Law Commons^™

Prison Visitation Policies: A Fifty State Survey, Chesa Boudin

Chesa Boudin

This paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family. Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive …

After Privacy: The Rise Of Facebook, The Fall Of Wikileaks, And Singapore’S Personal Data Protection Act 2012, Simon Chesterman

Simon Chesterman

This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no …

A Call For Action: An Analysis Of The Impending Regulatory Crisis In The Municipal Securities Market, Philip Grommet

Philip Grommet

This Article warns of an impending regulatory crisis in the municipal securities market. The municipal securities market is an integral tool that allows state and local governments to implement important public interest projects by appealing to retail investors seeking tax-exempt income. Its regulation has garnered little attention – aside from the market’s characterization as “sleepy.” However, the market has grown exponentially and today’s market is increasingly populated with complex financial instruments. Quite simply, its regulation has not kept pace with developments in the market. Municipal securities issuers are not subject to the general registration requirements of the Securities Act of …

The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres

Jody M. Endres

Mounting resource scarcity confronts policymakers to make decisions based on predictions of complex system behavior under conditions of great uncertainty. Nowhere is this more evident than in bioenergy policy, which relies heavily on modeling to determine biofuels’ effects on complex climate, food and natural systems. This article provides a primer on models’ inner workings to facilitate engagement by the legal field so critical in building and applying models, and remedying them when they fail. Any conceptual model cannot predict future reality with accuracy absent accounting for regulatory and litigatory scenarios that only the legal discipline can assess fully. Administrative law …

Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act, John L. Gedid

John L. Gedid

No abstract provided.

Parliamentary Oversight Of The Executive In India, Anirudh Burman

Anirudh Burman

The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …

Chevron Without The Courts? The Supreme Court's Recent Chevron Jurisprudence Through An Immigration Lens, Shruti Rana

Shruti Rana

The limits of administrative law are undergoing a seismic shift in the immigration arena. Chevron divides interpretive and decision-making authority between the federal courts and agencies in each of two steps. The Supreme Court may now be transforming this division in largely unrecognized ways. These shifts, currently playing out in the immigration context, may threaten to reshape deference jurisprudence by handing more power to the immigration agency just when the agency may be least able to handle that power effectively. An unprecedented surge in immigration cases—now approximately 90% of the federal administrative docket—has arrived just as the Court is whittling …

How Statistical Sampling Can Solve The Conundrum Of Compensation Disclosures Under Dodd-Frank, Michael Ohlrogge

Michael Ohlrogge

One of the more controversial measures of the Dodd-Frank bill is its requirement that companies report the ratio of their CEO’s compensation to that of their median employee. Critics of this provision have claimed that for large companies with employees and subsidiaries throughout the world, compliance with this measure alone could cost millions of dollars a year, due to the difficulties in identifying the median employee. This paper demonstrates that the Securities and Exchange Commission, which is charged with implementing this provision, has the latitude to direct companies to calculate the figure using a statistical sampling procedure which would greatly …

Enhancing Public Access To Online Rulemaking Information, Cary Coglianese

All Faculty Scholarship

One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud At The Expense Of Investors, Charles W. Murdock

Charles W. Murdock

Summary: Janus Capital Group, Inc. v. First Derivative Traders: The Culmination of the Supreme Court’s Reactionary Rule 10b-5 Jurisprudence Which Protects Fraud at the Expense of Investors

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The …

Caught In The Cross-Fire: The Psychological And Emotional Impact Of The Individuals With Disabilities Education Act (Idea) Upon Teachers Of Children With Disabilities, A Therapeutic Jurisprudence Analysis, Richard Peterson

Richard Peterson

This paper addresses the psychological and emotional consequences of the Individuals with Disabilities Education Act (IDEA) for public school teachers in the United States as viewed through the lens of Therapeutic Jurisprudence.

