Law Commons^™

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

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So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …

Constructing More Reliable Law And Policy: The Potential Benefits Of The Underused Delphi Method, Juan Bataller-Grau, Elies Segui-Mas, Javier Vercher-Moll, Jeffrey W. Stempel

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Law has long aspired to achieve status as a science. A central theme of much legal philosophy has been the quest for legal doctrine to become more like scientific axioms or findings produced through a scientific inquiry. Considerable debate has surrounded the issue. Part of the legal profession sees the question of law's science status as doomed to failure and regards law as a distinct type of discipline. Others in the legal profession are attracted to the aspiration but express doubt regarding whether the methods that the legal doctrine has traditionally employed can achieve the greater apparent rigor of the …

Conversion Therapy: A Brief Reflection On The History Of The Practice And Contemporary Regulatory Efforts, Tiffany C. Graham

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No abstract provided.

Submarine Statutes, Christian Turner

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I define as “submarine statutes” a category of statutes that affect the meaning of later-passed statutes. A submarine statute calls for courts to apply future statutes differently than they would have otherwise. An example is the Religious Freedom Restoration Act, which requires, in some circumstances, exemptions for religious exercise from otherwise compulsory statutory requirements. A new statute can only be understood if its interaction with RFRA is also understood. While scholars have debated the constitutionality of some statutes like these, mainly analyzing the legitimacy of their entrenching quality, I argue that submarine statutes carry an overlooked cost. Namely, they add …

Foreword: The Workplace Law Agenda Of The Obama Administration, Ruben J. Garcia

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Professor Ruben Garcia introduces a Symposium issue of the Employee Rights and Employment Policy Journal focused on an assessment of several key aspects of the workplace law record thus far of President Barack Obama.

Dictation And Delegation In Securities Regulation, Usha Rodrigues

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When Congress undertakes major financial reform, either it dictates the precise contours of the law itself or it delegates the bulk of the rulemaking to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rulemaking to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine pieces of …

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

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President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight

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Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …

Dean's Column: Unlv Law Students Making Tracks In Carson City, Anne R. Traum

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No abstract provided.

Intentionalism Justice Scalia Could Love, Hillel Y. Levin

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Book review of The Nature of Legislative Intent by Richard Ekins (Oxford 2012).

The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen

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The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a …

The Future Of The Affordable Care Act: Protecting Economic Health More Than Physical Health?, David Orentlicher

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No abstract provided.

Health Care Reform And Efforts To Encourage Healthy Behavior By Individuals, David Orentlicher

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No abstract provided.

Contract And Choice, Peter B. Rutledge, Christopher R. Drahozal

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This Article contributes to an ongoing debate, afoot in academic, legal, and policy circles, over the future of consumer arbitration. Utilizing a newly available database of credit card agreements, the Article offers an in-depth examination of dispute resolution practices within the credit card industry. In some respects, the data cast doubt on the conventional wisdom about the pervasiveness of arbitration clauses in consumer contracts and the presence of unfair terms. For example, the vast majority of credit card issuers do not utilize arbitration clauses, and by the end of 201 0, the majority of credit card debt was not subject …

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

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With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

How Congress Could Defend Doma In Court (And Why The Blag Cannot), Matthew I. Hall

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In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether the defendants — the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG) — have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

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Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …

Contemporary Meaning And Expectations In Statutory Interpretation, Hillel Y. Levin

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This Article introduces and explores an approach to, or theme within, statutory interpretation, one grounded in contemporary meaning and expectations. This approach posits that judges interpreting ambiguous statutes are and should be constrained by the understanding and expectations of the contemporary public as to the law’s meaning and application. These are developed in response to, and mediated by, the actions and statements of government officials and the broader community. The Article argues that this apparently radical approach is necessary in order for law to maintain its moral force, and further that the principles underlying it are embedded in several doctrines …

Samantar And Executive Power, Peter B. Rutledge

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This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

The Insurance Policy As Statute, Jeffrey W. Stempel

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Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective primacy …

The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Y. Levin

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What happens when kids and their parents interpret laws like lawyers and judges? Where and why does interpretation go off the rails?

Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges - father, babysitter, grandma (a liberal jurist, of course), etc. - who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

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Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Emerging Latina/O Nation And Anti- Immigrant Backlash, Sylvia R. Lazos

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This foreword is an introduction to the LatCrit XI, Working and Living in the Global Playground: Frontstage and Backstage symposium, convened at William S. Boyd School of Law, in Las Vegas Nevada, during October 2006 and called upon over 150 academics to focus on the impacts of globalization and immigration. At no time has LatCrit's critical approach of interconnecting the structures of inequality, the market forces of globalization, and the cultural hostility towards outsider groups been more relevant.

Backlash against immigrants, particularly Latina/o “illegals,” is on the rise. This Introduction seeks to outline the challenges that the current immigration quandary …

"It's Not About The Money!": A Theory On Misconceptions Of Plaintiffs' Litigation Aims, Tamara Relis

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This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs' aims been examined from the perspectives of defense lawyers. These are significant gaps in the …

The Often Imitated, But Not Yet Duplicated, Revised Uniform Commercial Code Article 1, Keith A. Rowley

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Unlike Revised Uniform Commercial Code Article 9 (1999), which every state and the District of Columbia enacted within roughly two years of its promulgation, states have been slower to warm to Revised UCC Article 1 (2001). Nearly seven years after the American Law Institute and the National Conference of Commissioners on Uniform State Law promulgated it, thirty-three states have enacted their own versions of Revised UCC Article 1. None of the thirty-three has enacted the uniform version in its entirety. All thirty-three enacting states have rejected the uniform choice-of-law provision (§ 1-301) in favor of retaining language based on pre-Revised …

Aliens In Our Midst Post-9/11: Legislating Outsider-Ness Within The Borders, Sylvia R. Lazos, Raquel E. Aldana

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Three recent books written by Professors Bill Ong Hing, Kevin R. Johnson, and Victor C. Romero provide skillfully crafted roadmaps with which to understand the key emerging issues that will shape immigration law well into the next decade: the relationship of immigration control to national security. This Review captures the insights provided by these three authors to examine the restrictive laws and policies aimed at noncitizens in the name of national security as highlighted by the current efforts to federalize driver’s licenses. As this Review explains, these three books map the current antagonistic attitudes towards noncitizens post 9/11, and serve …

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

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No abstract provided.

Intertwining Of Poverty, Gender, And Race: A Critical Analysis Of Welfare News Coverage From 1993-2000, Deseriee A. Kennedy

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Over the years, welfare has become highly intertwined with ideological beliefs involving gender, race, and poverty. As the nature of welfare transformed to include non-white recipients, the perception of welfare recipients as single "worthy white widows" was replaced by the "lazy African-American breeders." This study examined how television news may have appropriated this negative image in its coverage of the changes in the U.S. welfare system that took place during the 1990s. News stories presented by the major U.S. television networks from 1993 to 2000 were examined. The analysis showed that news stories tended to depict the typical welfare recipient …

The Most Rational Branch: Guinn V. Legislature And The Judiciary's Role As Helpful Arbiter Of Conflict, Jeffrey W. Stempel

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When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. …