Legislation Commons^™

Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack

Northwestern University Law Review

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies’ interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation.

This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose …

Practical Tips For Interpreting Statutory Overrides, Deborah A. Widiss

Articles by Maurer Faculty

No abstract provided.

Diazepam Discord: A Competent Minor's Constitutional Right To Seek And Refuse Psychotropic Medication, Alexa E. Craig

Journal of Legislation

Our legal system values independence, individualism, and personal choice, but we have been slow to cultivate these values in the arena of children's rights. Too much of the focus has been on efficiency: arbitrary cut-off ages provide a simple means for ascertaining a person's competence to exer- cise rights, but they are not always an accurate means to such an end. Spe- cifically, the law regarding mental health has struggled to reconcile parents' rights in custody and management of their children, the State's interest in raising members that will contribute to society, and competent children's rights of privacy and self-determination. …

Open Face: Striking The Balance Between Privacy And Security With The Fbi's Next Generation Identification System, Christopher Delillo

Journal of Legislation

Privacy in the United States has never been an explicit general right for every citizen.I Federal grants of privacy protection exist for specific instances or areas, but generally have been left to the province of the States.2 Some states, but not all, have general privacy laws granting citizens privacy rights beyond the scope of con- tent-specific legislation.3 Thus, the privacy law regime in the United States is best characterized as a patchwork: rights or protections exist in numerous areas without much to connect those areas together as an interlocking protective framework for national citizenry.

Funding Programs That Work: Lessons From The Federal Home Visiting Program, Philip G. Peters, Jr.

Journal of Legislation

Congress spends hundreds of billions of dollars each year on social programs. Many don't work. Congress and the President have called for greater reliance on evidence-based programs. Thus far, however, only one major federal program conditions state access to formula-based federal funding on the use of evidence-based practices: the Maternal, Infant, and Early Childhood Home Visiting Program.2 In this Article, I examine the extent to which this initial effort has succeeded and conclude that Congress has taken a promising first step, but attainment of its objective will require more demanding proof standards than those contained in the current Home Visiting …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

House Of Cards: How Rediscovering Republicanism Brings It Crashing Down, Jonathan E. Maddison

Catholic University Law Review

Using Frank Underwood’s maniacal political journey in the Netflix series House of Cards as an example of what is wrong with American politics, this article argues that the Supreme Court’s misapplication of First Amendment principles in Citizens United and other key campaign finance cases plays a large and problematic role. Providing an extensive historical overview of republicanism and First Amendment jurisprudence, this article suggests that a return to republican ideals, while not perfect, is both the solution and proper tool of analysis to be used by the Supreme Court for campaign finance cases and beyond.

Slaying The Dragon: How The Law Can Help Rehab A Country In Crisis, Samantha Kopf

Pace Law Review

Motor-vehicle-related deaths consistently topped the accidental death count in the United States for decades. In 2009, for the first time, drug poisoning took over as the number one accidental killer. In 1980, approximately 6,100 people died from drug overdose. In the past ten years, the drug overdose rate for males and females, regardless of race, ethnicity and age, increased. In 2000, 4.1 per 100,000 people died from unintentional drug overdose; in 2010, that number rose to 9.7 per 100,000. The drug overdose epidemic, now the leading cause of unintentional death in the United States, warrants national attention.

To reduce the …

A Statute By Any Other Name Might Smell Less Like S.P.A.M., Or, The Congress Of The United States Grows Increasingly D.U.M.B., Chris Sagers

Law Faculty Articles and Essays

Why we name our statutes is a rarely asked and non-obvious question, but it turns out to be deeply illuminating. This essay examines one little-noticed trend in particular, which has simply exploded within the U.S. Congress during the past twenty years. What at first might seem a frivolous, innocuous, and maybe even sort of likable kind of statute name appeared perhaps three times in the entire history of the Republic before 1988. In the twenty years since, there have been nearly seventy of them. But much more important than its recent and arresting profusion will be the deeper philosophical insight …

Compared To What? Judicial Review And Other Veto Points In Contemporary Political Theory, David Watkins, Scott E. Lemieux

Political Science Faculty Publications

Many democratic and jurisprudential theorists have too often uncritically accepted Alexander Bickel’s notion of “the countermajoritarian difficulty” when considering the relationship between judicial review and democracy; this is the case for arguments both for and against judicial review. This framework is both theoretically and empirically unsustainable. Democracy is not wholly synonymous with majoritarianism, and judicial review is not inherently countermajoritarian in the first place.

In modern democratic political systems, judicial review is one of many potential veto points. Since all modern democratic political systems contain veto points, the relevant and unexplored question is what qualities might make a veto point …

Rethinking Special Education's "Least Restrictive Environment" Requirement, Cari Carson

Michigan Law Review

The federal Individuals with Disabilities Education Act promotes the education of students with disabilities together with their nondisabled peers, requiring education in the “least restrictive environment” (“LRE”). This requirement has long been subject to competing interpretations. This Note contends that the dominant interpretation—requiring education in the least restrictive environment available—is deficient and allows students to be placed in unnecessarily restrictive settings. Drawing from child mental health law, this Note proposes an alternative LRE approach that requires education in the least restrictive environment needed and argues that this alternative approach is a better reading of the law.

The Latin American Development Process And The New Legislative Trends, Enrique E. Bledel

Georgia Journal of International & Comparative Law

No abstract provided.

Reflections On The Current Drive Toward Greater Legalization In China, Victor H. Li

Georgia Journal of International & Comparative Law

No abstract provided.

Fifth Circuit Cases Concerning Search And Seizure Upon The High Seas: The Need For A Limiting Doctrine, Willie R. Jenkins

Georgia Journal of International & Comparative Law

No abstract provided.

Administration Of Import Trade Statutes: Possibilities For Harmonizing The Investigative Techniques And Standards Of The International Trade Commission, Edward R. Easton

Georgia Journal of International & Comparative Law

No abstract provided.

Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick

Michigan Journal of Environmental & Administrative Law

Since the early discoveries of the Spindletop, King Ranch, and East Texas oil fields, the oil and gas industry has dominated the Texas economy. The industry has also played an important role in shaping state politics and culture. The oil boom of the early 1900s created thousands of jobs for ordinary workers and immense wealth for a select few. Early Texas oil barons made headlines because of their lavish lifestyles and often extreme political beliefs. Legendary wildcatter H.L. Hunt typified this oil-fueled exuberance. Hunt became one of the eight richest individuals in the United States after securing mineral rights to …

Copyright And Social Media: A Tale Of Legislative Abdication, Diane Leenheer Zimmerman

Pace Law Review

The focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join …

The Recognition And Enforcement Of Foreign Country Judgments And Arbitral Awards: A North-South Perspective, Michael Quilling

Georgia Journal of International & Comparative Law

No abstract provided.

Economic Implications Of European Transfrontier Pollution: National Prerogative And Attribution Of Responsibility, Fredrick C. Eisenstein

Georgia Journal of International & Comparative Law

No abstract provided.

Solicitation Of Anticompetitive Action From Foreign Governments: Should The Noerr-Pennington Doctrine Apply To Communications With Foreign Sovereigns?, Ronald W. Davis

Georgia Journal of International & Comparative Law

No abstract provided.

Assets, Costs, And Affordability: Why Magi-Based Medicaid Benefits Don't Account For True Need, Sara K. Hunkler

Indiana Journal of Law and Social Equality

In 2014, Mary, an asset-wealthy individual, will qualify for Medicaid ahead of Bob, a needier individual with less net wealth and significantly higher medical costs, solely because Bob’s income is slightly higher. The current income-based eligibility standards for Medicaid mandated by the Patient Protection and Affordable Care Act (PPACA) do not adequately reflect an individual’s need for federal assistance because they neglect to consider an individual’s assets, debts, and the circumstantial cost of their healthcare. Thus, these new federal standards permit significant disparities in the treatment of similarly situated impoverished individuals and allow prioritization of asset-wealthy individuals over their more …

Aventura Management, Llc V. Spiaggia Ocean Condominium Association: Condominium Associations Beware, William C. Matthews

Florida Law Review

In late January 2013, the Third District Court of Appeal sent shockwaves throughout the real estate community with regards to condominium associations’ rights as unit owners. In AventuraManagement, LLC v. Spiaggia Ocean Condominium Association (Spiaggia), the appellate court interpreted Florida Statute § 718.1162 in an unprecedented way. The court held that if a condominium association takes title to a unit before the bank forecloses on a defaulting unit owner, the association is jointly and severally liable for all past due assessments with the previous owner that came due, up to the time of transfer of title.3 Condominium associations across …

From The Savings And Loan Association Crisis Of The 1980s To The Dodd-Frank Wall Street Reform And Consumer Protection Act: The Effect Of The Dodd-Frank Act On U.S. Thrifts And The Lesson For The Korean Savings Bank Crisis, Beumhoo Jang

Maurer Theses and Dissertations

The subprime mortgage crisis occurred in the United States in 2008, which struck the U.S. economy tremendously, and moreover, the world’s economy. In response to the crisis, the U.S. government enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Act, however, focused mainly on enhancing regulatory systems rather than considering how the Act affected small-scale financial institutions, including thrifts, which play a major role in the U.S. local housing development industry.

In addition, the Act did not accord with the principles of the Government Accountability Office, and left certain regulatory measures intact, including the Qualified Thrift Lending test. …

Keeping The Farm And Farmer In Food Policy And Law, Neil D. Hamilton

Journal of Food Law & Policy

Thank you for the opportunity to be with you, it is always a pleasure to return to the University of Arkansas Law School where I began my teaching career in the fall of 1981. We are pleased Drake University Law School and the University of Arkansas College of Law have built and maintained a partnership on teaching and research that stretches back over three decades. I am especially pleased to be with you as we celebrate the 10th Anniversary of the Journal of Food Law and Policy, another part of the University's pioneering work in the area of food policy …

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Remain Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agriculture safety and protect free speech in an evolving food safety landscape.

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …

Congress's International Legal Discourse, Kevin L. Cope

Michigan Law Review

Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over …

The Commonwealth Of Puerto Rico: Trying To Gain Dignity And Maintain Culture, Arnold Leibowitz

Georgia Journal of International & Comparative Law

No abstract provided.

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh Spitzer

Seattle University Law Review

This Article focuses on the tension between the late-nineteenth century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” …

No Good Options: Picking Up The Pieces After King V. Burwell, Nicholas Bagley, David K. Jones

Articles

If the Supreme Court rules against the government in King v. Burwell, insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges. The pain could be felt within weeks. Without subsidies, an estimated eight or nine million people stand to lose their health coverage. Because sicker people will retain coverage at a much higher rate than healthier people, insurance premiums in the individual market will surge by as much as fifty percent. Policymakers will come under intense pressure to mitigate the fallout from a government loss …