Therapeutic Jurisprudence was founded in the 1990s as an interdisciplinary approach to evaluating how law acts as a therapeutic agent upon those who engage in its context. It calls for the study of such consequences to ascertain whether the law’s anti-therapeutic effects can be lessened, and its therapeutic effects increased, without subordinating due process and other values associated with justice. In the context of Special Education Law, for …

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

No abstract provided.

A Selection-Corrected Estimate Of Chevron’S Impact On Agency Deference, Griffin S. Edwards

Griffin S Edwards

The ruling in Chevron v. Natural Resources Defense Council dramatically changed how judges rule in favor of federal administrative agencies. Previous research has found both theoretically and empirically that Chevron favors agencies and their interpretation of statutes, but the magnitude of Chevron’s impact remains unclear due to possible selection issues biasing the post-Chevron world. Accounting for the possibility that incentives change both to the challenger of an agency and the agency itself post-Chevron, I estimate a break in the trend of agency deference on the date Chevron was decided. This allows me to exploit the exogenous cases that were pending …

Evading Emergency: Strengthening Emergency Response Through Integrated Pluralistic Governance, Lance Gable

Lance Gable

This Article examines the significant governance challenges that arise during responses to public health emergencies and proposes a new multifaceted strategy—integrated pluralistic governance—to address these challenges. Emergency preparedness is an inherently complex problem that entails the integration of scientific and medical expertise, good logistical planning, and clear laws and policies. The governance function has particular import for public health emergencies because pandemics, hurricanes, and other disasters can have profoundly divisive social and political consequences. Moreover, recent disasters like Hurricane Katrina and the BP Deepwater Horizon Oil Spill revealed an emergency preparedness and response infrastructure in the United States that was …

Protecting The Innocent With A Premium For Child Safety Regulations, Jacob P. Byl

Jacob P. Byl

Federal agencies regulate many products and activities that impact the safety of children. When conducting an economic analysis of a proposed rule, agencies should put a premium on saving the lives of children when analyzing the costs and benefits of regulation. This Article uses original evidence from the infant car seat market to determine that a child-specific benefit measure should be one and a half to two times that of an adult.

Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux

Paul Boudreaux

The most prominent environmental issue of the 2012 presidential election was the Solyndra debacle, in which the Obama administration lent more than $500 million to a solar energy company that later went bankrupt. Such financial “carrots” have been a centerpiece of President Obama’s environmental policy. This Essay uses the Solyndra story to expose the fatal flaws of a policy of carrots, including their inherent susceptibility to politicization and the government’s inaccuracy in making “bets” in the private market. If the environmental community is serious about difficult legal steps, such as combating global warming, it should eschew the allure of carrots …

Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux

Paul Boudreaux

ABSTRACT The most prominent environmental issue of the 2012 presidential election was the Solyndra debacle, in which the Obama administration lent more than $500 million to a solar energy company that later went bankrupt. Such financial “carrots” have been a centerpiece of President Obama’s environmental policy. This Essay uses the Solyndra story to expose the fatal flaws of a policy of carrots, including their inherent susceptibility to politicization and the government’s inaccuracy in making “bets” in the private market. If the environmental community is serious about difficult legal steps, such as combating global warming, it should eschew the allure of …

Marginalized Monitoring: Adaptively Managing Urban Stormwater, Melissa K. Scanlan, Stephanie Tai

Melissa K. Scanlan

Adaptive management is a theory that encourages environmental managers to engage in a continual learning process and adapt their management choices based on learning about new scientific developments. One such area of scientific development relevant to water management is bacterial genetics, which now allow scientists to identify when human sewage is getting into places it should not be. Source-specific bacterial testing in a variety of cities across the United States indicates there is human sewage in urban stormwater pipes. These pipes are designed to carry runoff from city streets and lots, and they send untreated water directly into rivers, streams, …

Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival

Robert Percival

No abstract provided.

