessi urbanistici’’ (art. 128, comma 8), non prevedono affatto l’obbligo della motivazione dei provvedimenti sanzionatori, i quali sono sempre vincolati anche ai sensi della normativa statale, ovvero della ragione della specifica determinazione della sanzione pecuniaria. Il complesso delle norme introdotte ai fini della sanatoria degli abusi edilizi …

Fundamentos De La Aplicación Pública Del Derecho De La Competencia, Camilo Ossa

Camilo Ossa

This paper aims to focus attention on one of the essential aspects of antitrust law in Colombia, like its public enforcement, or in other words, the power of the State, delegated by law to the Superintendency of Industry and Commerce as the national authority on competition-this according to the provisions of article 6 of Law 1340 of 2009 - to advance administrative investigations aimed to punish those people, natural or legal entities that violate the provisions of the relevant legislation in order to safeguard rights such as freedom of competition, efficiency in markets, free enterprise, economic freedom and ultimately to …

Community Supported Agriculture And Community Labor: Constructing A New Model To Unite Volunteers And Employers, A. Bryan Endres, Rachel Armstrong

A. Bryan Endres

Community Supported Agriculture (CSA) is a farm philosophy and marketing strategy that creates a union between consumers and farmers. Extending beyond the traditional buyer-seller relationship, CSA farmers invite customers to participate in food production in a variety of scenarios the authors refer to as “community labor.” But community labor entails a serious paradox. Traditional employment law doctrine envisions autonomous competition between laborer and employer, and makes little room for these novel, community-based relationships. More importantly, rigid application of employment law structures undermines many of the values embedded in the CSA movement and may limit its continued viability and growth. Constructed …

Utilizing Credit Reports For Employment Purposes: Casting A Wider Net Into The Ocean Of Employment Practices Results In Unintended Yet Much Needed Outcomes, David D. Schein, James D. Phillips

David D. Schein

In our previous article, “Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting”[1] we reviewed the legal history of the Fair Credit Reporting Act (FCRA) and its amendments, and the Federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use …

The Supreme Court Of Canada's Decision In Ezokola And The Harmonisation Of Article 1f(A) Of The Convention On The Status Of Refugees With International Criminal Law, Alan W. Freckelton

Alan W Freckelton

Canadian appellate courts have historically taken a very wide view of when there are “serious reasons to believe” that a person has committed the kinds of offences envisaged by Article 1F(a) of the Convention. In particular, they have taken the view that, in some cases at least, mere membership of a particular group is sufficient to exclude a person from protection under the Convention. However, in Ezokola v Canada (Citizenship and Immigration) the Supreme Court has attempted to reconcile the requirements for responsibility for war crimes and crimes against humanity at international criminal law, and the requirements for exclusion under …

Federalism And Fiduciaries: A New Framework For Protecting State Benefit Funds, Richard E. Mendales

Richard E. Mendales

The financial crisis has underlined difficulties faced by states and their subdivisions in paying benefits to their employees. The most spectacular example is Detroit's bankruptcy, but state and local employers across the country face sharp cuts in benefits as their employers fight for solvency. A federal solution such as ERISA is precluded by considerations of federalism and the impracticability of getting major legislation through Congress. This Article proposes an alternative solution: a uniform state code, following other uniform state laws such as the Uniform Commercial Code, that states could adopt to govern both state and local plans. It would finance …

Where Babies And Death-Row Inmates Intersect: Is Arbitrary Agency Decision-Making Supported Under Existing Law?, Lisa C. Blanton Bs., Mj.

Lisa C. Blanton BS., MJ.

