Legislation Commons^™

Freedom Of Contract Vs. Free Alienability: An Old Struggle Emerges In A New Context, Neil B. Cohen, William Henning

Faculty Scholarship

No abstract provided.

The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod

Faculty Articles

Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice, the individual person determines the value of human goods such as life, health, and marriage.

On the other side, proponents of strong government restrictions on personal choice …

Community As A Redistricting Principle: Consulting Media Markets In Drawing District Lines, Jason C. Miller

Indiana Law Journal

With the 2011 redistricting process poised to commence across the country, debates are raging as to who should draw district lines, how to keep those individuals from drawing them for partisan advantage, and the best way to draw minority districts. This paper addresses the largely overlooked area of media markets. Districts drawn to conform with media markets experience higher voter turnout. Moreover, linking a city and its economically-connected suburbs together is simply common sense. Discussing the impact of district conformity, or lack thereof, with media market boundaries on campaign strategy, news reporting, voter participation, grassroots organizing, and candidate recruitment, this …

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes - or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including …

Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …

Taxation As Regulation: Carbon Tax, Health Care Tax, Bank Tax And Other Regulatory Taxes, Reuven S. Avi-Yonah

Articles

This paper addresses three questions: 1. Is regulation a legitimate goal for taxation? 2. Which tax is best suited for regulation? 3. Would it be better to allocate just one goal per tax among the major taxes (individual and corporate income tax and VAT)? It then analyzes the proposed bank tax and the enacted health care tax as regulatory taxes, and concludes that the first is desirable (as is a carbon tax) but the second is not.

Child Pornography And Community Notification: How An Attempt To Reduce Crime Can Achieve The Opposite, J. J. Prescott

Articles

Community notification laws, designed to reduce the frequency of sex offenses by alerting potential victims to nearby threats and by encouraging citizen monitoring of potential recidivists, may make sense in the context of traditional sex offenses and sex offenders. But child pornography crimes and the individuals who commit them are different, and they differ from archetypal sex crimes and criminals in ways that may unintentionally cause community notification laws to facilitate crime rather than inhibit it. Child porn offenses typically involve money or trade, and their commission hinges on successfully conspiring with others. Markets and information are necessary building blocks …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

Examining The Reality Of Foreign National Child Victims Of Human Trafficking In The United States, Bridgette A. Carr

Articles

Human traffickers prey on the vulnerabilities of other people. Poverty, lack of education, and language barriers are keys that human traffickers use to successfully exploit others. For foreign national children who have been trafficked in the United States, these same vulnerabilities are often ignored by the immigration system. From its inception, the Trafficking Victims Protection Act (TVPA) has been touted as a tool to combat grave human rights violations that affect children. In fact, the TVPA's legislative history is rife with stories, statistics, and anecdotes involving children-often young girls. The TVPA has always recognized the failure of a one-size-fits-all approach …

Ability To Pay, John A. E. Pottow

Articles

The landmark Dodd-Frank Act of 2010 ("Dodd-Frank") transforms the regulation of consumer credit in the United States. Many of its changes have been high-profile, attracting considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau ("CFPB"). Even specific consumer reforms, such as a so-called "plain vanilla" proposal, drew hot debate and lobbying firepower. But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as plain vanilla or the CFPB did get into the law: imposing upon lenders a duty to assure a borrower's ability to repay. Ensuring a borrower's …

Readers' Copyright, Jessica D. Litman

Articles

My goal in this project is to reclaim copyright for readers (and listeners, viewers, and other members of the audience). I think, and will try to persuade you, that the gradual and relatively recent disappearance of readers’ interests from the core of copyright’s perceived goals has unbalanced the copyright system. It may have prompted, at least in part, the scholarly critique of copyright that has fueled copyright lawyers’ impression that “so many in academia side with the pirates.” It may also be responsible for much of the deterioration in public support for copyright. I argue here that copyright seems out …

Notable Bills Of The 2011 General Assembly

Richmond Public Interest Law Review

House and Senate Bills from the 2011 General Assembly

Legislative Control Of The Menhaden Fishery, Nicole M. Rovner, Matthew G. Curtis

Richmond Public Interest Law Review

This year, six menhaden- related bills were introduced in the Virginia General Assembly. Delegate John Cosgrove (RChesapeake) introduced legislation in the House of Delegates that was identical to Senate Bill 765, a bill that proposed to shift oversight of the menhaden fishery to the VMRC. This article aims to highlight the unique stance taken by Virginia's legislature and explain why this management is better left to the commission responsible for managing every other fishery in the Commonwealth. While there may not be a conclusive link between reduction industry practices and a decline in water quality, Virginia's legislators should recognize the …

