Law Commons^™

Victims And Prison Release: A Modest Proposal, Erin O'Hara O'Connor

Scholarly Publications

No abstract provided.

Constitutional Collectivism And Ex-Offender Residence Exclusion Laws, Wayne A. Logan

Scholarly Publications

The U.S. has often been imperiled by the competing interests of individual states, and while past threats have most frequently assumed economic or political form, this article addresses a different threat: state efforts to limit where ex-offenders (those convicted of sex crimes in particular) can live. The laws have thus far withstood constitutional challenge, with courts deferring to the police power of states. This deference, however, ignores the negative externalities created when states jettison their human dross, and defies Justice Cardozo's oft-repeated constitutional tenet that the “the peoples of the several states must sink or swim together.” The article discusses …

Victim Impact Evidence In Federal Capital Trials, Wayne A. Logan

Scholarly Publications

Fifteen years ago, in Payne v. Tennessee, the Supreme Court lifted its prohibition on the admission of victim impact evidence (VIE) in the penalty phase of capital trials. According to the Court, admitting evidence on the personal traits of individual murder victims and the toll associated with their killings at once properly allowed the government to show the “uniqueness” of victims, thus counterbalancing defendants’ largely unfettered right to adduce mitigation evidence, and permitted the sentencing authority to under-stand the “specific harm” caused by the murder. In the wake of Payne, Congress authorized use of VIE as a nonstatutory …

Swallows As It Might Have Been: Regulations Revising Case Law, Steve R. Johnson

Scholarly Publications

This is the second of two reports on the Swallozvs Holding decision. 1 In that case, the Tax Court, over three dissenting opinions, invalidated a timing rule contained in a Treasury regulation under IRC section 882. That timing rule provided that some foreign corporations could not claim otherwise available deductions if their returns for the tax year were filed outside an 18-month grace period. The majority and the dissenters clashed over which line of authority – Chevron 2 or the pre-Chevron tax-specific line of decisions typified by National Muffier3 – provides the governing standard for evaluating the validity of …

Swallows Holding As It Is: The Distortion Of National Muffler, Steve R. Johnson

Scholarly Publications

I like big ideas. The opportunity to work with them, and hopefully to add to them, is one of the joys of academic life. But perspective also is required. Not everything genuinely presents "macro" issues. As Freud supposedly said, “Sometimes a cigar is just a cigar.”

In Swallows Holding Ltd. v. Commissioner, the Tax Court, over three dissenting opinions, invalidated a return-filing timing rule in a Treasury regulation under section 882 of the !RC. It is clear that what drove the majority opinion was the perception that the timing rule was contrary to many previous cases interpreting the statute. As …

Understanding Citizen Perspectives On Government Decision-Making Processes As A Way To Improve The Administrative State, David L. Markell

Scholarly Publications

This Article explores possible insights from the “procedural justice” literature about features of government decision making processes that citizens are likely to consider to be particularly valuable or important. Numerous commentators have urged that the government take steps to increase citizen participation in its decision making processes as a way to offset concerns about government legitimacy. The premise of the Article is that incorporating into government decision making processes features that are important to citizens is a potentially helpful step in fostering meaningful citizen participation. Processes that citizens value are more likely to be processes that citizens use and that …

Using State Fraudulent Conveyance Law To Collect Federal Taxes, Steve R. Johnson

Scholarly Publications

The I.R.S. has an imposing armamentarium of means by which to collect unpaid taxes. They include the general tax lien, various special tax liens, administrative levy and sale, and judicial sale. There are many administrative and judicial protections for taxpayers and third parties against the overly zealous application of these and other devices. Nonetheless, the I.R.S.’s collection options are of imposing breadth and power, considerably exceeding collection options available to private creditors.

Confronted by these collection devices, those who owe taxes and are determined not to pay them sometimes resort to transferring their assets to others, typically family members, close …

Crime, Criminals And Competitive Crime Control, Wayne A. Logan

Scholarly Publications

Given the negative consequences of crime, it should come as no surprise that states will endeavor to make their dominions less hospitable to potential criminal actors. This predisposition, when played out on a national stage, would appear ripe for a dynamic in which states will seek to "out-tough" one another, leading to a spiral of detrimental competitiveness.

What's Old Is New: The Problem With New Source Review, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

The Political Economy Of Application Fees For Indigent Criminal Defense, Wayne A. Logan, Ronald F. Wright

Scholarly Publications

In this article, we trace the origin and spread of state laws designed to make indigent criminal defendants pay, up-front, a portion of the costs of their state-appointed counsel. These co-pays, which can range from $10 to over $200, are part of the increasingly popular pay-as-you-go movement, requiring criminal defendants to defray the system costs of their prosecution and punishment.

On their face, such laws would appear to be a natural target of vigorous resistance by the defense bar. This turns out to be only half true, however, for it is often the leaders of public defense organizations, faced with …

Creating A "Hydra In Government": Federal Recourse To State Law In Crime Fighting, Wayne A. Logan

Scholarly Publications

Traditionally, U.S.-state criminal justice relations have been conceived in two-dimensional terms, with concern primarily dedicated to U.S. usurpations of state authority. As this Article makes clear, however, U.S.-state relations are in significant measure also multi-dimensional and synergistic: rather than being solely engaged in a zero-sum power competition with states, the U.S. in actuality often defers to state laws and outcomes, despite the highly variegated normative positions they embody. As a consequence of this deference, the U.S. at once increases the scope, content and effect of its own criminal justice enterprise, and elevates (not reduces) the sovereign authority of states. The …

The Real Problem With New Source Review, Shi-Ling Hsu

Scholarly Publications

Editors’ Summary: When the CAA was amended in 1977, the U.S. Congress imposed pollution control requirements on new stationary sources of air pollution, called new source review (NSR), but exempted existing facilities from such requirements. By creating a more favorable regulatory environment for existing facilities than for new ones, “grandfathering” creates an incentive to keep old facilities up and running. Moreover, as a command-and control program, requiring capital expenditures for pollution control equipment makes the capital sluggishness problem worse. Combined with often confusing EPA policies and a changing political environment, NSR has resulted in a running battle between the regulated …

Palazzolo, The Public Trust, And The Property Owner's Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Scholarly Publications

South Carolina recently promulgated new guidelines regulating the State's consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …

The Vexing Problem Of Authority In Humanitarian Intervention: A Proposal, Fernando R. Tesón

Scholarly Publications

As is well known, the doctrine of humanitarian intervention raises a host of thorny issues: the threshold for intervention, the question of proportionality, the problem of last resort, the dilemma of whether or not to codify standards and procedures, and so forth. In this paper I will not address those issues; crucial and controversial as they are; I will assume that they have been somehow settled. I will also assume that it is desirable to find alternatives to unilateral intervention. The question, then, becomes this: who should authorize humanitarian intervention? Any acceptable authorizing procedure must avoid over-intervention and abuse on …

Prevention Of Double Deductions Of A Single Loss: Solutions In Search Of A Problem, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

A Cognitive Theory Of Trust, Erin O'Hara O'Connor, Claire A. Hill

Scholarly Publications

No abstract provided.

The Temporally Extended Family & Self-Control: An Essay For Lee E. Teitelbaum, Manuel A. Utset

Scholarly Publications

No abstract provided.

Building The Emotionally Learned Negotiator, Erin Ryan

Scholarly Publications

This piece reviews three recent books on the significance of emotion in negotiation and dispute resolution (Fisher & Shapiro: Beyond Reason: Using Emotions as You Negotiate; Peter Ladd: Mediation, Conciliation and Emotion: A Practitioner's Guide for Understanding Emotions in Dispute Resolution; and Lacey Smith: Get It! Street-Smart Negotiation at Work: How Emotions Get You What You Want), situating each work within a theory of practice for emotionally learned negotiators. After discussing the how the appearance of emotional sterility became synonymous with professionalism (and the toll this has taken on professional interaction), the piece sets forth a functional theory of emotion …

New Orleans, The Chesapeake, And The Future Of Environmental Assessment: Overcoming The Natural Resources Law Of Unintended Consequences, Erin Ryan

Scholarly Publications

This is a tale of two disappearing wetlands - those surrounding Louisiana's Gulf Coast and those fringing the Chesapeake Bay - each providing new insight into the old quandary of unintended consequences that lies at the center of natural resource management. Louisiana's losses follow three hundred years of natural resource engineering to accomplish effective flood control along the Mississippi River, while the Chesapeake losses follow implementation of among the most meticulous wetlands-protection programs of its time. And yet, New Orleans suffered a catastrophic flood, and Chesapeake wetlands continue to disappear. How could this happen? Call it the "Natural Resources Law …