Law Commons^™

Such Gaming Causes Trouble: Constitutional And Statutory Confusion With The Indian Gaming Regulatory Act, Jacob Berman

Jacob Berman

This paper argues that two circuits’ interpretations of the Indian Gaming Regulatory Act violate the Tenth Amendment by forcing a Hobson’s choice on state legislators. Since California v. Cabazon Band, Indian tribes have been able to operate commercial gaming establishments with the blessing of the federal judiciary. Immediately after Cabazon, Indian tribes could only offer the same types of gambling that was legal under state law— usually, bingo, lotteries, certain card games, and race tracks. The Indian Gaming Regulatory Act of 1988, intended to codify the Cabazon test, was poorly drafted, and instead upset the applecart. The Second Circuit and …

Section 2 As An “Adequate Substitute” For Section 5: Proposing An “Effects-Only” Test As An Amendment To Section 2 Of The Voting Rights Act Of 1965, Bernice M. Bird

Bernice M. Bird

As the U.S. Supreme Court shall finally determine whether Section 5 of the Voting Rights Act of 1965 is unconstitutional next year in Shelby County, Ala. v. Holder, most suppressed minority voters may be left with only Section 2 as a remedy for voting discrimination challenges. However, the federal courts have consistently interpreted Section 2's "results" or "intent" test contrary to the legislative intent of Section 2 in increasing the burden for plaintiffs to demonstrate discriminatory intent of racial bias in enacting election laws. Thus, Section 2 currently serves as an inadequate substitute for redressing voting discrimination should the Supreme …

The Best Of Both Worlds: Applying Federal Commerce And State Police Powers To Reduce Prescription Drug Abuse, Stacey L. Sklaver

Stacey L. Sklaver

This article addresses the prescription drug abuse epidemic in the United States. In particular, it highlights that prescribers, as the gatekeepers of controlled substances, often lack the necessary education and training to properly prescribe such medications and to spot signs of abuse. This deficiency leads to patient overdoses and death, and resultant prescriber exposure to both civil and criminal liability.

Some states require controlled substance prescribers to obtain education on safe prescribing and abuse prevention methods, but many do not, yielding the need for a federal solution. The solution must address patient health, safety, and welfare under the purview of …

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Parliamentary Oversight Of The Executive In India, Anirudh Burman

Anirudh Burman

The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …

Keeping Secrets: An Alternative To The Economic Penalty Enhancement Act, Brittani N. Baldwin

Brittani N. Baldwin

No abstract provided.

How Statistical Sampling Can Solve The Conundrum Of Compensation Disclosures Under Dodd-Frank, Michael Ohlrogge

Michael Ohlrogge

One of the more controversial measures of the Dodd-Frank bill is its requirement that companies report the ratio of their CEO’s compensation to that of their median employee. Critics of this provision have claimed that for large companies with employees and subsidiaries throughout the world, compliance with this measure alone could cost millions of dollars a year, due to the difficulties in identifying the median employee. This paper demonstrates that the Securities and Exchange Commission, which is charged with implementing this provision, has the latitude to direct companies to calculate the figure using a statistical sampling procedure which would greatly …

The Role Of American Individualism In The Current State Of Public Schools, Kehinde A. Durowade Ms.

Kehinde Durowade

The Article focuses on the method of public school funding in America and how it continues to contribute to the stagnation of public school education in America. I examine several judicial decisions – most notably Brown v. Board of Education and San Antonio Indep. Sch. Dist. v. Rodriguez – and legislative action, to demonstrate a steady decline in the significance attributed to public education by the government. With specific emphasis on Illinois public schools, which currently rank 47th in the country for funding fairness, this paper suggests a cultural approach to solving the problem. It posits that a cultural shift, …

A Multiple Choice Legislative Certification Procedure: Asking Congressional Preferences In Statutory Interpretation, Danieli Evans

Danieli Evans

In response to failed efforts at enhancing judicial-legislative collaboration, I propose a procedure that would enable the Court to take account of congressional preferences in a pending statutory interpretation decision, without requiring Congress to amend the ambiguous law. In “hard cases” the Court could certify, through a fast-track procedure, a question presenting Congress with two multiple choices that the Court predetermines to be viable readings of the statute. This procedure avoids constitutional problems because congressional input is voluntary and non-binding for both branches, and judicial constraint enforces rule of law and constitutional values.

