Legislation Commons^™

12th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2010, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Congressional End-Run: The Ignored Constraint On Judicial Review, Luke M. Milligan

Georgia Law Review

This Article identifies an untended connection between
the research of legal academics and political scientists. It
explains how recent developments in constitutional theory,
when read in good light, expose a gap in the judicial
politics literature on Supreme Court decision making. The
gap is the "congressional end-run."
End-runs occur when Congress mitigates the policy cost
of adverse judicial review through neither formal limits on
the Court's autonomy nor substitution of its constitutional

interpretationfor that of the Court, but through a different
decision which cannot, as a practical if not legal matter,
be invalidated by the Court. End-runs come in several …

Legislating In The Dark: How Congress Regulates Tax-Exempt Organizations In Ignorance, John F. Coverdale

University of Richmond Law Review

No abstract provided.

Misplaced Fears In The Legislative Battle Over Affordable Biotech Drugs, David E. Adelman, Christopher M. Holman

Faculty Works

Much like tort reform, the debate over recently enacted legislation on biotech drugs — and particularly regulatory supplements to patent protection — has taken on a significance that dwarfs its impact on prescription drug expenditures. Under the Health Care Reform legislation, Congress enacted two major reforms: First, creation of an abbreviated Food and Drug Administration (FDA) approval process for follow-on biologics (FOBs), which are the analogues of generics for biotech drugs. Second, establishment of a twelve-year “data exclusivity” period in which clinical testing data collected by brand-name innovators cannot be used by producers of FOBs to satisfy FDA testing requirements. …

Does Cercla Preempt New York State Law Claims For Cost Recovery And Contribution?, Kristi Weiner

NYLS Law Review

No abstract provided.

Shutting Off The School-To-Prison Pipeline For Status Offenders With Education-Related Disabilities, Joseph B. Tulman, Douglas M. Weck

NYLS Law Review

No abstract provided.

Procedures For Public Law Remediation In School-To-Prison Pipeline Litigation: Lessons Learned From Antoine V. Winner School District, Catherine Y. Kim

NYLS Law Review

No abstract provided.

The School-To-Prison Pipeline . . . And Back: Obstacles And Remedies For The Re-Enrollment Of Adjudicated Youth, Jessica Feierman, Marsha Levick, Ami Mody

NYLS Law Review

No abstract provided.

Ethics In Virginia: Reforming Ethics And Conflict Of Interest Laws In The 2010 Virginia General Assembly, Christopher E. Piper

Richmond Journal of Law and the Public Interest

This article will review the process by which an ethics complaint was handled in 2009 as well as the laws that passed the 2010 General Assembly. It will also examine criticisms of ethics laws in Virginia and throughout the country. Finally, this article concludes with a discussion of the current criticisms of ethics laws in Virginia and across the country.

Jamming The Revolving Door: Legislative Setbacks For Mental Health Court Systems In Virginia, Sheila Moheb

Richmond Journal of Law and the Public Interest

Proponents of MHCs assert that alternative court systems will provide efficient jail diversion programs and reduce the number of individuals with mental illness in the criminal justice system by directing them to appropriate community treatment facilities. At the same time, MHCs must serve as only one branch of a larger, cohesive community effort to deter individuals with mental illness from incarceration, if not from conviction. Both advocates and adversaries of MHCs remain wary of the potential misuse of mental health courts, which may subject people with mental illness to greater criminalization or lead to greater fragmentation of the mental health …

There Is Always A Better Way: Proposed Legislative Improvements For The Federal Procurement System, Jim Moye

Richmond Journal of Law and the Public Interest

This Article examines whether legislative and policy changes in the federal procurement system will result in major financial and integrity changes. Note that while government procurement activities undertaken by individual states are a substantive part of the Nation's economy, this Article is restricted to federal procurement law and policy. Part I discusses Title 41 of the United States Code, which provides the statutory authority for all federal procurement activities. Part I also briefly covers the supporting regulations known as the Federal Acquisition Rules ("FAR"). Part II examines the roles, membership and obligations of the Office of Federal Procurement Policy, the …

Sexual Healing: Solving The Teen To Teen Sexting Problem In Virginia, Samuel T. Bernie

Richmond Journal of Law and the Public Interest

This comment analyzes how teen-to-teen sexting is presently addressed under the Code of Virginia. It also addresses the statutes under which Janie and her friends may be convicted for their various indiscretions as well as some of the long term consequences of those convictions. Additionally, it addresses the recent Virginia State Crime Commissions report on teen-toteen sexting. The General Assembly may soon seek to adjust the Code of Virginia to better address teen-on-teen sexting. The second part of this comment will consider the options put forth by the Virginia State Crime Commission report and at different legislative "fixes" that have …

Closing The Legislative Experience Gap: How A Legislative Law Clerk Program Will Benefit The Legal Profession And Congress, Dakota S. Rudesill

Georgetown Law Faculty Publications and Other Works

Most federal law today is statutory or rooted in statutes, which are created through a complicated process best understood through work experience inside legislatures. This article demonstrates that America’s most influential lawyers are not getting it. My new empirical analysis of the work experience of the top 500 lawyers nationwide as ranked by Lawdragon.com finds that work experience in legislative bodies is dramatically less common among the profession’s leaders than is formative work experience in courts, government executive agencies, private practice, and academe. This article continues the empirical study of the professional experience of the legal profession’s elite published in …

Katrina, Federalism, And Military Law Enforcement: A New Exception To The Posse Comitatus Act, Sean Mcgrane

Michigan Law Review

In the days following Hurricane Katrina, as lawlessness and violence spread throughout New Orleans, the White House considered invoking the Insurrection Act so that members of the U.S. military could legally perform law enforcement functions inside the flooded city. This Note contends that the White House's decision not to invoke the Act was substantially driven by federalism concerns-in particular, concerns about intruding on Louisiana's sovereignty. But, this Note further contends, in focusing so heavily on these state sovereignty concerns, the White House largely ignored the other side of the 'federalism coin "-namely, enabling the federal government to act where national …

Voting As Veto, Michael S. Kang

Michigan Law Review

This Article introduces an alternate conception of voting as vetobased on "negative preferences" against a voter's least preferred outcomes-that enriches voting theory and practice otherwise dominated by a conception of voting as a means of expressing a voter's ideal preferences. Indeed, the familiar binary choices presented in American political elections obscure the pervasiveness of negative preferences, which are descriptively salient in voting under all types of circumstances. Negative preferences have been overlooked, despite their theoretical and practical importance across many domains, leaving important questions unexplored in the literature. The Article develops a normative and positive account of voting as veto …

Confirmatory Legislative History , James J. Brudney

Faculty Scholarship

Textualists and intentionalists regularly lock horns over the proper approach to construing statutory language regarded as inconclusive. The interpretive debate seems less contentious, however, when the words of the law are deemed clear. There may be reasonable disagreement as to whether the text at issue in a particular controversy has a plain meaning, but if it does then that meaning arguably preempts further inquiry. Since 1990, Supreme Court majority opinions are replete with declarations such as: "Given [a] straightforward statutory command, there is no reason to resort to legislative history"; or "we do not resort to legislative history to cloud …

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …

The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Faculty Scholarship

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Gathering Moss: The Nrla's Resistance To Legislative Change , James J. Brudney

Faculty Scholarship

Why has the NLRA been so resistant to legislative change for more than 60 years? How was Congress able to enact two major labor relations laws within a 12-year period (1935 and 1947) but then unable to approve proposed reforms in the years since 1947? In an effort to answer these questions, the article closely examines contemporaneous newspaper accounts from the 1935 and 1947 legislative “successes” as well as from two more recent congressional “failures” in 1978 and 1992. The article’s examination proceeds based on an analytic framework borrowed from political scientist John Kingdon that posits a recurring interplay among …

Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner

Articles

The federal estate tax is in abeyance this year. The popular press has picked up on the possibility that the estates of billionaires such as the late George Steinbrenner, who owned the New York Yankees, will escape the tax. The House Ways and Means Committee, chaired by Representative Sander Levin of Michigan, and the Senate Finance Committee, chaired by Senator Max Baucus of Montana, are now considering two questions: what the maximum rate and exemption will be when the estate tax returns and whether the tax will be reinstated for this year. Lurking behind the headlines but equally important is …

Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White

Articles

For the first time in American practice, we propose to implement a convention by a federal adoption of law previously enacted by the states – from Wyoming to New York – to implement the Convention on Independent Guarantees and Standby Letters of Credit (“Convention”).1

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

Articles

In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

Real Copyright Reform, Jessica D. Litman

Articles

A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current copyright …

The Continuity Of Statutory And Constitutional Interpretation: An Essay For Phil Frickey, Ernest A. Young

Faculty Scholarship

This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most recent work, on the canon of constitutional avoidance—that is, the rule that courts should construe statutes to avoid significant ―doubt as to their constitutionality.

This Essay largely supports Phil‘s defense of the avoidance canon, but links that defense to another set of canons that Phil has criticized: the various clear statement rules of statutory construction that Phil and Bill …

Critique Of U.S. House Bill 2454 On Climate Change, Michael J. Waggoner

Publications

The U.S. House of Representatives, in June 2009, approved a bill to create a cap and trade system and a system of regulations and subsidies to address the problems of climate change. The U.S. Senate is now considering remedies for climate change. The approach of House Bill 2454 is ill-advised, and should be rejected by the Senate, because of the problems outlined below. I propose that these problems that would not be presented by a carbon tax, a simpler and more effective remedy for the risk of climate change.

The Future Of Agency Independence, Lisa Schultz Bressman, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

Regulating Cyberharassment: Some Thoughts On Sexual Harassment 2.0, Helen Norton

Publications

No abstract provided.

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

Publications

This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

Climate Change And Institutional Competence, Mark Squillace

Publications

No abstract provided.