Empagran’S Empire: International Law And Statutory Interpretation In The Us Supreme Court Of The 21st Century, Ralf Michaels

Faculty Scholarship

In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. The article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with …

Virtual Child Pornography Laws And The Constraints Imposed By The First Amendment, Paula Bird

Barry Law Review

This article seeks to navigate through the complexities involved with the uncertain future of virtual child pornography laws. First, this article sets forth a brief history of the legislative actions and court rulings regarding unprotected speech and virtual child pornography, and discusses the current standing of child pornography laws. Entailed in this discussion will be a vigorous inspection of the current statutes and how they simultaneously affect law enforcement, prosecutors, and defendants. Finally, the potential future of laws regarding virtual child pornography is analyzed, including addressing the issues of how the application and interpretation of the laws are changing and …

With Great Technology Comes Great Responsibility: Virginia's Legislative Approach To Combating Cyberbullying, Kelsey Farbotko

Richmond Journal of Law and the Public Interest

This comment will examine Virginia's statutory response to the growing problem of cyberbullying, focusing particularly on the bills introduced in the most recent Virginia General Assembly ses- sion. Section II will define cyberbullying and other cybercrimes, as well as discuss the effects of this form of harassment and the impor- tance of regulating speech in this manner. Section III will describe current statutes that regulate cyberbullying, as well as the three bills that came before the Virginia General Assembly in its 2011 session. Particularly important is House Bill 2059, which differs from the oth- er two bills not only because …

Property In Law: Government Rights In Legal Innovations, Stephen Clowney

Law Faculty Scholarly Articles

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …

More D (Deliberation) For California’S Dd (Direct Democracy): Enhancing Voter Understanding And Promoting Deliberation Through Streamlined Notice-And-Comment Procedures, Glenn Smith

Faculty Scholarship

This article seeks to enhance public consideration of the pros and cons of streamlining California's informal-administrative-rulemaking procedures for reforming the state's direct democracy. To provide a concrete focus for discussion and quick adoption, Appendix I includes proposed amendments to existing California statutory provisions. This article provides a context for considering the proposed legislation by elaborating on five questions: Why Deliberation? (Part I): In this Part, the Article makes the case, both on the substantive merits and on practical political grounds, for focusing on deliberation-enhancement as the best "next wave" of initiative reform.8 Why the Administrative Model? (Part II): This Part …

Has Italy Discovered Virgil? Utilizing The British Archetype To Create End-Of-Life Legislation In Italy, Nicholas A. Secara

Cardozo Journal of International and Comparative Law

The note examines the legal and ethical debates surrounding end-of-life rights, focusing on the tension between the right to life and the right to death. It highlights the lack of explicit end-of-life legislation in Italy, the inconsistent application of existing laws, and the ethical dilemmas faced by courts and medical professionals. The analysis compares Italy's legal framework with that of other European countries, such as Switzerland and the UK, and explores the implications of these differences for patients, families, and the medical community.

Us Perpetual Trusts, Lawrence W. Waggoner

Articles

In 2009, the UK reconfirmed tis long-standing public policy against perpetual trusts. America has been moving in the opposite direction. Recent years have seen a movement in the states to pass legislation allowing settlors to create family trusts that can last forever or for several centuries. Sadly, and embarrassingly, the American perpetual-trust movement has not been based on the merits of removing the traditional curb on excessive dead-hand control. The policy issues associated with allowing perpetual trusts have not been seriously discussed in the state legislatures. The driving force has been interstate competition for trust business.

Health Insurance Reform And Intimations Of Citizenship, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This article considers the implications of the Patient Protection and Affordable Care Act (PPACA) for social meanings of civic belonging in American society and for possible new forms of individual engagement with the health care system. Once fully implemented, PPACA will have many of the governance characteristics of other social insurance systems, in that it will define membership in a collective undertaking, establish a mechanism for collective security against a shared risk, and channel, incentivize and penalize specific behaviors. The article considers the extent to which PPACA has the potential to also produce new narratives and understandings of social solidarity …

How House Bill 2063 And The Expansion Of Access To Protective Orders Could Have Saved Yeardley Love's Life, Amy Weiss

Richmond Public Interest Law Review

Battered women often face an uphill battle in the legal system. In the 2011 session, the Virginia General Assembly added a new tool to these women's arsenal.o An amended version of House Bill 2063 sponsored by Delegate Rob Bell (R- Albemarle) passed the House and Senate unanimously on February 26, 2011. This paper will examine Virginia protective order law before the enactment of House Bill 2063, how Yeardley Love's death was a catalyst for reform of the law, how the law will change under House Bill 2063, and possible future developments in legislative reform that could further help victims of …

Ohio's Aggressive Attack On Medical Identity Theft, Stanley C. Ball

Journal of Law and Health

This note explains the severity of medical identity theft and the state and federal legislative reactions to the problem. Specifically, the note discusses data breach notification statutes that require healthcare providers to notify consumers when the systems holding customer personal information are breached. The note concludes that Ohio’s data breach notification statute, which does not expressly cover healthcare providers, should be amended to protect residents from medical identity theft and provide redress when healthcare providers violate state law.

Making Language Access To Health Care Meaningful: The Need For A Federal Health Care Interpreters' Statute, Alvaro Decola

Journal of Law and Health

This Note will argue that there are strong public policy, and legal and equity considerations for Congress to enact a federal statute to address the inadequacies of the current policies and regulations pertaining to language access to health care. The issue has become a significant one throughout the United States, given the influx of LEP (Limited English Proficiency) Americans navigating the health care system. Part II of this writing discusses the existing federal laws dealing with language access and the hurdles faced by LEP individuals in bringing legal action, because of existing case law on the subject. Part II also …

Post-Traumatic Stress Disorder In The Military: The Need For Legislative Improvement Of Mental Health Care For Veterans Of Operation Iraqi Freedom And Operation Enduring Freedom, Madeline Mcgrane

Journal of Law and Health

This Note argues that legislation requiring improved mental health treatment for veterans of OIF (Operation Iraqi Freedom) and OEF (Operation Enduring Freedom) is necessary to protect American service members from the dangers of mental illness. In order to prevent crimes and suicides committed by veterans of OIF and OEF as a result of undiagnosed PTSD (post-traumatic stress disorder), the United States Congress should enact legislation imposing requirements on all branches of the military that: 1) mandates screening of all veterans at risk for PTSD upon their return from deployment; 2) ensures veterans are provided with adequate and timely mental healthcare; …

Food-Borne Ultimatum: Proposing Federal Legislation To Create Humane Living Conditions For Animals Raised For Food In Order To Improve Human Health, The, Lynn M. Boris

Journal of Law and Health

In order to reduce the large number of human health risks associated with reckless farming practices, Congress must enact federal legislation that requires humane living conditions for farm animals and declares a moratorium on the routine use of unnecessary antibiotics. Part II of this Note will briefly review traditional farming and animal husbandry practices and examine the shift to the modern practices used by producers of animal products today. Part II will also present several farming practices utilized today that are particularly dangerous to human health. Part III of this Note will explore the immense human suffering that is occurring …

"Perrymandering": A New Redistricting Plan In Texas Impacts The Latino Vote, Norma E. Loza

Public Interest Law Reporter

No abstract provided.

Beware Of Wooden Nickels: The Paradox Of Florida's Legislative Overreaction In The Wake Of Kelo, Ann Marie Cavazos

Journal Publications

This article addresses Florida's reaction to the United States Supreme Court decision in Kelo v. City of New London. In Kelo, the Court provided a more expansive view of "the public use" of the Fifth Amendment Takings Clause to include taking property from one private owner and transferring it to a corporation or non-private citizen when the transfer is deemed by the lawmakers to be in the public good or for a public purpose. Florida, together with several other states, concluded that such eminent domain takings, while constitutionally permissible, offend the states' sense of fair play as it relates to …

United States V. Memorial Sloan-Kettering Cancer Center, Justin Lerner

NYLS Law Review

No abstract provided.

The Constitution As An Exploding Cigar And Other “Historian’S Heresies” About A Constitutional Orthodoxy, R.B. Bernstein

NYLS Law Review

No abstract provided.