Law Commons^™

Aiding And Abetting Under The Antiterrorism Act: Despite Statutory Silence, Why Extending Liability To Aiders And Abettors Of International Terrorism Furthers Congressional Intent To Compensate Plaintiffs And Defeat Terrorist Financial Pathways, Jesse Snyder

Jesse Snyder

No abstract provided.

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …

The Rise And Permanence Of Quasi-Legislative Independent Commissions, Gabriel Gillett, Steven R. Ross, Raphael A. Prober

Gabriel Gillett

This article explores Congress’s recent trend of creating quasi-legislative independent commissions to augment its own investigations, and determines what factors may enhance the chance that a commission will prove successful. Although Congress has never been the lone forum for investigations, since 2001 the legislature has been empanelling entities of outside experts to investigate the most significant economic and national security issues. This Article begins with a history of governmental investigations in America, highlighting activity by Congress, independent agencies, and presidential commissions. Next, it describes the modern political, communications, and scheduling strains on Congress that have created an opportunity for new …

Giving Life To The Dead: The Patient Protection And Affordable Care Act's Impact On Freedom Of Contract As A Substantive Due Process Right, Jesse D. Kershner Mr.

Jesse D Kershner Mr.

This article examines the constitutional implications of the Patient Protection and Affordable Care of 2010. Particularly, whether the substantive due process right of freedom of contract is recognized yet again as a fundamental right. This paper argues while Muller and West Coast Hotel overturned Lochner procedurally, the substance of the fundamental right concerning contracts still exists; specifically the notion that citizens have a right to be free from forced contracts.

Giving Life To The Dead: The Patient Protection And Affordable Care Act's Impact On Freedom Of Contract As A Substantive Due Process Right, Jesse D. Kershner Mr.

Jesse D Kershner Mr.

This article examines the constitutional implications of the Patient Protection and Affordable Care of 2010. Particularly, whether the substantive due process right of freedom of contract is recognized yet again as a fundamental right. This paper argues while Muller and West Coast Hotel overturned Lochner procedurally, the substance of the fundamental right concerning contracts still exists; specifically the notion that citizens have a right to be free from forced contracts.

Dreams Deferred – Why In-State College Tuition Rates Are Not A Benefit Under The Iirira And How This Interpretation Violates The Spirit Of Plyler, Laura A. Hernandez

Laura A Hernandez

A legal barrier to education. The concept is distinctly un-American. We are well acquainted with the narrative. No matter how humble your childhood circumstances, if you studied hard, dreamed big and worked even harder, access to the United States’ finest universities would be yours. A college degree would provide employment opportunities, the chance to form bonds with scions of the privileged and well connected, and with any luck, a direct entree into that world of financial security.

Because this particular tale of manifest destiny has such a strong hold on the American psyche, it is understandable why the number of …

Rating The Regulation Of Rating Agencies: Credit Rating Agency Reform In The Aftermath Of The Global Financial Crisis, Nan S. Ellis

Nan S Ellis

In this article, we identify five issues related to performance of credit rating agencies and consider the Dodd-Frank Act in light of these five interrelated issues. Others have commented on credit rating agency performance and offered proposed solutions. Our article is unique, however, in that it offers a comprehensive examination of these interrelated issues. We recognize that any regulatory reform must consider all aspects of the issue rather than to deal with isolated, incremental reform. Moreover, we offer an interdisciplinary approach which considers the relevant finance literature as well as legal commentary.

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

Campaign Finance: Public Funding After Bennett, Nicholas Bamman

Nicholas Bamman

This Article is the first to examine the effects of the Supreme Court’s recent decision Az. Free Enter. Club’s Freedom Club PAC v. Bennett on campaign finance. To comply with Bennett, several states and localities will have to amend their campaign finance laws. This article proposes several public funding options that will survive current constitutional jurisprudence and the policy implications of each.

