Law Commons^™

The Immigrant City, Rick Su

ExpressO

Jurists, policymakers, and legal scholars often do not consider the issue of immigration from a local perspective. As such, the intersection between immigration and local government law has largely been neglected in the legal academic literature. Instead of subscribing to the conventional belief that immigration and local governments are doctrinally distinct, this article uncovers their latent intersection, explore how competing but often unexamined concerns about local governments in legal doctrine conceal the mutual impact that immigration and local government laws have upon one another, and use this analysis to explore how legal rules can be changed to enhance the positive …

Taking "Justice And Fairness" Seriously: Distributive Justice And The Takings Clause, Jeffrey M. Gaba

ExpressO

Since the 1960 case of Armstrong v. United States, the Supreme Court has repeatedly stated that “the” purpose of the Takings Clause is to prevent burdens falling on individual landowners that should in “justice and fairness” be born by society as a whole. The essay argues that this embodies a concept of distributional justice and further argues that the Court has failed to adequately consider the implications of such a conception as the basis of Takings analysis. The essay, after describing the origins of the Armstrong principle, discusses four implications: first, the rejection of a rights- based conception of the …

Re-Thinking Trade And Human Rights, Andrew T. Lang

ExpressO

The last decade has seen the development of a burgeoning literature on the relationship between international trade and the protection of human rights, driven in part by a series of influential reports produced by the Office of the UN High Commissioner for Human Rights. Some human rights commentators have been heavily critical of the trade regime, pointing to a variety of ways in which obligations under international trade law purportedly undermine the ability of governments to fulfil their human rights obligations. Others see the potential for strong synergies between the two regimes, and argue that international trade can be a …

Legal Pluralism & Women's Rights: A Study In Post-Colonial Tanzania, Edward R. Fluet, Mark J. Calaguas, Cristina M. Drost

ExpressO

Recognizing a dearth of legal research on Zanzibar, the authors explore the complex legal and cultural landscape of this archipelago and its relationship to mainland Tanzania. The article discusses the problems that arise when multicultural societies adopt a pluralist system of justice in order to preserve the traditions of its diverse communities. Although the article focuses on Tanzania, the problems that arise from multicultural accommodations affect not only young, postcolonial nations in Africa and Asia, but also individuals in cosmopolitan, economically-developed countries such as Israel and the United States. As countries wrestle with ever diversifying ethnic and religious populations, such …

Every Law Maintains An Important Fact: The Supreme Doctrine Of The New Fourth Constitutional Epoch, John H. Ryskamp

ExpressO

Every law maintains an important fact: out of the political welter this doctrine has emerged as the supreme doctrine of the new fourth Constitutional epoch. It is widely understood that the scrutiny regime instituted by West Coast Hotel v. Parrish, is but one of three which have determined applications of the Constitution since its ratification. However, what is less widely known is that three recent cases illustrate how the third epoch has ended and the concerns of the new epoch. Currently the cases are litigated in terms of the meaning of, every, maintain and important.

Peeking Behind The Iron Curtain: How Law "Works" Behind Prison Walls, Donald F. Tibbs

ExpressO

The prison disciplinary process plays a major role in maintaining institutional order. It starts from the premise that the safety of the institution trumps the punishment of the inmate. Given the massive incarceration rates in virtually every part of the United States, most prisons are overcrowded and, therefore, forced to place a premium on order and safety. The only way to maintain order and safety is to have prison rules that deter inmate behavior; and the only way to enforce those rules is fairly and humanely.

Peeking Behind the Iron Curtain is a study of the law-in-action. Using a variety …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition has never …

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

International Law Happens: Executive Power, American Exceptionalism, And Bottom-Up Lawmaking, Janet K. Levit

ExpressO

This essay introduces “bottom-up transnational lawmaking” in the context of contemporary ideological and theoretical debates regarding the breadth and depth of executive power vis-à-vis international law. In an era of globalization, with a proliferation of transnational actors and regulatory instruments, the international lawmaking universe is disaggregating into multiple, sometimes overlapping, lawmaking communities. Neither the President nor others in the “political leadership” sits at the center of many of these communities. Thus, the nationalist critique of international law, rooted in an all-powerful executive who controls international law, creating it and using it instrumentally, in furtherance of the “national interest,” ignores a …

Leaving The Thicket At Last, Luis Fuentes-Rohwer

ExpressO

No abstract provided.

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

Bizarro Statutory Stare Decisis, Jamie D. Prenkert

ExpressO

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently …

Video Over Telephone Networks: The Case Against Regulation, Hal J. Singer, J Gregory Sidak, Robert W. Crandall

ExpressO

The current wave of telecommunications reform stands to significantly affect the provision of video over telephone networks. Current legislative initiatives are treating video services provided over telephone networks in essentially the same way as traditional cable video services. We examine whether, on legal or policy grounds, video services provided over a telephone network should be regulated as a cable service. We evaluate the history of cable regulation and the services that Congress envisioned to be regulated when it first drafted legislation establishing a regulatory framework for cable television services in 1984. We then examine numerous differences between video services delivered …

Executive-Branch Regulation Of Criminal Defense Counsel, Darryl K. Brown

ExpressO

The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but does not contract. On this account, America’s excessive criminal codes are products of structural failures in political process and democratic institutions.

Yet this story fails to account for much of American criminal law policy and practice. As this article documents in the first systematic study of …

The Impact Of Tort Reform On Medical Malpractice Payments, Ronen Avraham

ExpressO

This study evaluates the impact of six different types of tort reforms on the frequency, size and number of total annual settlements in medical malpractice cases between 1991 and 1998. Previous studies have failed to correctly identify the effective dates of reforms, to account for the retroactive applicability of striking down reforms, or used highly selected samples of jury verdicts or litigated cases. I employ a new legal data set of tort reforms, which carefully evaluates effective dates as well as when certain laws were overturned. Medical malpractice data comes from the National Practitioner Data Bank, which contains more than …

Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck

ExpressO

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Rethinking Civil Contempt Incarceration, Jessica C. Kornberg

ExpressO

Under current federal law civil contempt is governed by the Federal Rules of Civil Procedure, yet it often results in incarceration. This incarceration can, and in a few cases has been, indefinite. The unlimited duration of civil contempt represents the pinnacle of judicial power, and yet it is a topic which has generated surprisingly little scholarship or case law. This Article explores the history and development of modern contempt law, and finds that while the federal law treats all civil contemnors equally, historically and in many states, contemnors are classified by the type of civil contempt committed. This Article proposes …

Jumping On The Mommy Track: A Tax For Working Mothers, Jessica C. Kornberg

ExpressO

“Jumping on the Mommy Track: a Tax for Working Mothers,” was written in response to recent data suggesting that mothers experience a wage penalty unrelated to diminished work productivity or commitment. This Article starts from the assumption that a wage penalty, in combination with already existing disadvantages to working mothers embedded in the tax code, drives women out of the workforce and into less economically efficient activity. The Article proposes remedying this distortion by implementing a targeted regressive tax on working mothers.

Unmasking Extraordinary Renditions In The Context Of Counter-Terrorism, James M. Gallen

ExpressO

This Article will show that the term “extraordinary rendition” is of short legal history and that its conception perverts a number of basic international law principles. In doing so, it will be shown that this process is a method counter-productive to long terms goals in the War on Terrorism.

We can conclude therefore that both “rendition to justice” and “extraordinary rendition” bear little resemblance to the traditional use of the terms rendition or extradition - the recognised, legal methods of transferring a suspect of a criminal offence from one State to another.

[T]he protections of an extradition Treaty and the …

In Search Of The Transaction Or Occurrence: Counterclaims, Douglas D. Mcfarland

ExpressO

Tthe “transaction or occurrence” is the cornerstone of the federal joinder rules, including counterclaims, cross-claims, and joinder of parties. The rule that has produced by far the most reported decisions is Fed. R. Civ. P. 13(a), the compulsory counterclaim rule, so this article limits itself to counterclaims. The article looks at the history and intended meaning of the transaction or occurrence, proceeds to analyze and critique many court decisions on counterclaims, and proposes a new key phrase for the joinder rules.

Why Guru Nanak Is Another Nail In The Coffin Of West Coast Hotel V. Parrish, John H. Ryskamp

ExpressO

In Guru Nanak v. Sutter, the Ninth Circuit upheld RLUIPA by accepting its conflation of "individualized assessments" and "substantial burden." Although RLUIPA involved a misreading of Oregon v. Smith, it was a misreading the Ninth Circuit adopted. The question is, why did Sutter counsel allow the misreading of Smith, especially since Smith lost? It is because, in general, the American bar has failed to see that there has been a substantial corrosion of the scrutiny regime established by West Coast Hotel v. Parrish. They are in denial: they can't believe that the scrutiny regime could ever fall. And yet, the …

Learning To Writing In Code: The Value Of Using Legal Writing Exercises To Teach Tax Law, Scott A. Schumacher

ExpressO

Traditionally, law school tax courses have been taught using a mix of problems, class discussion, the Socratic method, and one end-of-term exam. The goal of these courses is to introduce students to key concepts of tax law and to teach them the essential skill of reading and interpreting the Internal Revenue Code and Treasury Regulations. This traditional method of instruction is an efficient and cost-effective way of transmitting a great deal of complex information to a large number of students. It is also a good vehicle to teach the essential skill of reading and interpreting the Code. However, the time …

The Press As Interest Group: Mainstream Media In The United States Supreme Court, Eric B. Easton

ExpressO

This study explores the influence that news media organizations exert on the United States Supreme Court as parties and amici curiae. The study found, inter alia, that the media succeed more often than not, although by a relatively small margin, with far greater success in content-related than in newsgathering cases. Media organizations have been more successful as parties than as amici, and more successful against state and local government entities than against the federal government.

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

Probing Environmental Discretion: An Argument For Regulating Greenhouse Gases From Motor Vehicles Under The Clean Air Act, Omari O. Jackson

ExpressO

The topic of my comment centers on a discussion of the upcoming U.S. Supreme Court decision in the Massachusetts v. EPA case. In this case, the D.C. Circuit addressed the issue of whether the Clean Air Act authorized the EPA Administrator to control greenhouse gas emissions of new motor vehicles and engines. A three-judge panel voted 2-1 against reviewing the EPA’s decision that it lacked authority under federal law to regulate them. Late last term, the Supreme Court granted certiorari to hear arguments to resolve this controversy. This comment asserts that the Clean Air Act authorizes the EPA to regulate …

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

ExpressO

This article attempts, empirically, to explain the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as “transaction cost engineers” and “reputational intermediaries.” This new model not only helps inform contract theory but also reveals a profoundly different vision than existing models for the future of legal education and the profession.

The (Boundedly) Rational Basis Of Trademark Liability: Reconciling The Federal Trademark Dilution Act And The Lanham Act, Jeremy Sheff

ExpressO

The confusion that has accompanied the effort to graft a dilution remedy onto federal trademark law has sown deep uncertainty about the remedy's proper scope and purpose. This confusion is an outgrowth of the peculiar history of dilution theory in the development of trademark law, and the resulting tension between uniqueness-based theories of dilution and theories based on free-riding concerns. This Article takes the position that the current conceptual framework for trademark liability is misguided. By focusing its analysis on consumer beliefs about the relationship between a mark and a manufacturer, current trademark doctrine is ignoring a far more persuasive …

Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin

ExpressO

Creditors have long understood that any claims they submit for repayment in a bankruptcy might be valid, but subject to subordination in the order of payment of the bankruptcy estate’s limited funds if the creditor behaved inequitably as the debtor failed. A groundbreaking opinion in Enron’s on-going bankruptcy has expanded the practice of equitable subordination far beyond its traditional reach. According to the court, buyers of bankruptcy claims are now subject to subordination, not just for their own conduct, but also for conduct of previous owners of the claims, regardless of whether the conduct related to the claims.

In a …