Law Commons^™

Watching The Hen House: Judicial Review Of Judicial Rulemaking, Carrie Leonetti

Carrie Leonetti

Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction.

Quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts is increasingly prevalent in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the …

When Parallel Tracks Cross: Applying The New Insider Trading Regulations Under Dodd-Frank Derails, Gregory J. Melus

Gregory J Melus

Abstract: When Parallel Tracks Cross: Applying the New Insider Trading Regulations under Dodd-Frank Derails On March 11, 2011, the U.S. Securities and Exchange Commission (SEC) brought an administrative proceeding against former Goldman Sachs Director, Rajat Gupta for participating in the insider trading scheme of Raj Rajaratnam. The complaint was the first application of the SEC’s expanded authority under the Dodd-Frank Act to charge an unregistered entity for securities violations in an SEC enforcement hearing. This Comment argues that bringing an SEC administrative proceeding against Rajat Gupta would not succeed because the retroactive application of the Dodd-Frank law would fail the …

The Invisible Man: How The Sex Offender Registry Results In Social Death, Elizabeth B. Megale

Elizabeth B. Megale

This Article establishes that overcriminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits …

Safeguarding The Safeguards: The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into the structural federalism analysis. The breadth and depth of scholarly criticism is surprising, however, given that judges frequently choose indirect methods, including structural and process-based methods of the kinds at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as …

(Dis)Owning Religious Speech, Jessie Hill

Jessie Hill

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore somewhat troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality. The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as …

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

This article confronts and challenges an emerging scholarly consensus that criticizes the hybridization of substantive and structural arguments in the litigation over the Patient Protection and Affordable Care Act (ACA). Although there is no doubt that the ACA plaintiffs have requested and the ACA judges have provided a hybrid substantive-structural holding, there is nothing at all unusual about this indirect strategy for protecting constitutional liberty interests; it is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review.” The article considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review, and concludes that …

We The People: The Consent Of The Governed In The 21st Century: The People’S Unalienable Right To Make Law., George A. Nation Iii

George A Nation III

My article argues in favor of federal direct democracy. Congress should recognize and facilitate the People’s right to make law via the tools of direct democracy (the initiative and referendum) at the federal level. Arguably, the national People already have this right though they have never used it. What is needed is the establishment of a clear process for the People to follow when exercising this right.

In the United States today the consent of the governed, on which the strength of our democracy depends, is weaker and more diluted than it needs to be or than it should be. …

“The End Of The Beginning?” A Comprehensive Look At The U.N.’S Business And Human Rights Agenda From A Bystander Perspective, Jena Martin Amerson

Jena Martin Amerson

Abstract With the endorsement of Special Representative John Ruggie’s Guiding Principles regarding the issue of business and human rights, an important chapter of this subject has come to a close. Beginning with the then U.N. Secretary General’s “global compact” speech in 1999, the international legal framework for business and human rights has undergone tremendous change and progress. Yet, for all these developments, there has been no exhaustive examination in the legal academy of all of these events; certainly there is no one piece that discusses or analyzes all the major instruments that have been proposed and endorsed by the U.N. …

Over My Dead Body: The Right To Posthumous Bodily Integrity And Implications Of Whose Right It Is, Hilary Young

Hilary Young

This article examines laws that allow people to decide what will happen to their bodies after death, referred to as laws protecting posthumous bodily integrity. It asks whose rights they intend to protect: the rights-holders could consist only of living individuals whose bodies will become the corpses at issue or could include the dead themselves. Whether rights to posthumous bodily integrity belong only to the living or survive death leads to three types of insight. First, the reasons for protecting posthumous bodily integrity are different depending on who the rights-bearers are. Second, to the extent that some laws are more …

The Public Life Of The Virtual Self, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from other Internet users, in total control of his online experience and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – …

Voice Without Say: Why More Capitalist Firms Are Not (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuinely employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive or efficient and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the …

Do We Value Our Cars More Than Our Kids? The Conundrum Of Care For Children, Palma Joy Strand

palma joy strand

Formal child care workers in the United States earn about $21,110 per year. Parking lot attendants, in contrast, make $21,250. These relative wages are telling: The market values the people who look after our cars more than the people who look after our kids. This article delves below the surface of these numbers to explore the systemic disadvantages of those who care for children—and children themselves. The article first illuminates the precarious economic position of children in our society, with a disproportionate number living in poverty. The article then documents both that substantial care for children is provided on an …

Spatial Diversity, Nicholas Stephanopoulos

Nicholas Stephanopoulos

Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept -- “spatial diversity” -- that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And The Bankruptcy Of The “Nature-Nuture” Debate, Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what it is to have a nature …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

"Cost Savings" As Proceeds Of Crime: A Comparative Study Of The United States And The United Kingdom, Richard C. Alexander

Richard C Alexander

The article begins by comparing and contrasting the provisions relating both to asset forfeiture and money laundering under U.S. Federal law and the law of the United Kingdom (in this area, the differences between the provisions of the three jurisdictions making up the United Kingdom are not significant). Some reference is also made to Florida state law, but principally by way of example rather than analysis. It then analyzes the U.S. case law relating to costs saved through the commission of a criminal offense and considers the possible effect of the amendment, made in 2009, to 18 U.S.C. §1956, before …

Let Charities Speak: 501(C)(3) Charitable Organizations After Citizens United, Paul D. Weitzel

Paul D. Weitzel

This paper argues that tax deductible charities have a constitutional right to speak about politics. 501(c)(3) organizations include all tax deductible charities, including religious groups. Citizens United v. Federal Election Commission abrogated the ban on political speech by 501(c)(3) organizations by rejecting the reasoning in Regan v. Taxation with Representation of Washington. Regan found that 501(c)(3) organizations could be prohibited from speaking because they would still be able to speak through affiliate organizations. Citizens United rejected this argument when applied to for-profit corporations, and that reasoning applies equally to non-profit organizations. Citizens United also rejected the distinction between subsidies and …

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Josh Blackman

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans - yet the inner-workings of the Court are not fully transparent. The Court, without explanation, only decides the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome …

Is There An Efficient Antitrust Approach To Health Care?, Kathryn Ciano

Kathryn Ciano

As American states and the federal government wrestle to find a solution to health care reform, some regulators are looking towards antitrust laws in the international marketplace to govern domestic health care policy. Antitrust principles dictate that antitrust authorities must intervene only when pressures become so great as to interfere with the very operations of the market. Pharmaceutical and health care markets rely on free trade and competitive global cooperation, so there is no efficient antitrust approach to health care.

Religious Exemption Statutes: Betrayest Thou Me With A Statute?, Shirley D. Howell

Shirley D. Howell

This Article analyzes the causal connection between religious treatment exemption statutes and child deaths. Further, the Article develops a nexus between partial immunity statutes and wrongful prosecutions of religious parents

Torture, Customary International Law, Promulgative Articulation, And Jus Cogens: Why And How Some United States Government Conduct Violates International And United States Law, Christopher L. Blakesley

Christopher L. Blakesley

This essay exposes the confusion over the meaning of customary international law and jus cogens that infests the writing of many international jurists, including scholars, and judges, especially those from the Common Law world. The essay shows how the essential idea behind customary international law, especially jus cogens in relation to crime is basic and easy to grasp, although some scholars claim that it is impenetrable. On the edges, of course, there is valuable disputation over nuance and the breath of the concepts. At bottom, however, the essence of the concepts is as basic as the deepest and most dearly …

Republican Revolutionaries And Tea Party Patriots: A Public Choice Analysis Of Congressional Term Limits, Keith J. Larson Jd

Keith J Larson JD

James Madison warned that constitutional amendments rooted in the fleeting passions of the people, not their prudence, could undermine the stability of the Republic. Yet, between 1990 and 1994, short-lived anti-incumbent sentiment stirred the voters of twenty-two states to amend their constitutions by imposing term limits on members of Congress. Many legal scholars consider it to be the largest grassroots movement in recent American history. Then, in 1995, a narrow five to four majority of the United States Supreme Court derailed the movement, holding that state-initiated term limits are unconstitutional. The movement appeared to have lost its momentum until it …

Of Woman Born? Technology, Relationship, And The Right To A Human Mother, Jennifer S. Hendricks

Jennifer S. Hendricks

This article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception. It takes as its touchstone a claim by sociologist Barbara Katz Rothman, who writes, “Every human child has a right to a human mother.”

While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today. …

Republican Revolutionaries And Tea Party Patriots: A Public Choice Analysis Of Congressional Term Limits, Keith J. Larson Jd

Keith J Larson JD

James Madison warned that constitutional amendments rooted in the fleeting passions of the people, not their prudence, could undermine the stability of the Republic. Yet, between 1990 and 1994, short-lived anti-incumbent sentiment stirred the voters of twenty-two states to amend their constitutions by imposing term limits on members of Congress. Many legal scholars consider it to be the largest grassroots movement in recent American history. Then, in 1995, a narrow five to four majority of the United States Supreme Court derailed the movement, holding that state-initiated term limits are unconstitutional. The movement appeared to have lost its momentum until it …

No More Free Easements: Judicial Takings For Private Necessity, John Martinez

John Martinez

In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S.Ct. 2592 (2010), the United States Supreme Court was one vote short of recognizing "judicial takings" as viable federal constitutional claims. If such claims become available, then we must identify with precision those circumstances in which judicial takings claims should apply. The full panoply of remedies--forced condemnation, injunction, and interim damages--must be considered. This article begins the discussion with what perhaps are the easy cases, in which governmental judicial conduct imposes a permanent physical occupation on private land based solely on the private necessity of the benefitted …

The Role Of Individual Substantive Rights In A Constitutional Technocracy, Abigail R. Moncrieff

Abigail R. Moncrieff

This article presents a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world. The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting—the decisions that receive substantive constitutional protection under modern doctrine—are decisions that are of unusually uncertain individual and social value. The …

Hostile Educational Environments: On The Apparent First Amendment Barrier To Cyberbullying Punishments, Ari E. Waldman

Ari E Waldman

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or offend a member of the school community depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. Except in extraordinary circumstances, the First Amendment should immunize these single-incident attackers from punishment. For students who engage in a pattern of repeated incidents of cyberattacking – what …

Helping Ideas Have Consequences: Political And Intellectual Investment In The Unitary Executive Theory, 1981-2000, Amanda L. Hollis-Brusky

Amanda Hollis-Brusky

This article explains the remarkable frequency with which the Unitary Executive Theory (UET) was used in the George W. Bush Justice Department (2001-2008) as legal justification for Executive branch action. It shows how this seemingly sudden turn in Executive branch interpretation was actually the result of a series of long-term political investments by key conservative and libertarian actors who worked to develop the intellectual underpinnings of the UET first within the Reagan and George H. W. Bush Justice Departments and then within the Federalist Society for Law and Public Policy. Specifically, it draws on interview data and other ethnographic evidence …

Transparent And Commercialized?: Managing The Public-Private Model For Data Production And Use, Shubha Ghosh

Shubha Ghosh

This Article examines the relationship between two trends: the move towards transparency in government data and information and the increasing commercialization of data through social network and other sites. The author presents a normative framework for reconciling these two trends, analyzes the legal implications of this normative framework, and examines three case studies: the private use of government real estate assessment records, the creation of websites like data.gov, and governmental protection of databases. The Article concludes with a proposal for an open source licensing model for data and information.

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …