Legislation Commons^™

The Ambiguous Meaning Of Human Conception, Philip G. Peters Jr.

Faculty Publications

Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no "moment" of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point …

Law, Ideology, And Strategy In Judicial Decision Making: Evidence From Securities Fraud Actions, Michael A. Perino

Faculty Publications

Legal academics and political scientists continue to debate whether the legal, attitudinal, or strategic model best explains judicial decision making. One limitation in this debate is the high-court bias found in most studies. This article, by contrast, examines federal district court decisions, specifically interpretations of the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated distinct liberal and conservative positions. The data compiled here support the hypothesis that the later emergence of an intermediate interpretation was the result of strategic statutory interpretation rather than simply judges acting consistently with their ideological preferences, although there is some …

Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

Faculty Publications

The federal judicial branch has lately become the object of increasing scrutiny and distrust by its legislative counterpart. Congressional suspicion is often directed toward judicial discretion in criminal sentencing and, more generally, the degree to which judges are perceived to be beholden to a particular ideological point of view or personal bias. This distrust has bred a potent strain of political opportunism that Congress has manifested in several recent bills. One of these, the Feeney Amendment to the PROTECT Act, all but eliminated judicial discretion in sentencing and tacitly threatens judges' continued employment. Though the Supreme Court's recent decision in …

In Defense Of The Debt Limit Statute, Anita S. Krishnakumar

Faculty Publications

The debt limit statute is a critical feature of the federal budget process and prompts frequent legislation to increase the government's borrowing authority. In this Article, Professor Anita S. Krishnakumar examines the history of the debt limit statute as well as its function in the fiscal constitution. The Article deconstructs several popular criticisms of the debt limit statute, arguing that the criticisms exaggerate and that the statute in fact serves two important roles: first, the statute is the last remnant of congressional control and accountability over the national debt; second, it acts as an important institutional check on party and …

Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil

Faculty Publications

This Article attempts to resolve one such issue: the tax consequences of property abandonments by the bankruptcy trustee.

The New Mexico Uniform Trust Code, David M. English

Faculty Publications

This article provides an overview of the New Mexico UTC, focusing on how its enactment either changes or clarifies existing New Mexico law.

Continuity Of Congress: A Play In Three Stages, Howard M. Wasserman

Faculty Publications

No abstract provided.

The Kansas Uniform Trust Code, David M. English

Faculty Publications

Senate Bill 297, which was enacted by the Kansas legislature in 2002 and which became effective on January 1, 2003, is a substantial adoption of the Uniform Trust Code (2000) (“UTC”). The Kansas UTC is codified in a new chapter, Kansas Statutes Annotated chapter 58a. The UTC is the Uniform Law Commissioners' first effort to provide the states with a comprehensive model for codifying their law on trusts.

Did The Private Securities Litigation Reform Act Work?, Michael A. Perino

Faculty Publications

In 1995 Congress passed the Private Securities Litigation Reform Act (the PSLRA or the Act) to address abuses in securities fraud class actions. In the wake of Enron, WorldCom, Adelphia, and other high profile securities frauds, critics suggest that the law made it too easy to escape liability for securities fraud and thus created a climate in which frauds are more likely to occur. Others claim that the Act has largely failed because it did little to deter plaintiffs' lawyers from filing nonmeritorious cases. This article employs a database of the 1449 class actions filed from 1996 through 2001 to …

Analyzing The Trust Code, David M. English

Faculty Publications

Uniform Acts have played a significant role in the development of the law on trusts and estates. While the Uniform Probate Code is perhaps the best known of such Acts, there are many others. The Uniform Trust Code (2000) ( “UTC”) continues in this tradition. Like the Uniform Probate Code, it provides the states with a comprehensive model for codifying their laws. It provides the states with an opportunity to update, fill out, and systematize their law on trusts.

The Uniform Trust Code (2000): Significant Provisions And Policy Issues, David M. English

Faculty Publications

This Article provides an overview of the UTC, describes how it responds to recent developments in American trust practice, and describes how its enactment would change the trust law prevailing in most American states.

The Uniform Trust Code (2000) And Its Application To Ohio, David M. English

Faculty Publications

This article provides an overview of the U.T.C., focusing on how its enactment would change existing Ohio law. The drafting of the U.T.C. was prompted by the much greater use of trusts in recent years. This greater use of the trust and consequent rise in the number of day-to-day questions involving trusts led to a recognition by the Commissioners that the trust law in most states is thin, leaving many gaps between the often few statutes and reported cases

Enron's Legislative Aftermath: Some Reflections On The Deterrence Aspects Of The Sarbanes-Oxley Act Of 2002, Michael A. Perino

Faculty Publications

Since Enron's implosion, an astounding string of accounting scandals have stunned the securities markets. Global Crossing, WorldCom, Adelphia, and a host of other companies have seen plummeting share prices and SEC and criminal investigations. Congress's reaction has been equally stunning and surprisingly swift. It passed with near unanimity the Sarbanes-Oxley Act of 2002 (the "SOA" or the "Act"), and President Bush quickly signed it into law. The President billed the Act as one of the "the most far-reaching reforms of American business practices since the time of Franklin Delano Roosevelt." While the SOA is certainly lengthy, with eleven titles and …

Structural Principles And Presidential Succession, Howard M. Wasserman

Faculty Publications

No abstract provided.

The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii

Faculty Publications

This Article has four parts. First, it describes the general structure of the Federal Sentencing Guidelines and the approach to sentencing economic crimes in effect between 1987 and 2001. Second, it outlines the defects in the former economic crime guidelines that led to the call for reform. Third, it describes the process undertaken by the Sentencing Commission that led to the passage of the 2001 economic crime amendments and, in so doing, provides a roadmap to sources of legislative history. Fourth, it explains and analyzes the new guidelines in light of their legislative history, with primary emphasis on the consolidated …

Estates & Trusts: 2001 Survey Of Florida Law, Eloisa Rodriguez-Dod

Faculty Publications

This article discusses relevant changes in Florida probate and trust statutes and regulations through mid-2001, updating a prior survey published in 1998. The article highlights and summarizes, some aspects of the elective share provisions and other legislative changes to the Florida Probate Code and Trust Administration Statutes. Amendments to the Florida Probate Rules are also highlighted. Lastly, the article highlights some significant cases decided during mid-2001 that affected this area of the law.

State Constitutional Restrictions On Legislative Procedure: Rethinking Analysis Of Original Purpose, Single Subject, And Clear Title Challenges, Martha Dragich

Faculty Publications

Recognizing that state courts are beginning to review procedural challenges more rigorously, this Article attempts to provide guidance for the resolution of such cases. Part I examines the history, purposes, and standards of original purpose, single subject, and clear title restrictions, using Missouri's provisions as examples. Part I also identifies paradigmatic cases of each of the procedural violations with the hope of more sharply differentiating the three claims. Parts II through V present a case study of ten Missouri cases decided since 1994, supplemented with notable cases from other states. Part II begins with a brief description of the Missouri …

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a single guideline. Second, the …

The Case Against Private Disparate Impact Suits, Thom Lambert

Faculty Publications

This article argues that the Third Circuit, and the courts that have implicitly approved private disparate impact suits, have erred in construing Title VI to permit private plaintiffs to sue federally funded entities for discrimination based on disparate impact alone. From a policy standpoint, permitting private disparate impact suits is a bad idea, for the threat of such suits will lead to deterrence of actions and decisions that have incidental disparate effects but are, on the whole, good.

Respa - Questioning Its Effectiveness, Eloisa Rodriguez-Dod

Faculty Publications

Purchasing real estate is a complicated process, especially for the average consumer. The closing procedure alone involves fees and documents that can be confusing to a borrower. The Real Estate Settlement Procedures Act (RESPA) was enacted in 1974 in order to ease some of this confusion.

This article discusses the enactment of RESPA and its purpose, which is mainly to "insure that consumers... are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices." The article also discusses disclosure requirements that …

Harming Future Persons: Obligations To The Children Of Reproductive Technology, Philip G. Peters Jr.

Faculty Publications

Two paradigms dominate contemporary ethical and legal debate about the risks posed to children who owe their lives to reproductive technology. One asks whether the children have lives so tragic that life itself is harmful. The other approach asks whether children so conceived are likely to enjoy a minimally decent existence. Although the two approaches have quite different analytic foundations, they share one crucial trait. Each concludes that children who owe their lives to reproductive technology are harmed only when that technology causes genuinely catastrophic injuries.Because these conventional paradigms define harmful conduct exclusively by reference to the magnitude of the …

The Illusion Of Autonomy At The End Of Life: Unconsented Life Support And The Wrongful Life Analogy, Philip G. Peters Jr.

Faculty Publications

Overwhelming evidence indicates that physicians routinely ignore patient preferences about life-sustaining care. Yet, the ability of wrongfully treated patients to recover compensatory damages has recently been placed in doubt. Both courts and commentators have suggested that actions for unconsented life support are analogous to actions for wrongful life and should, for that reason, be rejected. In this article, Professor Philip Peters argues that the obvious similarity between the two kinds of claims is overshadowed by many factors that distinguish the two settings. As a result, Professor Peters concludes that a physician who wrongfully administers life-sustaining care over the objections of …

Crossing The Line: The Political And Moral Battle Over Late-Term Abortion, Rigel C. Oliveri

Faculty Publications

This paper focuses on the political and moral debate surrounding two pieces of federal legislation which sought to criminalize a particular late term abortion technique scientifically known as "intact dilation and extraction," and popularly known as "partial birth abortion." The Congressional "Partial Birth Abortion" Bans of 1996 and 1997 inflamed the already emotionally charged contest over abortion rights. The intense lobbying and advocacy efforts put pro-choice activists in the uncomfortable position of having to defend one of the most extreme positions on the abortion-rights spectrum. The advocacy was further complicated by the fact that very few women obtain late term …

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of …

Appendix To Guest Editor's Observations: A Proposal For A Consolidated Theft/Fraud Guideline, Frank O. Bowman Iii

Faculty Publications

Professor Frank Bowman proposed the following consolidated theft/fraud guideline to the U.S. Sentencing Commission in October 1997. The proposal is explained in detail in a forthcoming law review article, Coping With Loss”: A Re-Examination of Federal Economic Crime Sentencing Under the Guidelines, 51 Vanderbilt L. Rev. -- (April 1998).

Christian Constitutions: Do They Protect Internationally Recognized Human Rights And Minimize The Potential For Violence Within A Society? A Comparative Analysis Of American And Irish Constitutional Law And Their Religious Elements, S. I. Strong

Faculty Publications

Section II of this Article studies in greater detail the religio-legal debate currently being waged in American courts and legislatures, including a brief discussion of the religio-legal history of the United States. Section II also describes how the United States resembles and differs from Ireland such that subsequent comparisons will be more accurate. Section III compares the two constitutions by analyzing the provisions and policies most influenced by religion. First, general principles of sovereignty and constitutional interpretation are reviewed to understand the general constitutional framework of each nation. Second, the manner in which personal rights are treated by each nation's …

The Puzzling Purposes Of Statutes Of Limitation, Tyler T. Ochoa, Andrew Wistrich

Faculty Publications

One hundred years ago, Oliver Wendell Holmes, Jr. asked, "What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?" A century later, we are still searching for a satisfactory answer to that question. The purpose of this Article is to press that inquiry further.

The law of limitation of actions is the set of legislatively and judicially created legal rules-including the classification of claims, the duration of limitation periods, the applicable principles of accrual and tolling, and the like-that determine whether a claim is …

Quality Of Mercy Must Be Restrained, And Other Lessons In Learning To Love The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

In the remarks that follow, I do four things. First, for those unfamiliar with the Federal Sentencing Guidelines, I begin by explaining briefly how the Guidelines work. Second, I endeavor to show why Judge Cabranes is wrong, absolutely wrong in declaring the Guidelines a failure, and mostly wrong in the specific criticisms he and others level against the Guidelines. Third, after jousting with Judge Cabranes a bit, I discuss some problems with the current federal sentencing system, most notably the sheer length of narcotics sentences. Finally, I comment briefly on some of the implications of the Guidelines, and the principles …

Health Care Rationing And Disability Rights, Philip G. Peters Jr.

Faculty Publications

This article explores the extent to which federal disability rights law limits the use of effectiveness criteria to allocate health care, either alone or as a part of cost-effectiveness analyses. To be more precise, it considers the circumstances in which disability-based classifications by health plans which would otherwise violate the anti-discrimination laws can be legally and ethically defended by proof that the excluded treatments are less effective than those which are provided. Part I introduces the expanding use of effectiveness analysis in health care, explains its discriminatory potential, and reviews the Oregon experience. Part II outlines the current federal law …

Severability In Statutes And Contracts, Mark L. Movsesian

Faculty Publications

Established doctrine on the severability of unconstitutional statutory provisions has drawn criticism on almost every conceivable basis. Commentators have condemned severability doctrine as too malleable and as too rigid; as encouraging judicial overreaching and as encouraging judicial abdication. They have criticized the doctrine's reliance on legislative intent and its disregard of legislative intent; its excessive attention to political concerns and its inattention to political concerns; its lack of any coherent explanation.

The reasons for this lingering controversy are easy to discern. One is purely pragmatic. "We live in an age of statutes." Legislation provides our primary source of law in …