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Articles 1 - 9 of 9
Full-Text Articles in Law
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
Michigan Law Review First Impressions
This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …
Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner
Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner
Chicago-Kent Law Review
The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can …
Dead On Arrival: The Health Insurance Industry's Bleak Prognosis Due To Unconstitutional Ratemaking In The Patient Protection And Affordable Care Act, Rebecca J. Kopps
Dead On Arrival: The Health Insurance Industry's Bleak Prognosis Due To Unconstitutional Ratemaking In The Patient Protection And Affordable Care Act, Rebecca J. Kopps
Northern Illinois University Law Review
The public discussion surrounding health care reform thus far has centered around how the newly enacted law will affect consumers. Yet, the law most profoundly affects the health insurance industry, whose interests have largely been ignored. While the enactment of the Patient Protection and Affordable Care Act was viewed as a triumph for the Obama Administration, it casts a much darker shadow on the future of the health insurance industry that it regulates. Through provisions requiring minimum covered benefits, rate justifications, limits on selecting eligible enrollees, and most notably, an excessively high minimum medical loss ratio, this law involves substantial …
This Land Is Your Land, This Land Is My Land? Why The Cobell Settlement Will Not Resolve Indian Land Fractionation, Jered T. Davidson
This Land Is Your Land, This Land Is My Land? Why The Cobell Settlement Will Not Resolve Indian Land Fractionation, Jered T. Davidson
American Indian Law Review
No abstract provided.
The Problem With Pretext, Lynn E. Blais
The Problem With Pretext, Lynn E. Blais
Fordham Urban Law Journal
This Article examines the problems with the Supreme Court's holding in Kelo v. City of New London that the concept of public use is expansive unless the government is asserting the public use as a "mere pretext" and the true purpose is private benefit. The author examines the level of scrutiny applied in such cases, the link between pretext and motive, and the tests applied to evaluate pretext challenges: the burden-shifting motives test, the sufficiency of the plan taste, and the benefits to the public test. The author concludes that pretext is an "unworkable mechanism" for evaluating public use cases.
Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen
Fordham Urban Law Journal
This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."
Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle
Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle
Fordham Urban Law Journal
Dirigisme is the "policy of state direction and control in economic and social matters. This Article examines dirigisme as it relates to state control of land use. It also analyzes the development of eminent domain law and the requirement that takings be for public use. The author argues that the New York Court of Appeals "subordinates constitutional protections for private property to centralized development," specifically examining the recent Goldstein and Kaur opinions. The Article also discusses the implications of condemnation for transfer for private redevelopment, including lack of transparency, secondary rent seeking, possibilities of corruption, and the inefficient use of …
Reclaiming The Promise Of The Judicial Branch: Toward A More Meaningful Standard Of Judicial Review As Applied To New York Eminent Domain Law, Paula Franzese
Reclaiming The Promise Of The Judicial Branch: Toward A More Meaningful Standard Of Judicial Review As Applied To New York Eminent Domain Law, Paula Franzese
Fordham Urban Law Journal
This Article asserts that the New York model of eminent domain and judicial review must be reworked to provide a meaningful balance between private property rights and concerns for public good. Part I sets forth current doctrine and procedure which New York agencies must follow when exercising the power of eminent domain. Part II explores how blight has become a "standardless standard" in New York. Part III examines New York courts' reluctance to overturn agency decisions and the potential for abuse that this creates. Part IV examines other jurisdictions which have imposed stricter standards when examining public use. Part V …
The Use And Abuse Of Blight In Eminent Domain, Martin E. Gold, Lynne B. Sagalyn
The Use And Abuse Of Blight In Eminent Domain, Martin E. Gold, Lynne B. Sagalyn
Fordham Urban Law Journal
This Article examines the term "blight" and how it is used in eminent domain cases. Part I discusses the development of the term and how various states define it. Part II lays out a hierarchy which may be used to compare the private benefits on one hand and the public benefits on the other hand in redevelopment projects. In Part III, the Columbia University expansion in Manhattanville is examined, at both the New York Appellate Division and Court of Appeals levels. Part IV discusses how forty-three states redefined blight after the Kelo case. Part V discusses how political and business …