Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

A Call For Action: An Analysis Of The Impending Regulatory Crisis In The Municipal Securities Market, Philip Grommet

Philip Grommet

This Article warns of an impending regulatory crisis in the municipal securities market. The municipal securities market is an integral tool that allows state and local governments to implement important public interest projects by appealing to retail investors seeking tax-exempt income. Its regulation has garnered little attention – aside from the market’s characterization as “sleepy.” However, the market has grown exponentially and today’s market is increasingly populated with complex financial instruments. Quite simply, its regulation has not kept pace with developments in the market. Municipal securities issuers are not subject to the general registration requirements of the Securities Act of …

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) …

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary Lawson, Stephen Kam

Gary Lawson

Chevron, U.S.A., Inc. v. NRDC has become the most cited case in administrative law - and one of the most cited cases in any field -- by virtue of its now famous "two-step" approach to judicial review of agency legal determinations. It is becoming conventional wisdom, and correctly so, that the Chevron doctrine owes relatively little to the Chevron decision. Yet cases and scholars continue to justify operational features of the Chevron doctrine by reference to the Chevron decision. In an effort to uproot this unproductive enterprise, we trace in detail, we believe for the first time, the precise process …

Managed Cooperation In A Post-Sago Mine Disaster World, Patrick R. Baker

Patrick R. Baker

This article proposes a mandatory mediation process as a solution to solving the case backlog before the Federal Mine Safety Health and Review Commission (Commission). As a result of the Sago Mine disaster, cases before the Commission have skyrocketed because of tougher Mine Safety and Health Administration (MSHA) oversight, increased penalties, and outdated procedures. From 2000 through 2005, approximately 2,300 cases were filed each year with the Commission. In 2011, the Commission’s case load exceeded 18,000. The system is currently in peril and significant reforms are needed if the current procedures are salvageable. This article has four central components. First, …

Blind Trusts As A Model For Campaign Finance Reform, Perry A. Pirsch

Perry A Pirsch

BLIND TRUSTS AS A MODEL FOR CAMPAIGN FINANCE REFORM

Perry A. Pirsch, MA

University of Nebraska, 2012

In this thesis, I explore whether blind trusts present a viable option for campaign finance reform. More specifically, would either permitting (voluntary) or requiring (mandatory) anonymous donations for political campaigns allow for fully funded, yet privately funded, campaigns while preventing problems, whether real or perceived, such as buying influence (quid pro quo) or buying access, which are traditionally associated with large campaign donations?

To study this question, I have examined the constitutional origins of the need to fund federal campaigns, Congress’ power to …

Takings And Transmission, Alexandra B. Klass

Alexandra B. Klass

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property to convey it to another private party who promises to develop the property in a way that will increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, …

Epic Fail: An Institutional Analysis Of Financial Distress, Jonathan C. Lipson

Jonathan C. Lipson

This paper presents an institutional analysis of financial distress. “Institutional analysis” compares the effectiveness of large-scale processes, such as markets, courts, and governments, at solving social problems. Although financial distress is one of our most acute problems, there has been virtually no effort to analyze it from an institutional perspective. This paper begins to fill that gap.

Institutional analysis shows that, contrary to conventional wisdom, financial distress is not a problem that courts, such as bankruptcy courts, usually solve by themselves. Instead, it is increasingly a problem that political organs (whether elected or regulatory) both create and purport to resolve. …

A Hungry Industry On Rolling Regulations: A Look At Food Truck Regulations In Cities Across The United States, Crystal T. Williams

Crystal Williams

Although street vending has always been a part of the American food economy, in recent years, modern food trucks have become a dining trend that is sweeping the country. With the booming popularity of food trucks, cities across the country are considering ways to regulate the growing number of vendors selling convenient and creative meals to patrons. The purpose of this article is to provide an overview of regulations and ordinances that govern the operation of mobile food units, commonly known as food trucks, in a variety of American cities. Food trucks are regulated by local government agencies, which take …

Where’S The Beef? An Examination Of The ‘Pink Slime’ Controversy And The Implications Of The Real Beef Act On State Truth-In-Menu Laws, Crystal T. Williams

Crystal Williams

Recent criticism concerning the use of lean finely textured beef (“LFTB”), commonly referred to as “pink slime,” has sparked a national debate about whether LFTB should be included on the label of ground beef products sold to the end consumers. On March 30, 2012, the Requiring Easy and Accurate Labeling Beef Act (the “REAL Beef Act”) was introduced to Congress. If passed, the Act would require that “labels on packages of meat include a statement on whether the meat contains [LFTB].” It is not clear from the express language of the REAL Beef Act and its legislative history whether the …

A New Philosophy For Financial Stability Regulation, Hilary J. Allen

Hilary J. Allen

The financial crisis of 2007-2008 showed up many inadequacies in the pre-crisis approach to financial stability regulation. The response from legislators and regulators has been to implement a broad new range of regulatory tools – individual solutions to individual regulatory failings highlighted by the crisis. But the prevailing cost-benefit philosophy that informed financial stability regulation in the United States prior to the crisis persists today - there has been no real effort to rethink the overarching philosophy behind financial stability regulation. Because a cost-benefit approach gives too much primacy to the short-term interests of the financial industry, this Article rejects …

Caremark's Irrelevance, Mercer E. Bullard

Mercer E Bullard

In re Caremark Int’l Inc. Derivative Litig. is commonly held out as the iconic corporate law case on liability for a failure of legal compliance, but the true source of corporate law as to legal compliance is the higher standard established by other sources of law. The expected cost of liability, both criminal and civil, for violations of federal healthcare regulations, for example, is a far stronger determinant of corporate compliance systems than potential liability under Caremark. Other areas of industry-specific regulation, such as for financial services, telecommunications and energy, similarly play a greater role than state corporate law in …

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 …

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 …

Acceso Garantizado: El Procedimiento Administrativo Y El Acto Administrativo En El Acceso A La Información Pública, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

Pluralism And The Environment Revisted: The Role Of Comment Agencies In Nepa Litigation, Michael Blumm

Michael Blumm

The National Environmental Policy Act suffers from a declining reputation due to high expectations and misunderstood implementation. The U.S. Supreme Court has disappointed environmental advocates by repeatedly ruling that NEPA does not impose substantive obligations to protect the environment that are judicially enforceable. As a result, some critics have characterized NEPA as a mere paperwork statute, imposing only bureaucratic red tape. Nevertheless, some courts have read NEPA to require close judicial scrutiny of federal agency actions with significant environmental consequences and have enjoined agency proposals that do not publicly disclose those consequences. The problem is that the level of judicial …

Can Super-Committees Cure Congressional Gridlock?, Sean J. Wright

Sean J Wright

No abstract provided.

Go To Our Website For More (Of The Same): Reassessing Federal Policy Towards Newspapers Mergers And Cross Media Ownership And The Harm To Localism, Diversity And The Public Interest, Jason Zenor

Jason Zenor

Newspapers are workhorse of local news industry and this information is important in order to have an informed citizenry. But, the conventional wisdom is that newspapers are an endangered species and that something drastic needs to be done if this form of media is going to survive. Many proactive solutions have been forwarded such as charging for online content, using tablet and smartphone technology to publish newspapers and making newspapers more assessable to younger and more diverse generations. Another more conceding solution is to allow for greater relaxation on newspapers mergers and cross media ownership rules. But, this solution would …

A Costly Illusion? An Empirical Study Of Taiwan’S Use Of Isolation To Control Tuberculosis Transmission And Its Implications For Public Health Law And Policymaking, Shinrou Lin

Shinrou Lin

The resurgence of tuberculosis (TB) and the emergence of multidrug-resistant TB have resulted in the detention of patients in a number of international jurisdictions since the 1990s, including in Taiwan. The Taiwanese government adopted isolation as an official policy to control TB’s spread in its 2006 Ten-Year Mobilization Plan, whose goal is to halve TB incidence from 66.7 per 100,000 persons to 34 per 100,000 persons. The isolation program allows treating physicians to nominate patients for isolation while public health officials may also isolate patients if necessary. Hospitals providing care to isolated patients would be reimbursed from the budget of …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

Could You Repeat That Please? Forty-Five Years Of Pesticide Experiments On People, Barbara R. Leiterman Esq.

Barbara R. Leiterman Esq.

Little has been published in the literature about pesticide experiments conducted on human subjects. Yet there were at least twenty-two tests between 1967 and 2011 in which people were intentionally exposed to specific doses of pesticides. Almost all of these experiments violated scientific ethics and human rights. This article aims to describe those tests and their shortcomings, and explore the laws and regulations that incentivize such human experimentation. Ironically, as the public desire for pesticide safety increases, so does the industry’s motivation to test pesticides on people. Bringing these pesticide experiments to light, expanding the public discourse on the subject …

Too Many Teeth: Understanding The Medicare Secondary Payer Act And Its Threat To Businesses, James J. Hennelly Iii

James J. Hennelly III

The Medicare Secondary Payer Act (“MSP”), first enacted in 1980, has undergone several changes over the past three decades in an effort by the government to recoup some of its losses from conditional payments it makes on behalf of Medicare beneficiaries. In light of Congress’s many cost-cutting exploits of late, more attention should be drawn towards recent amendments to the MSP in an effort to find a healthy balance between the government’s interest in recouping its losses and private businesses’ interest in staying in business. Congress reacted to increasing Medicare costs in 2003 by inserting in the Medicare Modernization Act …

The Mixed Blessing Of A Deregulatory Endpoint For The Public Switched Telephone Network, Rob Frieden

Rob Frieden

Receiving authority to dismantle the wireline public switched telephone network (“PSTN”) will deliver a mixture of financial benefits and costs to incumbent carriers. Even if these carriers continue to provide basic telephone services via wireless facilities, they will benefit from substantial relaxation of common carriage duties, no longer having to serve as the carrier of last resort and having the opportunity to decide whether and where to provide service. On the other hand, incumbent carriers may have underestimated the substantial financial and marketplace advantages they also will likely lose in the deregulatory process. This paper will identify the potential problems …

False Certainty: Judicial Forcing Of The Quantification Of Risk, Diana R. H. Winters

Diana R. H. Winters

Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, forcing such quantification may undercut the benefits of judicial review. This Article looks at the judicial forcing of the quantification of risk in two contexts: first, the review of agency action, and second, the determination of whether probabilistic injury satisfies the injury-in-fact standing requirement. By juxtaposing these two contexts, the Article illuminates the work that judges think …

The World Of Whistleblowing: From Jiminy Cricket To The Wicked Witch Of The West, Milton Heumann

Milton Heumann

In this exploratory study, we explore the world of whistleblowers and whistleblowing. This topic has produced a great deal of “buzz,” but little clear understanding of the contexts in which whistleblowers act, the paths that whistleblowers follow, or even a critical understanding of how whistleblowing ought to be understood as a social and legal practice.

This paper seeks to articulate some of these boundaries through a mixed method analysis. We have conducted a legal analysis, a review of extant quantitative data, and a series of interviews in order to be able to sketch a plausible picture of the current state …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

An Increased Role For The Department Of Education In Addressing Federalism Concerns, Benton C. Martin

Benton C. Martin

The No Child Left Behind Act of 2001 (NCLB), one of the most important pieces of education legislation in our nation’s history, is overdue for reauthorization. Prior attempts at reauthorization have failed because of political controversy surrounding the Act, including controversy surrounding the extent of the federal role in education. NCLB does not fit squarely into traditional models of federalism and new theories of federalism have emerged to address the unique new dynamics raised by its expansive use of the federal spending power. This Article argues these theories point to practical changes that Congress can make to improve NCLB.

Although …

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …