Law Commons^™

Plea Agreements As Constitutional Contracts, Colin Miller

Faculty Publications

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases …

Preferencing Educational Choice: The Constitutional Limits, Derek Black

Faculty Publications

Rapidly expanding charter and voucher programs threaten a new education paradigm in which access to traditional public schools is no longer guaranteed in some communities. In some instances, choice programs are phasing out traditional public schools altogether. The most harmful effects of choice, however, occur at the local level, not the state level. Thus, this Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies limitations that state constitutional rights to adequate and equal education place on choice policy.

First, states cannot preference private choice programs over public education. This conclusion flows from the fact that …

Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski

Faculty Publications

Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals …

A Human Capital Theory Of Alimony And Tax, Tessa R. Davis

Faculty Publications

The current taxation of alimony is a broken scheme. Severed from any strong theoretical mooring, it draws lines in the sand between property settlement, child support, and alimony. The lack of coherence between the substance of alimony in family law and the tax concept of alimony (“tax alimony”) could be justified on other policy grounds, however. Yet current law, which allows the payor a deduction under §215 and requires inclusion by the recipient per §71, is difficult to interpret, resulting in frequent litigation and costly noncompliance. In short, the current concept of tax alimony fails to satisfy any of the …

Ferpa Close-Up: When Video Captures Violence And Injury, Richard J. Peltz-Steele, Kitty L. Cone

Faculty Publications

Federal privacy law is all to often misconstrued or perverted to preclude the disclosure of video recordings that capture students victimized by violent crime or tortious injury. This misuse of federal law impedes transparency and accountability and, in many cases, even jeopardizes the health, safety, and lives of children. When properly construed, however, federal law is no bar to disclosure and, at least in public schools, works in tandem with freedom of information laws to ensure disclosure. This Article posits that without unequivocal guidance from federal administrative authorities, uncertainty regarding the disclosure of such recordings will continue to linger, jeopardizing …

Social License To Regulate: Consumer-Producer Collusion And Related Policy Risks For Consumer-Facing Regulation, Nathan D. Richardson

Faculty Publications

Used a gas can recently? If not, prepare for a surprise—they’ve become harder to use due to government-mandated design changes aimed at reducing air pollution. Faced with persistent environmental and other challenges, government regulators have increasingly turned to similar regulations on consumer products. But these consumer-facing regulations create new policy and political problems for regulators, different from those associated with traditional industry-facing regulation. This paper looks in depth at three case studies of consumer-facing regulation: emissions controls on gas cans, efficiency standards for light bulbs, and European vehicle fuel economy standards. In each case, there is strong evidence for widespread …

Police Body-Worn Cameras, Seth W. Stoughton

Faculty Publications

Since the summer of 2014, community members, politicians, and police executives across the country have called for greater police accountability and improvements in police-community relations. Body-worn cameras are widely seen as serving both ends. Today, thousands of police agencies are exploring, adopting, and implementing body-cam programs. A survey by the Major Cities Chiefs Association and the Major County Sheriffs’ Association found that 95% of surveyed agencies had either implemented or were committed to implementing a BWC program.

Body-worn cameras are here, and more are coming. Mary Fan, for example, has described a “camera cultural revolution” in which “the future will …

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

Gender, Race & The Inadequate Regulation Of Cosmetics, Marie C. Boyd

Faculty Publications

Scholars and other commentators have identified failures in the regulation of cosmetics-which depends heavily on voluntary industry self- regulation-and called for more stringent regulation of these products. Yet these calls have largely neglected an important dimension of the problem: the current laissez-faire approach to the regulation of cosmetics disproportionally places women, and particularly women who are members of other excluded groups, at risk. This Article examines federal cosmetics law and regulation through a feminist lens. It argues that cosmetics law and regulation have lagged behind that of the other major product categories regulated by the Food and Drug Administration under …