Law Commons^™

The Individuals With Disabilities Education Improvement Act - Why Considering Only One Individual At A Time Creates Untenable Situations For Students And Educators, Megan M. Roberts

Megan M. Roberts

Under the Individuals with Disabilities Education Improvement Act (IDEIA), teachers must modify the classroom environment and lessons to meet the individual needs of each child with a disability. When more than one child with a disability is present in a given classroom, this required individual consideration can be problematic, as the special arrangements for one student may undermine the arrangements for another. Despite the vast growth in the number of students with disabilities and the pressure on schools to comply with the IDEIA requirements, the law has not yet addressed these increasingly frequent situations. This article reviews how the IDEIA …

The Play's The Thing: A Theory Of Taxing Virtual Worlds, Bryan T. Camp

Bryan T Camp

The Play’s The Thing: A Theory of Taxing Virtual Worlds: Bryan T. Camp Abstract Taxation is shadow life. As our culture monetizes more and more life activities, the shadow grows. This article looks at the potential tax issues arising from a new life activity: online role-playing games in virtual worlds. Currently, some 12 million people regularly play such games and the number is growing. Exploring the reach of the Tax Code into virtual world transactions not only responds to the potentially practical needs of millions of U.S. taxpayers, it also permits a reevaluation of core principles of income tax as …

The Perils Of A Half-Built Bridge: Risk Perception, Shifting Majorities, And The Nuclear Power Debat, Amanda Leiter

Amanda Leiter

Much of the risk perception literature relies on the important but unstated assumption that manipulating public opinion to conform to scientific assessments of risk could help the public and, in turn, policymakers make better decisions about whether and how to regulate. This paper argues that the assumption fails in the context of certain “multilayered” risks, or risks that pose tiered policy choices – not just whether to regulate in the first instance, but how to respond to derivative risks arising from the first set of regulatory changes. Examining the debate about the role of nuclear power in the United States’ …

The Brand X Constitution, Richard W. Murphy

Richard W. Murphy

In recent years, the Supreme Court’s claim to be the final, definitive interpreter of the Constitution has come under sustained attack from across the political spectrum from scholars pushing for a more “popular” constitutionalism. This Article contributes to “popular constitutionalism” by deploying recent developments in the Supreme Court’s own administrative-law doctrine against it. Together, these Chevron-related developments form the Brand X model, which stands broadly for the proposition that, where an agency uses transparent, deliberative means to adopt a reasonable interpretation of a statute it administers, the courts should defer to this interpretation regardless of whether it contradicts judicial precedent. …

Breaking Free Of Chevron’S Constraints: Zuni Public School District 89, Et Al. V. U.S. Department Of Education, Osamudia R. James

Osamudia R. James

Breaking Free of Chevron’s Constraints: Zuni Public School District 89, et al. v. U.S. Department of Education, analyzes the Supreme Court’s latest review of an administrative interpretation under Chevron review, and concludes that the doctrine’s exclusive focus on deciding “who gets to decide” led to a complete failure by the Court to consider the consequences of the agency interpretation at issue. Such a failure renders the Court unprepared to accurately determine whether the agency interpretation is “permissible” under the second prong of Chevron review. As a solution, the article advocates for the replacement of Chevron’s second prong with the more …

The Fair Track To Expanded Free Trade: Making Taa Benefits More Accessible To American Workers, William J. Mateikis

William J. Mateikis

If Congress again wants to use the TAA program in a bargain for Fast Track authority … then DOL must fix its broken certification process and Congress should amend the TAA Act to reduce worker resistance to expanded free trade. The topic is quite timely given the expiration of fast track (trade promotion) authority on June 30, 2007 and reauthorization of the TAA program due October 1, 2007. The paper has five parts. Following the Introduction, Part II of the paper outlines the politics of U.S. trade liberalization since the mid-1930s and shows that, at times over the past three …

Unofficial Official Comments, Nigel Stark

Nigel Stark

My Note examines Justice Antonin Scalia’s “plain meaning” theory and asks whether, assuming that theory is correct, whether official comments should be used to interpret a statute. Specifically, I examine the use of the UCC’s Official Comments and its various state variations. I conclude that, under Justice Scalia’s theory, the use of official comments is to interpret the statute is improper and should be avoided.

Bringing Balance To Indian Gaming, Matthew L.M. Fletcher

Matthew L.M. Fletcher

This Article proposes to codify the revenue sharing agreements already implemented, assuming the tribe consents; mandate all future casino-style gaming compacts include revenue sharing; and codify the Secretarial procedures designed to reestablish the enforcement mechanism. This proposal would cement the on-the-ground reality of Indian gaming that tribes and states have relied upon since 1996. Reform of the law of Indian gaming should focus on the underlying structure of the law of Indian gaming rather than the symptoms.

Congress enacted the Indian Gaming Regulatory Act in 1988 as a compromise between Indian tribes and states. Congress required tribes to compact with …

New Governance, Compliance, And Principles-Based Securities Regulation, Cristie L. Ford

Cristie L. Ford

The UK securities regulator, the Financial Services Authority, claims that its "principles-based" approach to securities regulation is simply "better" than what it characterizes as the prescriptive, rules-based American approach. The striking shift in financial sector business from New York to London over the last two years has brought the question of the wisdom of principles-based regulation into sharp relief. In fact, an FSA-style regulatory approach may also be taking hold in Canada, through the agency of the province of British Columbia. This paper examines BC's innovative proposals for a principles-based securities regime through the lens of New Governance theory. I …

Reinterpreting The Role Of Special Trial Judges Through Standards Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Standards of review define the scope of power between judicial actors by dictating the level of discretion given to an original trier of fact. In the articulation of a standard of review, language is an insufficient source for defining a standard because of the inability of specific terminology to produce objective certainty. It is because words are not susceptible to objective certainty that the language used in defining a standard of review could be considered irrelevant and indistinguishable.

While the words may be indistinguishable, it is the uniformity of terms that promotes consistency in application. It may be impossible to …

Privatization And The Effectiveness Of Monitoring Agencies, Alexander Volokh

Alexander Volokh

The privatization literature depicts the choice whether to contract out as a tradeoff between excessive private investment in quality-reducing cost saving and inadequate public investment in cost-increasing quality improvement, under circumstances where neither the amount of investment nor the cost or quality outcomes are contractible. This paper shows that a monitoring regime, which can verify the benefit of the service at a cost, can bring the investment levels of the private contractor closer to the optimum, while it may not be able to improve the performance of the public sector. Monitors can be captured, and the possibility of capture may …

Delegating Discrimination: Why Discretionary Licensing Statutes Controlling Concealed Carry Weapons Permits Contravene The Rule Of Law, Robert J. Endorf

Robert J. Endorf Jr.

The most significant change in this nation's firearm regulation in almost fifty years is the majority of states adopting liberalized rules for the carrying of concealed firearms. The political debate surrounding theses new "shall issue" licensing laws has almost unanimously confused two distinct issues. The debate has centered on whether states should issue many licenses, or virtually no licenses; however, because many licensing statutes date back to the turn of the twentieth century and were originally passed for highly suspect motives, such as outright racism or xenophobia, the issue of how best to issue licenses has been buried under the …

One Step In The Right Direction: An Analysis Of Ferc's Reporting Requirement For Status Changes For Public Utilities With Market-Based Rate Authority, Richard R. Bradley

Richard R Bradley

No abstract provided.

Canons, The Plenary Power Doctrine And Immigration Law, Brian G. Slocum

Brian G. Slocum

There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has “plenary power” over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction in an aggressive fashion to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively focused on the plenary power doctrine. They have either ignored the important role that canons have played in immigration law or have viewed canons as serving only a temporary and marginally legitimate role as substitutes for the lack of constitutional rights …

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

Shi-Ling Hsu

No abstract provided.

