Law Commons^™

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

We Shouldn't Need Roe, Carliss Chatman

Scholarly Articles

In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the U.S. Supreme Court, this essay asks whether Roe is needed at all. Decades of state law encroachments have caused Roe to fail to properly protect the right to choose. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the right …

Civil Disobedience In The Face Of Texas’S Abortion Ban, Alexi Pfeffer-Gillett

Scholarly Articles

This Article uses Texas’s abortion ban to demonstrate why civil disobedience is the best strategy against such private-enforcement schemes. It proceeds in three parts. Part I demonstrates that Texas’s private enforcement scheme in fact directly implicates state court officials and potentially state police forces. It then explains why bringing about the involvement of state courts and police through civil disobedience will put SB8 on constitutionally weaker ground. Part II details potential arguments against civil disobedience as a means of challenging private enforcement schemes. This Part also explains why relying on the federal government to challenge such laws will be insufficient. …

Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex …

Brief Of Amicus Curiae The Washington And Lee University School Of Law Black Lung Clinic In Support Of Petitioners: California V. Texas, Timothy C. Macdonnell

Scholarly Articles

Section 1556 of the Patient Protection and Affordable Care Act (PPACA) makes two major changes to the Black Lung Benefits Act. These changes remove limiting language to make it simpler for disabled miners and their families to establish that they are entitled to federal benefits. First, § 1556(a) reinstates the fifteen-year rebuttable presumption, which presumptively entitles former coal miners to benefits if they have worked over fifteen years underground and have a totally disabling pulmonary disease. The second, § 1556(b), reinstates a continuation of benefits for surviving spouses whose coal-mining spouse was receiving benefits at the time of their death. …

Saving Justice: Why Sentencing Errors Fall Within The Savings Clause, 28 U.S.C. § 2255(E), Brandon Hasbrouck

Scholarly Articles

Notwithstanding the extent to which scholars, lawyers, and community organizers are broadening their contestations of the criminal justice system, they have paid insufficient attention to federal sentencing regimes. Part of the reason for this is that sentencing is a “back-end” criminal justice problem and much of our nation’s focus on criminal justice issues privileges “front-end” problems like policing. Another explanation might be that the rules governing sentencing are complex and cannot be easily rearticulated in the form of political soundbites. Yet sentencing regimes are a criminal justice domain in which inequalities abound—and in ways that raise profound questions about fairness, …

The Ironic Privacy Act, Margaret Hu

Scholarly Articles

This Article contends that the Privacy Act of 1974, a law intended to engender trust in government records, can be implemented in a way that inverts its intent. Specifically, pursuant to the Privacy Act's reporting requirements, in September 2017, the U.S. Department of Homeland Security (DHS) notified the public that record systems would be modified to encompass the collection of social media data. The notification justified the collection of social media data as a part of national security screening and immigration vetting procedures. However, the collection will encompass social media data on both citizens and noncitizens, and was not explicitly …

No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody

Scholarly Articles

The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign public officials in order to obtain or retain business. It is, for all intents and purposes, an anti-bribery statute. To detect bribery, the FCPA contains accounting provisions related to bookkeeping and internal controls. The books and records provision requires issuers to make and maintain accurate books, records, and accounts; likewise, the internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. If one considers the analogy that bribery is the “fire” in FCPA enforcement actions, and books and records violations …

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Scholarly Articles

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look at …

Rluipa: Re-Aligning Burdens Of Proof, Clarifying Freedoms, And Re-Defining Responsibilities, George P. Smith Ii, Philip M. Donoho

Scholarly Articles

Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts …

The Limits Of The Freedoms Act’S Amicus Curiae, Chad Squitieri

Scholarly Articles

The federal government’s power to engage in surveillance for national security purposes is extensive. In an effort to reform the current national surveillance regime, scholars have called for, among other things, the creation of a “special advocate” to counter the government’s arguments before the Foreign Intelligence Surveillance Court. Feeling political pressure to improve an ever-unpopular national surveillance regime, lawmakers passed the USA FREEDOM Act (“Freedom Act”). Section 401 of the Freedom Act provides for the creation of an “amicus curiae,” a position that differs from earlier conceptions of a “special advocate” in important respects. This Essay examines those differences, and …

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

Scholarly Articles

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …

The Subsidy Question In King V. Burwell, Antonio F. Perez

Scholarly Articles

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Scholarly Articles

None available.

