Law Commons^™

Interregional Recognition And Enforcement Of Civil And Commercial Judgments: Lessons For China From Us And Eu Laws, Jie Huang

Jie Huang

Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This article focuses on what lessons China may draw from the US and the EU to develop its interregional JRE laws. It first discusses the status quo of the interregional JRE in China. Then it explores how the interregional economic integration demands the establishment of a multilateral interregional JRE arrangement in China. Finally it points out the four most crucial challenges in developing this arrangement: the challenge relating to the socialist characteristics …

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …

Eliminating Earmarks: Why The Congressional Line Item Vote Can Succeed Where The Presidential Line Item Veto Failed, Jason Iuliano

West Virginia Law Review

No abstract provided.

Counting The Cost, Marc A. Clauson

History and Government Faculty Publications

No abstract provided.

Otc Derivatives Trading Under The Financial Reform Bill: Is It Tough Enough?, Willa E. Gibson

Willa E Gibson

This paper discusses the regulatory framework devised by Congress to govern trading in OTC derivatives products with a goal toward assessing the efficiency of the legislation to prevent systemic loss in the financial markets from derivatives trading. Both the U.S. House of Representatives and the U.S. Senate have drafted financial reform legislation prompted by the financial market failings the country experienced in 2008. Both versions provide for comprehensive regulation of the OTC derivatives products, which were used extensively by those financial institutions that lost millions of dollars from investments in mortgage securities to insure against subprime mortgage defaults. This paper …

Father-Absence, Social Equality, And Social Progress, Helen M. Alvare

helen m alvare

Abstract: Father-Absence, Social Equality and Social Progress

The future of the male half of the U.S. population is less certain than it once was. News outlets now regularly report that women outnumber men in college and in the workforce. These reports rightly grab attention. Men’s growing absence from the lives of their own biological children, however, is too little explored. The 2007 Census update reported that of the nineteen million children living in lone-parent households, sixteen and one-half million lived with their mothers alone. Fewer than 30 percent of these fathers have even weekly contact with their children. Poor and …

Beyond The Sex- Ed Wars: Addressing Disadvantaged Single Mothers’ Search For Community, Helen M. Alvare

helen m alvare

Abstract: Beyond the Sex-Ed Wars

By Helen M. Alvaré

There is bi-partisan alarm over recent reports that our nation’s nonmarital birth rate has reached nearly 40%. Policymakers worry not only about fiscal effects, but also about the welfare of children reared in single-parent households and the fact that marriage and childbearing patterns are beginning to diverge sharply on the basis of race and socioeconomic status. Yet there is little new in recent proposals to address the phenomenon. Supporters of abstinence-only sex education, and of “comprehensive” sex-education, continue to trade accusations. Federal and state agencies promise to work harder but intend …

Beyond The Sex- Ed Wars: Addressing Disadvantaged Single Women’S Search For Community, Helen M. Alvare

helen m alvare

Abstract: Beyond the Sex-Ed Wars

By Helen M. Alvaré

There is bi-partisan alarm over recent reports that our nation’s nonmarital birth rate has reached nearly 40%. Policymakers worry not only about fiscal effects, but also about the welfare of children reared in single-parent households and the fact that marriage and childbearing patterns are beginning to diverge sharply on the basis of race and socioeconomic status. Yet there is little new in recent proposals to address the phenomenon. Supporters of abstinence-only sex education, and of “comprehensive” sex-education, continue to trade accusations. Federal and state agencies promise to work harder but intend …

Defining Death: Why All Fifty States Should Adopt The Uniform Definition Of Death Act With A Religious Exception, Rachel Delaney

Rachel Delaney

This article addresses the tension between the secular, American definition of death and the Jewish law definition of death. While the definition of death has been debated separately in both Jewish and American legal scholarship, the secular and Jewish law definitions of death have not been thoroughly analyzed in relation to one another. The secular definition of death—irreversible cessation of all functions of the entire brain—conflicts with the Jewish law definition of death—irreversible cessation of respiration. The conflict presents a First Amendment Free Exercise Clause challenge because state laws with strict secular definitions of death preclude Orthodox Jews from practicing …

The Hypocrisy Of The Acquiescence Canon, Blair C. Warner

Blair C Warner

The Court applies the acquiescence canon to infer that an agency or judicial statutory interpretation is correct when followed by Congressional inaction. This Article will argue that this practice is based on a number of faulty assumptions. Moreover, the canon is applied inconsistently and creates perverse incentives for the legislature. The Article will then explore the Court’s guidance to lower courts against deriving similar inferences from the denial of certiorari, a similar form of inaction. Drawing parallels between Congress and the Court, and noting the many reasons why conclusions should not be drawn from apparent inactivity, this Article will conclude …

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

Erika K. Wilson

While much attention is paid to issues of segregation and inequality in education, little attention is paid to the role that school district boundary lines play in creating segregation and inequality in education. Living on one side of a school district boundary line rather than another can mean the difference between being able to attend a high achieving resource enriched school or having to attend a low achieving, resource deprived school. Nevertheless, the federal judiciary--the institution looked upon to remedy issues of school segregation and inequality--is unable to adequately remedy segregation and inequality between school districts because it evidences a …

Ecology Comes Of Age: Nepa's Lost Mandate, Sam Kalen

Sam Kalen Mr.

Twenty-first century challenges are testing the resiliency of our Nation’s environmental programs. As such, we need to appreciate the National Environmental Policy Act’s (NEPA) resiliency for addressing our society’s evolving threats. This requires a better understanding both from the academy as well as the judiciary of what Congress intended when it passed the Magna Carta of environmental laws. That too little attention has been paid to such a paradigm shifting statute is unfortunate. Existing histories of NEPA simply overlook what animated Congress when it passed this Nation’s environmental charter. This article, therefore, fills a significant gap that has existed in …

Ecology Comes Of Age: Nepa's Lost Mandate, Sam Kalen

Sam Kalen Mr.

Twenty-first century challenges are testing the resiliency of our Nation’s environmental programs. As such, we need to appreciate the National Environmental Policy Act’s (NEPA) resiliency for addressing our society’s evolving threats. This requires a better understanding both from the academy as well as the judiciary of what Congress intended when it passed the Magna Carta of environmental laws. That too little attention has been paid to such a paradigm shifting statute is unfortunate. Existing histories of NEPA simply overlook what animated Congress when it passed this Nation’s environmental charter. This article, therefore, fills a significant gap that has existed in …

Defragmenting The Regulatory Process, Stuart Shapiro

Stuart Shapiro

The regulatory process is often criticized for being cumbersome and slow, much like a computer whose hard drive is fragmented by files no longer used or useful. Like such a computer, the regulatory process contains many requirement of dubious utility. These include the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and numerous executive orders. While other parts of the regulatory process such as notice and comment and cost-benefit analysis have received much more academic attention, these other parts of the process deserve examination as well. This paper argues that such an examination will reveal that …

Harvey Milk, Jane Roe, And James Brady: Why Civic Organizing Matters, Palma Joy Strand

palma joy strand

This Article presents a view of the civic underpinnings of law by examining how civic interaction or the lack of such interaction facilitates or inhibits sociolegal change. The Article begins with empirical observations of civic experience and engagement, which ground more general conclusions about the importance of civic relationships and civic networks as well as the way personal stories contribute to the creation of both. The Article then applies these conclusions to three currently contentious and unsettled issues: gay rights, abortion, and guns. As to gay rights, the “coming out” process identified with Harvey Milk has transformed the civic landscape, …

Protecting “Any Child:” The Use Of The Confidential Marital Communications Privilege In Child Molestation Cases, Naomi Goodno

Naomi Harlin Goodno

Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications …

The Art Of Statutory Interpretation: Identifying The Approach Of The Judges Of The United States Court Of Appeals For Veterans' Claims And The United States Court Of Appeals For The Federal Circuit, Linda D. Jellum

Linda D. Jellum

This article explores judicial approaches to statutory interpretation, a topic of interest to scholars, academics, and practitioners. Perhaps more than any other subject, understanding the theory of interpretation is critical to understanding statutory interpretation because theory drives every aspect of statutory interpretation. A judge’s theory of interpretation determines what information a judge will consider when searching for meaning. For example, some judges will not look at legislative history or social context for meaning unless the text of the statute is ambiguous or absurd. Assuming that the legislative history is helpful to their case, lawyers must learn to “talk the talk” …

Attitudes, Advocacy And Polarization: The New Iron Triangle Of American Public Policy, Roger L. Conner, Patricia Jordan

Roger L Conner

Electoral politics in the U.S. have always been nasty and brutish. Pervasive polarization in public policy disputes is a new an worrisome trend that has attracted considerable attention recently. Using insights gleaned from social psychology, this article finds that “strong", negative "attitudes," once attached to an “attitude object” such as the “other side” in a policy conflict, will operate subconsciously to distort cognition in ways that generate extreme and polarized thinking. Scholars from a different field, public policy studies, find that conversations about public policy increasingly occur inside of “advocacy coalitions,” vast and networks of people and groups that are …

Insurance As A Mitigation Mechanism: Managing International Greenhouse Gas Emissions Through Nationwide Mandatory Climate Change Catastrophe Insurance, Anastasia M. Telesetsky

Anastasia M Telesetsky

This paper proposes mandatory climate change catastrophe insurance as a risk-sharing mechanism to distribute future climate change disaster relief costs between major greenhouse gas emitting industries and the government. This article argues that mandatory catastrophe risk insurance for major greenhouse gas emitters will deliver necessary financial coverage for future climate disasters as well as compel timely climate change mitigation on the part of major emitters. The first part of this paper offers mandatory climate change catastrophe insurance as an additional market tool to the existing proposals for emission trading schemes and carbon taxes. This part begins with a summary of …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

The Fox And The Ostrich: Is Gaap A Game Of Winks And Nods?, Arthur Acevedo

Arthur Acevedo

The fox is frequently described as sly, cunning and calculating in world literature. It is often associated with behavior that seeks advantage through trickery and pretext. The ostrich on the other hand, has been portrayed as cowardly and irrational. Its character defect is epitomized when it sticks its head in the sand at the first sign of trouble. The Financial Accounting Standards Board (FASB) can be described as the fox; the Securities Exchange Commission (SEC), the ostrich. This article examines the creation of accounting principles by the fox and the failure to govern by the ostrich. History demonstrates that the …

Sunset 2010: The Sunshine State, In Space, Timothy M. Ravich

Timothy M Ravich

In light of the imminent retirement of the Space Shuttle fleet later this year, this article addresses the recent enactment of new laws in Florida and elsewhere, together with the emergence of a space tourism industry and burgeoning cadre of private aerospace entrepreneurs. The significance of this is that space law presents serious private commercial opportunities for all Americans. This article focuses on the particular role Florida has played in national human spaceflight missions and expresses sincere concern about the state’s current and future direction as spacefarers look to different jurisdictions and platforms to support the next phase of space …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

A Post-Racial Voting Rights Act, Jason Rathod (R-Z)

Jason Rathod (R-Z)

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, …

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend …

The Pursuit Of Perfection: Congressional Power To Enforce The Reconstruction Amendments, Aaron Christopher Bryant

Aaron Christopher Bryant

ABSTRACT In June the Supreme Court avoided a decision on the constitutionality of the Voting Rights Act’s pre-clearance requirement, while at the same time managing to foreshadow that provision’s ultimate demise. In a separate opinion, Justice Thomas announced that he would have reached the issue and invalidated the pre-clearance requirement. Conceding that unconstitutional racial discrimination in the administration of elections continued to be an unfortunate reality, he asserted that Congress was not permitted to pursue “perfect compliance” with the Constitution’s mandate via the use of “broad prophylactic legislation.” Justice Thomas’s statement accurately, though to be sure rather starkly, expressed an …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

Lawyers, Guns, And Money: Why The Tiahrt Amendment’S Ban On The Admissibility Of Atf Trace Data In State Court Actions Violates The Commerce Clause And The Tenth Amendment, Colin Miller

Colin Miller

The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as …

Trust And The Reform Of Securities Regulation, Ronald J. Colombo

Ronald J Colombo

Trust is a critically important ingredient in the recipes for a successful economy and a well-functioning securities market. Due to scandals, ranging in nature from massive incompetence, to massive irresponsibility, to massive fraud, investor trust is in shorter supply today than in years past. This is troubling, and commentators, policy makers, and industry leaders have all recognized the need for trust's restoration.

As in times of similar crises, many have turned to law and regulation for the answers to our problems. The imposition of additional regulatory oversight, safeguards, and remedies, some advocate, can help resuscitate investor trust. These advocates have …

Evolving Regulation Of Corporate Governance And The Implications For D&O Liability: The United States And Australia, Joan T.A. Gabel, Nancy R. Mansfield, Paul Von Nessen, Austin W. Hall, Andrew Jones

San Diego International Law Journal

This Article compares the modern corporate regulatory environments in the United States and Australia, including an analysis of the climate for Directors & Officers (D & O) liability coverage. Comparing these regulations across two large markets with similar historical bases for assessing director and officer liability allows us to explore which reforms may be more effective as new scandals emerge.