Law Commons^™

Consumer Protection Initiatives In The Eu Mortgage Market: A Behavioral Economics Based Critique And Proposal, Debra P. Stark, Jessica M. Choplin

Debra Pogrund Stark

This article critiques the Commission of the European Union's recent consumer protection initiatives for the EU mortgage market focusing on the revised form of disclosures that the Commission appears poised to mandate in a Directive, providing suggested reforms to this form to make it more effective and proposing four additional consumer protections to empower EU consumers to make wise home loan decisions. The article argues that these additional consumer protections are a necessary condtion to creating the integrated EU mortgage market (with more cross border home loans) that the Commission desires.

How Powerful Is The Ioc? – Let’S Talk About The Environment, Marc A. R. Zemel

Marc A. R. Zemel

The International Olympic Committee (IOC) is in a unique position as the supreme administrator of an immensely popular international mega-event and a self-proclaimed champion of environmental issues and sustainable development. Every two years, cities from all over the world spend millions of dollars for the mere privilege of competing to host the Olympic Games, and those cities must play by the IOC’s rules. In addition, Article 2 of the Olympic Charter, the constitution-like instrument governing the IOC and the Olympic Movement, requires the IOC to ensure that the Olympics are held to promote sustainable development and show concern for the …

Rescuing The Strong Precautionary Principle From Its Critics, Noah Sachs

Noah Sachs

The Strong Precautionary Principle, a theory of risk regulation that shifts the burden of proof on safety, provides a valuable framework for preventing harm to human health and the environment. Yet Cass Sunstein and other scholars have consistently attacked it as paralyzing, inflexible, and extreme.

This Article undertakes a reassessment of the Strong Precautionary Principle, providing a counterweight to the mountain of critical scholarship. The Principle sends a clear message that firms must research the health and environmental risks of their products, before harm occurs. It does not call for the elimination of all risk, but through burden shifting, the …

Combating Cyber-Victimization, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

The Extent To Which "Yellowstonre Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided Use Of The Term “Not Hearsay”, Sam Stonefield

Sam Stonefield

Abstract: Classifying Admissions and Prior Statements: Alternatives to Rule 801(d)’s Confusing and Misguided Use of The Term “Not Hearsay”

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted …

From The Schoolhouse To The Poorhouse: The Credit Card Act's Failure To Adequately Protect Gen Y Consumers, Eboni Nelson

Eboni S Nelson

Whether through personal experiences or through the experiences of our friends and family, most, if not all, of us are all too familiar with the credit card industry’s unrelenting attempts to saddle young, naïve college students with debt that they cannot afford to repay. Students thoughtlessly apply for and use credit cards without considering the negative effects credit card debt can have on their academic, personal, and financial wellbeing. In May 2009, Congress attempted to address the pervasive problem of young consumer indebtedness by passing the Credit Card Accountability Responsibility and Disclosure Act of 2009. While this Article recognizes and …

Guest Worker Programs Are No Fix For Our Broken Immigration System: Evidence From The Northern Mariana Islands, Dorothy E. Hill Professor

Dorothy E. Hill Professor

The creation of a large-scale unskilled guest worker program has been a prominent element of comprehensive immigration reform proposals in recent years. This year it was featured as one of the “four pillars” of a reform framework endorsed by the Obama Administration. The principal ills that are cited as justifying immigration reform include the deterioration of border security, the violence associated with human smuggling, and the widespread mistreatment of unauthorized immigrants. Many believe that a large-scale guest worker program will help to resolve these problems by providing a lawful channel to divert the flow of unauthorized workers. This article argues …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

Interpretation And The Internet, Cameron J. Hutchison

Cameron J Hutchison

Almost twenty years have passed since the advent of the internet. The revolutionary nature of the technology is no longer in doubt. It has transformed the way we communicate, recreate, carry on business and conduct our affairs. Despite the internet’s “differentness”, courts have proven adept at adapting extant law to the features and demands of this new technology. In this paper, I propose in some detail the manner in which courts should interpret law and (just as importantly) internet facts in connection with broadly stated legal rules. My basic argument is that courts must be appreciate both the totality of …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

The Extent To Which "Yellowstone Injunctions" Apply In Favor Of Residential Tenants: Who Will See Red, Who May Earn Green, And Who May Feel Blue?, Hon. Mark Dillon

Hon. Mark C. Dillon

Difficulties in the residential and commercial real estate markets have caused an influx of cases in the New York State courts by which banks seek the foreclosure of delinquent mortgages and landlords seek the eviction of tenants that are in default of rent payment obligations.

New York State has long recognized "Yellowstone injunctions" in the context of commercial leases, where tenants preemptively obtain court orders enjoining their landlords from terminating their breached leases. The concept is named after its case of origin, First Nat. Stores, Inc. v. Yellowstone Shopping Center, Inc., which was decided by the state's Court of Appeals …

Running For Cover: The Brac Commission As A Model For Spending Reform, Jerry Brito

Jerry Brito

With record spending and deficits come calls for reform. Spending reform, however, is easier said than done, and independent commissions are often suggested as a way to tackle intractable political problems. Not all commissions are created the same, however. While baseball and basketball both employ balls, they are entirely different animals. The same applies to congressionally created commissions. The Base Realignment and Closing (BRAC) commissions of the late 80s and early 90s were successful because of their peculiar structure—not simply because they were independent commissions. In this Article we first look at the roots of BRAC’s success and then compare …

Saying “I’M Sorry” Is Not So Simple: Embracing The Complexity Of The Apology With A New Evidentiary Rule, Amy Poyer

Amy Poyer

Apologies are everywhere. In day-to-day life, when a person apologizes, they must deal with a myriad of consequences for that apology. These may include vulnerability to the victim, embarrassment, a bruised ago, or even rejection of the apology by the victim. However, when the wrong one apologizes for turns into a lawsuit, the one apologizing has an additional penalty. Piled on to the emotional consequences that accompany any apology, a potential defendant must also worry about his apology’s use against him in court to prove that he is liable. Recently, a debate has developed over whether or not the law …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

The Myth Of Religious Freedom: The Implications Of State Control Of Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

Serious Disagreement: Same-Sex Marriage, Judicial Review, And The Quality Of Debate, Rob Goodman

Rob Goodman

Both defenders and critics of strong judicial review have relied on claims about the quality of debate in courts: the former, such as Ronald Dworkin, have characterized it as more principled than legislative debate, while the later, such as Jeremy Waldron, have called it overly-focused on text and precedent, to the detriment of substantive moral argument. The question can and should be studied empirically. To begin to do so, I compare American legislative and judicial debates, on the federal and state levels, on same-sex marriage. While legislatures and courts often heard similar arguments, the marriage debate in the courts took …

Using Cognitive Neuroscience As A Basis Upon Which To Accurately Predict The Future Dangerousness Of Violent Criminals And Thus Provide A Procedure For The Involuntary Commitment Of Such Individuals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello

Adam Lamparello

No abstract provided.

I Fought The Law And The Law Lost: The Case For Congressional Oversight Over Systemic Doj Discovery Abuse In Criminal Cases, Christopher R. Smith

Christopher R Smith

ABSTRACT I Fought the Law and the Law Lost: The Case for Congressional Oversight Over Systemic DOJ Discovery Abuse in Criminal Cases This article addresses the need for congressional oversight over systemic DOJ criminal discovery abuse. The first section of the article outlines a sample group of cases across multiple federal districts, which represent the most highly publicized systemic DOJ criminal discovery abuse cases over the last two years. This first section of the article also examines the statistical record of DOJ’s Office of Professional Responsibility (“OPR”) in terms of investigating federal prosecutorial abuse in criminal matters and enforcement of …

Excuse Me, Sir, Can You Spare Some Certiorari? Why Downtown “No Panhandling” Zones Are Constitutionally Suspect, Noah J. Kores

Noah J Kores

Panhandlers are becoming increasingly prevalent in urban areas across the United States. Many cities have taken action to regulate where, when, and how panhandling may be performed. One particular trend raises many First Amendment questions: downtown panhandling bans. As panhandling is a form of free speech, the question is whether downtown bans go too far.

Under the First Amendment, many downtown bans fail both intermediate and strict scrutiny. Specifically, St. Petersburg, Florida’s ordinance fails because it places content-based restrictions on speech -- meaning it restricts speech based on what an individual is attempting to say. Panhandling bans are content-based because …

Promoting Self-Sufficiency?, Matthew Main

Matthew Main

The New York City Human Resources Administration has implemented a policy that will have a disproportionate impact on poor families of color. The policy departs from the legislative mandate to support New York’s neediest and most at-risk by arbitrarily excluding incarceration from the definition of “temporary absence,” as it applies to the Cash Assistance program. Aside from the discriminatory impact on poor children and families, the policy decision comes at a higher cost to New York taxpayers in the midst of a financial crisis. This Comment evaluates the legal flaws in the policy, the persons it targets, the families it …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

The United Kingdom’S Human Rights Act: Using Its Past To Predict Its Future, Joanne Sweeny

JoAnne Sweeny

The results of the recent General Election in the United Kingdom have both highlighted the flexible nature of the UK’s constitution and placed the UK’s existing bill of rights (the Human Rights Act 1998) in jeopardy. In order to predict the HRA’s future, it is useful to consider how and why the HRA was enacted. Through the use of primary data, this article shows that the HRA was enacted as a result of a unique combination of historical factors and the efforts of public interest groups. These two main elements are analyzed using Rational Choice Theory and Social Movement Theory, …

Crude Defenses? Liability Limits For Offshore Drilling Accidents And Oil Spills, Richard Faulk

Richard Faulk

All those who participate in realizing the benefits of exploration – including those who use the resulting products and depend on their safe handling to avoid harm – are subject to their dangers. When the risks are enormous, and when society’s demands are extraordinary, the situation is ripe for political compromise. The products of that compromise may not be popular at this time of crisis, but that does not lessen their importance as anchors of reason during difficult times. The Limitation Act and the OPA, as well as the procedures under Supplemental Rule F, form a foundation that enables the …

The More Things Change: Have Antievolutionists Charted Another Constitutional Collision Course In Louisiana?, David J. Jacobs

David J Jacobs

In Edwards v. Aguillard, the Supreme Court invalidated a Louisiana statute that attempted to weaken the teaching of evolution in the public schools by balancing it with “creation science.” This defeat was only a minor setback for evolution’s opponents, who quickly began devising new strategies with an increased emphasis on secular and scientific appeals. Now, these efforts have culminated in the passage of the Louisiana Science Education Act (“LSEA”), which authorizes teachers to introduce supplemental textbooks and other educational materials in the name of promoting “critical thinking skills and open discussion of scientific theories.” This Article outlines the development of …

Torture, American Style: A Recipe For Civil Tort Immunity, Matthew J. Jowanna

Matthew J. Jowanna

If someone is tortured, surely, at a minimum, an intentional tort has been committed against that person. This article specifically addresses the civil tort remedy, or lack thereof, for victims of torture at the hands of employees of the United States. In ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in its subsequent reporting to the United Nations Committee Against Torture, the United States has consistently denounced torture and proclaimed itself to be a nation that provides for civil remedies against torturers. However, this article will draw attention to the hypocrisy and self-protection …

Stretching The Boom? Limiting Liability For Offshore Drilling Disasters, Richard Faulk

Richard Faulk

Offshore drilling is a tremendously complicated and potentially lucrative process. Unfortunately, it is also dangerous. Harvesters of fossil fuels face massive risks, not only to their lives and properties, but also to our environment and the livelihoods of all those who depend upon it. On balance, our “modern” sense of justice might insist that those who realize wealth should bear the risks that their exploration and production poses to others. But when a product, like petroleum, is inextricably woven into our national fabric, legislators sometimes reach surprising compromises. So, it seems, the owner of the Deepwater Horizon will argue in …

Limiting Unlimited Government Through Constitutional Points Of Order, Justin T. Sigman

Justin T Sigman

This article identifies a salient feature of the recent health care debate that has been overlooked by the academy, historians and advocates of federalism: on December 23, 2009, for the first time in its history, the United States Senate directly debated and voted on the meaning of the Tenth Amendment. Equally unprecedented is the manner in which this came about: points of order, including constitutional points of order, had previously been a form of procedural objection to a bill or amendment; allowing a point of order that a bill or amendment violates a substantive provision of the Constitution is analogous …