Legislation Commons^™

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

ExpressO

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Fighting Fraud On Faith: Federal Securities Regulation And The Limits Of Disclosure, Shannon R. Selden

ExpressO

In the past ten years, Congress passed three major reform acts to address two diametrically opposed concerns: It first restrained what it believed was an excess of securities fraud litigation, then responded to an explosion of securities fraud. This Article contends that despite the competing provocations and ambitions of the reforms, they share an unwarranted adherence to the principle of disclosure as the best means to attack market malfeasance: The Article examines the basis for and consequences of that undeserved legislative fidelity. Applying behavioral economics and cultural theory to the recent legislation and its underpinnings, the Article concludes that a …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

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This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

ExpressO

The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

Race Against The Machine: An Argument For The Standardization Of Voting Technology, Jason Belmont Conn

ExpressO

In this article/note, I examine a lingering question from the court cases arising out of the 2000 election: Does Bush v. Gore and the relevant equal protection case law open the door for a legal challenge to a state’s use of different voting machines/technologies and how do racial disparities in machine error rates impact this analysis? In addition to reviewing the current literature and case law on voting machine standardization, I also present an unrecognized and undocumented connection between the “all deliberate speed” order in Brown and the Court’s discussion of voting technology in Bush v. Gore.

The Rise And Fall Of Israel's Senior Citizens’ Law, Israel Doron

ExpressO

Within the broad and complex framework of laws in Israel relating to the older population, this article focuses on a single act of legislation: the Senior Citizens Law, 5750-1989 (hereinafter “the Senior Citizens’ Law”). During its hitherto brief life, this law has undergone numerous transformations, ups and downs, additions and deletions, successes and failures. At the time of its enactment, there were those who placed great hopes for the future of older people's rights on the law. As of today, however, this article will attempt to argue that the law has failed to realize its objectives. The article includes two …

The Hydraulics And Politics Of Party Regulation, Michael S. Kang

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No abstract provided.

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

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No abstract provided.

Book Review: Forensic Linguistics, Dru Stevenson

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Review of John Gibbons' text "Forensic Linguistics"

State Legislation As A Fulcrum For Change: Wisconsin's Public Sector Labor Law, And The Revolution In Politics And Worker Rights, Joseph E. Slater

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The rise of public sector unions is one of the most significant but least examined movements for legal rights and social change. Through the 1950s, government employees typically had no right to bargain collectively or even to organize unions–rights often regarded as fundamental human rights–and public sector unions were small and relatively powerless. Yet today, unions represent more than 40 percent of all public workers, government employees make up about 40 percent of the entire U.S. labor movement, and public sector unions are among the strongest political advocacy groups in the country. This became possible only through a revolution of …

The False Promise Of De-Regulation In Banking, Jonathan R. Macey

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Jonathan R. Macey

The False Promise of De-Regulation in Banking

Abstract

This Article presents new approach to the concept of "deregulation" in financial services and particularly banking. Generally regulatory policy is thought to involve more or less straightforward choices between regulation and deregulation. Those most concerned with market failure and equality of outcomes favoring regulation and those with faith in markets and concerns about efficient outcomes favoring deregulation.

This Article shows that government regulation, sometimes in heavy doses, is necessary in order for private markets to function effectively. Consequently, government has in important role to play in fostering markets. The …

‘More Loophole Than Law’: A Case For The Repeal Of I.R.C. § 527, Mark E. Schlegel

ExpressO

This note advocates the repeal of I.R.C. § 527, which provides a tax exemption for organizations involved in election-related activity. The groups which operated under § 527 in the 2004 election include the Swift Boat Veterans for Truth, MoveOn.org, and American Coming Together. The note discusses how § 527 escaped regulation under both the Federal Election Campaign Act of 1971 and the Bipartisan Campaign Reform Act of 2002 (popularly known as McCain-Feingold). It examines the political reasons why the Federal Election Commission has not attempted to reform § 527. As a result, 527 groups have acted largely without federal oversight …

Section 4(F): Analyzing Differing Interpretations And Examining Proposals For Reform, David E. Kunz

ExpressO

Section 4(f): Analyzing Differing Interpretations and Examining Proposals for Reform, focuses on the ongoing debate over the scope, meaning and application of Section 4(f) of the Department of Transportation Act of 1966. Section 4(f) affects the construction and development of transportation-related projects that require the use of public parks, wildlife refuges or historic sites. Since its enactment, it has been a source of controversy and debate within the transportation and environmental law communities. Recent congressional and executive branch actions aimed at reforming the law have garnered increased attention. This article analyzes the current state of play concerning section 4(f) and …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Rules Of The Game: The "Play In The Joints" Between The Religion Clauses, Sharon Keller

ExpressO

Locke v. Davey is an exemplar of the new generation of Establishment clause cases that, particularly in Zelman v. Simmons-Harris, have written into law a safe harbor, private choice, for governmental benefits that find their way into the coffers of religious institutions in amounts that are neither incidental nor trivial. In Locke the options presented in the private choice arguably infringed upon Free Exercise rights-- the dilemma that gives rise to the title of this article. Over the vigorous dissent of Justice Scalia, the Locke Court’s analysis of the permissibility of the conditioned benefit was based upon the argument that …

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …

Rescuing Children From The Marriage Movement: The Case Against Marital Restrictions On Adoption And Assisted Reproduction, Richard F. Storrow

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Much of the current cultural debate about marriage in the United States focuses on the need for children to be raised by heterosexual married couples. In the current atmosphere, it is important to examine how marriage functions in contexts where parent-child relationships are determined by more than just genetics and marital presumptions. This Article argues that the favoritism toward marriage in adoption and assisted reproduction relates neither to the purposes of marriage nor to child welfare. Part I subjects marital restrictions on assisted reproduction to an interpretivist microscope, and Part II undertakes a comprehensive comparison of step-parent adoption and second-parent …

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution Within The United States That Is Unconstitutionally Overbroad, Erin Treacy

ExpressO

The RAVE Act amends the 1986 "Crackhouse Statute" on the assumption that electronic music concerts are comparable to crackhouses. This article submits that the rationale behind the former Crackhouse statute does not logically support the RAVE Act and that the new law, as enacted, is unconstitutionally overbroad, infringing upon First Amendment rights. This article shows that the “rave culture,” its associated drug use and electronic music performances (sometimes known as raves) are not inextricably linked. The article also explores policy arguments that may be asserted against the RAVE Act and provides suggestions on how to amend the existing statute to …

Toward A Small Donor Democracy: The Past And Future Of Incentive Programs For Small Political Contributions, Thomas J. Cmar

ExpressO

Political contribution incentive programs are a promising, under-explored means to address the problem of political equality in the American system of campaign finance. If properly designed, these programs -- which include tax credits, refunds, and vouchers -- could allow all Americans to participate on an equal basis in the crucial early-stage decisions that determine which candidates decide to run and are able to compete effectively. This article, written on behalf of U.S. PIRG, proposes a tax credit for political contributions as a first step toward building a "small donor democracy."

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

ExpressO

The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

Diamond V. Chakrabarty: Gauging Congress’ Response To Dynamic Statutory Interpretation By The Supreme Court , Anna E. Lumelsky

ExpressO

In this article, I consider the 1980 Supreme Court decision, Diamond v. Chakrabarty, and Congress’ response to it in light of several contemporary views on statutory interpretation. I conclude that in science and technology-related cases in which delay could significantly hamper the advancement of the field, the Supreme Court should interpret federal statutes dynamically in response to a changing social context, but should also attempt to conform its interpretations to legislative preferences in order to avoid a legislative override.

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Fuel Efficiency: The Disconnect Between Environmental Policy And Tax Policy, John J. Marciano

ExpressO

The recent high gas prices in America have intensified the debate over oil and gas efficiency, use, and reserves. As the national average for a gallon tops $2.10, Congress and the President strive to find a common position to foster energy independence, protect the environment, and bolster the struggling economy.

President Bush’s energy policy and recent Senate and House bills have not contemplated their effects on the environmental state of our nation or its impact on the internal revenue code. In this time of uncertainty, energy independence and measured use of resources may be at odds, but must we stray …

Solving The Punitive Damage Mismatch, Ari Behar

ExpressO

There are several reasons underlying the system of punitive damages. Application of these reasons to cases yields differing results. The reasons fall into two categories: those that support awarding additional damages to the plaintiff and those that support extracting more damages from the defendant. When the reasons in favor of extraction exceed those in favor of award, the award should be split between the plaintiff and a fund. This fund should be used to supplement awards when the reasons favoring award exceed those favoring extraction.

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

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No abstract provided.

The Theory And Practice Of Statutory Interpretation In The Supreme Court, Frank Cross

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No abstract provided.