Applying Method To The Madness: The Right To Court Appointed Guardians Ad Litem And Counsel For The Mentally Ill In Immigration Proceedings, Amelia Wilson

Amelia Wilson

A unique dilemma facing immigration judges (IJs) and practitioners today is how to address the acute problem of mentally ill respondents appearing pro se in immigration removal proceedings. Mentally ill respondents are more likely to face deportation from a position of indigence and detention, both of which create substantial barriers to obtaining counsel. Even where represented, the mentally ill are less able to contribute to their own defense or understand the proceedings against them. This lack of meaningful participation has cascading deleterious effects on respondents themselves, but also on our already overburdened immigration courts by creating docket delays, prolonged detention, …

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

Using Building Codes To Rewrite The Tailoring Rule And Mitigate Climate Change, Albert Monroe

Albert Monroe

In 2007, Mass. v. EPA effectively forced the EPA to regulate emissions of carbon dioxide and other greenhouse gases. The plain language of the Clean Air Act gave the EPA an impossible mandate of regulating millions of buildings on a case-by-case basis. The EPA, through the Tailoring Rule, decided to regulate fewer sources. This paper shows that the EPA’s approach is legally suspect. Instead, the EPA should regulate more sources using general permits that avoid the impossibility of case-by-case regulation of millions of sources. The EPA can regulate buildings under the Clean Air Act by mandating stricter building codes for …

Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary Lawson, Stephen Kam

Gary Lawson

Chevron, U.S.A., Inc. v. NRDC has become the most cited case in administrative law - and one of the most cited cases in any field -- by virtue of its now famous "two-step" approach to judicial review of agency legal determinations. It is becoming conventional wisdom, and correctly so, that the Chevron doctrine owes relatively little to the Chevron decision. Yet cases and scholars continue to justify operational features of the Chevron doctrine by reference to the Chevron decision. In an effort to uproot this unproductive enterprise, we trace in detail, we believe for the first time, the precise process …

Purposeless Construction, David M. Driesen

David M Driesen

This Article critiques the Supreme Court’s tendency to embrace “purposeless construction”— statutory construction that ignores legislation’’ underlying goals. It constructs a new democratic theory supporting purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for …

When Can You Teach An Old Law New Tricks?, Philip A. Wallach

Philip A Wallach

This article considers the distinctive legal and institutional dynamics involved when agencies interpret existing statutes for novel purposes. It argues that courts take into account policy-specific institutional factors, such as legislative dysfunction, when they consider the propriety of such novel interpretations, rather than employing universal ideas about institutional competencies. Where Congress has shown an inability to legislate in a policy area, courts are more likely to sympathize with changes in interpretation as partial substitutes for new legislation, but relying on old statutory language creates problems of statutory mismatch. The article contends that many arguments over statutory meaning mask disagreements about …

Managed Cooperation In A Post-Sago Mine Disaster World, Patrick R. Baker

Patrick R. Baker

This article proposes a mandatory mediation process as a solution to solving the case backlog before the Federal Mine Safety Health and Review Commission (Commission). As a result of the Sago Mine disaster, cases before the Commission have skyrocketed because of tougher Mine Safety and Health Administration (MSHA) oversight, increased penalties, and outdated procedures. From 2000 through 2005, approximately 2,300 cases were filed each year with the Commission. In 2011, the Commission’s case load exceeded 18,000. The system is currently in peril and significant reforms are needed if the current procedures are salvageable. This article has four central components. First, …

Blind Trusts As A Model For Campaign Finance Reform, Perry A. Pirsch

Perry A Pirsch

BLIND TRUSTS AS A MODEL FOR CAMPAIGN FINANCE REFORM

Perry A. Pirsch, MA

University of Nebraska, 2012

In this thesis, I explore whether blind trusts present a viable option for campaign finance reform. More specifically, would either permitting (voluntary) or requiring (mandatory) anonymous donations for political campaigns allow for fully funded, yet privately funded, campaigns while preventing problems, whether real or perceived, such as buying influence (quid pro quo) or buying access, which are traditionally associated with large campaign donations?

To study this question, I have examined the constitutional origins of the need to fund federal campaigns, Congress’ power to …

Disaggregating Disasters, Ronnell Andersen Jones

RonNell Andersen Jones

In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of non-war emergency situations. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying …