Legislation Commons^™

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

Making Our Congressional Elections More Competitive: A Proposal For A Limited Number Of Statewide At Large Elections In Our More Populous States, Walter M. Frank

ExpressO

Competitive elections for the House of Representatives are at an all time low. Law professors, political scientists and political analysts all along the political spectrum believe that the current situation not only makes for unaccountable legislators and an uneducated electorate but is also slowly poisoning our politics by making government needlessly ideological and partisan. Unfortunately, most of the proposed remedies call for reforms at the state level that in any event do not hold out the prospect of changing the current pattern in the future. This article proposes federal legislation to deal with this problem through the creation of statewide …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

Privacy And Access To Public Records In The Information Age, Sol Bermann

ExpressO

Online public record access brings a wealth of benefits ranging from greater government access and accountability to increased cost-savings and efficiencies. However, due to the presence of highly sensitive, personal data, an increase in public records access also brings potential dangers, including heightened risk of identity theft and frivolous snooping into the affairs of others.

Historically, public records have had some measure of public accessibility in order to empower citizens with the ability to observe the goings-on of government, leading to greater government accountability. Until the rise of the internet, citizens have had their privacy protected through practical obscurity (the …

The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles

ExpressO

Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence. Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions …

Identity Theft And Consumer Protection: Finding Sensible Approaches To Safeguard Personal Data In The United States And Canada, Kamaal Zaidi

ExpressO

This paper examines identity theft in both the United States and Canada. Various examples of commercial fraud and scams are discussed in the context of a growing trend of identity thieves assuming identities of innocent consumers. As such, various pieces of legislation and consumer initiatives (involving online consumer complaint mechanisms)in U.S. and Canadian jurisdictions are highlighted to demonstrate the pursuit towards broader consumer protection of personal data used in daily commercial transactions. The author argues that these modern efforts to safeguard consumers from identity theft is a progressive measure that will continue to afford increasing protections for consumer personal data, …

Standard Errors: How Budget Rules Distort Lawmaking, Timothy M. Westmoreland

ExpressO

The article argues that the Congress’s budget process has invisibly influenced its legislative activities and structurally skewed its policy choices. The budgetary structure and tools as they affect lawmaking are largely unanalyzed. Until they are widely appreciated, they may often be random, inefficient, unrepresentative, and even deceptive. Review, critique, and change are overdue in any case. Inasmuch as the Congress is now, after a period of budget anarchy, debating how to refocus on the budget, this is a particularly good time for such activities.

The article also argues that additional structures are needed to “counter-balance” both the skewing that results …

Legislative Threats, Guy Halfteck

ExpressO

The Article presents a theory of legislative threats that pierces the fundamental concept of the legal system as a regulatory institution and more generally as a mechanism of social governance. It examines ten case studies that demonstrate the use of legislative threats in diverse areas of law and social policy. Conceptually, legislative threats encompass a variety of threats that legislators exert on firms and financial institutions, organizations and institutional shareholders, professions and industrial sectors, universities and public institutions, federal agencies, and possibly even U.S. states, according to which legislators will exercise their legislative mandate and enact adverse legislation in order …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Towards An Interest-Group-Based Approach To Lobbying Regulation, Anita S. Krishnakumar

ExpressO

No abstract provided.

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.

Statutory Interpretation, Constitutional Limits, And The Dangers Of Collaboration: The Ironic Case Of The Voting Rights Act, Luis Fuentes-Rohwer

ExpressO

The Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the “goddamnedest toughest” legislation possible. But the President and the 89th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the …

Rescue Me: Legislating Cooperation Between Animal Control Authorities And Rescue Organizations, Rebecca J. Huss

ExpressO

The leading cause of death for dogs and cats in the United States is euthanasia because of the lack of homes. Although progress has been made, conservative estimates are that between three and four million dogs and cats are euthanized each year. A successful program for implementing non-lethal strategies to control the pet population incorporates three prongs: (a) increasing adoptions, (d) increasing the number of animals sterilized and (c) increasing the number of animals retained in homes. This Article focuses on the legislative actions that should be taken immediately to implement these non-lethal strategies so that this needless euthanization can …

A Prolegomena To Federal Statutory Interpretation: Identifying The Sources Of Interpretive Problems, James G. Christy

ExpressO

This article traces the problems encountered in interpreting statutes to twenty-nine distinct problems encountered in creating statutory rule systems. Specifically, given their purposes and other purposes the law is simultaneously pursuing, statutory rule systems inevitably emerge incomplete in a least sixteen types of ways and containing key words and phrases with meanings that are in part inappropriate in at least thirteen types of ways. Interpreting a statute includes completing its incomplete rule system and modifying the meanings of words and phrases to bring the statute into better allignment with underlying purposes. So understood, the process of interpreting statutes can add …

Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner

ExpressO

The Delaware General Corporation Law was amended in 1986 to permit shareholder-approved exculpatory charter provisions shielding directors from monetary liability for certain types of fiduciary duty breaches, explicitly excepting breaches of the duty of loyalty and conduct not in "good faith" – evidently distinct concepts in the Delaware legislature’s view. This paper examines the development of corporate fiduciary duty doctrine in Delaware leading up to and following this statutory amendment, focusing particularly on the Delaware courts' evolving conception of the meaning and doctrinal status of good faith. Specifically, the paper argues that Delaware's statutory exculpation regime and good faith case …