Regulating Tactical Nuclear Weapons, Dakota S. Rudesill

Dakota S. Rudesill

In 2013, U.S. and Russian negotiators are expected to enter the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework article will be the first squarely on the subject in the legal literature. My core arguments are that (1) to date the bilateral Washington-Moscow arms control legal regime has primarily regulated strategic (i.e., long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assumption, the legal regime has regulated a small number of tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance, providing a regulatory precedent; (3) …

We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White

Prentice L White

WE WANT OUR LIVES BACK TOO: EXPANDING THE COVERAGE OF ABSOLUTE LIABILITY TO INCLUDE A RECOVERY FOR THE VICTIMS OF ECOLOGICAL CATASTROPHES BY PRENTICE L. WHITE No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the …

Blatant Bribery Or Locally Lawful?: Is The Foreign Corrupt Practices Act’S “Local Laws” Defense Extinct?, Erik J. King

Erik J King

Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other …

Mandatory Reporting Of Abuse: A Historical Perspective On The Evolution Of States’ Current Mandatory Reporting Laws With A Review Of The Laws In The Commonwealth Of Pennsylvania, Leonard G. Brown Iii

Leonard G Brown III

Mandatory Reporting of Abuse: A Historical Perspective on the Evolution of States’ Current Mandatory Reporting Laws with a Review of the Laws in the Commonwealth of Pennsylvania

The first states passed laws in 1963, following the publishing of a seminal article titled, “The Battered Child Syndrome.” By 1967, all fifty states had passed some form of mandatory reporting law. The federal government’s first major foray into the area of child abuse prevention occurred on January 31, 1974, when Congress enacted the Child Abuse Prevention and Treatment Act (“CAPTA”). CAPTA has no federal mandatory reporting provision, but rather requires states to …

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Donald E. Campbell

The Voting Rights Act of 1965 has been described as the “crown jewel” of the civil rights movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the Justice Department of President George W. Bush to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to …

Pro-Business Or Anti-Gay? Disguising Lgbt Animus As Economic Legislation, James A. Reed

Alex Reed

Several states are considering legislation that would prohibit cities from enacting nondiscrimination ordinances which are more inclusive than state law in terms of their protected classes. Although characterized as economic legislation, the evidence suggests that these bills are being introduced because of—not merely in spite of—their adverse effects upon the LGBT community. This article proposes that the Supreme Court apply heightened scrutiny to classifications based on sexual orientation and gender identity so as to expose the discriminatory motivations underlying these bills and ensure that courts are no longer complicit in denying LGBT Americans the equal protection of the laws.

Purposeless Construction, David M. Driesen

David M Driesen

This Article critiques the Supreme Court’s tendency to embrace “purposeless construction”— statutory construction that ignores legislation’’ underlying goals. It constructs a new democratic theory supporting purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for …

Presidential Inaction And The Separation Of Powers, Jeffrey Love, Arpit Garg

Jeffrey Love

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none …

When Can You Teach An Old Law New Tricks?, Philip A. Wallach

Philip A Wallach

This article considers the distinctive legal and institutional dynamics involved when agencies interpret existing statutes for novel purposes. It argues that courts take into account policy-specific institutional factors, such as legislative dysfunction, when they consider the propriety of such novel interpretations, rather than employing universal ideas about institutional competencies. Where Congress has shown an inability to legislate in a policy area, courts are more likely to sympathize with changes in interpretation as partial substitutes for new legislation, but relying on old statutory language creates problems of statutory mismatch. The article contends that many arguments over statutory meaning mask disagreements about …

Efficacy And United States Trafficking Victims Protection Act: The Need For Treble Damages In The Private Right Of Action, Marc S. Wiesner

Marc S. Wiesner

No abstract provided.

Disparate Protections For American Human Trafficking Victims, Amanda J. Peters

Amanda J Peters

The United States enacted the Trafficking Victims Protection Act (TVPA) in 2000. It was the first piece of legislation to address human trafficking. Since that time, the United States has monitored anti-trafficking efforts worldwide. Nations that fail to meet minimum standards set by the United States risk losing non-humanitarian financial aid from the federal government, the International Monetary Fund, and global banks. Yet, these minimum standards are not met by the United States when it comes to protecting American trafficking victims.

According to the TVPA, governments shall attempt to prevent human trafficking, punish traffickers, and protect people who have been …

Presidential Inaction And The Separation Of Powers, Jeffrey Love, Arpit Garg

Jeffrey Love

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none …

Textualism And Obstacle Preemption, John D. Ohlendorf

John D Ohlendorf

Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to find state laws preempted as “obstacles to the accomplishment and execution of the full purposes and objectives of Congress,” — so-called “obstacle preemption.” This Article argues that by giving the meaning contextually implied in a statutory text ordinary, operative legal force, we can justify most of the current scope of obstacle preemption based solely on theoretical moves textualism already is committed to making.

The Article …

Of Testing And Tablespoons: Evaluating The Use Of Student Test Scores For Teacher Assessment, Daniel Straw

Daniel Straw

This note argues that the use of student test scores as a significant part of teacher evaluations has no rational basis in law, and therefore the government should instead focus on performance-based assessments and take steps to elevate the status of teaching as a profession.

Building A Better America: Tax Expenditure Reform And The Case Of State And Local Government Bonds And Build America Bonds, Blaine G. Saito

Blaine G. Saito

Currently most subnational government borrowing in the United States is done via tax-exempt muni bonds. But they are riddled with problems. They are inefficient at delivering the subsidy, and they create economic distortions of investment choices. They are inequitable, and they have significant democratic deficiencies. Direct payment Build America Bonds (BABs) provide an alternative, as they directly pay a cash subsidy to a subnational government. While there are simple technical problems that can easily be remedied, BABs face significant political hurdles that will prevent the permanence of the program. Policy entrepreneurship is a way forward. The piece also discusses how …

Presidential Inaction And The Separation Of Powers, Jeffrey Love, Arpit Garg

Jeffrey Love

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none …

16 And Pregnant: Minors' Consent To Abortion And Adoption, Malinda L. Seymore

Malinda L. Seymore

A minor girl’s decision about the resolution of an unplanned pregnancy is a highly contested issue. Especially contentious is the minor’s ability to consent to an abortion without the assistance of an adult such as her parents or a judge. That issue has received substantial attention from policy makers, scholars, judges and legislators. Almost no attention has been paid, however, to the decision of a minor parent to continue her pregnancy, relinquish her constitutionally-protected parental rights and place a child for adoption. In 37 states, a minor’s abortion decision is regulated differently from the decision of an adult’s, while in …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

Losers' Law: A Metatheory for Legal Disappointments

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

"Losers"

We are all losers at one time or another. If you're in "economy class," you can't use the "business class" toilet, even if it's located just two steps in front of your seat. You must instead go to the back of the plane and use the toilets designated for economy class passengers. The operative rule prohibits you, as a mere economy class passenger, from exercising the much more convenient choice of using the business class …

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva

Philip J. Candreva

Nearly every year Congress fails to pass all of the appropriations acts before the start of the federal fiscal year. This necessitates the passage of a temporary spending measure – a continuing resolution – or there will be at least a partial government shutdown. Both contingencies are costly and disruptive to the efficient and effective operation of government. Over the last 30 years, there have been several legislative proposals to enact an automatic continuing resolution mechanism that would mitigate the costs to public management. Such proposals, however, are costly for political and legal reasons. This article examines the arguments for …

The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter B. Bayer

Peter B Bayer

ABSTRACT The Individual Mandate’s Due Process Legality: A Kantian Explanation, and Why It Matters by, Prof. Peter Brandon Bayer In its recent National Federation of Independent Business v. Sebelius, __ U.S. __, 12 Westlaw 242810, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld under Congress’ power to tax the Patient Protection and Affordable Care Act’s most provocative feature, the Individual Mandate (“IM”). In so doing, the Court rejected what appeared to be the IM’s more applicable constitutional premise, Congress’ authority to regulate interstate commerce. Yet, neither the Constitution’s Taxing Clause nor its …