Law Commons^™

Tailoring Deference To Variety With A Wink And A Nod To Chevron: The Roberts Court And The Amorphous Judicial Framework For Review Of Agency Interpretations Of Law, J. Lyn Entrikin Goering

J. Lyn Entrikin Goering

In the 25 years since the Court issued its venerable opinion in Chevron, the Supreme Court has all but disregarded the judicial review provisions of the Administrative Procedure Act (APA), first enacted in 1946. From 1984 to 2000, Chevron took center stage as the most-cited opinion in administrative law. Beginning in 2000, the Rehnquist Court issued a series of decisions limiting the reach of Chevron. At the same time, the Court revived common law deference frameworks that predate the APA. Yet the Rehnquist Court failed to fully reconcile Chevron with its previous common law deference doctrines and with the APA’s …

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Lili Levi

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for …

The New Sanctuary Movement: When Moral Mission Means Breaking The Law, And The Consequences For Churches And Illegal Immigrants, Kara L. Wild

Kara L. Wild

Are the churches involved in the New Sanctuary Movement -- a movement that hides illegal immigrants in churches to prevent them from being deported -- acting legally? If not, is there a way that they could pursue their goals in a legal manner? The author explores the movement's goal, to win public sympathy and eventual legality for the nation's illegal immigrant population by using methods that were popular during the successful 1980s Sanctuary Movement. The author examines the differences between the 1980s Movement and the current one, the likelihood of success for the New Sanctuary Movement's legal arguments, and the …

Federal Demand Local Choice: Safeguarding The Notion Of Federalism In Education Law And Policy, Kamina A. Pinder

Kamina A Pinder

As the ESEA undergoes its next transformation under a new presidential administration, this article explores the appropriate federal and state roles in promoting and enforcing laws related to academic achievement, and the appropriate judicial role in interpreting them. Part I of this article provides an overview of how the modern federal role in education law and policy was shaped through politics and litigation. Part II explores the drastic changes that No Child Left Behind brought to education federalism through the lens of cooperation, coercion (enforcement), and competition. It then analyzes the appropriate role of the executive branch in enforcing educational …

Can The 'Death Tax' Kill Charity Too? The Impact Of Legislation On Charitable Bequests, Kristine Knaplund

Kristine Knaplund

The national debate over the federal estate tax has caused fear in American charities over the past ten years, a fear that is likely to continue for the foreseeable future. Since Congress acted in 2001 to repeal the dreaded 'death tax' for one year, for those dying in 2010, charities and individuals have become increasingly concerned about the impact of a repeal on charitable donations. While only a small percentage of charitable gifts come in the form of gifts at death, these few but generous incidents in fact amount to billions of dollars, and are imperative to the operation of …

Killing Capital Punishment In New Jersey: The First State In Modern History To Repeal Its Death Penalty Statute, Robert Martin

Robert J. Martin

This article examines how opponents of the death penalty were successful in lobbying and eventually achieving statutory repeal of New Jersey’s death penalty statute in December 2007. The primary goal of the article is to offer inspiration and guidance for similar efforts in the thirty-five states that still authorize capital punishment. In reviewing lessons learned from New Jersey, the article demonstrates that abolition proved both difficult and doubtful. Led by a small group of organizers and sympathetic legislators, the advocates of abolition faced multiple challenges. The article focuses special attention on their key strategic decisions: pursuit of both legislation and …

The Long Road To Self Determination, Sarah Chilim Ihn

Sarah Chilim Ihn

East Los Angeles is widely considered as the heart of Southern California’s strong and vibrant Mexican American community – yet, it is also an unincorporated area whose only general purpose government is provided by Los Angeles County, the most populous county in the nation. Through the lens of East Los Angeles’ quest for cityhood, this paper explores and critiques the limited governance options that exist for low-income unincorporated communities.

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

The Obstructionism Of Senator Paul Jabour, Donna M. Hughes Dr.

Donna M. Hughes

Protecting Foreign Investors From International Securities Fraud, Derek N. White

Derek N White

This article discusses the subject matter jurisdiction of national courts in a little-known type of international securities cause of action that has vexed courts of the developed world. The cause of action is labeled the “foreign-cubed class action”, which is brought when a dispute arises regarding purported improprieties in an international securities transaction that contains foreign investors who purchase securities of foreign issuers on foreign stock exchanges. Notice the three “foreign” elements of the transaction ("foreign" meaning foreign to the court presiding over the action).

The number of foreign-cubed class actions brought in U.S. courts has risen sharply over the …

Sarbanes-Oxley & The Culture Of Bribery: Expanding The Territorial Scope Of Private Whistleblower Suits To Overseas Employees, Matt A. Vega

Matt A Vega

SARBANES-OXLEY & THE CULTURE OF BRIBERY: EXPANDING THE TERRITORIAL SCOPE OF PRIVATE WHISTLEBLOWER SUITS TO OVERSEAS EMPLOYEES, by Matt A. Vega

This article has been accepted for publication in Vol. 46, No. 2 Harvard J. on Legis. 425 (Summer 2009).

Abstract: This paper examines the use of private transnational litigation to enforce the Foreign Corrupt Practices Act of 1977 (FCPA). Small, but repetitive bribery of foreign officials by local employees is the Achilles heel of corporate ethics. In fact, it is what perpetuates the “culture of bribery” that makes major corruption possible. Unless overseas employees refuse to give in to …

Action Alert For Senate: Comments On Human Trafficking Bills, Donna M. Hughes Dr.

Donna M. Hughes

Mortgage Market Regulation And Moral Hazard: Equity Stripping Under Sanction Of Law, Vincent Di Lorenzo

Vincent Di Lorenzo

No abstract provided.

Raising The Dead?: The Lilly Ledbetter Fair Pay Act, Charles A. Sullivan

Charles A. Sullivan

If applied literally, the Lilly Ledbetter Fair Pay Act has the potential to radically change the landscape for litigating claims under Title VII and other antidiscrimination laws. While limited to discrimination in compensation, as opposed to discrimination in other terms and conditions of employment, the FPA removes the statute of limitations not only for compensation decisions per se but for any “other practice” affecting compensation. Further, the new law is explicitly retroactive. Thus, a failure to promote plaintiff twenty years ago would seem to be actionable today, so long as the nonpromotion has an effect on current compensation. While the …

Testimony On Human Trafficking Bill, Rhode Island Senate Judiciary Committee, Donna M. Hughes Dr.

Donna M. Hughes

A Reappraisal Of Attorneys' Fees In Bankruptcy, Michelle A. Cecil

Michelle A. Cecil

The current mortgage foreclosure crisis, coupled with the country’s economic downturn and escalating consumer costs, have combined to place a crippling burden on the nation’s bankruptcy system. During difficult economic times such as this, it is imperative that the bankruptcy system operate efficiently, as it provides a social safety net for both consumers and businesses. Unfortunately, there are many issues of statutory interpretation left unanswered in the Bankruptcy Code, and these issues have placed an increased burden on the country’s bankruptcy courts. This Article seeks to resolve one thorny issue of statutory interpretation: the treatment of attorneys’ fees in bankruptcy. …

Lowering The Bar: In Re Van Orden And The Constitutionality Of The 2006 Amendments To Missouri's Sexually Violent Predator Act, Lauren A. Standlee

Lauren A Standlee

Beginning in 1990, states began enacting statutes for the involuntary civil commitment of sexually violent predators. Missouri amended its Sexually Violent Predator Act in 2006. Significantly, the Missouri Legislature reduced the burden of proof necessary to commit such individuals, and implemented a program for their conditional release. The Missouri Supreme Court recently addressed the amendments in In re Van Orden, and upheld the lower burden of proof against constitutional attack. Focusing on Supreme Court of the United States' precedent, the article argues that the 2006 amendments are a blemish on the legislature and the judiciary alike. The paper asserts that, …

Public Funds Private Investors: Analysis Of Ppip, Steven Zakharyayev Esq.

Steven Zakharyayev Esq.

In October of 2008, the U.S. Congress enacted The Emergency Economic Stabilization Act of 2008 (“EESA”) in response to the deterioration in the U.S. housing market and the subsequent illiquidity amongst U.S. financial institutions. The severity and scope of the financial crisis required unprecedented actions by the U.S. treasury to prevent further deterioration of the global economy. This included a $700 billion dollar investment of taxpayer funds to purchase troubled assets from financial institutions and subsequently improve the flow of credit throughout the U.S. economy.

