Law Commons^™

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is that the political safeguards that …

“A Psychological Investigation Of Consumer Vulnerability To Fraud: Legal And Policy Implications”, Debra P. Stark, Jessica M. Choplin

Debra Pogrund Stark

This article focuses on a type of consumer fraud that is particularly problematic because it may not be actionable in some jurisdictions, namely the problem of consumer vulnerability to deception when a consumer notices a problematic term in a contract but is persuaded through deception to proceed with the deal anyhow. Two fraud simulation studies and a follow-up survey demonstrated how this type of fraud operates, found that consumers with certain vulnerability characteristics such as having lower socio-economic status are more susceptible to this type of fraud, and explored some of the psychological reasons why consumers are vulnerable to it …

The Financial Reform Act: Will It Succeed In Reversing The Causes Of The Subprime Crisis And Prevent Future Crises?, Charles W. Murdock

Charles W. Murdock

Summary: The Financial Reform Act: Will It Succeed in Reversing the Causes of the Subprime Crisis and Prevent Future Crises? By: Professor Charles W. Murdock

The current financial crisis, which could have plunged the world into a financial abyss similar to the Great Depression, is far from resolved. The financial institutions, which this article asserts caused the crisis, have returned to profitability and have paid billions of dollars in bonuses, while ordinary Americans have borne the brunt of the meltdown, with formal unemployment hanging around the 10% mark. This has caused some to comment that profits have been privatized and …

Rhetorical Federalism: The Role Of State Resistance In Health Care Decisionmaking, Elizabeth Leonard

Elizabeth A. Weeks

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government and enacting state laws providing that ACA will not apply to residents of the state. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead should be considered valuable to the health …

Because Parliament Can, Jim Corkery, Anthea Gerrard, Damien Lockie

Damien Lockie

Comment on the drafting of arbitrary taxation and the large variety of taxes levied in Australia at various levels of government. A carbon tax may be preferred to a 'cap and trade' emissions trading system.

Good Deficits: Protecting The Public Interest From Deficit Hysteria, Neil H. Buchanan

Neil H. Buchanan

President Obama has come under increasingly fierce criticism for the size of the federal budget deficit, as both Democratic and Republican politicians loudly proclaim that federal spending should be cut. This article explains why such anti-deficit fervor is misguided and simplistic, and why, perhaps counter-intuitively, cutting government spending can hurt the country, rather than help it, in both the short run and the long run.

In the short run, cutting deficit spending can be disastrous to the economy, especially if the economy is already in decline. In addition, because the federal budget fails to separate spending that provides long-term benefits …

Consumer Protection Initiatives In The Eu Mortgage Market: A Behavioral Economics Based Critique And Proposal, Debra P. Stark, Jessica M. Choplin

Debra Pogrund Stark

This article critiques the Commission of the European Union's recent consumer protection initiatives for the EU mortgage market focusing on the revised form of disclosures that the Commission appears poised to mandate in a Directive, providing suggested reforms to this form to make it more effective and proposing four additional consumer protections to empower EU consumers to make wise home loan decisions. The article argues that these additional consumer protections are a necessary condtion to creating the integrated EU mortgage market (with more cross border home loans) that the Commission desires.

From The Schoolhouse To The Poorhouse: The Credit Card Act's Failure To Adequately Protect Gen Y Consumers, Eboni Nelson

Eboni S Nelson

Whether through personal experiences or through the experiences of our friends and family, most, if not all, of us are all too familiar with the credit card industry’s unrelenting attempts to saddle young, naïve college students with debt that they cannot afford to repay. Students thoughtlessly apply for and use credit cards without considering the negative effects credit card debt can have on their academic, personal, and financial wellbeing. In May 2009, Congress attempted to address the pervasive problem of young consumer indebtedness by passing the Credit Card Accountability Responsibility and Disclosure Act of 2009. While this Article recognizes and …

The Financial Reform Act: Will It Succeed In Reversing The Causes Of The Subprime Crisis And Prevent Future Crises?, Charles W. Murdock

Charles W. Murdock

Summary: The Financial Reform Act: Will It Succeed in Reversing the Causes of the Subprime Crisis and Prevent Future Crises? By: Professor Charles W. Murdock

The current financial crisis, which could have plunged the world into a financial abyss similar to the Great Depression, is far from resolved. The financial institutions, which this article asserts caused the crisis, have returned to profitability and have paid billions of dollars in bonuses, while ordinary Americans have borne the brunt of the meltdown, with formal unemployment hanging around the 10% mark. This has caused some to comment that profits have been privatized and …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

The New Uniform Probate Code's Surprising Gender Inequities, Kristine Knaplund

Kristine Knaplund

The new Uniform Probate Code provisions on assisted reproduction include the five critical elements needed to address the broad range of issues in current law and practice, and in general the provisions work well. But as the sections now stand, they pose a delicious irony regarding children conceived and born long after a parent’s death: they allow a woman, especially a married woman, to alter the property distribution of a man’s estate by having a postmortem conception child, but accord very few men the same power. After centuries of laws giving men complete control over their wives’ property, perhaps the …

The New Uniform Probate Code's Surprising Gender Inequities, Kristine Knaplund

Kristine Knaplund

The new Uniform Probate Code provisions on assisted reproduction include the five critical elements needed to address the broad range of issues in current law and practice, and in general the provisions work well. But as the sections now stand, they pose a delicious irony regarding children conceived and born long after a parent’s death: they allow a woman, especially a married woman, to alter the property distribution of a man’s estate by having a postmortem conception child, but accord very few men the same power. After centuries of laws giving men complete control over their wives’ property, perhaps the …

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

Erika K. Wilson

While much attention is paid to issues of segregation and inequality in education, little attention is paid to the role that school district boundary lines play in creating segregation and inequality in education. Living on one side of a school district boundary line rather than another can mean the difference between being able to attend a high achieving resource enriched school or having to attend a low achieving, resource deprived school. Nevertheless, the federal judiciary--the institution looked upon to remedy issues of school segregation and inequality--is unable to adequately remedy segregation and inequality between school districts because it evidences a …

Ecology Comes Of Age: Nepa's Lost Mandate, Sam Kalen

Sam Kalen Mr.

Twenty-first century challenges are testing the resiliency of our Nation’s environmental programs. As such, we need to appreciate the National Environmental Policy Act’s (NEPA) resiliency for addressing our society’s evolving threats. This requires a better understanding both from the academy as well as the judiciary of what Congress intended when it passed the Magna Carta of environmental laws. That too little attention has been paid to such a paradigm shifting statute is unfortunate. Existing histories of NEPA simply overlook what animated Congress when it passed this Nation’s environmental charter. This article, therefore, fills a significant gap that has existed in …

Ecology Comes Of Age: Nepa's Lost Mandate, Sam Kalen

Sam Kalen Mr.

Twenty-first century challenges are testing the resiliency of our Nation’s environmental programs. As such, we need to appreciate the National Environmental Policy Act’s (NEPA) resiliency for addressing our society’s evolving threats. This requires a better understanding both from the academy as well as the judiciary of what Congress intended when it passed the Magna Carta of environmental laws. That too little attention has been paid to such a paradigm shifting statute is unfortunate. Existing histories of NEPA simply overlook what animated Congress when it passed this Nation’s environmental charter. This article, therefore, fills a significant gap that has existed in …

Protecting “Any Child:” The Use Of The Confidential Marital Communications Privilege In Child Molestation Cases, Naomi Goodno

Naomi Harlin Goodno

Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications …

Insurance As A Mitigation Mechanism: Managing International Greenhouse Gas Emissions Through Nationwide Mandatory Climate Change Catastrophe Insurance, Anastasia M. Telesetsky

Anastasia M Telesetsky

This paper proposes mandatory climate change catastrophe insurance as a risk-sharing mechanism to distribute future climate change disaster relief costs between major greenhouse gas emitting industries and the government. This article argues that mandatory catastrophe risk insurance for major greenhouse gas emitters will deliver necessary financial coverage for future climate disasters as well as compel timely climate change mitigation on the part of major emitters. The first part of this paper offers mandatory climate change catastrophe insurance as an additional market tool to the existing proposals for emission trading schemes and carbon taxes. This part begins with a summary of …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

