Legislation Commons^™

Payment Law: Legislative Competence In Canada, Benjamin Geva

Articles & Book Chapters

This article addresses the legislative competence in Canada in relation to regulatory and transactional aspects of payment of law. Setting out the parameters of "payment law", the article examines the federal legislative powers in relation to bills and notes as well as banking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

Michigan Craft Beer Legislation, Kincaid C. Brown

Law Librarian Scholarship

Michigan is currently in the midst of a craft beer boom. The Michigan Brewers Guild’s member list includes more than 150 breweries and brewpubs brewing craft beer. Michigan’s craft beer industry is boosting the state’s economy. According to an analysis by the Brewers Association customized by the Michigan Brewers Guild, the craft beer industry is directly responsible for more than 5,000 Michigan jobs and contributes more than $277 million to the state’s economy and more than $144 million in wages.

Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine

Book Chapters

During the debates over what became Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964, I was the junior partner of the then General Counsel of the AFL-CIO, J. Albert Woll. There were only three of us in the firm. The middle partner, Robert C. Mayer, handled the business affairs of the Federation and our other union clients. Bob was also the son-in-law of George Meany, president of the AFL-CIO, which gave us a unique access to Meany’s thinking. The Federation had only one in-house lawyer, Associate General Counsel Thomas Everett Harris. Tom was an aristocratic Southerner …

Surviving Preemption In A World Of Comprehensive Regulations, Kyle Anne Piasecki

University of Michigan Journal of Law Reform Caveat

The Clean Air Act imposes a federal regulatory regime on a number of sources of air pollution. It does not, however, provide a ready means of relief to individuals harmed by air polluters. Nevertheless, many courts have held that the Clean Air Act preempts state common law tort claims that do provide a means to such relief. The disparate benefits of the Clean Air Act and common law tort claims may indicate different purposes and make court imposed preemption of common law tort claims improper. This Comment argues that the Savings Clause in the Clean Air Act and in parallel …

Eliminating Arbitrary Age Descrimination In 401(K) And Pension Plan Eligibility Requirements: A Simple Fix To Encourage Younger Workers To Save For Retirement, Andrew J. Clopton

University of Michigan Journal of Law Reform Caveat

Current federal law allows companies to exclude their youngest workers from participating in 401(k) and other pension plans. Public policy should encourage young workers to contribute to retirement as early as practicable, rather than impose obstacles to saving. Workers who begin saving even a few years earlier improve their retirement security and reduce the likelihood they will be dependent on the government later in life. While “age discrimination” is conventionally thought of as the mistreatment of older workers, this concept applies equally to employees who are differentiated based solely on their young age. Thus, Congress should amend the Internal Revenue …

Pulling The 'Trigger' On The Hatch-Waxman Act's 180-Day Exclusivity Using Inter Partes Review, 14 J. Marshall Rev. Intell. Prop. L. 453 (2015), Jaimin Shah

UIC Review of Intellectual Property Law

The America Invents Act has put in place quick and efficient mechanisms for challenging granted patents in an Article I adversarial setting. And the Hatch-Waxman Act has been the roadmap for generic drug approval-related patent infringement action in Article III courts. An interesting, heretofore unaddressed question lurks at an intersection of the two pieces of enterprising legislation: What impact should a final decision canceling patent claims under the AIA setting have on the forfeiture of 180-day exclusivity under the Hatch-Waxman Act? The 180-day exclusivity is an important piece in the Hatch-Waxman game of chess. This comment presents both the case …

The Increasing Weight Of Regulation: Countries Combat The Global Obesity Epidemic, Allyn L. Taylor, Emily Whelan Parento, Laura A. Schmidt

Indiana Law Journal

Obesity is a global epidemic, exacting an enormous human and economic toll. In the absence of a comprehensive global governance strategy, states have increasingly employed a wide array of legal strategies targeting the drivers of obesity. This Article identifies recent global trends in obesity-related legislation and makes the normative case for an updated global governance strategy.

National governments have responded to the epidemic both by strengthening traditional interventions and by developing novel legislative strategies. This response consists of nine important trends: (1) strengthened and tailored tax measures; (2) broadened use of counter-advertising and health campaigns; (3) expanded food labeling; (4) …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

Law Faculty Articles and Essays

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle— Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in …

Making Sausage: What, Why And How To Teach About Legislative Process In A Legislation Or Leg-Reg Course, Deborah A. Widiss

Articles by Maurer Faculty

Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language.

The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written …

Did Multicultural America Result From A Mistake? The 1965 Immigration Act And Evidence From Roll Call Votes, Douglas M. Spencer, Gabriel J. Chin

Faculty Articles and Papers

No abstract provided.

Domestic Violence, Gun Possession, And The Importance Of Context, Wesley M. Oliver

Indiana Law Journal

Context is everything.