Trust Or Profit: How Military Officers Are Bound By The Constitution, Michael C. Mcnerney

Michael C McNerney

This paper examines the ability of reserve and active duty military officers to serve in certain political offices, such as Congress and the Electoral College. The seminal case on this issue, U.S. v. Lane, dealt with a U.S. senator who served as a reserve military judge. In deciding the case, the Court of Appeals for the Armed Forces only stated that a member of Congress may not also serve as a judge, but did not reach the ultimate issue of concurrent military service. This paper will attempt to show in exactly which political offices military officers may serve. In making …

The Genetic Information Nondiscrimination Act Of 2008: A Case Study Of The Need For Better Congressional Responses To Federalism Jurisprudence, Harper Jean Tobin

Harper Jean Tobin

The Genetic Information Nondiscrimination Act of 2008 (GINA) is the first new civil rights statute enacted since the “federalism revolution” of 1995-2001, in which the Supreme Court announced new limitations on congressional authority. Among other things, these decisions invalidated civil rights remedies against states, declaring that Congress had failed to amass sufficient evidence of the need for legislation. Although passed in the shadow of these decisions, GINA’s limited legislative history makes it vulnerable to attack – potentially limiting its protections for millions of state employees. States will likely attack GINA on two grounds: first, that Congress relied only on its …

A Fighting Chance: The Proposed Servicemembers Access To Justice Act & Its Potential Effects On Binding Arbitration Agreements, Sean M. Hardy

Sean M Hardy

No abstract provided.

Major Issues Affecting The Individuals With Disabilities Education Act, Jonathan Blackmore

Jonathan Blackmore

This article seeks to explore some of the major aspects of the Individuals with Disabilities Education Act through the examination of case law, and gives suggestions which could help remedy some of the troubling situations faced by those affected by the Act. Many of the cases cited are brought by the parents of children suffering from Autism Spectrum Disorder. School districts face enormous challenges in attempting to comply with the Act’s mandates while servicing children and families struggling with the complexities of this disease.

Hollow Promises For Pregnant Students – How The Regulations Governing Title Ix Fail To Protect Them From Discrimination In School, Kendra H. Fershee

Kendra H Fershee

This Article describes the unequal treatment of pregnant students historically in American public school historically and how the regulations implementing Title IX are too weak to ensure that the historical discrimination cease, despite the prohibitions on discriminatory practices. This Article explains the historical reasons for the discrimination, Congress’s attempt to remedy the discrimination through Title IX and its implementing regulations, and the failure of the regulations to meet the regulatory goals of school access, choice, and quality. The Article continues to make concrete suggestions, with specific language recommendations, for changes in the current Title IX regulations with respect to pregnancy. …

Taming The Mandibles Of Death: Secrecy, Disclosure, And Fiduciary Duties In The Revised Uniform Limited Liability Company Act, Allan Vestal, J. Callison

Allan W. Vestal

This article traces the development of limited liability company disclosure and fiduciary duty provisions from the Uniform Limited Liability Company Act to the Revised Uniform Limited Liability Company Act using the community, party autonomy, and structural models.

Webster Plus One: Solving The "Impossible" Apportionment Debate, Mark M. Bell

Mark M Bell

Apportionment issues inevitably arise decennially. Consistent with historical trends, the debates concerning the upcoming 2010 apportionment have already begun to intensify. Deciding which apportionment method to use has generated intense debates among some of the most prominent figures in the Nation’s history. Most scholars believe that there is constitutional tension between two fundamental apportionment constraints: apportioning proportionally and representatively. It has been universally accepted that it is “impossible to satisfy both criteria.” In order to satisfy both criteria, an apportionment method must both, maintain quota, and avoid paradoxes. I postulate a new method, the “Webster Plus One” approach, that stands …

Missing The Mark: An Overlooked Statute Redefines The Debate Over Statutory Interpretation, William S. Blatt

William S. Blatt

No abstract provided.

Missing The Mark: An Overlooked Statute Redefines The Debate Over Statutory Interpretation, William Blatt

William S. Blatt

No abstract provided.

Missing The Mark: An Overlooked Statute Redefines The Debate Over Statutory Interpretation, William S. Blatt

William S. Blatt

No abstract provided.

Missing The Mark: An Overlooked Statute Redefines The Debate Over Statutory Interpretation, William S. Blatt

William S. Blatt

No abstract provided.

Missing The Mark: An Overlooked Statute Redefines The Debate Over Statutory Interpretation, William S. Blatt

William S. Blatt

No abstract provided.