Legislation Commons^™

The Incompatibility Principle, Harold H. Bruff

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No abstract provided.

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

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Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under § 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United …

The Revision Of The Colorado Trademark Registration Statute, Arthur H. Travers

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No abstract provided.

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

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No abstract provided.

A Digital Age Communications Act Paradigm For Federal-State Relations, Kyle D. Dixon, Philip J. Weiser

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This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical …

"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson

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No abstract provided.

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

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No abstract provided.

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

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This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations …

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

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No abstract provided.

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

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This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

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No abstract provided.

Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur

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In 1984, Congress enacted Internal Revenue Code section 132 to bring more certainty to the taxation of employee fringe benefits. This article examines the impact of the legislation from the standpoint of administrative pronouncements and taxpayer litigation. The article concludes that section 132 has produced little litigation, but primarily because it has played the role of increasing exclusions. It remains unclear whether section 132 has also contained the growth of new forms of nonstatutory fringe benefits.

Rewriting The Telecom Act: An Introduction, Philip J. Weiser

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No abstract provided.

Unconstitutional Courses, Frederic M. Bloom

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By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Protecting The Lady From Toledo: Post-Usa Patriot Act Electronic Surveillance At The Library, Susan Nevelow Mart

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Library patrons are worried about the government looking over their shoulder while they read and surf the Internet. Because of the broad provisions of the USA PATRIOT Act, the lack of judicial and legislative oversight, the potential for content overcollection, and the ease with which applications for pen register, section 215 orders, or national security letters can be obtained, these fears cannot be dismissed.

Petitioner's Brief, Richard B. Collins

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No abstract provided.

Toward A Next Generation Regulatory Strategy, Philip J. Weiser

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The FCC is now facing a set of issues that will help shape the future evolution of the Internet and the role of government in its development. In particular, the FCC is in the midst of designing a regulatory regime for broadband platforms. To do so, the FCC must decide both on the appropriate regulatory classification for such platforms and what legal rules (if any) should govern access to such platforms. This Article explains how the FCC, using its "ancillary jurisdiction" authority under Title I of the Communications Act, can develop a reactive regulatory regime that examines allegations of discriminatory …

The Monumental Legacy Of The Antiquities Act Of 1906, Mark Squillace

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The Antiquities Act of 1906 authorizes the President of the United States "to declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon [federal] lands . . . to be national monuments . . . " The law was passed during the Theodore Roosevelt administration, and Roosevelt quickly set about designating a wide range of lands and resources as national monuments, including notably, the 800,000 acre Grand Canyon National Monument. Roosevelt's expansive interpretation of the law was embraced by later presidents and ultimately by the Supreme Court. In …

A Moving Violation? Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, L. Buckner Inniss

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No abstract provided.

How Democratic Are Initiatives?, Richard B. Collins

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No abstract provided.

Introducing Revised Article 9 Of The Uniform Commercial Code, John L. Mccabe, Arthur H. Travers

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No abstract provided.

Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter

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According to federal Indian law's canons of construction, statutes enacted for the benefit of American Indians and Alaska Natives must be liberally interpreted in their favor. But a doctrine of statutory interpretation presently challenges certain applications of the Indian canons. Announced by the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the doctrine requires that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer. In instances where agencies construe statutes against Indian interests, Chevron deference and the Indian canons dictate opposite results for a reviewing court. This conflict muddles Indian …

A Central Filing System For Financing Statements, Arthur H. Travers Jr., John L. Mccabe

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No abstract provided.

No Vehicles In The Park, Pierre Schlag

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No abstract provided.

Notice And Notification Under The Revised Uniform Partnership Act: Some Suggested Changes, J. Dennis Hynes

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This Article addresses the decision by the drafters of the revised Uniform Partnership Act (1996) (RUPA) to reduce the traditional defenses available to partnerships in apparent authority cases. RUPA eliminated the requirement that apparent authority claims against a partnership be based on the claimant's reasonable expectations. Under RUPA a partnership is liable for a partner's unauthorized act even when the claimant had reason to know the act was unauthorized. A defense based on the claimant's knowledge is effective only when the claimant actually knows--is cognitively aware--that the act was unauthorized. This Article argues that this places an unfair burden on …

Judicial Supremacy And The Settlement Function, Robert F. Nagel

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No abstract provided.

Dutch Uncle Sam: Immigration Reform And Notions Of Family, Lolita Buckner Inniss

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No abstract provided.

Freedom Of Contract, Fiduciary Duties, And Partnerships: The Bargain Principle And The Law Of Agency, J. Dennis Hynes

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Introduction, Harold H. Bruff

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As citizens, we ought to ensure that our criticisms of Congress are constructive, lest we damage ourselves. In that spirit, the American Bar Association's Section of Administrative Law and Regulatory Practice created a special Congressional Process Committee to study selected aspects of congressional procedures and to recommend appropriate reforms. The Committee, which I chair, is composed of administrative lawyers who are experienced in legislative practice, or who have worked in Congress. We decided to address selected aspects of congressional structure and procedure for which we believe administrative lawyers possess relevant expertise.

The articles that form this Symposium grew out of …

Legislative Development, The Attorney Accountability Act: A Case Study Of The Complexities Of Incentive-Based Legal Reform, Jamie S. Henikoff, Scott R. Peppet

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No abstract provided.