A federal law prohibits those convicted of committing an act of domestic violence from possessing weapons. 1 This term, the U.S. Supreme Court decided that this statute would apply even to those convicted of crimes that did not necessarily involve violent acts.2 This conclusion strains the ordinary meaning of language, but is quite consistent with a long tradition in criminal cases that favors a pro-government interpretation of a statute when the public welfare is at stake. And domestic violence, Justice Sotomayor stressed in her opinion, has reached epidemic levels, prompting Congress to get guns out of the …

A Case Study On Ethical Decision Making By Legislative Leaders And Their Motion To Approve The North Carolina Charter School Bill Of 2011, Moses Fox Iii

Dissertations

The purpose of this study was to explore the role that equity and ethics played in decision making by examining the perspectives of elected leaders in a case where members of the North Carolina legislature decided to lift the cap on charter schools by enacting the 2011 North Carolina Charter School Bill. The analysis was based on triangulated qualitative data from historical documents, written documents from the state’s legislative library, and interviews from consenting legislative leaders of North Carolina. The researcher used Colaizzi’s (1978) phenomenological data analysis protocol to explore and understand the participants’ lived experiences. Finally, a pattern matching …

Chevron For Juries, William Ortman

Law Faculty Research Publications

No abstract provided.

California's Foreign Relations, Christopher Gaarder

CMC Senior Theses

Globalization has significantly increased the number of stakeholders in transnational issues in recent decades. The typical list of the new players in global affairs often includes non-state actors like non-governmental organizations, multinational corporations, and international organizations. Sub-national governments, however, have been given relatively little attention even though they, too, have a significant interest and ability to shape the increasing flow of capital, goods, services, people, and ideas that has so profoundly influenced the global political economy in recent decades. California, arguably the most significant among sub-national governments – its economy would be seventh or eighth in the world at $2.2 …

Why The Government Of Canada Won't Regulate Assisted Human Reproduction: A Modern Mystery, Jocelyn Downie, Dave Snow, Francoise Baylis

Articles, Book Chapters, & Popular Press

The Canadian Assisted Human Reproduction Act (AHR Act), passed in 2004, prohibits both paying consideration to a surrogate mother and purchasing sperm and ova from a donor (sections 6-7). Both prohibitions are subject to section 12, which was intended to permit reimbursement of expenditures incurred by surrogate mothers and gamete donors and reimbursement for loss of work-related income for surrogate mothers. Remarkably, more than ten years after the AHR Act received Royal Assent, and in spite of repeated calls for greater legal clarity, Health Canada has not drafted regulations pursuant to section 12 of the AHR Act, which is not …

Putting The Train Of Environmental Protection On Track: Nova Scotia's Experiment In Using Legislation To Strengthen Environmental Law, Meinhard Doelle, William Lahey

Articles, Book Chapters, & Popular Press

This paper explores the role that legislation can play in addressing the governance obstacles to the enactment and implementation of effective environmental laws. It uses the experience of Nova Scotia under the Environmental Goals and Sustainable Prosperity Act, 2007, to suggest that legislation that codifies an integrated program of goals for improved environmental governance can help to ensure that governments follow through on their environmental policy commitments, including those promising integration of environmental policy priorities into other areas of governmental activity.

The Role Of The Profit Imperative In Risk Management, Christopher French

Faculty Scholarship

Risks in the world abound. Every day there is a chance that each of us could be in a car accident. Or, one of us could be the victim of a tornado, flood or earthquake. Every day someone becomes deathly ill from an insidious disease. Our properties are in constant peril—one’s house could catch fire at any time or a tree could fall on it during a storm. Any one of these events could have devastating financial consequences, and they are just a few of the many risks that impact our daily lives. One of the principal ways we manage …

Let's Get Ethical, A Look At The New Ethics Reform In The Commonwealth Of Virginia, Davis C. Rennolds, Amy L. Woolard

Richmond Public Interest Law Review

In April of 2015, the Virginia General Assembly returned to Richmond for its annual veto session, with the main focus on putting the finishing touches on ethics reform.1 After lengthy debate and a number of amendments, the omnibus ethics bill passed the House and the Senate unanimously. House and Senate Members from both political parties touted the accomplishment as a significant step forward, as did Governor McAuliffe who called the legislation a “victory for transparency and accountability.”

This Article will argue the cases of Delegate Phil Hamilton and former Governor Bob McDonnell provide a framework for analyzing whether the new …

Constitutionalising The Senate: A Modest Democratic Proposal, Allan C. Hutchinson, Joel I. Colón-Ríos

Articles & Book Chapters

The Senate Reference did not provide an ideal situation for clarifying the nature and limits of the power of constitutional reform in Canada. The facts gave the Court no choice but to recognize the fundamental role that the Senate plays in the Canadian constitutional order, and therefore to place some of its main features outside the scope of section 44 of the Constitution Act, 1982, even if they ran contrary to basic democratic values. For example, in order to explain that the implementation of consultative elections would alter the constitution’s basic structure, the Court was forced to construe in a …

Social Capital At The Capitol: A Social Network Analysis Of Interest Group Influence In The 111th Congress, Steven A. Martin

Theses and Dissertations--Political Science

This dissertation builds on existing scholarship in political science and political sociology to explore the influence of interest groups in legislative action networks. The primary theoretical insight is that as the number of interest group affiliations between two members of Congress increases, so does the frequency with which they forge other sorts of social ties necessary to advance the interests of their interest group constituencies. In particular, the analysis looks at interest group donation strategies, legislative co-sponsorships, and roll-call votes during the 111^th Congress (2009-2010). The analysis uses social network analysis methods to create network models of 19 different …

Copy And Paste: Transplanting International Hiv/Aids Model Laws Into African Countries, Maya Berinzon

Cardozo Journal of International and Comparative Law

There has been a recent increase in legislative and regulatory frameworks to govern HIV in Africa. This includes rules on when and how a health practitioner may disclose the HIV status of a patient to a spouse or sexual partner. In balancing the right to privacy against a doctor's duty of care, two international model laws have emerged, and have been wholly or partially copied by a number of African countries. This paper questions the usefulness of such model laws as legal transplants in national legislatures through an analysis of the regulations developed in thirty-eight African countries.

Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight

Scholarly Works

Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …

Choosing A Court To Review The Executive, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

For more than one hundred years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme—or at least a scheme with a discernible organizing principle—Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging …

Formality And Informality In Cost-Benefit Analysis, Amy Sinden

Utah Law Review

Cost-benefit analysis (CBA) is usually treated as a monolith. In fact, the term can refer to a broad variety of decisionmaking practices, ranging from a qualitative comparison of pros and cons to a highly formalized and technical method grounded in economic theory that monetizes both costs and benefits, discounts to present net value, and locates the point at which the marginal benefits curve crosses the marginal costs curve. This article develops a typology that helps to conceptualize the multiple varieties of CBA along a formality-informality spectrum. It then uses this typology to analyze the treatment of CBA by the academic …

Treating The Blue Rash: Win-Win Solutions And Improving The Land Exchange Process, Smith Monson

Utah Law Review

The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies—whose mandate is to protect environmentally sensitive areas—and state trust land authorities—whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.

Legislative land exchanges present potential win-win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the …

Childcare Market Failure, Meredith Johnson Harbach

Utah Law Review

In the United States, family law norms and childcare policy have long reflected the view that childcare is a private, family matter. But childcare has crossed the private-public divide. In the absence of parents at home providing care, a substantial childcare market has emerged. And that market is failing. Our law, policy, and legal scholarship have yet to recognize and account for this new reality. This Article confronts the problem on its own terms, using economic analysis to diagnose our childcare crisis as a market failure, and makes the case for more active and explicit government intervention in the childcare …

Protecting The Digital Afterlife: Virginia's Privacy Expectation Afterlife And Choices Act, Mark Obesnshain

Richmond Public Interest Law Review

This article examines Virginia’s Privacy Expectation Afterlife and Choices Act. Part I surveys federal legislation and proposed uniform legislation that attempts to protect digital assets and records. Part II examines opposition to proposed legislation and another proposed law: the Privacy Expectation Afterlife and Choices Act. Part III details Virginia’s final version of the Privacy Expectation Afterlife and Choices Act. Part V concludes the Article.

Sex Work And The City: Creating Municipal Licensing Regimes For Brothels, Maria K. Powell

LLM Theses

The debate over how to regulate sex work in Canada has long occupied courts, governments, policymakers, sex workers and activists. In the aftermath of the Supreme Court decision in Bedford v Canada and the enactment of the constitutionally suspect Protection of Communities and Exploited Persons Act, this thesis examines municipal law's potential role in regulating brothels. Municipalities already grant licenses to adult service providers, the licensing of brothels is a natural extension of their powers. The current licensing regimes are in need of reform, both for adult services and before any attempts to license brothels. This thesis uses New Zealand …

Quebec's Bill 1: A Case Study In Anti-Corruption Legislation And The Barriers To Evidence-Based Law-Making, Graham Steele

LLM Theses

Corruption is a significant problem around the world. Large-scale public works projects are especially prone to corruption. Much international effort has been devoted to fighting corruption, but the impact of these efforts is debatable. Public-sector procurement in the Canadian province of Quebec has, since 2009, been beset by scandal. After defeat of the Liberal government in 2012, the first bill introduced by the new Parti Québécois government was an anti-corruption measure. The heart of Bill 1 is a system by which construction contractors have to demonstrate "integrity" in order to bid on public contracts. Quebec's lawmakers could have looked to …