The History Of School Trust Lands In Nevada: The No Child Left Behind Act Of 1864, Christopher J. Walker

Christopher J. Walker

This Article details the history of the federal school lands grant program in Nevada - the first federal initiative to support public education in the new state. After providing a brief overview of federal land management history in the West, the Article presents the story of school lands in Nevada - tracing its birth in Congress and at the Nevada Constitutional Convention in 1864; analyzing the changes made by state constitutional amendments and court decisions; exploring Congress's attempts to adapt the program to Nevada's needs in the form of the two-million-acre grant of 1880 and the 30,000-acre exchange of 1926; …

Adequate Access Or Equal Treatment: Looking Beyond The Idea To Section 504 In A Post-Schaffer Public School, Christopher J. Walker

Christopher J. Walker

In light of the Supreme Court's decision this Term in Schaffer v. Weast, this Note analyzes the current state of special education law and argues that parents, attorneys, and advocates should look beyond the Individuals with Disabilities Education Act (IDEA) to Section 504 in the post-Schaffer public school. This Note shows how these two standards operate in the context of state special schools for the blind and deaf. A state-by-state survey of thirty states' special school admission policies and practices reveals the IDEA's limitations and Section 504's potentially complementary role.

Although other works have briefly compared the IDEA and Section …

On The Role Of Cost-Benefit Analysis In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

Legal scholarship on the role of cost-benefit analysis in environmental law is often stimulating, but does not seem to be changing anybody's mind. The entrenchment of a camp of detractors and a camp of advocates of cost-benefit analysis parallels the impasse that has stymied environmental law for over a decade. Professors Lisa Heinzerling and Frank Ackerman have co-authored a book that captures most of the arguments from the detractor side, and have done so skillfully and powerfully. However, this review criticizes the book's contribution to perpetuating this intellectual stalemate. The book does this by focusing on an environmental theory of …

Fairness Versus Efficiency In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

Like many other areas of law, the development of environmental law has been strongly influenced by notions of fairness. This should not be surprising, since environmental law has been developed by lawyers, who are self-selected to be fairness-oriented and trained to think in terms of fairness. While large environmental gains have been achieved in the thirty-year history of environmental law, progress seems to have reached a plateau. Partisanship has poisoned the debate on how best to proceed in making further environmental progress. I attribute the failings and the current stalemate in environmental law to our obsession with fairness. Fairness-thinking has …

A Two-Dimensional Framework For Analyzing Property Rights Regimes, Shi-Ling Hsu

Shi-Ling Hsu

This article proposes an integrative framework wherein all property regimes can be expressed as a function of two fundamental characteristics: (i) whether the dominant right is a use right or an exclusion right (or some degree thereof), and (ii) the size of the party jointly holding the dominant right. This article will show how all property regimes can be characterized by these two variables. By analyzing property regimes in such a framework, property regimes can be related to each other, and conditions can be identified under which the regimes function best. I introduce four fundamental property regimes: the Individual Use, …

A Game-Theoretic Approach To Regulatory Negotiation And A Framework For Empirical Analysis, Shi-Ling Hsu

Shi-Ling Hsu

While regulatory agencies have been engaging in negotiation with regulated parties and other stakeholders for decades now, careful study of the implications of such negotiations have lagged. In particular, while several commentators have now staked out intellectual ground on the theoretical ramifications of regulatory negotiation, empirical analyses of regulatory negotiations have been lacking. This article analyzes the implications of regulatory "reinvention" as the latest in a series of administrative initiatives aimed at achieving better rulemaking and adjudication through negotiations. Reinvention is commonly understood to mean those programs that utilize negotiated agreements to implement regulatory requirements imposed by various environmental statutes. …

The Evolution Of The Public Trust Doctrine And The Degradation Of Trust Re- Sources: Courts, Trustees And Political Power In Wisconsin, Melissa K. Scanlan

Melissa K. Scanlan

The public trust doctrine is rooted in ancient Roman law and the Wisconsin Constitution. Ancient Roman jurists be- lieved that the natural law concept that the waters are common to all was not subject to the changing whims of legis- latures. Similarly, modern theorists assert that a constitutionally-based doctrine will be more insulated from politics. This Comment demonstrates the limits of these theories. The trust doctrine is not immutable. Based on interviews with the trustees of Wisconsin's water resources, this Comment uncovers the constraints on the trustees. It shows that trust resources are at risk due to politically-motivated decisions and …