The Food and Drug Administration (FDA) is the executive branch regulatory agency primarily responsible for protecting the nation’s drug products.^[1] The FDA recently made highly inconsistent decisions surrounding a new drug for the prevention of pre-term birth, Makena™ (hydroxyprogesterone caproate). During a lengthy approval process, FDA made laudatory public announcements and demonstrated high programmatic preference to expedite approval of Makena by assigning orphan status^[2] and granting accelerated “fast-track” approval time-frames.^[3] Despite these actions, within weeks of the approval, the FDA issued aggressive public statements against the product’s efficacy and safety and made supportive comments about a non-FDA …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education LEWIS M. WASSERMAN Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Freedmen And Day Laborers: Why Enforcement Matters, Raja Raghunath

Raja Raghunath

As the one hundred and fiftieth anniversary of Emancipation approaches, there are cautionary lessons for modern workers to be found in Reconstruction, the period that followed the abolition of chattel slavery. It was mostly due to vehement opposition that the promise of universal liberty at work was squelched after the Civil War, but the federal government also bears responsibility for not defending the rights it had granted to the freed slaves, or freedmen, when those rights were contested and eventually nullified in the working fields and cities of the South. In this sense, workers’ rights were the original civil rights, …

A Market For Tax Compliance, Walter E. Afield Iii

Walter E Afield III

It is becoming increasingly clear that, due to political realities and budgetary constraints, the IRS is going to have to attempt to enforce the tax laws by doing more with less. Current enforcement efforts have yielded a tax gap (i.e., the difference between the amount of taxes that should be paid and the amount that are collected) of roughly $450 billion annually. Faced with this task, one of the steps that the IRS has recently taken is to try to improve the quality in services performed by paid tax preparers, a group that historically has been subject to little IRS …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

The Underutilized Foreign Investor, Griffin Weaver

Griffin Weaver

For most states, if not all, the push for economic advancement is at the front of every administration’s agenda. This is especially true for developing countries in the Middle East whose standard of living and international power is largely tied to its economic condition. An important indicator, if not condition, of a state’s economic health is the level of foreign direct investment (FDI) received by the state. This inflow of money is essential for the growth and stability of a state’s economy. As one U.S. official once noted, the United States “need[s] a net inflow of capital of $3 billion …

U.S. Government Counterterrorism Asset Freezes: Regulatory Seizures In A Digital Age Of Terrorism, Adam S. Wallwork

Adam S Wallwork

This Article addresses the question of when, if ever, the Department of the Treasury’s counterterrorism asset freezes against US persons (US citizens, resident aliens, and US-based organizations) violate the Fourth Amendment. It addresses two questions that currently divide the federal courts: (1) whether OFAC blocking orders are seizures subject to the Fourth Amendment and (2) whether the Fourth Amendment’s warrant and probable-cause requirements apply to OFAC counterterrorism blocking orders if these orders are in fact seizures.

My Originalist analysis of OFAC counterterrorism blocking orders draws on evidence of the Framers’ original understanding of “unreasonable . . . seizures,” including the …

Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman

ellen p. goodman

The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated in the relevant law and commentary. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to …

Una Propuesta De Formulación De Principios Jurídicos De La Fase De Ejecución De Los Contratos Públicos De Concesión De Servicios Públicos Y Obras Públicas De Infraestructura, Ramon Huapaya Jr.

Ramon Huapaya Jr.

In this article, the author approaches the complex issue of the nature of the concession contract, under the premise of accepting the unitary theory of the public contracts. Is analyzed this type of contract under the promotion system of private investment in Peru, led to public utilities and public infrastructure works legal regime which is used by the Peruvian State to relate to private entities that are responsible for such activities.

Furthermore, the author also emphasizes the various principies that have to prevail in this type of concession contracts.

Regulating For The Public Health: Perchlorate Regulation Under The Safe Drinking Water Act Exceeds Statutory Authority, Mary Jones

Mary Jones

This paper recommends rethinking the statutory framework of the Safe Drinking Water Act (SDWA) to provide a more robust rubric, to include a scientific and objective focus, for proper regulation. The SDWA is evaluated through the lens of upcoming perchlorate regulation due in February 2013.

The United States Environmental Protection Agency (EPA) regulates acceptable contaminant levels and decontamination processes for all public water systems, pursuant to statutory authority granted by the SDWA. Where the policy at work is admirable, the execution falls short.

Perchlorate occurs naturally, but also as a by-product to rocket fuel, firework, and other explosive constructions. Scientific …

The Legacy Of Social Darwinism: From Railroads To The 'Reinvention' Of Regulation, Yair Sagy

Yair Sagy

According to accepted wisdom, new paradigms of regulation are upon us. This Article challenges this conception. It revisits the work of the leading regulator and theoretician of regulation in post-Civil War U.S., Charles Francis Adams, Jr., and argues that contemporary regulation reverts to Adams' theory of regulation, rather than introducing a revolutionary chapter to the intellectual history of regulation in the United States. The Article operates on three levels. On one level, it offers a new interpretation of Adams' seminal theory by revealing the hold that Herbert Spencer and Social Darwinism had on his work. On another level, the article …

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

Extract From John Cannan, A Legislative History Of The Affordable Care Act, Law Library Journal (2013), Citing Tillman's Noncontemporaneous Lawmaking, Seth Barrett Tillman

Seth Barrett Tillman

This is an extract from John Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 Law Libr. J. 131, 135 n.28 (2013) (citing Tillman's Noncontemporaneous Lawmaking).

[May 20, 2013]

Citation List To Model Legislative Veto Act, Seth Barrett Tillman

Seth Barrett Tillman

This is a citation list to Model Legislative Veto Act.

[January 20, 2014]

Model Legislative Veto Act, Seth Barrett Tillman

Seth Barrett Tillman

This is a Model Legislative Veto Act. It is a single page and it is (in my view) consistent with the original public meaning of U.S. Constitution Article I, Section 7, Clause 3. It is not consistent with INS v. Chadha.

[22 May 2015]

¿Por Qué Herminio Blanco?, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Opere Integrative Previste Nella Convenzione Urbanistica E Necessita` Di Una Procedura Ad Evidenza Pubblica Per La Loro Realizzazione, Valentina Gastaldo

Valentina Gastaldo

Il saggio tenta di risolvere un problema di estrema attualità: se sia necessario ricorrere ad una procedura di gara nel caso in cui la pubblica Amministrazione, stipulando la convenzione, richieda al privato la realizzazione di opere aggiuntive rispetto a quelle di urbanizzazione primaria o secondaria. Dopo una breve ricostruzione sistematica della materia, l’Autore ricollega la previsione di una procedura ad evidenza pubblica all’onerosità della prestazione aggiuntiva, non soltanto intesa come sinallagma in denaro, ma anche come ‘‘scambio di prestazioni’’ che il privato effettua a fronte di maggiori diritti edificatori o premialità edilizie. Tale fattispecie non ricorre, invece, quando il lottizzante …

Faster Resolutions In Tariff Classification Litigation: Using Patent Law As A Model, Lawrence Friedman

Lawrence Friedman

This article draws a previously unmade analogy between patent litigation and customs cases before the U.S. Court of International Trade. The article posits that tariff classification litigation can be made more efficient by inverting the current focus on developing the facts through discovery and, instead, moving quickly to resolve controlling questions of law through motions for partial summary judgment, court-annexed mediation, or, if necessary, revised rules of procedure.

Cadenas Globales De Valor, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Dodd-Frank Regulators, Cost-Benefit Analysis, And Agency Capture, Paul Rose, Christopher J. Walker

Christopher J. Walker

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized — even before Dodd-Frank — the lack of rigorous cost-benefit analysis in the context of financial rulemaking. The D.C. Circuit has struck down several financial regulations because of inadequate cost-benefit analysis, with three more challenges to be decided this summer. Members of Congress have introduced legislation to address this problem, including a call for the President to intervene …

Detention Of Children Under Vietnamese Administrative Law: Is It Criminal?, Cheryl J. Lorens

Cheryl J Lorens

In the Socialist Republic of Vietnam the administrative law system permits executive authorities to detain children who have committed minor violations of the law for up to two years in reform schools. Under Vietnamese law these children have not committed a criminal offence and remain outside the protections of article 14 of the International Covenant on Civil and Political Rights (ICCPR). However, the Human Rights Committee allows for the full application of Article 14 and the right to a fair trial to situations where individuals are charged with offences under laws distinct from the criminal law, but which are nevertheless …