Law Commons^™

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …

Human Rights Reporting As Human Rights Governance, Margaret E. Mcguiness

Faculty Publications

Contrary to the view that the rejection of human rights treaty membership has left the United States outside the formal international human rights system, the United States has played a key role in international human rights governance through congressionally mandated human rights monitoring and reporting. Since the mid-1970s, congressional oversight of human rights diplomacy, which requires reporting on global human rights practices, has integrated international human rights law and norms into the execution of U.S. foreign policy. While the congressional human rights mandates have drifted from their original purpose to condition allocation of foreign aid, they have effectively embedded international …

Congressional Enforcement Of International Human Rights, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

On October 2, 2018, Jamal Khashoggi, a Saudi journalist based in the United States, walked into the Saudi consulate in Istanbul, Turkey, where he was brutally murdered and dismembered by Saudi government agents. It was a brazen violation of the most fundamental, internationally recognized human rights, carried out by one close US ally in the territory of another close ally. The US intelligence community quickly determined that the Saudi government and its Crown Prince, Mohammed Bin Salman, were responsible for the killing. Members of Congress briefed by the intelligence community accepted that conclusion, and on October 10, 2018, a …

What Motivates Legislators To Act: Problem Definition & The Opioid Epidemic, A Case Study, Taleed El-Sabawi

Faculty Publications

This article explores why federal legislators may have been motivated to treat the current opioid crisis as a health issue, when past drug problems have been treated as a criminal justice issue. Using theories from political science, policy studies and sociology, this article summarizes leading theories of legislative behavior and applies them to the current opioid crisis, in an effort to better understand what motivates legislators to enact legislation to solve pressing social problems in a way that reframes the problem. Part II of this article provides an overview of the Comprehensive Addiction and Recovery Act, its significance, and how …

How Long Is History's Shadow?, Anita S. Krishnakumar

Faculty Publications

In Congress’s Constitution, Josh Chafetz takes issue with those who have questioned the value of Congress in recent years. He argues that Congress’s critics focus too heavily on its legislative function and ignore several important nonlegislative powers that enable Congress to exert significant authority vis-à-vis the other branches. Chafetz engages in close historical examination of these nonlegislative powers and notes that in some cases, Congress has ceased exercising them as robustly as it once did, while in others it has unwittingly ceded them to another branch. Congress’s Constitution urges Congress to reassert several of its ceded powers more aggressively …

The Supreme Court's Quiet Revolution: Redefining The Meaning Of Jurisdiction, Erin Morrow Hawley

Faculty Publications

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively "jurisdictional. "In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court's erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress …

Funding For Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters Jr.

Faculty Publications

Congress spends hundreds of billions of dollars each year on social programs. Many don’t work. Congress and the President have called for greater reliance on evidence-based programs. Thus far, however, only one major federal program conditions state access to formula-based federal funding on the use of evidence-based practices: the Maternal, Infant, and Early Childhood Home Visiting Program. In this Article, I examine the extent to which this initial effort has succeeded and conclude that Congress has taken a promising first step, but attainment of its objective will require more demanding proof standards than those contained in the current Home Visiting …

Keep Your Eyes On Eyes In The Sky, Hillary B. Farber

Faculty Publications

To date, eight states have passed bills regulating domestic drone use by government and private individuals. This leaves us with a question: If a city of more than 60,000 residents and a global company with a customer base in the hundreds of millions are racing to the sky, how are we as a commonwealth of 6.6 million to truly launch ourselves into the debate and protect what little privacy we have left?

A Scandalous Perversion Of Trust: Modern Lessons From The Early History Of Congressional Insider Trading, Michael A. Perino

Faculty Publications

The Stop Trading on Congressional Knowledge Act of 2012 (the “STOCK Act”) affirms that members of Congress are not exempt from insider trading prohibitions. Legal scholars, however, continue to debate whether the legislation was necessary. Leveraging recent scholarship on fiduciary political theory, some commentators contend that because members owe fiduciary-like duties to citizens, to their fellow members, and to Congress as an institution, existing insider trading theories already prohibited them from using material nonpublic information for personal gain. These arguments, while plausible, are incomplete. They rely on broad conceptions of legislators as fiduciaries, but provide scant evidence that members violate …

Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber

Faculty Publications

This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.

Antitrust Law And Economic Theory: Finding A Balance, Edward D. Cavanagh

Faculty Publications

Over the past forty years, the federal courts have relied more and more on economic theory to inform their antitrust analyses. Economic theory has indeed provided guidance with respect to antitrust issues and assisted the courts in reaching rational outcomes. At the same time, infusion of economic evidence into antitrust cases has made these cases more complex, lengthier, more expensive to litigate, and less predictable.

This Article argues that courts need to restore the balance between facts and economic theory in undertaking antitrust analysis. The problem is not that judges and juries cannot reach good outcomes in antitrust cases, but …

Obligatory Health, Noa Ben-Asher

Faculty Publications

The Supreme Court will soon rule on the constitutionality of the Patient Protection and Affordable Care Act passed in March 2010. Courts thus far are divided on the question whether Congress had authority under the Commerce Clause to impose the Act's "Individual Mandate" to purchase health insurance. At this moment, the public and legal debate can benefit from a clearer understanding of the underlying rights claims. This Article offers two principal contributions. First, the Article argues that, while the constitutional question technically turns on the interpretation of congressional power under the Commerce Clause, underlying these debates is a tension between …

Uniformity, Inferiority, And The Law Of The Circuit Doctrine, Martha Dragich

Faculty Publications

This Article considers whether Congress or the Supreme Court could reverse the law of the circuit doctrine. Part I explores the importance of uniformity in federal law. Part II considers the extent to which a desire for uniformity has shaped the structure of the federal court system. Part III considers how the evolution of the courts of appeals as independent regional adjudicatory bodies affects the uniformity objective. Part IV examines the attributes of superior and inferior courts, and applies these criteria to the current courts of appeals. Part V examines the tension between uniformity and inferiority as determinants of the …

Legal Holes, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the years that followed the events of September 11, 2001, a debate crystallized between those who think that “legal grey and black holes”—which I call simply “legal holes”—are necessary and integral to U.S. law and those who think that they are dangerous and should be abolished. Legal black holes “arise when statutes or legal rules ‘either explicitly exempt[] the executive from the requirements of the rule of law or explicitly exclude[] judicial review of executive action.’” Grey holes, in contrast, “arise when ‘there are some legal constraints on executive action . . . but the[y] are so insubstantial …

Living Among Guatemalan Mayans Is Fascinating Experience, Irene Scharf

Faculty Publications

I have just lived a dream. Five years ago I learned of a school where students of all ages could study Spanish intensively while living among the Guatemalan Mayans. Peace Accords had been signed in 1996, the government was encouraging tourism, and it was, finally, safe to visit.

Why a dream? Because, 25 years ago, when I traveled through Central and South America, I promised my family I would avoid Guatemala because of the perceived was dangers. During that trip, as I met my Europeans and other who had visited, remained safe, and found it a fascinating country, I vowed …

Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii

Faculty Publications

This is the third in a series of articles analyzing the current turmoil in federal criminal sentencing and offering suggestions for improvements in the federal sentencing system. The first article, "The Failure of the Federal Sentencing Guidelines: A Structural Analysis," 105 COLUMBIA L. REV. 1315 (2005), analyzed the structural failures of the complex federal sentencing guidelines system, particularly those arising from imbalances among the primary institutional sentencing actors - Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission. The second, "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker," 2005 U. OF CHICAGO LEGAL FORUM 149 (2005), …

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

The § 365 consumer debtor case law has a further complication. Much of it arises in the context of the last great bankruptcy frontier, Chapter 13. Until recently, Chapter 11 has occupied the minds and hearts of courts and attorneys. Not any more. And, as attorneys and courts take a closer, harder look at Chapter 13, it is no longer possible to describe it as a “streamlined creditors-can’t-vote Chapter 11”. Chapter 13 is unique, presenting its very own quandaries, not the least of which is how its provisions and § 365 interact. We live in interesting times.

Understanding Congressional Reform: Lessons From The Seventies, Rafael Gely, Asghar Zardkoohi

Faculty Publications

The purpose of this article is to examine voting behavior of representatives when faced with dual constraints (constituents back home and the leadership) as compared to one constraint (constituents back home). An ambitious goal of the study would have been to examine the effects of both sets of reforms. However, there are two reasons for not using the 1995 reforms in our empirical examinations. First, not enough time has passed to fully observe the effect of term limits on voting behavior. Second, and more importantly, the leadership, whose power it was to impose a constraint on a representative's promotional opportunities, …

How Fresh A Start?: What Are "Household Goods" For Purposes Of Section 522 (F)(1)(B)(I) Lien Avoidance?, Michael G. Hillinger

Faculty Publications

What do camcorders, walkman players, personal computers, stereo components, firearms, chain saws, lawn and garden tools, bicycles, and video game machines have in common?

Well, they are all the things one might find in the typical American home. Although not necessarily cheap to buy new, such items generally do not retain value over time. They frequently serve as collateral for nonpurchase money loans. In a bankruptcy context, they share another characteristic; courts have had to decide if they are household goods such that a debtor is able to avoid a nonpossessory, nonpurchase money security interest in them. Indeed, over 270 …

Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams

Faculty Publications

This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular …

Congressional Standing To Sue: Whose Vote Is This, Anyway?, R. Lawrence Dessem

Faculty Publications

The article is divided into three major sections. Section I traces the development of a separate doctrine of “congressional standing.” It examines the doctrine's development from the Supreme Court's initial consideration of legislative standing through the current opinions of the United States Court of Appeals for the District of Columbia Circuit. Section II then analyzes three possible theories of congressional injury and standing. Derivative, representative, and third-party standing theories are all rejected as a basis for congressional standing. While rejecting the suggestion that congressmen possess a personal interest in “their” votes sufficient to constitute the “distinct and palpable injury” required …

Book Review Of Solutions To Ethical And Legal Problems In Social Research, Larry I. Palmer

Faculty Publications

No abstract provided.