Law Commons^™

Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush

David J. Arkush

This Article attempts to clarify legal thinking about emotion in decision making. It surveys evidence from psychology and neuroscience on the extensive role that emotion and related nonconscious cognitive processes play in human behavior, then evaluates the treatment of emotion in three legal views of decision making: rational choice theory, behavioral economics, and cultural cognition theory. The Article concludes that each theory is mistaken to treat emotion mostly as a decision objective rather than a part of the decision-making process and, indeed, to treat it as a force that mostly compromises that process. The Article introduces the view that emotion …

Climate Change And Carbon Sequestration: Assessing A Liability Regime For Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

As the nation struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is carbon capture and sequestration (“CCS”), which consists of capturing carbon dioxide emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention …

Rating Sell-Side Analysts: A Shift From Subjectivity To Empirically Verifiable Facts, Andrew M. Labreche

Andrew M LaBreche

Throughout the early 1990’s, the stock market experienced seemingly limitless growth, with retail investors realizing healthy returns based on positive recommendations from sell-side analysts. However, as the 1990’s progressed, the technology bubble burst and millions of retail investors lost billions of dollars relying on fraudulent analyst recommendations. This article will detail the self-reinforcing relationship between investment banks, institutional investors and sell-side analysts that systematically disadvantaged retail investors throughout the 1990’s. It will then examine the attempted legislative, judicial and administrative remedies that have resulted from this situation. Specifically, this article will focus on the failures of those remedial measures and …

The Disruption Of Marital Eharmony: Distinguishing Mail-Order Brides From Online Dating In Evaluating "Good Faith Marriage", Brandon N. Robinson

Brandon N. Robinson

ABSTRACT In today’s society, more and more people are turning to the information superhighway to find love. No longer confined to the girl or boy “next door,” many of today’s single men and women can connect with potential soul mates across the globe with the simple click of a button, symbolizing yet another consequence of a world community that is quickly becoming smaller and more interconnected. Once an international “match” has been made, the U.S. citizen can begin the complicated process of bringing his newfound loved one to the States. The IMO industry has a much more sinister underbelly, however, …

The Pansy Ho And Mgm Mirage Partnership: What Is The Role Of State Regulators In A Global Gaming Economy?, Jason M. Yates

Jason M Yates

This paper traces the development of Nevada’s Foreign Gaming Act. It will look back at the intent of legislators and regulators who drafted the law. The paper will also analyze the recent application of the law to the MGM Mirage/Pansy Ho partnership in Macau. Finally, the paper will look forward at how Nevada regulators are coming to terms with the international expansion of gaming.

A Philosophy Of Privitization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor B. Sorresso

Eleanor B Sorresso

Over the past two decades, managed care coverage programs have grown to dominate the private health insurance market. With the Balanced Budget Act of 1997 and the Medicare Modernization Act of 2003, managed care programs are now expanding to envelop our nation’s Medicare program as well. Proponents have based this expansion primarily on the premise that market economics provides a more efficient paradigm under which to regulate available health care resources. However, this premise of market efficiency proves problematic in the health care arena because it disregards issues of societal responsibility and the risk of socioeconomic stratification in the allocation …

Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig

Robin K. Craig

Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …

What Can Booker Teach Us About Chevron?, Joshua L. Sohn

Joshua L. Sohn

Since 1984, courts have used the Chevron framework to review administrative agencies’ rules and regulations. However, there is an unresolved debate over how to determine when an agency interpretation of its governing statute is “reasonable” at Step 2 of Chevron. This article seeks to inform that debate by analogizing to an unlikely source: the Supreme Court’s 2005 opinion in United States v. Booker. Booker was a criminal sentencing case that may seem far removed from the interpretive question in Chevron. But the two cases are striking similar in the “reasonableness” standard that they impose on reviewing courts.

This article suggests …

No Two-Stepping In The Laboratories, Michael M. Pappas

Michael M Pappas

NO TWO-STEPPING IN THE LABORATORIES examines the deference standards the various states offer to agency statutory interpretation. The article analyzes these state examples and their implications for the federal Chevron doctrine.

Making The Sale On Contingent Valuation, Sameer H. Doshi

Sameer H Doshi

Scholarship and jurisprudence have not seriously considered the question of whether the contingent valuation (CV) technique of monetizing preferences for non-tradeable public goods is consistent with the Daubert standards for scientific evidence. The greatest difficulty is in establishing that CV is testable and has measurable error rates; this problem is consonant with criticisms that economists have leveled at the CV method more generally. Additionally, the “state of the art” of contingent valuation practice has recommended the use of the willingness-to-pay question format for CV, rather than willingness-to-accept. This is misplaced in many cases, particularly in calculating damages in environmental tort …

Litigating Canada-U.S. Transboundary Pollution: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Shi-Ling Hsu, Austen Parrish

Shi-Ling Hsu

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of interna-tional law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Post-Trauma: Cambodian Refugees And Social Security's Disability Fraud Investigations, Theodore A.B. Mccombs

Theodore A.B. McCombs

Since 2003, the Oakland unit of Social Security’s Cooperative Disability Investigations (“CDI”) program has targeted certain Cambodian refugee applicants with Post-Traumatic Stress Disorder and Depression for fraud investigations. The practices of Social Security’s anti-fraud program in Oakland reveal disturbing disadvantages to Cambodian refugee applicants in particular, including institutional prejudices in Social Security’s rules and CDI agents’ gross insensitivity to claimants’ impairments and cultural realities. This Note examines these disadvantages under the legal norms of national origin discrimination, disability discrimination, and due process, and concludes with a policy proposal on how Social Security might better protect claimants’ rights and interests while …

Government Lawyers And Confidentiality Norms, Kathleen Clark

Kathleen Clark

This article addresses the confidentiality obligations of government lawyers, and how those obligations differ from private sector lawyers. It examines the rather complex question of the identity of a government lawyer’s client, notes that many government lawyers make decisions that are normally reserved for clients, and finds that those lawyers can appropriately consider the public interest in making those decisions. On the specific issue of confidentiality, the article asserts that, as a substantive matter, government lawyers may disclose government wrongdoing and may reveal information that is subject to disclosure under freedom of information laws. But as a procedural matter, state …

Presidents And Process: A Comparison Of The Regulatory Process Under The Clinton And Bush (43) Administrations, Stuart Shapiro

Stuart Shapiro

Do procedural controls placed on the regulatory process allow politicians to control bureaucratic decisionmaking? I use data on the regulatory process under the Clinton and Bush Administrations to assess the differences between these presidents with distinct ideological regulatory agendas. I find that the number of comments received, the changes made between proposal and finalization of rules, the frequency with which agencies bypass notice and comment, the frequency of use of different regulatory analyses, and the time to complete a rulemaking did not vary substantially between the two presidencies. This raises questions about the role of procedural controls on agency decisionmaking.

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Jason J. Czarnezki

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …

“Manifest” Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption, Colin Miller

Colin Miller

Abstract for Colin Miller, “Manifest” Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption Congress engages in preemption when it enacts federal legislation that supersedes any existing state and local laws in a particular field and proscribes any future state and local regulation of that field. Because preemption repeals state and local legislative authority over traditional areas of state law, courts have understandably required that preemptive legislation evince “clear and manifest” Congressional intent to supersede state and local legislation. Conversely, when Congress includes a jurisdictional exhaustion …

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

Representation Reinforcement And The Court-Congress Dialogue: A Process-Based Solution To A Processed-Based Problem, Anita S. Krishnakumar

Anita S. Krishnakumar

One of the most valuable — and disturbing — insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars have offered up a host of John Hart Ely-inspired representation-reinforcing “canons of construction,” designed to encourage judges to use their role as statutory interpreters to …

Neither Fish Nor Fowl: New Strategies For Selective Regulation Of Information Services, Robert M. Frieden

Rob Frieden

Neither Fish Nor Fowl: New Strategies for Selective Regulation of Information Services Rob Frieden Professor, Penn State University 102 Carnegie Building University Park, Pennsylvania 16802 (814) 863-7996; rmf5@psu.edu web site: http://www.personal.psu.edu/faculty/r/m/rmf5/ The Federal Communications Commission (“FCC”) has created a dichotomy between telecommunications and information services with an eye toward limiting traditional common carrier regulation to the former category. This regulatory dichotomy provides the basis for exempting most Internet-mediated services from traditional telephony regulation that requires carriers to provide nondiscriminatory network interconnection even with competitors. To support its deregulatory mission the FCC has found ways to subordinate the telecommunications components in …

Three Faces Of Deference, Paul Horwitz

Paul Horwitz

Deference – the substitution by a decision maker of someone else’s judgment for its own – is a pervasive tool of constitutional doctrine. But although it has been studied at more abstract levels of jurisprudence and at very specific doctrinal levels, it has received surprisingly little general attention in constitutional scholarship. This Article aims to fill that gap.

This Article makes three primary contributions to the literature. First, it provides a careful examination of deference as a doctrinal tool in constitutional law, and offers a taxonomy of deference. In particular, it suggests that deference can best be understood as relying …

The Public Network, Thomas B. Nachbar

Thomas B Nachbar

This article addresses the timely yet persistent question of how best to regulate access to telecommunications networks. Concerns that private firms may use their ownership of communications networks to their own economic advantage has led many to propose restrictions, variously referred to as “network neutrality” or “open access” proposals, on network operators. To date, the network neutrality debate has focused almost exclusively on economic arguments for or against such regulation. Taking a step back from current debates, this paper seeks to derive from established law the accepted bases for imposing nondiscrimination rules and then to work forward to ask whether …

All Sprawled Out: How The Federal Regulatory System Has Driven Unsustainable Growth, Chad Emerson

Chad Emerson

No abstract provided.

Matching Actions To Words: The Promotion Of Tribal Soivereignty Through Negotiated Rulemaking, Joseph M. Cottle

Joseph M Cottle

On May 25, 2006, the National Indian Gaming Commission (NIGC) proposed a new definition concerning bingo games and new classification standards for Class II games. The proposed rules likely will require Native American tribes to eliminate their Class II games or enter tribal-state negotiations to conduct Class III games. The process of proposing these rules deprived tribes of sovereignty since the tribes were not able to participate in the drafting of the proposed rules, the rules shift many Class II games to Class III games with weighty economic and political costs to tribes, and the ability to object to game …

Fitting The Pension Protection Act Of 2006 Into The Defined Contribution Paradigm, Crystal L. Lyons

Crystal L. Lyons

No abstract provided.

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Fernando Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Fernando Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Standing To Sue In The Absence Of Prosecution: Can A Case Be Too Controversial For Case Or Controversy?, David T. Hardy

David T. Hardy

The Supreme Court has recognized that, except in highly unusual situations, a plaintiff has “harm in fact,” and thus standing to sue, if a criminal statute outlaws conduct in which he intends to engage and which is arguably within the protections of the Constitution. Three Circuits have, however, evolved contradictory strings of caselaw, in which certain challenges are assessed in accord with the Supreme Court’s teachings, while other, indistinguishable, challenges are subjected to much stricter standards, standards which are almost impossible to meet. The Circuits rarely attempt to reconcile the two sets of decisions, and when they do, the resolution …

Immigration, Anti-Terrorism Measures, And National Security: Exploring The Use Of Security Certificates Under Canada’S Immigration And Refugee Protection Act (Irpa), Kamaal Zaidi

Kamaal Zaidi

In the wake of the 9-11 attacks, several nations have introduced security legislation in various forms that affected their immigration system. Security certificates are administrative tools designed to safeguard the national security of Canada by detaining individuals suspected of having links to terrorism or other forms of serious criminality. This form of detention has provided few due process rights for accused non-citizens, forming the basis of much criticism. In addressing this concern, the judiciary (through the Supreme Court of Canada and Federal Courts) has recognized the lack of due process protections afforded to these individuals, particularly in the context of …

The Asylum Law Of The Particular Social Group, Matthew Paul Nickson

Matthew Paul Nickson

No abstract provided.