Law Commons^™

Making Impossible Tax Reform Possible, Susannah Camic Tahk

Fordham Law Review

       The United States has long struggled to reform its federal income tax code. Despite enthusiastic and widespread bipartisan support for tax reform laws that would eliminate special–interest loopholes, the legislative process has been paralyzed when it comes to passing these laws. This Article proposes a solution to this seemingly intractable federal tax lawmaking paralysis. This paralysis arises because tax reform spreads its benefits among broad groups while concentrating its costs on narrow ones. Political science theory accurately predicts that laws with this cost–benefit allocation will fail. However, federal lawmakers can overcome tax lawmaking paralysis by distributing tax reform’s costs and …

"The Harshness And Injustice Of The Common Law Rule... Has Frequenly Been Commented Upon": Debating Contributory Negligence In Canada, 1914-1949, R Blake Brown, Noelle Yhard

Dalhousie Law Journal

In the early twentieth century many legal professionals damned the law of contributory negligence as complicated and unfair to plaintiffs barred from recovery, while businesspeople often complained thatjudges and juries refused to find sympathetic plaintiffs contributorily negligent. Elite Canadian lawyers, through their work in the Canadian Bar Association and the Commission on Uniformity of Legislation in Canada, proposed model contributory negligence legislation that a number of provinces subsequently adopted. Reviews of these statutes were mixed however The large body of existing case law, despite its complications, encouraged some lawyers and judges to fall back on older jurisprudence in interpreting the …

Corporate Homicide: The Stark Realities Of Artificial Beings And Legal Fictions , Douglas S. Anderson

Pepperdine Law Review

In the aftermath of one of the most highly publicized trials in product liability annals-the celebrated Pinto case-the legal question raised by that litigation remains unresolved. Controversy continues as to whether a corporation should be convicted of homicide when it knowingly markets an unsafe product that results in death. Today the answer is a resounding "no", in light of state statutes defining homicide as the killing of one human being by another, difficulties in finding the requisite criminal intent; and the practical problems of placing a legal fiction behind bars. However, there are recent indications that these present obstacles to …

Legislative Update: Revisions In The California Drunk Driving Law, A. Randall Farnsworth

Pepperdine Law Review

No abstract provided.

State Preemption Of Cable Television Regulation — Whatever Happened To The Sanctity Of Contract?, William M. Marticorena, Lynda E. Marticorena

Pepperdine Law Review

California Government Code section 53066.1 as recently amended gives cable television operators the right to obtain rate increases even in the face of the city or county franchisor opposition. Since most cable franchise agreements allow the franchisor to control rates for the cable service, there is a conflict between the statute and the franchise contracts. This article examines the issue of whether the statute violates the constitutional provisions against the impairment of contracts and whether the franchisor or a subscriber of the service has the necessary standing to assert the constitutional argument.

The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg

Pepperdine Law Review

Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.

Under The Influence Of California's New Drunk Driving Law: Is The Drunk Driver's Presumption Of Innocence On The Rocks? , Douglas Caiafa, A. Randall Farnsworth

Pepperdine Law Review

On January 1, 1982, the new California drunk driving law went into effect. This law makes it a crime to drive a motor vehicle where one's blood alcohol level is .10 or more. The law also marks a legislative attempt to curtail the practice of plea bargaining in drunk driving cases and significantly increases the penalties imposed upon those convicted of drunk driving. This Comment will discuss the provisions of the new drunk driving law and examine its constitutionality.

Should Pets Inherit?, Frances H. Foster

Florida Law Review

This Article argues that millions of American pets should inherit. For many Americans today, their pets, not their human family members, are their nearest and dearest. In earlier work, I have argued that American inheritance law is trapped in an outdated family paradigm. That paradigm assumes that the decedent’s closest relatives by blood, adoption, or marriage are the most deserving recipients of the decedent’s estate, the so-called ‘“natural objects of the decedent’s bounty.’” Using a humanistic approach, I have shown that this abstract vision of “natural” wealth distribution permeates law and decisionmaking and creates significant human costs. By ignoring the …

