Law Commons^™

Agenda: The National Forest Management Act In A Changing Society, 1976-1996: How Well Has It Worked In The Past 20 Years?: Will It Work In The 21st Century?, University Of Colorado Boulder. Natural Resources Law Center, Colorado State University, Oregon State University, Pinchot Institute For Conservation, Syracuse University. Maxwell School Of Citizenship And Public Affairs

The National Forest Management Act in a Changing Society, 1976-1996: How Well Has It Worked in the Past 20 Years?: Will It Work in the 21st Century? (September 16-18)

Conference speakers include University of Colorado School of Law professors David H. Getches and Charles F. Wilkinson.

Jack Ward Thomas, Chief of the USDA Forest Service, will be a featured speaker at the Center's annual public lands conference, commemorating the 20th anniversary of the National Forest Management Act. This year's conference is sponsored by Colorado State University, Oregon State University, Pinchot Institute for Conservation, and the Maxwell School of Citizenship and Public Affairs at Syracuse University.

When Congress passed NFMA in 1976, few would have imagined the enormity of the changes in the world in technology, science and population we …

Assessing The Need To Reform The Laws And Regulations, Perry R. Hagenstein

The National Forest Management Act in a Changing Society, 1976-1996: How Well Has It Worked in the Past 20 Years?: Will It Work in the 21st Century? (September 16-18)

2 pages.

Executive-Branch Rulemaking And Dispute Settlement In The World Trade Organization: A Proposal To Increase Public Participation, Aubry D. Smith

Michigan Law Review

This Note argues that, because the Executive Branch increasingly will be promulgating domestic regulatory rules intended to comply with the rules of the world-trading system, it is necessary to increase formal oversight of the Executive Branch's role in that context. Part I argues that the United States' participation in the WTO implies a substantial increase in the impact of foreign policy on domestic policy. Part II points out a loophole in Congress's attempt to compensate for this increase by installing various devices to ensure political oversight of the Executive: the Executive Branch is subject, under the Uruguay Round Agreements Act …

The Copyright Act Of 1976 And Prejudgment Interest, Jon M. Powers

Michigan Law Review

This Note argues that prejudgment interest should be presumptively available on damages-plus-profits awards under section 504(b) but should not be available for statutory damages under section 504(c). Part I argues that Supreme Court precedent suggests that the explicit reference to interest found in the Patent Act does not prevent courts from awarding prejudgment interest under the 1976 Copyright Act. Part II asserts that the 1976 Copyright Act's silence regarding prejudgment interest does not represent a congressional choice to exclude this remedy and that, in the face of this silence, the underlying purposes of section 504 should determine the propriety of …

Toward A "Due Foundation" For The Separation Of Powers: The Federalist Papers As Political Narrative, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the …

Eulogy: Hamilton Fish, Jr., Roger J. Miner '56

Memorials and Eulogies

No abstract provided.

Pragmatism And Parity In Appointments, Yxta Maya Murray

Michigan Journal of Gender & Law

This review uses Carter's two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter's discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. "Indecency" in appointments, or what is known as "borking" in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments …

Separation Of Powers And The 1995-1996 Budget Impasse, Henry L. Chambers, Jr.

Law Faculty Publications

Separation of powers doctrine will have implications for any budget regime which contemplates explicit power sharing. This Article examines the possible separation of power pitfalls which threaten to undermine the emergence of a relatively healthy new budget regime and the creative mechanisms necessary to make that regime work. The Constitution does not provide many explicit instructions regarding the federal budgeting process. Thus, whether a particular budget arrangement is a good one requires a largely political analysis. Whether a particular budget arrangement is constitutional must be answered by the Supreme Court. On what basis the Court should make such a decision, …

Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price

Faculty Articles

This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …

Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee

Scholarly Works

Blindness to a basic understanding of the framers' design of our federal structure is largely responsible for the confusion that surrounds our understanding of the Ninth Amendment. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Griswold v. Connecticut, Justices Black and Stewart explained in separate dissenting opinions that the Ninth Amendment's reference to the other rights “retained by the people” alluded to the collective and individual rights the people “retained” by virtue of granting limited, enumerated powers to the national government. …

When Congress Just Says No: Deterrence Theory And The Inadequate Enforcement Of The Federal Election Campaign Act, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Stepping Into The Projects: Lawmaking, Storytelling, And Practicing The Politics Of Identification, Lisa A. Crooms

Michigan Journal of Race and Law

In her article, "The Black Community," Its Lawbreakers, and a Politics of Identification, Professor Regina Austin proposes a paradigm to move the Black community beyond a "manifestation of a nostalgic longing for a time when blacks were clearly distinguishable from whites and concern about the welfare of the poor was more natural than our hairdos.” Austin's politics of identification provides the conceptual framework through which the Black community can reconstitute itself in accordance with its own principles, which may or may not be those embraced by the mainstream. This article considers Professor Regina Austin’s politics of identification as practiced by …

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

Paradise Lost, Paradigm Found: Redefining The Judiciary's Imperiled Role In Congress, Charles G. Geyh

Articles by Maurer Faculty

Long perceived as acting in splendid isolation, the legislative and judicial branches have become increasingly intertwined. The judiciary is becoming more involved in the legislative province of statutory reform, and Congress has inserted itself more frequently into the judicial territory of procedural rulemaking. In this article, Professor Geyh observes that a new, interactive paradigm has replaced the perceived model of separation and delegation between the brandies. As the judiciary and Congress have grown more enmeshed, the judiciary's reputation has suffered, both from a Watergate-vintage mistrust of all things governmental and from a perception that judicial activism is born of self-interest …

Introduction, Harold H. Bruff

Publications

As citizens, we ought to ensure that our criticisms of Congress are constructive, lest we damage ourselves. In that spirit, the American Bar Association's Section of Administrative Law and Regulatory Practice created a special Congressional Process Committee to study selected aspects of congressional procedures and to recommend appropriate reforms. The Committee, which I chair, is composed of administrative lawyers who are experienced in legislative practice, or who have worked in Congress. We decided to address selected aspects of congressional structure and procedure for which we believe administrative lawyers possess relevant expertise.

The articles that form this Symposium grew out of …

Corrections Day, John Copeland Nagle

Journal Articles

In July 1995, the House of Representatives established a Corrections Day procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House. This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines mistake. Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the …

Panacea Or Corporate Tool?: Debunking The Supreme Court's Preference For Binding Arbitration, Jean R. Sternlight

Scholarly Works

This article examines the increasing use of contracts of adhesion in which companies require consumers, employees, franchisees and other "little guys" to submit disputes with the company to binding arbitration. The article argues that the Supreme Court's current preference for such agreements is not statutorily well-founded. Specifically, it contends that the Federal Arbitration Act was not intended to make such agreements binding on unknowing consumers or employees. Turning next to policy analysis, the article asserts that the Supreme Court has erred in expressing a preference for binding arbitration in cases where such arbitration was not knowingly and voluntarily accepted by …

Outcome, Procedure, And Process: Agency Duties Of Explanation For Legal Conclusions, Gary S. Lawson

Faculty Scholarship

The so-called Chevron doctrine,' which requires reviewing courts to accept all reasonable agency interpretations of statutes that the agency administers,2 is one of the most important doctrines in modern federal administrative law. Under the now-familiar two-step formulation enunciated by the Chevron court, if Congress "has directly spoken to the precise question at issue ... , that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."3 If the statute is ambiguous, however, the court must accept any permissible, or reasonable,4 interpretation put forth by the agency.5 …