Legislation Commons^™

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

Is Gilti Constitutional?, Reuven S. Avi-Yonah

Articles

In this article, Avi-Yonah argues that the global intangible low-taxed income regime may be an unconstitutional attempt to tax the foreign-source income of foreign entities, and he offers an alternative.

Challenges To The Independence Of Inspectors General In Robust Congressional Oversight, Fernando R. Laguarda

Scholarly Articles in Law Reviews & Journals

Congressional oversight of the Executive is among the chief responsibilities of the legislative branch. Inspectors General ("IGs") are among the most important tools available to Congress because they are "hard-wired" into the Executive itself. The value of IGs to Congress depends on their expertise in the workings of their host agencies and their "independence" from those agencies. But "independence" is not a statutorily defined term. As the agencies, and sometimes Congress itself, expand the role of IGs to engage in activities that parallel the regulatory programs of their host agencies, IG independence is compromised and the value IGs provide to …

The Impact Of Particular Provisions Of The 2017 Tax Cuts And Jobs Act On The United States Economy Amidst The Covid-19 Pandemic, Hillary Obinna Maduka

LL.M. Essays & Theses

The Tax Cuts and Jobs Act is the most significant overhaul of the U.S. federal tax system in the last two decades. This paper seeks to discuss some of its most significant provisions and examine their overall impact on the U.S. economy, especially throughout the ongoing coronavirus pandemic.

This paper begins by undertaking an overview of the legislative history of the Act and then proceeds to discuss three provisions of the Tax Cuts and Jobs Acts which have had a tremendous impact on the U.S. economy by altering some major provisions of the United States Internal Revenue Code of 1986. …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Congressional Surveillance, Aaron R. Copper

American University Law Review

In recent years, Congress has increasingly used electronic surveillance in high profile investigations. Reactions to what this Article calls “congressional surveillance” indicate a deep unease among both legal scholars and the broader public about the nature of Congress’s surveillance authority and its normative implications. Despite our ongoing preoccupation with government surveillance, congressional surveillance remains largely unexplored. There is virtually no discussion of how congressional surveillance is treated under key statutory and Fourth Amendment constraints; no consideration of the process or political limits of congressional surveillance; and little scrutiny of congressional surveillance as a tool within the separation of powers.

This …

Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts

Michigan Law Review

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the …

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Zoning On Holy Ground: Developing A Coherent Factor-Based Analysis For Rluipa's Substantial Burden Provision, Andrew Willis

Chicago-Kent Law Review

No abstract provided.

Hearing On The Foreign Sovereign Immunities Act, Coronavirus, And Addressing China’S Culpability Before The Senate Committee On The Judiciary, Russell A. Miller

Scholarly Articles

There are a number of theories about the Chinese government’s acts or omissions concerning the emergence and world-wide spread of the coronavirus that may be the proximate cause of actionable transboundary harm. All of these theories start with the incontestable fact that the coronavirus outbreak originated in China. One theory is concerned with the conduct of the Chinese government after the health crisis emerged. This “ex post” theory alleges a broad range of acts and omissions that helped transform a local outbreak into a global pandemic. There is room for this theory under the Transboundary Harm Principle. But the “ex …

Communication Breakdown: How Courts Do - And Don't - Respond To Statutory Overrides, Deborah A. Widiss

Articles by Maurer Faculty

Earlier commentators, including many well-respected judges, have offered thoughtful suggestions for facilitating communication from courts to Congress about problems in statutes that Congress might want to address. My research explores the opposite question. How effective is communication from Congress back to courts? The answer is: Not very. Even when Congress enacts overrides, courts frequently continue to follow the prior judicial precedent. This is likely due more to information failure than willful disregard of controlling law. Nonetheless, a key aspect of the separation of powers is broken.

My research shows that when the Supreme Court overrules a prior decision, lower courts …

Lawful Permanent Residency: A Potential Solution For Temporary Protected Status Holders In The Eastern District Of New York, Cody M. Gecht

Touro Law Review

No abstract provided.

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Delegating Or Divesting?, Philip A. Hamburger

Faculty Scholarship

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable …

Into The Void: The Gao's Role In The Regulartory State, Bridget C.E. Dooling

American University Law Review

The study of Congress largely focuses on its members, committees, and leaders. Meanwhile, the study of federal agencies tends to focus on those that fall within the executive branch. But many agencies and institutions exist to support Congress, and administrative law and political science scholarship has largely overlooked their internal operations. Far more than ministerial, some of these agencies have the ability to shape policy in very meaningful ways. They also have their own institutional interests distinct from the legislators they serve. As instruments of Congress, though, these agencies are generally exempt from the Administrative Procedure Act and a host …

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …

Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello

Ocean and Coastal Law Journal

The ocean offers what may seem like endless supply of natural resources, ecosystem services, or for some, simple enjoyment. Yet, in the face of climate change and overexploitation, many of these unique ecosystems and their inhabitants face an uphill battle. A president's use of the Antiquities Act establishing a national monument is an efficient and effective method of protecting these diverse ecosystems, as long as the area to be protected satisfies one of the Act's limitations that the monument be "situated on land owned or controlled by the federal government." Prior to a 2017 lawsuit concerning President Obama's use of …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The 2017 Tax Legislation, David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven S. Avi-Yonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, Manoj Viswanathan

Articles

The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and the international tax regime. The complex legislation was drafted and passed through a rushed and secretive process intended to limit public comment on one of the most consequential pieces of domestic policy enacted in recent history. This Article is an effort to supply the analysis and deliberation that should have accompanied the bill’s consideration and passage, and describes key problem areas in the new legislation. Many of the new changes fundamentally undermine the integrity of the tax …

Appropriations And Stem Cell Research Arlen Specter’S Senate Legacy, Sean Q. Kelly

Arlen Specter Center Research Fellowship

Pennsylvania Republican Senator Arlen Specter sat at the center of battles over stem cell research. Focusing on Specter’s efforts allows sustained exploration of policy entrepreneurship in the Senate. Building on Fenno’s seminal work on Arlen Specter, which focused mostly on Specter’s first term in office. Specter’s early work on criminal justice policy helped to prepare him for the weighty work involved in the stem cell debate. However, it was his ascendance on the Senate Appropriations Committee, and his position on the Labor, Health, and Human Services subcommittee in particular, that allowed him to become a leader on the stem cell …

Congress Strikes Back: The Institutionalization Of The Congressional Review Act, Sam Batkins

Mitchell Hamline Law Review

No abstract provided.

Deliberation's Demise: The Rise Of One-Party Rule In The Senate, Charles Tiefer, Kathleen Clark

Roger Williams University Law Review

Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of …

Law Library Blog (November 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …

How Should Congress Respond To Mcdonnell?, David Yassky, Kathleen Clark, Allen Dickerson, Jennifer Rodgers

Pace Law Review

Discussion of question of whether McDonnell was essentially right or wrong. Should Congress act to change the McDonnell rule? Should the Supreme Court reconsider it? What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution?

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

Blurring Institutional Boundaries: Judges' Perceptions Of Threats To Judicial Independence, Alyx Mark, Michael A. Zilis

Political Science Faculty Publications

The legislature wields multiple tools to limit judicial power, but scholars have little information about how judges interpret variant threats and which they find most concerning. To provide insight, we conduct original interviews regarding legislative threats to courts with over two dozen sitting federal judges, representing all tiers of the federal judiciary. We find that judges have a nuanced understanding of threats and tend to identify components of legislative proposals that threaten formal institutional powers as more concerning than those challenging policy set by judges. This distinction has broad implications for our understanding of judicial behavior at the federal level.

The Beat And Treaty Overrides: A Brief Response To Rosenbloom And Shaheen, Reuven S. Avi-Yonah, Bret Wells

Articles

In a recent article in Tax Notes International, H. David Rosenbloom and Fadi Shaheen argue that the base erosion and antiabuse tax (IRC section 59A, as enacted in 2017) is a potential violation of articles 23 and 24 of U.S. tax treaties. They say the BEAT does not override those treaties, so those agreements can be relied on to overcome the effects of the BEAT. In our opinion, that conclusion is wrong for two reasons: The BEAT is not a treaty violation, and even if were, it is a treaty override.