The Fox And The Ostrich: Is Gaap A Game Of Winks And Nods?, Arthur Acevedo

Arthur Acevedo

The fox is frequently described as sly, cunning and calculating in world literature. It is often associated with behavior that seeks advantage through trickery and pretext. The ostrich on the other hand, has been portrayed as cowardly and irrational. Its character defect is epitomized when it sticks its head in the sand at the first sign of trouble. The Financial Accounting Standards Board (FASB) can be described as the fox; the Securities Exchange Commission (SEC), the ostrich. This article examines the creation of accounting principles by the fox and the failure to govern by the ostrich. History demonstrates that the …

A Post-Racial Voting Rights Act, Jason Rathod (R-Z)

Jason Rathod (R-Z)

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

Legislative Rules, Nonlegislative Rules, And The Perils Of The Short Cut, David L. Franklin

David L. Franklin

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exempted from notice and comment. The distinction has been called “tenuous,” “baffling,” and “enshrouded in considerable smog.”

What is just as baffling is that prominent commentators such as John Manning, Peter Strauss, William Funk and Donald Elliot have proposed a simple solution to the problem—and courts have failed to take them up on it. Rather than inquiring into …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

Distorting Legal Principles, Steven L. Schwarcz

Steven L Schwarcz

This article explores the important but until now largely neglected problem of distorting legal principles. Although legal principles enable society to order itself by preserving broadly based expectations, parties sometimes transact in ways that are so inconsistent with accepted principles as to create uncertainty or confusion that undermines the basis for reasoning afforded by the principles. The article starts by examining a fundamental distortion of the nemo dat legal principle (one cannot give what one does not have), which was a trigger of Lehman Brothers’ recent downfall. A practice called “rehypothecation” so distorted nemo dat that Lehman’s customers were uncertain …

Delaware For Small Fry: Jurisdictional Competition For Limited Liability Companies, Larry E. Ribstein

Larry E. Ribstein

Most of the work on jurisdictional competition for business associations has focused on publicly held corporations and the factors underlying Delaware’s dominance in attracting formations of large out-of-state corporations. We examine an analogous jurisdictional competition to attract formations by closely held limited liability companies (LLCs). The LLC offered the first attractive business form for closely held limited liability firms unconstrained by the legacy of corporate default rules. State legislatures have adopted and changed LLC statutes rapidly over the past 20 years. Unlike general and limited partnerships, which have been shaped by uniform laws, LLC statutes vary significantly. These circumstances offer …

Making The States Full Partners In A National Climate Change Effort: A Necessary Element For Sustainable Economic Development, John Dernbach, Robert Mckinstry, Thomas Peterson

John C. Dernbach

This article explains why states and localities need to be full partners in a national climate change effort based on federal legislation or the existing Clean Air Act. A large share of reductions with the lowest cost and the greatest co-benefits (e.g., job creation, technology development, reduction of other pollutants) are in areas that a federal cap-and-trade program or other purely federal measures will not easily reach. These are also areas where the states have traditionally exercised their powers—including land use, building construction, transportation, and recycling. The economic recovery and expansion will require direct state and local management of climate …

Drug Safety And Commercial Speech: Television Advertisements And Reprints On Off-Label Uses, Margaret Gilhooley

Margaret Gilhooley

1/11/10

PREPUBLICATION VERSION

DRUG SAFETY AND COMMERCIAL SPEECH:

TELEVISION ADVERTISEMENTS AND REPRINTS ON OFF-LABEL USES

By Margaret Gilhooley©

ABSTRACT

This paper examines how the constitutional protections for commercial speech have limited the ability of Congress and FDA to regulate prescription drugs in ways that can affect safety. In Thompson v. Western States, the Supreme Court struck down a Congressional restriction on advertisements for unapproved “compound” drugs because a disclosure that FDA had not approved the compound was considered a constitutionally adequate alternative. While drug compounds are a relatively obscure category, the decision influenced Congress in deciding not to require a …