The Expansion Of Criminal Registries And The Illusion Of Control, Molly J. Walker Wilson

Louisiana Law Review

The American public consistently ranks crime prevention as the single most important objective for the criminal justice system, putting this goal ahead of punishment, enforcement, and rehabilitation. One popular but controversial method recently employed to prevent recidivism is the use of offender registries. The most common type of registry currently in use is the sex-offender registry. Responding to the public's perception that sex offenders pose a particular risk to society, federal legislators--as well as legislators in all 50 states and the District of Columbia-- have enacted legislation creating mandatory sex-offender registries. The primary rationale for tracking and notification requirements was …

Condominium Associations: Living Under The Due Process Shadow, Brian L. Weakland

Pepperdine Law Review

No abstract provided.

Reasonable Expectations: Seeking A Principled Application, William A. Mayhew

Pepperdine Law Review

No abstract provided.

Institutionalization Of Alternative Dispute Resolution By The State Of California , Bruce Monroe

Pepperdine Law Review

No abstract provided.

Recent Developments In Alternative Dispute Resolution , Lee R. Petillon

Pepperdine Law Review

No abstract provided.

California Liquor Liability: A Decade After Coulter V. Superior Court , Darla R. Desteiguer

Pepperdine Law Review

No abstract provided.

Feeling Empty? Organ Trafficking & Trade: The Black Market For Human Organs, Jacqueline Bowden

Intercultural Human Rights Law Review

Organ trafficking is the recruitment, transport, transfer, harboring, or receipt of persons by means of force, fraud, coercion, abduction, positions of vulnerability and exploitation, with the purpose being the removal of their organ(s) for transplantation. Currently, organ trafficking is affecting countries such as China, Mexico, Kosovo, South Africa, Mozambique, India, the Unites States, and Israel. These countries each play different roles in organ trafficking; some serve as countries of origin, others are destination countries, and a few are both origin and destination countries. This article will examine (1) the history of organ trafficking and how it takes place, and (2) …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Scholarly Articles

None available.

Cuotas En Materia Electoral: Frecuencia Y Eficacia, Richard E. Matland

Political Science: Faculty Publications and Other Works

El presente artículo se aparta del nivel relativamente detallado de países y regiones individuales para generalizar acerca de las cuotas de género a nivel global. Quise usar lecciones de trabajos anteriores y presentar información estadística que cubre a las aproximadamente 200 naciones independientes del mundo. Asimismo, el artículo considera qué factores condujeron a la adopción de las cuotas de género, para lo cual llevo a cabo pruebas para ver si los procesos que hicieron posible tal adopción varían sistemáticamente entre los tipos de cuotas. En el análisis estadístico presentado observo dos clases diferentes de cuotas: primero, las cuotas establecidas a …

Medical Marijuana Legislation: What We Know - And Don't, Linda Simoni-Wastila, Francis B. Palumbo

Journal of Health Care Law and Policy

No abstract provided.

Do You Know Where Your Dna Is? The Need For Dna Legislation In Ohio, Elizabeth Collins

Journal of Law and Health

This Note examines the several privacy and safety issues stemming from DNA theft. Part II discusses constitutional and common law regarding the abandonment of property, particularly under the Fourth Amendment, and explains how the Fourth Amendment does not protect individuals from DNA theft. Part III details the many consequences resulting from DNA theft. These risks, among countless others, include employment and insurance discrimination, family turmoil caused by paternity testing which is often inaccurate and conducted without consent, genetic stalking, security risks, and the unauthorized publication of personal medical information and ancestral information. Part IV examines DNA theft legislation adopted by …

Reviving The Federal Crime Of Gratuities, Sarah N. Welling

Law Faculty Scholarly Articles

The federal crime of gratuities prohibits people from giving gifts to federal public officials if the gift is tied to an official act. Both the donor and the donee are liable. The gratuities crime is dysfunctional in two main ways. It is overinclusive in that it covers conduct indistinguishable from bribery. It is underinclusive in that it does not cover conduct that is clearly dangerous: gifts to public officials because of their positions that are not tied to a particular official act.

This Article argues that Congress should extend the crime of gratuities to cover gifts because of an official’s …

Ignorance Of International Law Is No Excuse, Or How The Florida Legislature Ticked Off Canada, Patricia Morgan, Loren Turner, Edward T. Hart

UF Law Faculty Publications

During its 2012 session the Florida Legislature amended the text of Florida Statute 322.04 to add a requirement for nonresidents. International visitors would be required to have in their possession not only a valid drivers' license, but also an International Driving Permit (IDP) that translated into English the personal identification information of the driver. The change took effect January 1, 2013, but even before that date, Florida faced allegations that it was violating international law with this new requirement.

Does Regulation Chill Democratic Deliberation? The Case Of Gmos, Alison Peck

Law Faculty Scholarship

Breakthroughs in science and technology pose a challenge to the U.S. legal system: either regulate under pre-existing laws using a business-as-usual approach, or pass new laws to deal with new relationships and conflicts created by these breakthroughs. How does the legal process determine when to regulate and when to legislate? Does that process adequately ensure deliberative democratic debate and implementation of democratic consensus? Does it adequately protect urgent interests in the meantime? Currently, this determination is ongoing with regard to new scientific developments such as climate change science, and new technological developments such as hydraulic fracturing of unconventional natural gas …

Jurisdictional Standards (And Rules), Adam I. Muchmore

Faculty Scholarship

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …

Gun Control Is Not Enough: The Need To Address Mental Illness To Prevent Incidences Of Mass Public Violence., Morgan Stanley

The Scholar: St. Mary's Law Review on Race and Social Justice

Throughout the year 2012, senseless violence and tragedy plagued the United States. Numerous mass shootings occurred, leaving innocent victims dead and leaving their survivors to grieve. No single law can prevent a mass shooting from occurring, but access to firearms is one of many potential reasons such tragedies happen. There are many reasons why a gunman is motivated to commit such heinous acts. Failure to take notice of warning signs, bullying, drug use, and serious mental illness are a few examples. One in seventeen Americans live with a serious diagnosable mental illness. Most mentally ill persons are the victims of …

Why Gridlock Matters, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Wagging, Not Barking: Statutory Definitions, Jeanne Price

Scholarly Works

Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader's understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some …

Confronting The Myth Of State Court Class Action Abuses Through An Understanding Of Heuristics And A Plea For More Statistics, Patricia W. Moore

Faculty Articles

The Supreme Court heard six cases involving class actions this term. One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time. Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" justified removal of the case (which was based on state law and filed in state court) to federal court.

The charge of a "flood" of "abusive state court class actions" echoed the same rhetoric that CAFA's supporters used a decade ago in their ultimately successful efforts to …

Constraining The Federal Rules Of Civil Procedure Through The Federalism Canons Of Statutory Interpretation, Margaret S. Thomas

Journal Articles

The doctrine for deciding when to apply the Federal Rules of Civil Procedure to state claims heard in federal court has become a quagmire of exceptions and ephemeral distinctions, in large measure due to the persistent difficulty courts have in separating substantive rules from procedural ones in an era where special procedural rules are often used as an essential regulatory tool in state governance. This article examines the power of Federal Rules of Civil Procedure to displace contrary state law in diversity cases by focusing on the limited functional competence of the Supreme Court and its Advisory Committee to displace …

The Congressional War On Contractors, Jessica Tillipman

GW Law Faculty Publications & Other Works

The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with “responsible” partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislators’ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system “with little consideration of whether such action is needed or fair."

Instead of focusing on the …

Costs Of No Codes, James Maxeiner

All Faculty Scholarship

Codification is a ubiquitous feature of modern legal systems. Codes are hailed as tools for making law more convenient to find and to apply than law found in court precedents or in ordinary statutes. Codes are commonplace in most countries. The United States is anomalous. It does not have true codes. In the nineteenth and early twentieth centuries, when many countries adopted systematic civil, criminal and procedural codes, the United States considered, but did not adopt such codes.

This Article discusses the absence of codes in American law, identifies American substitutes for codes, relates the history of attempts to create …