Law Commons^™

A Fresh Look At Offender Characteristics, Nora V. Demleitner

Scholarly Articles

As the Supreme Court has turned federal sentencing upside down in Booker, it has left a host of open questions in the wake of that decision. The outcome of these questions is often difficult to predict, for lower courts and commentators alike, as the Court has failed to develop an overarching sentencing philosophy to replace the rehabilitation-focused one that animated sentencing for so long. If the Court were to reach consensus on that issue, it would be better able to speak coherently on unresolved sentencing matters. This introduction to an Issue of the Federal Sentencing Reporter highlights some of the …

The Ghosts Of Homer Plessy, Rodney A. Smolla

Scholarly Articles

Not available.

A Farewell To Pension Policy: The Impact Of Flexible Iras On Current Tax Policy, Regina T. Jefferson

Scholarly Articles

This Article describes and critiques the objectives of the American Dream Savings Account. This Article then analyzes the potential social and economic effects of accomplishing the identified goals of the ADSA. Finally, this Article will conclude that the shift in pension policy made manifest by the ADSA, and other similar savings proposals, has potentially dramatic implications for future retirement savings among middle- and low-income Americans.

On The Way To The Forum: The Reconstruction Of Article 2(7) And The Rise Of Federalism Under The United Nations Charter, Antonio F. Perez

Scholarly Articles

This Article argues that the U.S. and EC views of the national security interests exceptions reflect competing conceptions of the WTO legal order. Under the first, the WTO is viewed as merely an agreement between states governing a limited issue area, the disciplining of protectionist policies, under which other issue areas are reserved to sovereign state decisionmaking or, alternatively, whatever other international institutions states have separately granted competence for management of the issue. Under this view, the United States might well argue that its Helms-Burton sanctions are outside the jurisdiction of the WTO and instead within the jurisdiction of the …

Tales Of Aall History (Stories Of "My First Annual Meeting"), Sarah K. Wiant

Scholarly Articles

No abstract provided.

A Response To Mathias Reimann: More, More, More But Real Comparative Law, Nora V. Demleitner

Scholarly Articles

None available.

The Formative Years Of The American Society Of International Law, Frederic L. Kirgis

Scholarly Articles

The writer discusses the establishment and the formative years of the American Society of International Law (ASIL). At the 11th Lake Mohonk Conference, held from May 31 to June 2, 1905, ASIL was conceived by some of the more influential participants in the American peace movement. As the ASIL's 90th year draws to an end, it has partially achieved one of its objectives: fostering the study of international law. However, the ASIL's other objective—to promote the establishment and maintenance of international relations on the basis of law and justice—has been elusive.

1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla

Scholarly Articles

Not available.

Recent Challenges To The Persistent Dual Banking System, Heidi Mandanis Schooner

Scholarly Articles

This essay begins with a brief discussion of the history of the dual banking system in Part I. Part II reviews the justifications for, and criticisms of, the dual banking system. Part III details the recent challenges to the dual banking system. Part IV looks to the future of the dual banking system and concludes that Congress has chosen not to preempt entirely the states' authority despite the continued erosion of states' authority over safety and soundness issues. This leaves the states with a continuing opportunity to serve as laboratories of innovation in bank regulation. If the states seize this …

Who Determines When Enough Is Enough - Refocusing Regulatory Limitations On Banks’ Compensation Practices, Heidi Mandanis Schooner

Scholarly Articles

This article examines the banking agencies' authority-both old and new-to regulate banks' compensation practices. The article considers whether the agencies' implementation of their statutory authority is appropriate. In evaluating the appropriateness of regulation in this area, the regulators' mandate to preserve the safety and soundness of banks is balanced against the banks' need to compete in an increasingly competitive marketplace.' 9 Also, the banking agencies' activities in this area are viewed against the backdrop of considerable legal and management scholarship addressing issues of compensation. Parts I, II and III of the article address the sources of the agencies' authority to …

Supremacy And Integrity: Member-State Law As A Limiting Principle In The United States And The European Union, William J. Wagner

Scholarly Articles

No abstract provided.

Assessing Modern Bankruptcy Law: An Example Of Justice, Veryl Victoria Miles

Scholarly Articles

The task undertaken in this article will be to consider how well modern bankruptcy law measures up to concepts of justice that have evolved from Catholic social thought. The application of Catholic social justice in the assessment of whether a law is "just" or "unjust" can be viewed as a rational progression in evaluating the quality of justice achieved under a law.

Sovereignty, Freedom, And Civil Society: Toward A New Jerusalem, Antonio F. Perez

Scholarly Articles

Jerusalem has become a symbol of the world's past. In one sense, of course, it is holy ground to three of the world's great historical religions. The very identity of Muslims, Christians, and Jews are bound up in stories in which the city of Jerusalem plays a large, and sometimes central, role. But Jerusalem is also a symbol of the past in a much different way. Much like today's system of states, the debate concerning sovereignty over Jerusalem is a prisoner of the history of international law-a history that has been told in the language of absolute and undivided sovereignty …

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 …

Government Accountability In The Twenty-First Century, Marshall J. Breger

Scholarly Articles

In this short paper I hope to point out two aspects of twenty-first century political life that relate to the challenge of ensuring government accountability. The first point relates to how advances in computer and media technology increase the potential of government accountability and how these technological developments will increase implementation of the principle of subsidiarity, or, in the American context, devolution of political power to state and local governments. Second, I will address the impact of these developments on administrative law in the next century.

‘By What Right?’: The Sources And Limits Of Federal Court And Congressional Jurisdiction Over Matters ‘Touching’ Religion, Robert A. Destro

Scholarly Articles

This Article examines the extent to which the Court's power "to say what the law is"" on the sensitive subject of religious liberty has been, and continues to be, constrained by the lawmaking powers of Congress and the states. Though the topic is obviously an important one, it has not been examined systematically. Most of the case law and commentary focuses on the limits which the Constitution imposes, or should be held to impose, on the powers of Congress and the states. The Court's power to define those limits appears, by contrast, to be one of those "fundamental assumptions [that] …

Who Killed Sovereignty – Or: Changing Norms Concerning Sovereignty In International Law, Antonio F. Perez

Scholarly Articles

One of the oldest distinctions in philosophical discourse is that between "words about words" and "words about things."' Much scholarship among international lawyers and political scientists, as well as table-talk of diplomats and other practitioners concerning the somewhat airy concept of sovereignty, has suffered all too much from a failure to appreciate the confusion that flows from treating a word as though it were a fact. Now come to the table two pairs of scholars with contrasting interpretations of the central word of international law, sovereinty: at one end, international lawyers Abram and Antonia Handler Chayes; and at the other, …

Ounces Of Prevention And Pounds Of Cure: Developing Sound Policies For Environmental Compliance Programs, Lucia A. Silecchia

Scholarly Articles

In the 1990s, when criminal enforcement of American environmental statutes became more widespread, and the consequences of violations potentially more severe, the creation of effective environmental compliance programs became a priority for the regulated community. In previous years, creation of such programs could have been viewed merely as a responsible option to assist corporations in achieving or maintaining reputations as good corporate citizens.

However, when the 1990s ushered in increased criminal prosecution of environmental violators, the stakes were raised significantly and the motives for creating environmental compliance plans changed. Such plans became important not only as a way to prevent …

The Use Of Journals In Legal Education: A Tool For Reflection, J.P. "Sandy" Ogilvy

Scholarly Articles

This Article demonstrates that the journal is a pedagogical tool worthy of more explicit attention by both clinical law teachers and non-clinical faculty alike. It introduces some of the literature on critical thinking and learning theory that supports the assignment of journals as an important tool in legal education; it provides a starting point for articulating pedagogical goals that can be met through journal assignments; and it alerts the first-time user to the challenges inherent in the use of journals in legal education.

Judicial Review Of Cercla Cleanup Procedures: Striking A Balance To Prevent Irreparable Harm, Lucia A. Silecchia

Scholarly Articles

When Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in 1980 in response to the problems of toxic waste and hazardous substances, the central goals of the Act were clear. CERCLA was intended to provide an effective mechanism for cleaning up such dangers as quickly as possible, with as little expense as feasible, and with as much of that expense as possible borne by the responsible parties, rather than by the taxpayers. Accordingly, CERCLA included provisions for establishing liability for the costs of cleaning up hazardous waste sites. Congress also created the Superfund to pay for those …

Square Pegs And Round Holes: Does Sentencing For Environmental Crimes Fit Within The Guidelines?, Lucia A. Silecchia, Michael J. Malinowski

Scholarly Articles

This article presents an overview of the Proposed Guidelines and assesses their potential to improve both the existing sentencing scheme and, more importantly, the environmental behavior of corporate citizens. This analysis concludes that, while the Proposed Guidelines improve current haphazard sentencing practices, it is difficult to predict their efficacy in furthering environmental policy. The fundamental problem is that traditional criminal sanctions are not easily applied to non-traditional offenders committing non-traditional offenses. Rather than expressing optimism about the Proposed Guidelines, this paper suggests that the behavior of corporations could be modified more efficiently through non-criminal incentives coupled with increased criminal prosecution …

Legal Skills Training In The First Year Of Law School: Research? Writing? Analysis? Or More?, Lucia A. Silecchia

Scholarly Articles

This Article will explore the issues that arise as more and more law schools face important definitional questions: To what extent should first year programs focus on providing in-depth research and writing training? To what extent should those programs adopt a more holistic curriculum that exposes students to a range of skills beyond research and writing?

The Article will begin with a description of what is actually done in first year programs at American law schools. This information was gathered in a Spring 1995 survey of law school research and writing programs, to which representatives of 111 schools responded. It …

The Humanitarian Law Of The Yugoslavia War Crimes Tribunal: Jurisdiction In Prosecutor V. Tadic, Geoffrey R. Watson

Scholarly Articles

On October 2, 1995, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia' held that the Tribunal has jurisdiction to try Dusko Tadic, a Bosnian Serb, for war crimes and crimes against humanity. The Appeals Chamber ruled that the establishment of the Tribunal was lawful, that the Tribunal's primacy over national courts does not violate international law, and that the Tribunal's jurisdiction extends to crimes committed in internal armed conflict. The decision cleared the way for the first international war crimes trial since Nuremberg and Tokyo. The Appeals Chamber was right to uphold the validity of the …

The Role Of Basic Values In The Contemporary Constitutional Hermeneutics Of Germany And The United States, William J. Wagner

Scholarly Articles

No abstract provided.

Whither Truth In Lending?, Ralph J. Rohner

Scholarly Articles

No abstract provided.

Regulatory Flexibility And The Administrative State, Marshall J. Breger

Scholarly Articles

This essay attempts to examine some evolving notions of regulatory flexibility and show how, if at all, they fit in with the existing framework of the administrative state. It is a preliminary effort to suggest the kinds of flexibility that should be encouraged and discouraged. It will highlight as well, the effect of increased administrative flexibility on the structure of administrative law and the APA thereby raising the question whether the APA - a document written to structure both adjudication and rulemaking - is, in fact, well suited to regulate cooperation between industry and government.

All Things Being Equal, John H. Garvey

Scholarly Articles

I will discuss the effect that the proposed Religious Equality Amendment might have on existing First Amendment law.

An Anti-Liberal Argument For Religious Freedom, John H. Garvey

Scholarly Articles

I want to consider why we protect freedom of religion as a constitutional right. The commonsense answer, which I think hits close to the truth, is that we protect it because religion is important. I will try to show that this answer is better than the alternatives which liberal theory offers.

Developments In Liability Theories And Defenses, Robert A. Destro

Scholarly Articles

Litigators with experience in the field of religious liberty believe that courts do not seem to take religious liberty claims and defenses very seriously; however, it is difficult to know why. To be sure, the anecdotal evidence is certainly there, not only in the reported cases, but also in the actual courtroom experiences of those who attempt to raise religious liberty claims and defenses. In one Texas tort case, a trial court judge stated that she would not permit the Church "to hide behind the first amendment;" in a Maryland case a number of years ago, I was asked by …

Bankruptcy Relief From Secured Tax Liens, Veryl Victoria Miles

Scholarly Articles

This article will discuss the rules of bankruptcy law that are most relevant to the treatment of prepetition secured tax claims. It also will discuss the consequences of these rules and how they affect the various parties to the bankruptcy proceeding: the debtor, the secured tax claimant, and the unsecured creditors.