Law Commons^™

The President, The Environment, And Foreign Policy: The Globalization Of Environmental Politics, David A. Wirth

David A. Wirth

By comparison with domestic environmental issues, international environmental diplomacy is distinguished by the far greater role of the Executive Branch, and in particular the President, in making law. This essay explores the legal consequences of the President's dual role in international environmental diplomacy: his duty faithfully to execute statutory mandates adopted by Congress while also serving as the Nation's chief diplomat and negotiator of international agreements with foreign powers. The piece discusses the legal and policy dynamics surrounding two concrete examples affecting domestic and international environmental policy, in which Presidential power assumes dramatically different forms: (1) climate change, and in …

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo

David M. Longo

No abstract provided.

Florida S.B. 1196 And Condominium Assessment Collection Measures Sweeping Or Sleeping?, Rose Brill

Rose Brill

FLORIDA S.B. 1196 AND CONDOMINIUM ASSESSMENT COLLECTION MEASURES: SWEEPING OR SLEEPING? Florida’s recent Senate Bill 1196 (2010) has created waves in the condominium law arena. This article suggests that by considering various issues that have arisen in the legal community since July 1, 2010, the Bill’s effective date, condominiums will be better able to collect the assessments they need to maintain and improve their buildings. Healthier condominiums will instill confidence in the housing market, generate interest in condominium purchases, and play a role in the overall economic recovery. In particular, the article analyzes two of the Bill’s most contentious provisions, …

The Myth Of Investor Protection: The Dodd-Frank Act And The Office Of The Investor Advocate, Chelsea Ferrette

Chelsea P. Ferrette

Are security investors protected when investor advocacy is a form of regulation? This article asks that question and answers “no.” This article looks at the SEC’s Office of the Investor Advocate (“OIA”) mandated by the Dodd-Frank Act of 2010. The OIA’s prime-objective is the advocacy and protection of investors. The OIA plans to meet its objective by ensuring retail investors’ interests are adequately represented, assisting them in conflict resolution, and identifying areas where regulatory changes benefit investors. This article posits, however, that the OIA cannot achieve its goals, because, first, the ever-increasing complexity of financial securities; second, the conflicts of …

Enforcing The Enforcer: Enhancing The Fbi’S Accountability For The Use Of National Security Letters, Joshua C. Mcdaniel

Joshua C. McDaniel

In 2007, the U.S. Justice Department’s Office of the Inspector General issued the first in a series of three reports revealing that on thousands of occasions the FBI had improperly or illegally used its authority to issue national security letters. The national security letter enables the FBI to obtain confidential customer information from banks, ISPs, telephone companies, and other institutions without first obtaining a warrant or a grand jury subpoena and without the customer ever realizing.

This Comment argues that the abuses of NSL authority revealed in the Inspector General’s reports result significantly from the FBI’s lack of horizontal accountability …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World.

From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

The Case Against The Dodd-Frank Act’S Living Wills: Contingency Planning Following The Financial Crisis, Nizan Geslevich Packin

Nizan Geslevich Packin

The Dodd-Frank Act’s “living will” requirement mandates that systemically important financial institutions develop wide-ranging strategic analyses of their business affairs, and submit comprehensive contingency plans for reorganization or resolution of their operations to regulators. The goal is to mitigate risks to the financial stability of the US and encourage last-resort planning, which will allow for a rapid and efficient response in the event of an emergency. Beyond the general framework set forth in the Dodd-Frank Act, very little is known about living wills; no legal literature currently exists on what the concept entails, and regulators have not yet created any …

Rhetoric, Reality & The Wrongful Abrogation Of The Collateral Source Rule In Personal Injury Cases., Lori A. Roberts

Lori A Roberts

RHETORIC, REALITY & THE WRONGFUL ABROGATION OF THE COLLATERAL SOURCE RULE IN PERSONAL INJURY CASES. LORI A. ROBERTS Abstract: There are few certainties in litigation, but one that any injured plaintiff with health care insurance can rely on is that a defendant-tortfeasor will argue that the plaintiff’s health care bills are “illusory” and that the plaintiff will recover a “windfall” if he is allowed to recover the full amount of those bills as economic damages. The issue addressed in this Article, whether the difference between the billed rate for medical care and the actual amount paid by a plaintiff’s insurer …

Individual Mandates: A Founder-Approved Means Under The Necessary And Proper Clause, Eli Alcaraz

Eli A Alcaraz

The Affordable Health Care Act’s (“ACA”) individual mandate requiring most Americans to purchase healthcare was challenged as unconstitutional even before the ACA was passed. Challengers to the ACA assert that the federal government has never been allowed to force an individual to make a purchase from a private entity and that the ACA’s requirement that an individual do so is unconstitutional. This Comment takes issue with those asserting that an “individual mandate” is a contemporary invention and unconstitutional. As a matter of fact, there is at least one historical example where the federal government has forced individuals to makes purchases …

The Federal Government’S Ability To Respond To A Major Terrorist Attack: Issues, Concerns And Inadequacies In The Disaster Law Construct, M. Jonathan Gil

Michael J Gil

The cunning and zeal of the world’s terrorist organizations require that this country prepare itself for large-scale disaster relief operations. As it stands, the Stafford Act, as well as federal and local government policies are lacking. The federal government has floundered in past situations, and Americans have died as a result. In order to remedy these shortcomings, the government should take two different stances: hands on, and hands off. The hands-on approach is designed to address the shortfalls of past disaster response and the current system, while the hands-off approach is designed to allow the entire relief operation to operate …

Tenants At Foreclosure: Mitigating Harm To Innocent Victims Of The Foreclosure Crisis, Tony Guo

Tony Guo

An estimated forty percent of families facing foreclosure-related evictions nationwide are tenants. Forced to move out on short notice when their landlords fail to pay the mortgage, many renters not only lose their security deposits, but often see their lives turned upside-down. In response to this dilemma, Congress passed the Protecting Tenants at Foreclosure Act (PTFA) in May, 2009. Through this enactment, Congress sought to protect tenants, who for too long have been the innocent victims of the foreclosure crisis. This comment argues that although the federal legislation marks an important first step in protecting tenants’ rights, it is deficient …

No More Abuse: The Dodd-Frank And Consumer Financial Protection Act's "Abusive" Standard, Tiffany S. Lee

Tiffany S Lee

The Dodd-Frank Wall Street Reform and Consumer Financial Protection Act creates the new Bureau of Consumer Financial Protection. This consumer watchdog will be responsible for the most powerful consumer protections in American history. Under section 1031(d) of the Act, the Bureau may ban acts and practices that are unfair, deceptive, or abusive. While the unfair and deceptive standards have existed for some time, “abusive” is a relatively new legal standard with limited jurisprudential history. Thus, ironically, critics assert that the inclusion of the abusive standard is itself an abuse of legislative power. This Article asserts that despite some criticism to …

An Introduction To Legislation In Jewish Law, With References To The American Legal System, Samuel J. Levine

Samuel J. Levine

Levine examines the roles of legislative and judicial bodies, in the context of a discussion of broader principles of legislation in the Jewish legal system. In recent years, American legal scholars have increasingly looked to Jewish law as a model of an alternative legal system that considers many of the issues present in the American legal system. In relation to the roles of legislative and judicial bodies, the Jewish legal system provides a particularly illuminating contrast to the American legal system, in part because in Jewish law, the same authority, the Sanhedrin, or High Court, serves in both a legislative …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Illegal Immigration And The Dilemma Of American Unions, Vernon Briggs

Vernon M Briggs Jr

[Excerpt] Over its long and often turbulent evolution, the American labor movement has confronted few issues as persistently and as difficult has those related to subject of immigration. By definition, immigration affects the size of the labor force at any given time as well as its geographical distribution and skill composition. These vital influences, in turn, affect national, regional and local labor market conditions. Most immigrants directly join the labor force upon entering the country, as do eventually most of their family members. Hence, organized labor never has ignored immigration trends. As Samuel Gompers, one of the founders of the …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested engineered nanoparticles as a result of their contact with everyday consumer products. Nanoparticles are very small particles that are engineered using innovative technologies to be 1 to 100 nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers wide. Nanoscale materials are increasingly being used in a wide variety of areas, including electronic, magnetic, medical imaging, drug delivery, catalytic, materials applications, and cosmetic products. According to the National Institute of Occupational Health, new nanotechnology consumer products are coming …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested substances as a result of their contact with consumer products containing nanoparticles. Hundreds of consumer products are being marketed for human consumption, including food, dietary supplements, cosmetics and sunscreens. This expanding market ignores the growing scientific understanding that nanoparticles can create unintended human health and environmental risks. This Article discusses the public health, regulatory, legal and ethical issues raised by the developing appreciation of the health risks associated with nanotech products and is arranged as follows. After this Introduction, this Article describes the present …

Revitalizing Section 2, Christopher Elmendorf

Christopher S. Elmendorf

This article develops a fresh account of the meaning and constitutional function of Section 2, the Voting Rights Act’s core provision of nationwide application, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. Section 2 on my account delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 only arise when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or …

The Dodd-Frank Wall Street Reform And Consumer Protection Act: What Caused The Financial Crisis And Will Dodd-Frank Succeed In Preventing Future Crises?, Charles W. Murdock

Charles W. Murdock

Summary: The Dodd-Frank Wall Street Reform and Consumer Protection Act: What Caused the Financial Crisis and Will Dodd-Frank Succeed in Preventing Future Crises?

We are still experiencing the devastating impact of the financial crisis which came to a head on September 18, 2008 when Secretary Paulson told Congressional leaders that “[u]nless you act, the financial system of this country and the world will melt down in a matter of days.”

To prevent future crises of this magnitude, last year Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. However, this year, legislation has already been introduced to repeal …

Multidimensional Governance And The Bp Deepwater Horizon Oil Spill, Hari Osofsky

Hari Osofsky

This Article explores the governance challenges posed by the BP Deepwater Horizon oil spill, and proposes strategies for developing more inclusive, responsive institutions to help meet them. It begins by analyzing the incident through five core dimensions—vertical, horizontal, direction of hierarchy, cooperativeness, and public-private—to demonstrate the multi-level, multi-actor interactions taking place in offshore drilling and oil spill regulation. It then explains the ways in which the complex interactions in these dimensions translate into four core governance challenges: scientific and legal uncertainty, simultaneous overlap and fragmentation, the difficulties of balancing efficiency and inclusion, and inequality and resulting injustice. The Article next …

Blood Sugar Sex Magik: A Review Of Post-Conviction Dna Testing Statutes And Legislative Recommendations, Justin Brooks

Justin P Brooks

No abstract provided.

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Nadia N. Sawicki

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first …

The Abortion Informed Consent Debate: More Light, Less Heat, Nadia N. Sawicki

Nadia N. Sawicki

State abortion informed consent laws – including those requiring physicians to disclose that abortion terminates the life of a “whole, separate, unique, living human being” or display ultrasound images to patients seeking abortions – are being adopted at a rapid pace. Health law scholars who oppose these laws uniformly criticize them as being fundamentally inconsistent with the doctrine of informed consent. This Article directly challenges this conventional approach. It argues that the doctrine of informed consent does not impose nearly as significant a barrier to abortion disclosure laws as many critics claim. Rather, the ethical and legal principles of informed …

Unclear And Unconvincing: The Truthiness Requirement Of California's Ballot Pamphlet Arguments, Michael Boardman

Michael Boardman

“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to …

Criminalizing The Denial Of Honest Services After Skilling, Elizabeth R. Sheyn

Elizabeth R Sheyn

The United States Supreme Court’s recent decision in Skilling v. United States is only the latest in a series of blows that the Court has dealt to the intangible rights theory of mail fraud (also known as honest services fraud). In Skilling, the Court considered the constitutionality of the so-called honest services statute, which criminalizes “scheme[s] or artifice[s][designed] to deprive another of the intangible right of honest services,” and narrowed its scope considerably. The Court limited the application of the statute to schemes to defraud involving bribes or kickbacks. Most significantly, the Court rejected the notion that the statute applies …

A Read-The-Bill Rule For Congress, Hanah Volokh

Hanah M. Volokh

In this Article, I argue that legislators have a duty to read the text of proposed legislation before voting to enact it. A Read the Bill political movement has formed in response to recent high-profile instances of rushed legislation. Putting aside partisan concerns, a rushed legislative process creates real problems because it forces legislators to vote on bills without having the time to properly evaluate the new legal rules that are being imposed on citizens If a rule or norm of reading the bill can slow the legislative process enough to provide for thorough consideration of proposed legislation, it would …