Health Care: Why Jurisdiction Matters, Kevin C. Walsh

Scholarly Articles

Congress’s enactment of comprehensive healthcare reform legislation last year was the culmination of one round of an intense debate that continues today. The second round began the same day that the first round ended, when President Obama signed the legislation. In this second round, the locus of debate has shifted from Congress to the courts, which are processing a slew of lawsuits filed immediately after enactment.

One of the most prominent is Virginia v. Sebelius. The lawsuit presents on its face a prominent and critically important question of federalism: Did Congress exceed the limits of its enumerated legislative powers by …

An Originalist Congress?, Joel Alicea

Scholarly Articles

Among the campaign promises Republicans made to voters this fall was a pledge that every piece of proposed legislation would cite the constitutional provision that authorizes it. Given lawmakers' reliance on the courts to determine the constitutionality of our laws, the new majority's promise could open some fascinating — and useful — debates. Chief among them: Just how should Congress interpret the Constitution?

Cigarette Smoking As A Public Health Hazard: Crafting Common Law And Legislative Strategies For Abatemen, George P. Smith Ii

Scholarly Articles

The debate over when, and to what extent, the government may regulate public smoking, is a contentious one of great moment. The point at which the line will be drawn with regard to an individual's right to smoke in public is narrowing. This right may stop at public restaurants and the workplace; or it may reach as far as public stadia, outdoor gathering spots and public streets. In 2006, one report showed 461 municipalities in thirty-three states and the District of Columbia, had adopted one-hundred percent smoke-free coverage in restaurants, bars or workplaces; and 135 municipalities had one-hundred percent coverage …

Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

Scholarly Articles

This article explores the use of threats of removal against federal judges and why their incidence is likely to increase. In Part I, after presenting the textual sources authorizing judicial removal, I survey briefly the history and quality of certain judicial impeachments and threatened removals. In Part II, I examine two recent pieces of legislation, the Feeney Amendment and House of Representatives Resolution 568 (which has not yet been enacted), that serve as able vehicles for legislators to threaten judges with removal for noncompliance with certain political ideologies or objectives. In Part III, I ask what may explain the increased …

Case Comment: Ins V. St. Cyr, Kevin C. Walsh

Scholarly Articles

No abstract provided.

Patient Dumping: Implications For The Elderly, George P. Smith Ii

Scholarly Articles

Before 1986, the Common Law provided that physicians and hospitals had no duty to admit or treat persons who sought their care except in limited circumstances. Congress enacted The Emergency Medical Treatment and Active Labor Act (EMTALA) to curb this so-called patient-dumping problem. EMTALA provides, essentially, that Medicare-participating hospitals must treat all patients who arrive in emergency conditions.

This article first discusses the patient-dumping problem and how EMTALA has provoked many hospitals to curtail their emergency facilities in order to avoid treating indigent and uninsured patients. The Article then proceeds to analyze the specifics of EMTALA’s main statutory provision, Section …

Harnessing The Human Genome Through Legislative Restraint, George P. Smith Ii

Scholarly Articles

The awesome predictive power of genetic medicine promises great advancements in not only the treatment of identifiable conditions but the prevention of their pathological manifestations. At the same time, the release and dissemination of this genetic or medical information poses a distinct risk of loss of privacy and stigmatization to carriers of genetic disorders. In order to safeguard the individual right of autonomy, privacy, confidentiality and informed consent-yet accommodate the legitimate interests of employers and insurers to obtain medical information relevant to their professional needs and economic responsibilities a balance must be struck legislatively at the federal and state levels …

The Jerusalem Embassy Act Of 1995, Geoffrey R. Watson

Scholarly Articles

Congress has voted to move the U.S. Embassy in Israel from Tel Aviv to Jerusalem. On October 24, 1995 - the day of the Conference on Jerusalem here at the Columbus School of Law of The Catholic University of America - Congress passed the Jerusalem Embassy Act of 1995. The President took no action on the Act, allowing it to enter into force on November 8, 1995. The Act states that a United States Embassy to Israel should be established in Jerusalem by May 31, 1999, and it provides for a fifty percent cut in the State Department's building budget …

Black And White Images, John H. Garvey

Scholarly Articles

In 1989 the National Endowment for the Arts (the "NEA") caused a stir by funding two exhibitions of photographs by Robert Mapplethorpe and Andres Serrano. The pictures were vulgar and irreverent, and many people thought that the NEA should not sponsor them with tax money. Whether the NEA can actually control the content of speech that it pays for is a hard First Amendment question. I want to look at how Congress has tried to answer it. Congress seriously considered two solutions, and adopted one of them in 1990. Both rely on analogies drawn from the area of race relations. …

A Legislative Initiative: The Ryan White Comprehensive Aids Resources Emergency Act Of 1990, Raymond C. O'Brien

Scholarly Articles

No abstract provided.

The “Program Or Activity” Rule In Anti-Discrimination Law: A Comment On S.272, H.R.700, And S.431, John H. Garvey

Scholarly Articles

In 1984 the Supreme Court determined in Grove City College v. Bell that the antidiscrimination provisions of Title IX of the Education Amendments of 1972 were program-specific rather than institution-wide in application. In response, several legislative proposals designed to mitigate or reverse the Grove City decision have been introduced in Congress. These proposals include the Civil Rights Restoration Act of 1985 (H.R. 700 and S. 431) and the Civil Rights Amendments Act of 1985 (S. 272). In this Article, Professor Garvey argues that institution-wide application of Title IX and similar antidiscrimination statutes would in many instances lead to results inconsistent …

How Should The Equal Access To Justice Act Be Rebuilt?, Marshall J. Breger

Scholarly Articles

No abstract provided.

A Model State Act: Remedies For Domestic Abuse, Lisa G. Lerman

Scholarly Articles

The problem of domestic violence has been the subject of increasing national concern. In response to that concern, states have enacted legislation providing protection to victims of domestic violence, encouraging improved police enforcement of protection law's, and constructing appropriate legal sanctions against abusers. Drafting comprehensive legislation to address this problem is difficult because both civil and criminal remedies are needed, because the needs of battered women are diverse and complex, and because effective protection requires a coordinated response by courts, law enforcement agencies, mental health personnel, and the bar. While some new legislation on wife abuse has been enacted in …

Protection Of Battered Women: A Survey Of State Legislation, Lisa G. Lerman

Scholarly Articles

No abstract provided.

Judicial Consideration Of The Delegation Of Legislative Power To Regulatory Agencies In The Progressive Era, John H. Garvey

Scholarly Articles

Despite the vigorous debate which it occasioned in other circles, the practice of delegating legislative power to regulatory agencies which began at the end of the nineteenth century was never seriously questioned by American courts during the progressive era. This is not to say that the judiciary saw no threat posed by government by institutions of a form undreamed of at the time the Constitution was framed. Since the appearance of the first regulatory commissions, the courts have shown a concern to protect individual rights which recently may be seen in the insistence on procedural safeguards in agency adjudication and …

Punctuation And The Interpretation Of Statutes, Raymond B. Marcin

Scholarly Articles

On the morning of August 3, 1916, at Pentonville Prison in England, Roger David Casement, former Knight of the Realm, was hanged. Sir Roger's last thoughts on that ultimate morning may well have centered on the incredible series of misadventures and blunders that led to his arrest some four months earlier, but his lawyer's thoughts almost certainly centered on punctuation. It was indeed an improbable set of mishaps that led to Sir Roger's arrest, but it was punctuation that eventually and inexorably did him in.