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Full-Text Articles in Legislation

Retrenchment On Entrenchment, Stewart E. Sterk Apr 2003

Retrenchment On Entrenchment, Stewart E. Sterk

Articles

The article critiques the argument by Posner and Vermeule that legislative entrenchment—where a legislature passes laws that future legislatures cannot repeal without special procedures—is constitutionally permissible and normatively attractive. The author, Stewart E. Sterk, contends that their argument is flawed because it fails to address whether courts should enforce such entrenched laws, rendering their case legally and normatively incoherent. Sterk argues that entrenchment undermines democratic principles by allowing one legislature to bind future legislatures, potentially leading to intergenerational inequity and abuse by special interest groups. He advocates for mechanisms allowing future legislatures to adjust laws as needed, ensuring flexibility and …


Foreword, Jessica Owley, Emma Garrison Jan 2003

Foreword, Jessica Owley, Emma Garrison

Articles

No abstract provided.


Inmate Litigation, Margo Schlanger Jan 2003

Inmate Litigation, Margo Schlanger

Articles

In 1995, prison and jail inmates brought about 40,000 new lawsuits in federal court nearly a fifth of the federal civil docket. Court records evidence a success rate for inmate plaintiffs under fifteen percent. These statistics highlight two qualities long associated with the inmate docket: its volume and the low rate of plaintiffs' success. Then, in 1996, Congress enacted the Prison Litigation Reform Act (PLRA), which dramatically altered the litigation landscape, restricting inmates' access to federal court in a variety of ways. This Article examines inmate litigation before and after the PLRA. Looking first at the litigation process itself, it …


The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier Jan 2003

The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier

Articles

For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …


Bayh-Dole Reform And The Progress Of Biomedicine, Arti K. Rai, Rebecca S. Eisenberg Jan 2003

Bayh-Dole Reform And The Progress Of Biomedicine, Arti K. Rai, Rebecca S. Eisenberg

Articles

Advances in fundamental biomedical research play an important and growing role in the development of new therapeutic and diagnostic products. Although the development of pharmaceutical end products has long been a proprietary enterprise, biomedical research comes from a very different tradition of open science. Within this tradition, long-standing norms call for relatively unfettered access to fundamental knowledge developed by prior researchers. The tradition of open science has eroded considerably over the past quarter century as proprietary claims have reached farther upstream from end products to cover fundamental discoveries that provide the knowledge base for future product development.


Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz Jan 2003

Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz

Articles

A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …


Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker Jan 2003

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.


"Charting The Course Of Commerce Clause Challenge (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman Jan 2003

"Charting The Course Of Commerce Clause Challenge (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman

Articles

Recognizing Barry Cushman's formidable skills in both research and argument, and his enormous wealth of knowledge, I have long known that I would much rather be on the same side of an issue with him than on the opposite side. And I am glad that we have been on the same side of an important issue, for both of us doubt that Franklin Roosevelt's Court-packing plan had much to do with the constitutional transformation of the 1930s. But now I have expressed disagreement with some propositions he has asserted, and I have made some assertions with which he disagrees, he …


Equal Protection And Disparate Impact: Round Three, Richard A. Primus Jan 2003

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …


Litigator's Thumbnail Guide To The Warn Act, David A. Santacroce Jan 2003

Litigator's Thumbnail Guide To The Warn Act, David A. Santacroce

Articles

When large companies choose to lay off workers or close down plants without prior notice, they can be subject to extensive liability under the federal Worker Adjustment and Retraining Notification Act (WARN), including 60 days backpay to all affected workers, daily fines to local government, and attorney fees generated during the suit. In the following article, the author presents the bare bones basics of WARN in order for employees and their advocates to understand how and when WARN applies.