How Do You Take Your Multi-State, Class-Action Litigation? One Lump Or Two?, Daniel R. Karon

ExpressO

The Class Action Fairness Act of 2005, which essentially federalizes all multi-state class-action cases, has introduced the class-action bar, and necessarily the judiciary, to myriad substantive and procedural issues never before envisioned in class-action litigation’s history. While some of these issues have already surfaced, many others haven’t but will as newly federalized multi-state class-action lawsuits move through litigation to the class certification stage. A major and unavoidable issue involves whether federal judges, when deciding multi-state claims’ class certification under Federal Rule 23, may consider well-developed, state class-action jurisprudence applying a single state’s substantive law or whether doing so violates the …

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad Emerson

ExpressO

No abstract provided.

Legislation And Legitimation: Congress And Insider Trading In The 1980s, Thomas W. Joo

ExpressO

Legislation and Legitimation:

Congress and Insider Trading in the 1980s

Abstract

Orthodox corporate law-and-economics holds that American corporate and securities regulation has evolved inexorably toward economic efficiency. That position is difficult to square with the fact that regulation is the product of government actors and institutions. Indeed, the rational behavior assumptions of law-and-economics suggest that those actors and institutions would tend to place their own self-interest ahead of economic efficiency. This article provides anecdotal evidence of such self-interest at work. Based on an analysis of legislative history—primarily Congressional hearings—this article argues that Congress had little interest in the economic policy …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Making Free Speech Affordable: A Discussion Of Legislation To Provide Public Funding To Candidates For The U.S. Congress, Jared S. Cram

ExpressO

This article discusses a recent attempt by the U.S. Congress to provide for public financing of campaigns for the House of Representatives. Although a good start, this legislation would not go far enough to ensure that every voice has an opportunity to be heard in federal elections. My article discusses the strengths and weaknesses of this legislation and also provides suggested amendments to make this bill more effective should it become law.

Making Free Speech Affordable provides an in-depth comparison of this proposed legislation with current law at the state level providing for public financing of campaigns. This discussion includes …

Deadly Discounts: How Reimportation Jeopardizes The Safety Of The U.S. Pharmaceutical Drug Supply Under The Federal Trade Commission Amendment, Nicole C. Bates

ExpressO

The amendment to a Federal Trade Commission (FTC) reauthorization bill, previously introduced as Senate Bill 334 (S.334) Pharmaceutical Market Access and Drug Safety Act of 2005 allows for the reimportation of prescription drugs into the United States from approximately 25 countries, including Canada via Internet pharmacies. There are no guarantees that the internet websites advertising as Canadian pharmacies are legitimate. The shipping of pharmaceutical drugs occurs through importation, which refers to drugs produced abroad then later shipped to the U.S., or re-importation, a term applied when drugs are produced in the U.S. and exported for sale to foreign countries and …

Single Subject Rules And Public Choice Theory, Michael Gilbert

ExpressO

Despite generating thousands of cases on important public issues, the single subject rule remains a source of confusion and inconsistency. The root of the problem lies in the inability to define the term “subject” using legal doctrine. This paper reexamines the single subject rule through the lens of public choice theory and finds that its purposes are wrongheaded. Logrolling is not necessarily harmful, and improving political transparency requires legislative compromises to be packaged together rather than spread across multiple acts. Riding is not a form of logrolling but an analytically distinct and more threatening practice. This analysis yields a precise, …

Blame Canada (And The Rest Of The World): The Twenty-Year War On Imported Prescription Drugs, Daniel L. Pollock

ExpressO

Rising budget deficits and sticker shock over the new Medicare drug benefit have put the issue of prescription drug costs back into the spotlight. The growth in the cost of prescription drugs continues to represent a staggering burden for taxpayer-funded health care programs, even while costs of non-drug health care services have slowed or even decreased. Among the many proposals for cutting prescription drug costs, drug importation is unique. Although bipartisan support for drug importation has existed in Congress for over five years, the federal government continues to maintain that a system of safe and effective drug importation is impossible. …

The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: The Solution To Inherent Inequalities Exists Outside The Box Of Congress' "Sense" Of Personal Finance Education, Lisa M. Wiltshire

ExpressO

This Note analzyes the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 in relation to discrepancies between minority and white bankruptcy petition filers.

Bankruptcy Abuse: An Empirical Study Of Consumer Exemptions Cases, Bernard Trujillo

ExpressO

On April 20, 2005, the President of the United States signed a sweeping legislative overhaul of the consumer bankruptcy system. The bankruptcy reform legislation is based on an empirical assertion: that sophisticated debtors with the means to re-pay their debts were instead filing for bankruptcy and acquiring a discharge, thereby abusing the bankruptcy system.

This Article presents the results of an empirical study of bankruptcy court doctrine in consumer exemptions proceedings over a twenty-year period. The findings suggest a serious empirical flaw in the premise of the bankruptcy reform legislation. The study shows that the bankruptcy system minimizes abuse by …