Law Commons^™

A Process-Based Approach To Presidential Exit, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Inefficient Inequality, Shi-Ling Hsu

Scholarly Publications

For the past several decades, much American lawmaking has been animated by a concern for economic efficiency. At the same time, broad concerns over wealth and income inequality have roiled American politics, and still loom over lawmakers. It can be reasonably argued that a tension exists between efficiency and equality, but that argument has had too much purchase over the past few decades of lawmaking. What has been overlooked is that inequality itself can be allocatively inefficient when it gives rise to collectively inefficient behavior. Worse still, some lawmaking only masquerades as being efficiency-promoting; upon closer inspection, some of this …

Criminal Inflictions Of Emotional Distress, Avlana Eisenberg

Scholarly Publications

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way.

In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Scholarly Publications

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

Introduction: Environmental Law Without Congress, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

The Case For Mandatory Training On Screening For Domestic Violence In The Wake Of The Affordable Care Act, Nat Stern, Karen Oehme

Scholarly Publications

No abstract provided.

Note, Institutionally Appropriate Approaches To Privacy: Striking A Balance Between Judicial And Administrative Enforcement Of Privacy Law, Lauren Henry Scholz

Scholarly Publications

No abstract provided.

Unheard Voices Of Domestic Violence Victims: A Call To Remedy Physician Neglect, Nat Stern, Karen Oehme, Ember Urbach

Scholarly Publications

No abstract provided.

The Anti-Injunction Act And The Individual Mandate, Steve R. Johnson

Scholarly Publications

The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can …

The Judicial Instinct To Harmonize Statutes, Steve R. Johnson

Scholarly Publications

Judges like to reach results that harmonize statutory meanings, both meanings within given statutes and meanings among statutes. That inclination applies as fully in tax cases as in nontax cases, and in state and local tax cases as well as in federal tax cases. Effective advocates in state-local tax controversies recognize that judicial tropism and use it, whenever possible, in their clients’ interests.

Part I discusses the harmonization instinct generally. Part II illustrates application of the harmonization approach in state and local cases. Part III notes some limitations on and unsettled questions regarding the harmonization.

When General Statutes And Specific Statutes Conflict, Steve R. Johnson

Scholarly Publications

It’s no secret that the pace of lawmaking in the United States has accelerated dramatically in recent decades. So much so that one may be forgiven for thinking that the best law reform would be a moratorium on further law reform – - to give citizens, their legal representatives, and government officials the opportunity to catch up with the laws we already have made.

Legislatures, agencies, and courts all have made their contributions to the torrent of lawmaking. The phenomenon has been attributed to various causes, including growing populations, greater population densities as a result of urbanization, rapid technological changes, …

Legislative Rhetoric, Or How To Oppose Anything, Steve R. Johnson

Scholarly Publications

This installment of the column involves a change of focus. Instead of looking at the end of the legislative process – how courts interpret enacted statutes – this installment looks at the phase at which bills are enacted by or defeated in the legislature. However, the two phases have underlying similarities. As we will see, arguments used in legislative advocacy have counterparts in statutory interpretation advocacy. Our topic is particularly timely. Proposals to revise state and local tax statutes are always with us, of course, but recent budgetary stresses have increased both the number and significance of those proposals.

This …

Supertext And Consistent Meaning, Steve R. Johnson

Scholarly Publications

Opponents of textualism as an approach to statutory interpretation sometimes deride it as myopic. The textualist, those opponents contend, puts on blinders, narrowing the perhaps vast panorama of possible perspectives on meaning to a narrow slice of the whole. Modern textualists beg to differ. They view that criticism as reductionist and are often quick to distinguish textualism from mere literalism. Thus, the leading contemporary textualist jurist – U.S. Supreme Court Justice Antonin Scalia – cautions:

Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute .... [T]he good textualist …

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The Two Kinds Of Legislative Intent, Steve R. Johnson

Scholarly Publications

What is a court trying to do when it interprets or applies a statute? This installment of my column looks at two different answers to that question, doing so through the lens of cases involving state and local tax statutes. Both approaches sometimes use the language of “intent,” so it becomes important for the state-local tax practitioner to understand, and to accommodate his or her arguments to the kind of intent that actually controls in the particular jurisdiction.

The first part describes the two approaches: subjective intent and objectified intent. The second part describes a middle position that some courts …

Interpreting State Tax Exemptions, Deductions, And Credits, Steve R. Johnson

Scholarly Publications

Modern tax statutes serve many purposes beyond simply raising revenue, and the contours of those statutes are shaped by many (and sometimes conflicting) economic, social, and political objectives. Legislatures choose a variety of structural mechanisms – including exemptions, deductions, and credits – to advance those policy goals. Sometimes those features are drafted with less than meticulous precision. Other times, business practices have evolved since enactment of the provisions. In either event, revenue agencies and courts are frequently required to interpret those provisions.

This installment of “Interpretation Matters” concerns one such principle of interpretation: The canon that exemptions, deductions, and credits …

Pro-Taxpayer Interpretation Of State-Local Laws, Steve R. Johnson

Scholarly Publications

Sometimes, from a taxpayer’s perspective, it is better to be challenging a state or local tax determination than a federal tax determination. One reason for that is the canon that “[tax] statutes are to be construed most favorably for the taxpayer.” Scores, if not hundreds, of federal tax cases espoused that principle, especially during the 1890s to 1940s. However, the principle fell into disuse at the federal level in ensuing decades and, indeed, was replaced by prorevenue canons. A seeming attempt to revivify the canon at the federal level earlier this decade appears to have withered on the vine. In …

Ways To Change: A Reevaluation Of Article V Campaigns And Legislative Consitutionalism, Mary Ziegler

Scholarly Publications

Recent scholarship has convincingly shown that social movements shape constitutional law, and vice versa. To date, most theories study alternatives to formal constitutional amendments or consider the proper role for the courts in influencing the development of social movements. In this Article, however, I approach the question of constitutional change from the standpoint of social movements that oppose a constitutional decision. What tools are available to a movement seeking to change the meaning of a decision? What are the advantages or disadvantages of pursuing an Article V amendment, of codifying a favorable constitutional interpretation by statute, or beginning a litigation …

The Identifiability Of Bias In Environmental Law, Shi-Ling Hsu

Scholarly Publications

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups than for abstract ones. The more information that is available about a person, the more likely this person’s situation will influence human decisionmaking. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries—people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal species, and …

On The Role Of Cost-Benefit Analysis In Environmental Law: A Book Review Of Frank Ackerman And Lisa Heinzerling's Priceless: On Knowing The Price Of Everything And The Value Of Nothing, Shi-Ling Hsu

Scholarly Publications

Legal scholarship on the role of cost-benefit analysis in environmental law is often stimulating, but does not seem to be changing anybody's mind. The entrenchment of a camp of detractors and a camp of advocates of cost-benefit analysis parallels the impasse that has stymied environmental law for over a decade. Professors Frank Ackerman and Lisa Heinzerling have coauthored a book that captures most of the arguments from the detractor side, and they have done so skillfully and powerfully. However, this Review criticizes the book's contribution to perpetuating this intellectual stalemate. The book does this by focusing on an environmental theory …

Fairness Versus Efficiency In Environmental Law, Shi-Ling Hsu

Scholarly Publications

Like many other areas of law, the development of environmental law has been strongly influenced by notions of fairness. This should not be surprising, since environmental law has been developed by lawyers, who are self-selected to be fairness-oriented and trained to think in terms of fairness. While large environmental gains have been achieved in the thirtyyear history of environmental law, progress seems to have reached a plateau. Partisanship has poisoned the debate on how best to proceed in making further environmental progress. I attribute the failings and the current stalemate in environmental law to our obsession with fairness. Fairness-thinking has …

Reducing Emissions From The Electricity Generation Industry: Can We Finally Do It?, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Mistake Of Federal Criminal Law: A Study Of Coaltions And Costly Information, Erin O'Hara O'Connor, Richard S. Murphy

Scholarly Publications

This article analyzes Supreme Court and other federal court cases, to explain the seemingly disparate incorporation of mistake of law excuses into federal criminal statutes. Most of the cases can be explained from an information cost perspective. If an easily separable subset of the regulated population cannot be induced to learn their legal obligations given credibly low prior probabilities and high information costs, they are excused from criminal liability. Moreover, when criminal statutes are vulnerable to constituent protest, courts require that enforcers increase awareness of the law through information subsidies rather than convicting the ignorant. At least with mistake of …

Session Law 89-010, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-239, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-240, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-224, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-237, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-233, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-229, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.

Session Law 89-225, Florida Senate & House Of Representatives

Staff Analysis

No abstract provided.