The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner Jan 2003

The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner

Articles

In this Article, Professor Waggoner proposes reforms to the Uniform Probate Code's (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC's elective share framework. Second, the Article presents demographic data suggesting that the UPC's current elective share approximation schedule may be inappropriatef or a sizable faction of married couples, those remarryingf ollowing widowhood. Finally, the Article proposes two substantive revisions to the UPC's election share framework-the first proposal is to lengthen the approximation schedule; …


Gifts, Gafts And Gefts: The Income Tax Definition And Treatment Of Private And Charitable 'Gifts' And A Principled Policy Justification For The Exclusion Of Gifts From Income, Douglas A. Kahn, Jeffrey H. Kahn Jan 2003

Gifts, Gafts And Gefts: The Income Tax Definition And Treatment Of Private And Charitable 'Gifts' And A Principled Policy Justification For The Exclusion Of Gifts From Income, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Gifts have been given special treatment by the income tax laws since the first post-16th Amendment tax statute was adopted in 1913. The determination of how the income tax law should treat gifts raises a number of issues. For example: should gifts be given special treatment? If so, what should qualify as a gift? Should gifts to a private party be taxable to the donee? Should gifts to a private party be deductible by the donor? Should the donee's basis in a gift of property be determined by reference to the basis that the donor had, and should any modifications …


The Sometimes-Bumpy Stream Of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman Jan 2003

The Sometimes-Bumpy Stream Of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, And Future), Richard D. Friedman

Articles

The title of this essay is a somewhat feeble use of an unoriginal pun.' I am not talking about the doctrine of the stream, but about the stream of the doctrine. That is, my principal subject is not the "stream of commerce doctrine," but rather the historical development of the doctrine governing Congress's power under the Commerce Clause in the twentieth century, and especially in the years centering on the New Deal. My basic thesis is this: Although the doctrine developed rapidly in the New Deal era, there were no major discontinuities in it. That does not mean that it …


Bayh-Dole Reform And The Progress Of Biomedicine, Arti K. Rai, Rebecca S. Eisenberg Jan 2003

Bayh-Dole Reform And The Progress Of Biomedicine, Arti K. Rai, Rebecca S. Eisenberg

Articles

Allowing universities to patent the results of government-sponsored research sometimes works against the public interest.


Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport Mar 2002

Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.


Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper Jan 2002

Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper

Articles

Predicting the likely future developments in class action practice in the federal courts of the United States must begin in the past.


The Bill For Rights, Carl E. Schneider Jan 2002

The Bill For Rights, Carl E. Schneider

Articles

Where today is legislative ingenuity lavished more bountiully than on the titles of statutes? And where has that ingenuity been better exercised than in the name "patients' bill of rights"? Do not our dearest liberties flow from the Bill of Rights? And who more deserves similar protection than patients in the hands of an angry Managed Care Organization? And behold, both Democrats and Republicans, both President Clinton and President Bush, have summoned us to arms. The patients' bill of rights is an idea whose time has seemed to have come for several years, and only conflicts among the numerous proposals …


Statutes With Multiple Personality Disorders: The Value Of Ambiguity In Statutory Design And Interpretation, Joseph A. Grundfest, Adam C. Pritchard Jan 2002

Statutes With Multiple Personality Disorders: The Value Of Ambiguity In Statutory Design And Interpretation, Joseph A. Grundfest, Adam C. Pritchard

Articles

Ambiguity serves a legislative purpose. When legislators perceive a need to compromise they can, among other strategies, "obscur[e] the particular meaning of a statute, allowing different legislators to read the obscured provisions the way they wish." Legislative ambiguity reaches its peak when a statute is so elegantly crafted that it credibly supports multiple inconsistent interpretations by legislators and judges. Legislators with opposing views can then claim that they have prevailed in the legislative arena, and, as long as courts continue to issue conflicting interpretations, these competing claims of legislative victory remain credible. Formal legal doctrine, in contrast, frames legislative ambiguity …


Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt Jan 2001

Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt

Articles

No abstract provided.


For The Best Of Friends And For Lovers Of All Sorts, A Status Other Than Marriage (Symposium: Unmarried Partners And The Legacy Of Marvin V. Marvin)" , David L. Chambers Jan 2001

For The Best Of Friends And For Lovers Of All Sorts, A Status Other Than Marriage (Symposium: Unmarried Partners And The Legacy Of Marvin V. Marvin)" , David L. Chambers

Articles

American governments have recently begun to experiment with new familial statuses for gay male and lesbian couples, who have demanded the right to marry but have been appeased with more modest forms of recognition.4 What I propose here is quite different. It is a status for people who have close bonds but do not want to be married to each other. I call this status "designated friends." Once registered, "designated friends" would obtain a limited number of privileges and undertake a limited number of responsibilities relating to the care for the other when ill or incapacitated or upon death, but …


From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar Jan 2001

From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar

Articles

Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.


Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz Jan 2001

Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz

Articles

Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …


The U.S. Treasury's Subpart F Report: Plus Ça Change, Plus C'Est La Même Chose?, Reuven S. Avi-Yonah Jan 2001

The U.S. Treasury's Subpart F Report: Plus Ça Change, Plus C'Est La Même Chose?, Reuven S. Avi-Yonah

Articles

On 29 December 2000, the U.S. Treasury Department released its long-awaited study of Subpart F, entitled “The Deferral of Income Earned through U.S. Controlled Foreign Corporations." This study was commenced in the aftermath of the controversy that ensued from the issuance and subsequent withdrawal of Notice 98-11. The study was originally expected to be issued in 1999 in response to the report published that year by the National Foreign Trade Council, which advocated significant changes in Subpart F. The Treasury Study’s delayed issuance at the end of the Clinton Administration means that it only has (at best) persuasive force for …


Cooley Innocence Project Kick-Off, Barry Scheck Jan 2001

Cooley Innocence Project Kick-Off, Barry Scheck

Articles

The Innocence Project, through the use of DNA testing, has successfully exonerated numerous wrongfully convicted individuals, exposing systemic flaws in the criminal justice system. This has highlighted the need for legal reforms to address issues such as eyewitness misidentification, false confessions, and fraudulent forensic science, ultimately aiming to prevent future wrongful convictions.


Weak Legs: Misbehavior Before The Enemy, William I. Miller Jan 2000

Weak Legs: Misbehavior Before The Enemy, William I. Miller

Articles

Making cowardice a capital offense strikes us as a kind of barbaric survival from a rougher age, a time, that is, when few doubted that courage ranked higher than pity or prudence in the scale of virtues. And if many of us today believe that capital punishment cannot be justified even for the sadistic torturer, what a shock to discover that, as an official matter at least, Congress reserves it for the person who cannot kill at all.


In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard, Marilyn F. Johnson, Karen K. Nelson, Adam C. Pritchard Jan 2000

In Re Silicon Graphics Inc.: Shareholder Wealth Effects Resulting From The Interpretation Of The Private Securities Litigation Reform Act's Pleading Standard, Marilyn F. Johnson, Karen K. Nelson, Adam C. Pritchard

Articles

This Article presents an empirical study of changes in shareholder wealth resulting from the Ninth Circuit Court of Appeals decision in In re Silicon Graphics Inc. Securities Litigation, which interpreted the pleading provision established in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). Congress passed the Reform Act as part of an ongoing effort to protect corporations from abusive suits alleging "fraud by hindsight." In such suits, plaintiffs claimed that a sudden drop in a company's stock price was evidence that the issuer and its management covered up the bad news that led to the price drop. …


The Baker [Baker V. State, 744 A.2d 864 (Vt. 1999)] Case, Civil Unions, And The Recognition Of Our Common Humanity: An Introduction And A Speculation, David L. Chambers Jan 2000

The Baker [Baker V. State, 744 A.2d 864 (Vt. 1999)] Case, Civil Unions, And The Recognition Of Our Common Humanity: An Introduction And A Speculation, David L. Chambers

Articles

Every. Vermonter seems to know about two recent decisions of the Vermont Supreme Court. In the first, the court struck down the system of local financing of public schools. Like similar decisions in many other states, the school financing case led to a struggle in the legislature and difficulties for legislators at election time. In the second and even more controversial decision, the court reached an outcome that no other state supreme court had ever reached: it held unconstitutional the state's marriage law on the ground that it inappropriately denied the legal benefits of marriage to same-sex couples. This decision, …


"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar Jan 2000

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

Articles

I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …


The Usury Trompe L'Oeil, James J. White Jan 2000

The Usury Trompe L'Oeil, James J. White

Articles

This Article demonstrates how the interaction of a federal statute passed in 1864,1 a case decided by the Supreme Court in 1978,2 and modem technology has legally debarred every state legislature from controlling consumer interest rates in its state-but not from passing laws that appear to do so-and has politically debarred the Congress from setting federal rates to replace the state rates. As a consequence, the elaborate usury laws on the books of most states are only a trompe l'oeil, a "visual deception... rendered in extremely fine detail ... ." The presence of these finely detailed laws gives the illusion …


Congress' Arrogance, Yale Kamisar Jan 2000

Congress' Arrogance, Yale Kamisar

Articles

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …