Law Commons^™

The Regulation Of Equity Index Futures, Lin (Lynn) Bai

Faculty Articles and Other Publications

Equity index futures are one of the most actively traded derivative instruments in financial markets around the world. Advancements in trading and clearing technologies transformed the marketplace over the past two decades. Regulation drastically changed to keep pace with the market’s development. New rules have been implemented covering trading activities, risk management, market surveillance, and customer protection. Legal literature on the regulation of this important financial instrument is surprisingly antiquated. Existing papers were written decades ago and do not reflect the true metes and bounds of today’s regulatory landscape. This paper fills the void. It provides a comprehensive discussion of …

Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Mcmahon

Faculty Articles and Other Publications

Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance's procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …

The Regulatory Turn In International Law, Jacob Katz Cogan

Faculty Articles and Other Publications

In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this "humanization of international law" that by the 1990s human rights had become "part of... international political and legal culture." This Article argues that there has been an unnoticed contemporary counter trend -- the "regulatory turn in international law." Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal, that impose and enforce direct and indirect international duties upon …

Suing Under §1983: The Future After Gonzaga V. Doe, Bradford Mank

Faculty Articles and Other Publications

In 2002, the Supreme Court in Gonzaga University v. Doe held that the nondisclosure provisions of the Family Educational Rights and Privacy Act (FERPA) did not establish an individual right enforceable through 42 U.S.C. §1983. Chief Justice Rehnquist's requirement of clear and unambiguous proof that Congress intended to establish an individual right on behalf of a class including the plaintiff placed an additional burden on plaintiffs by effectively demanding proof that Congress would have wanted thousands of private suits. The requirement eroded the Court's precedent emphasizing the presumptive enforcement of federal statutory rights through §1983. This Article will focus on …

Are Title Vi's Disparate Impact Regulations Valid?, Bradford Mank

Faculty Articles and Other Publications

This Essay, however, contends that section 602 disparate impact regulations in Tide VI are valid because Congress has implicitly sanctioned their creation, and explicitly approved them in subsequent related statutes.

Part II of this Essay discusses the legislative history of Tide VI, which suggests that Congress intended to give administrative agencies discretion to define "discrimination" in their Tide VI regulations as prohibiting either intentional conduct or actions having disparate impacts against racial minorities as long as the President approved such rules.

Part III illustrates that five different Congresses have enacted four subsequent related statutes that explicitly incorporate Tide VI disparate …

Protecting Intrastate Threatened Species: Does The Endangered Species Act Encroach On Traditional State Authority And Exceed The Outer Limits Of The Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

After the Supreme Court decided Lopez, a number of commentators speculated about its impact on the Endangered Species Act. This Article reexamines the issue in light of Morrison and SWANCC. Part V demonstrates that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been a shared federal and state function that recognizes the legitimacy of federal regulation whenever the need for preservation is great and states have failed to address important conservation issues. Additionally, Part V shows federal regulation of endangered or threatened species …

Is There A Private Cause Of Action Under Epa's Title Vi Regulations?: The Need To Empower Environmental Justice Plaintiffs, Bradford Mank

Faculty Articles and Other Publications

This article will apply the Chester three-factor test to find a private right of action implied in the administrative regulations promulgated by various agencies to implement Section 602 of Title VI. This article also proposes that it would be inconsistent to apply today's more stringent standard for inferring congressional intent in deciding whether a private right exists under Section 602. Such inconsistency arises as a result of the Supreme Court's application of a more lenient standard in recognizing a private right of action under Section 601.

American Mining Congress V. Army Corps Of Engineers: Ignoring Chevron And The Clean Water Act's Broad Purpose, Bradford Mank

Faculty Articles and Other Publications

Part I of this article will provide a brief introduction to section 404 of the Clean Water Act. Part II will examine the Tulloch rule. Part III will examine the district court's opinion. Finally, part IV will demonstrate that section 404(a) is ambiguous regarding whether incidental fallback from dredging may in some circumstances constitute disposal under the statute and, accordingly, that under the Chevron doctrine the district court erred in failing to defer to the agencies' Tulloch rule.

Environmental Justice And Discriminatory Siting: Risk-Based Representation And Equitable Compensation, Bradford Mank

Faculty Articles and Other Publications

This Article proposes a new risk-based approach to representing and compensating not only minorities but any person affected by a siting decision. This proposal would create a formal mechanism for achieving the desire of many environmental justice advocates to empower those local residents most affected by a siting decision. The EPA or state siting agencies, however, would provide a technocratic framework for assessing the scope of risks, despite the limitations of risk and cost-benefit analysis; would set limits on the maximum amount of risk in any community; and would specify the minimum compensation required from a developer. Immediate neighbors, political …

What Comes After Technology: Using An Exceptions Process To Improve Residual Risk Regulation Of Hazardous Air Pollutants, Bradford Mank

Faculty Articles and Other Publications

Section 112 of the Clean Air Act (the Act) governs the regulation of hazardous air pollutants. From 1970 to 1990, the statute required the United States Environmental Protection Agency (EPA) to regulate hazardous air pollutants on a pollutant-by-pollutant basis. Environmental policy analysts generally acknowledge that this approach failed due to scientific uncertainties and unclear direction from Congress on how the EPA should balance the competing concerns of cost and safety. In an effort to improve the Act's effectiveness, Congress passed the 1990 Amendments (the Amendments) to the Act, which established a two-phased approach to regulation. First, subsection 112(d) requires the …