Law Commons^™

Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael

Law Faculty Scholarly Articles

The terrorist attacks of September 11, 2001, and the accounting and auditing crisis later caused by the Enron and Worldcom scandals of that same year, created a great sense of insecurity in many Americans. In this Article, I analyze the federal government's response to crisis. I first define what a crisis is: a sudden, existential threat to which the entity has insufficient resources to respond. I then explain how regulation for safety and security is unique in two aspects: perceptions matter, and the assistance of the regulated entities is essential. I proceed by describing and analyzing the regulatory history and …

Redistribution Under A Partially Privatized Social Security System, Kathryn L. Moore

Law Faculty Scholarly Articles

Once viewed as a radical recommendation, proposals to privatize Social Security abound. Moreover, proposals to privatize partially Social Security are beginning to receive serious consideration. Accordingly, this Article will address the likely effect of partial privatization on Social Security's ability to redistribute income. For the purposes of this Article, privatization will refer to proposals that involve individuals directing their own pre-funded individual accounts and bearing the risk of investing in the private market and not to proposals that involve the federal government investing in the private market and bearing the risk. This Article will treat proposals that "add" a defined …

Cooperative Implementation Of Federal Regulations, Douglas C. Michael

Law Faculty Scholarly Articles

Professor Michael examines regulatory programs in which the federal government leaves many compliance decisions up to the regulated entities themselves. Drawing on prior research and theory in the area, he concludes that such "cooperative implementation" is feasible if three principles are observed: (1) regulatory standards are written to leave discretion in methods of compliance and that discretion is within the competence of the regulated entities; (2) there are economic incentives to offset the additional costs to these entities; and (3) the entities self-report their own compliance, the agency closely monitors the program, and the agency maintains a residual program of …

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …

The Future Of Fair Housing Litigation, Robert G. Schwemm

Law Faculty Scholarly Articles

This article is a revised version of the keynote address I gave at a conference entitled "Where is Fair Housing Headed in This Decade?" sponsored by The John Marshall Law School in the Fall of 1992. As its title implies, the conference focused on the future of fair housing, and my address dealt with certain developments that I felt were not only observable in the early years of the 1990s, but were also likely to be important in the remaining years of this decade.

Many of these developments—such as the growing role of the federal government in fair housing enforcement …

A Fresh Look At Agency "Discretion", John M. Rogers

Law Faculty Scholarly Articles

Lawyers who represent or litigate against government agencies must wrestle so frequently with the concept of agency "discretion" that they may be forgiven for believing that the term is devoid of intrinsic meaning—a chameleon deriving substance only from its particular context. For instance, mandamus will lie only for ministerial acts, as opposed to "discretionary" ones. Agency acts that are "by law committed to agency discretion" are not reviewable in court under the federal Administrative Procedure Act (APA). However, agency actions are reviewed for "abuse of discretion." On the other hand, tort suits against the government will not be allowed for …

High-Level Radioactive Waste Management: The Nuclear Dilemma, Richard C. Ausness

Law Faculty Scholarly Articles

The United States is faced with a nuclear dilemma. On the one hand, nuclear power seems to be the only significant energy source that is presently capable of meeting the country's electrical energy needs. On the other hand, it is uncertain whether the United States has the technological and managerial capability to make nuclear power reliable and safe. In view of this situation, the United States should begin to develop less dangerous alternatives such as solar power. But development of an efficient solar energy system may require 30 years or more. In the meantime, the United States must learn to …

Discriminatory Effect And The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This article addresses the question of whether housing practices that produce discriminatory effects violate the Fair Housing Act. The language and legislative history of the statute are examined, the analogy to employment discrimination law is explored, and the principal Title VIII cases are considered in an effort to determine just what racial discrimination is under the Fair Housing Act. This analysis leads to a suggested approach for evaluating Title VIII cases that are based on discriminatory effect, including how such an effect may be shown by the plaintiff and what significance such a showing should have in terms of the …