Earmarking Earmarking, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

In the realm of lawmaking, to earmark means roughly to designate (through a statutory provision or an accompanying committee report) certain appropriated funds for narrow (nearly always geographically-delimited) purposes that appear to benefit particular interests. Policymakers, civil society organizations, and scholarly observers routinely condemn earmarking as a practice putatively tied to corruption, or reflecting abuse of the political process –critiques that have spawned a variety of recent reform efforts. Yet a meticulous prescriptive evaluation of the practice soon raises fairly profound questions encompassing institutional design, legal theory, organizational practice, and the role of a cognitively-overburdened public in a democracy. Upon …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew Taslitz

Andrew E. Taslitz

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

Safeguarding The Safeguards: The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into the structural federalism analysis. The breadth and depth of scholarly criticism is surprising, however, given that judges frequently choose indirect methods, including structural and process-based methods of the kinds at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as …

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff

Abigail R. Moncrieff

This article confronts and challenges an emerging scholarly consensus that criticizes the hybridization of substantive and structural arguments in the litigation over the Patient Protection and Affordable Care Act (ACA). Although there is no doubt that the ACA plaintiffs have requested and the ACA judges have provided a hybrid substantive-structural holding, there is nothing at all unusual about this indirect strategy for protecting constitutional liberty interests; it is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review.” The article considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review, and concludes that …

Disentangling "Cohesiveness": The Misapplication Of § 2 In Vote Dilution Cases, Eliot Michael Held

Eliot Held

In Thornburg v. Gingles, the Supreme Court ruled that a state’s refusal to create a proposed majority-minority voting district could in some circumstances violate § 2 of the Voting Rights Act. A proponent of the proposed district must show that the minority population of the proposed district is “politically cohesive” and would constitute a majority of the proposed district’s voting-age population, and that the non-minority (Caucasian) population of the challenged district traditionally votes as a bloc such that it is usually able to elect a candidate not preferred by the minority population. This Article proposes that a proper reading of …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scott A Moss

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

Helen A. Anderson

Burglary has been evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached …

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

Helen A. Anderson

Burglary has been evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. It expanded early on to include breaking and entering buildings, not just dwellings, and the breaking requirement became little more than symbolic in many jurisdictions. But sometime between the Model Penal Code in 1962 and today burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with …

The President And The Autopen: It Is Unconstitutional For Someone Or Something To Sign A Bill Outside Of The President's Presence, Terry L. Turnipseed

Terry L Turnipseed

On May 26, 2011, only hours before three provisions of the Foreign Intelligence Surveillance Act were scheduled to expire, Congress passed an extension. For days, the White House had someone ready to fly to Europe with the legislation in hand for the President to sign, but Congress had been tardy. It seemed quite important to the White House that none of these provisions lapse for any length of time, even the relatively short time it would take to fly from Washington to France. With this urgency as a backdrop, the President was awakened at 5:45 a.m. Central European Time so …

Website Proprietorship Liability, Design And Two Regrettable Online Norms:, Nancy Kim

Nancy Kim

Two regrettable norms have emerged online: the posting of content about others without their consent; and impulsive postings with little or no regard to their long term consequences. Website operators can either encourage or discourage these regrettable norms and influence their consequences through the design of their website and by the fostering of norms and codes of conduct. Unfortunately, section 230 of the Communications Decency Act as interpreted by courts provides websites with broad immunity. In a prior Article, I argued that a proprietorship standard should be imposed upon websites which would require them to take reasonable measures to prevent …

Preserving The Ark Of Our Safety: How A Stronger Administrative Approach Could Save Section 5 Of The Voting Rights Act, Aaron Moore

Aaron M Moore

No abstract provided.

Spatial Diversity, Nicholas Stephanopoulos

Nicholas Stephanopoulos

Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept -- “spatial diversity” -- that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah L. Gerwig-Moore

Sarah L Gerwig-Moore

The accompanying article explores the evolution of religious free exercise claims as considered under the First Amendment, Religious Freedom Restoration Act (RFRA) and now the Religious Land Use and Institutionalized Persons Act (RLUIPA). My Master of Theological Studies thesis explored questions of free exercise among death row inmates at San Quentin Prison in California. Now, nearly ten years later, I explore whether RLUIPA has made the kind of inroads we expected and hoped for.

Unfortunately—due in major part to federal legislation (PLRA) curtailing civil lawsuits by prisoners—RLUIPA’s impact has been limited at best. Examining court decisions from across the states …

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

Leveling The Deference Playing Field, Kathryn E. Kovacs

Kathryn E. Kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different …

Psychopathy As Sword Or Shield? A Legislative Proposal For The Greater Good, Vanessa Catherine Whirl

Vanessa Catherine Whirl

While mental health law has developed over the recent years as the fields of psychology and law combine their research, a gap is still left for one of the world’s most threatening mental health patients, psychopaths. Current legal definitions of “mental illness” exclude this diagnosis from legislation aimed at special attention and treatment of mental health patients. This issue is addressed in this article by legislative history, discussion of needed for changes in the laws regarding psychopathy, and analysis of the Hare Psychopathy Checklist. Finally, a proposal for legislation is made altering the prongs of current civil commitment statutes in …

Wind Turbine Wakes, Wake Effect Impacts, And Wind Leases: Using Solar Access Laws As The Model For Capitalizing On Wind Rights During The Evolution Of Wind Policy Standards, Kimberly E. Diamond, Ellen J. Crivella

Ellen J Crivella

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners and their neighbors, as well as for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect), as natural wind flow access between adjacent developers and the rights and income streams that flow with it, can be adversely impacted and can influence such developers’ decision as to whether or not to construct a wind project. Applying precedents founded on litigation-based legal theories invites confrontation between impacted parties and may not be the best …

The Family Smoking Prevention And Tobacco Control Act: Legislation Passed By Congress Or The Tobacco Companies?, Sakineh A. Majd

Sakineh A. Majd

The Family Smoking Prevention and Tobacco Control Act (“the Act”) was passed by the 111th Congress in June 2009. Granting the FDA substantial authority to regulate tobacco products and how they are marketed, the Act has the power to define the future of the tobacco industry in America, and its passage did not go uncontested. Philip Morris was in support, while competing tobacco firms Reynolds and Lorillard were opposed. With the Act’s controversial passage came accusations that the senators of the 111th Congress voted according to the agendas of the tobacco firms that they were beholden to. I argue that …

Heads I Win, Tails You Lose: Reconciling Brown V. Gardner's Presumption That Interpretive Doubt Be Resovled In Veterans' Favor With Chevron's Second Step, Linda D. Jellum

Linda D. Jellum

In its landmark decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the United States Supreme Court altered the interpretive power balance. Prior to Chevron, courts determined the meaning of ambiguous regulatory statutes; after Chevron, agencies determined the meaning of ambiguous regulatory statutes. Yet this simple truism does not hold within veterans law. Within veterans law, there is a third player who plays an interpretive role: the veteran. The veteran plays an interpretive role because of an unusual presumption identified in Brown v. Gardner, 513 U.S. 115 (1994). In Gardner, the Supreme Court directed courts …

Is There An Efficient Antitrust Approach To Health Care?, Kathryn Ciano

Kathryn Ciano

As American states and the federal government wrestle to find a solution to health care reform, some regulators are looking towards antitrust laws in the international marketplace to govern domestic health care policy. Antitrust principles dictate that antitrust authorities must intervene only when pressures become so great as to interfere with the very operations of the market. Pharmaceutical and health care markets rely on free trade and competitive global cooperation, so there is no efficient antitrust approach to health care.

Making Sense Of Twombly, Edward D. Cavanagh

Edward D. Cavanagh

Abstract

In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative.

As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift …