Legislation Commons^™

Wilderness, Luck & Love: A Memoir And A Tribute, Neil Kagan

Michigan Journal of Environmental & Administrative Law

In 1984, Congress preserved 8.2 million acres of roadless federal lands as "wilderness," nearly matching the acreage set aside in the Wilderness Act of 1964. Congress also created the most new wilderness areas ever in a single year, by far. Wilderness Connect, Number of Wilderness Areas Designated by Year, https://wilderness.net/practitioners/wilderness-areas/summary-reports/wilderness-areas-designated-by-year.php.

I brought two lawsuits in 1983 that proved to be the catalyst responsible for breaking the years-long impasse that had previously stymied the protection of these pristine wildlands. The lawsuits also pushed Congress to preserve more wildlands as wilderness than it would have otherwise.

This article describes the lawsuits, …

Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker

Michigan Law Review

A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.

Are Medicaid Work Requirements Legal?, Nicholas Bagley

Articles

On January 12, 2018, the Centers for Medicare & Medicaid Services (CMS) approved a waiver allowing Kentucky to impose a work requirement on some nondisabled Medicaid beneficiaries. Similar waivers are sure to follow. Supporters see work requirements as a spur to force the idle poor to work; opponents see the requirements as a covert means of withholding medical care from vulnerable people. Setting the policy debate aside, however, are work requirements legal?

"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus

Michigan Law Review

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been …

Technological Rights Accretion, Kristelia A. García

Publications

No abstract provided.

What Motivates Legislators To Act: Problem Definition & The Opioid Epidemic, A Case Study, Taleed El-Sabawi

Faculty Publications

This article explores why federal legislators may have been motivated to treat the current opioid crisis as a health issue, when past drug problems have been treated as a criminal justice issue. Using theories from political science, policy studies and sociology, this article summarizes leading theories of legislative behavior and applies them to the current opioid crisis, in an effort to better understand what motivates legislators to enact legislation to solve pressing social problems in a way that reframes the problem. Part II of this article provides an overview of the Comprehensive Addiction and Recovery Act, its significance, and how …

Where Have All The Soldiers Gone Ii: Military Veterans In Congress And The State Of Civil-Military Relations, Donald N. Zillman

Maine Law Review

In a 1997 essay in these pages, I reported on the fact that a declining number of senators and members of the House of Representatives were veterans of military service. At the height of the Vietnam War, roughly 70% of the members of Congress were veterans. By 1991, the Congress that approved the use of force against Iraq in Operation Desert Storm had only slightly more veterans than non-veterans. Three Congresses later, the percentage of veterans had dropped to 32%. The explanation for the decline is almost certainly not that the American voter no longer likes to elect veterans to …

Once More, With Feeling: Tra 17 And Original Intent Of Subpart F, Reuven S. Avi-Yonah, Nir Fishbien

Articles

For the first time since 1913, Congress is considering abandoning the principle that U.S. residents should be subject to tax on all income “from whatever source derived.” Specifically, the proposed tax reform legislation, the Tax Cuts and Jobs Act, would completely exempt from U.S. taxation dividends from controlled foreign corporations. This is therefore a good occasion for considering the reasons we tax those dividends in the first place.

Understanding The Consumer Review Fairness Act Of 2016, Eric Goldman

Michigan Telecommunications & Technology Law Review

Consumer reviews are vitally important to our modern economy. Markets become stronger and more efficient when consumers share their marketplace experiences and guide other consumers toward the best vendors and away from poor ones. Businesses recognize the importance of consumer reviews, and many businesses take numerous steps to manage how consumer reviews affect their public image. Unfortunately, in a misguided effort to control consumer reviews, some businesses have deployed contract provisions that ban or inhibit their consumers from reviewing them. I call those provisions “antireview clauses.”

Anti-review clauses distort the marketplace benefits society gets from consumer reviews by suppressing peer …

The Oversimplification Of Deregulation: A Case Study On Clinical Decision Support Software, Deeva V. Shah

Michigan Telecommunications & Technology Law Review

Until the December 2016 passage of the Cures Act, the FDA had regulatory power over clinical decision support (CDS) software; however, the Act removed a large group of CDS software from the FDA’s statutory authority. Congressional intent was to increase innovation by removing regulatory blockades—such as device testing and certification—from the FDA’s purview. This note argues that the enactment of this specific provision of the Act will instead stymie innovation and overlook the unfortunate safety consequences inherent in its deregulation. CDS software is a burgeoning field ripe for innovation; however, rapid innovation can often lead to a slew of mistakes—mistakes …

Small Change, Big Consequences — Partial Medicaid Expansions Under The Aca, Adrianna Mcintyre, Allan M. Joseph, Nicholas Bagley

Articles

Though congressional efforts to repeal and replace the Affordable Care Act (ACA) seem to have stalled, the Trump administration retains broad executive authority to reshape the health care landscape. Perhaps the most consequential choices that the administration will make pertain to Medicaid, which today covers more than 1 in 5 Americans. Much has been made of proposals to introduce work requirements or cost sharing to the program. But another decision of arguably greater long-term significance has been overlooked: whether to allow “partial expansions” pursuant to a state Medicaid waiver. Arkansas has already submitted a waiver request for a partial expansion, …

Restating The "Original Source Exception" To The False Claims Act's "Public Disclosure Bar" In Light Of The 2010 Amendments, Joel D. Hesch

University of Richmond Law Review

No abstract provided.

We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher

Michigan Journal of Environmental & Administrative Law

The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian …

The Gibbons Fallacy, Richard A. Primus

Articles

In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that the enumerated …

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …

Reconciling Expectations With Reality: The Real Id Act's Corroboration Exception For Otherwise Credible Asylum Applicants, Alexandra Lane Reed

Michigan Law Review

The international community finds itself today in the throes of the largest refugee crisis since World War II. As millions of refugees continue to flee violence and persecution at home, the immediate concern is humanitarian, but in the long-term, the important question becomes: What are our obligations to those who cannot return home? U.S. asylum law is designed not only to offer shelter to legitimate refugees, but also to protect the country from those who seek asylum under false pretenses. Lawmakers and policymakers have struggled to calibrate corroboration requirements for asylum claims with the reality that many legitimate asylum seekers …

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly …

On Viewing The Courts As Junior Partners Of Congress In Statutory Interpretation Cases: An Essay Celebrating The Scholarship Of Daniel J. Meltzer, Richard H. Fallon Jr

Notre Dame Law Review

In this Essay, written in tribute to Dan Meltzer, I shall attempt to explicate his views regarding statutory interpretation in general, thematic terms. In doing so, I shall register my agreement with virtually all of Dan’s conclusions and frequently echo his practically minded arguments in support of them. But I shall also advance arguments—with which I cannot be entirely sure he would have agreed—that seek to show that his position reflected theoretical insights about how language works, not only in law, but also more generally in life. By seeking simultaneously to defend Dan’s views and to build on them, this …

Honoring Dan Meltzer—Congressional Standing And The Institutional Framework Of Article Iii: A Comparative Perspective, Vickie C. Jackson

Notre Dame Law Review

In this short Essay, I focus on only one aspect of the broader question of government standing to sue: congressional standing. For one thing, separation of powers problems are more acutely presented in federal level disputes.

Given an increased interest by parts of the Congress, especially the House of Representatives, in seeking to intervene in ongoing litigation, there are pressing new issues in the lower federal courts: U.S. District Court Judge Rosemary Collyer recently upheld congressional standing to challenge an asserted violation of the Appropriations Clause in connection with spending under the Affordable Care Act, while rejecting the House’s standing …

Testimony Before The House Committee On Science, Space And Technology, Charles Tiefer

All Faculty Scholarship

Thank you for the opportunity to testify today. I served in the House General Counsel’s office in 1984-1995, becoming General Counsel (Acting). (Since 1995, I have been Professor at the University of Baltimore School of Law,)

So, I have lengthy fulltime experience, including extensive work on Congressional subpoenas. My work takes in whether the House, or this Committee, may justifiably try to enforce subpoenas against state Attorneys General (the answer being: no). I have had more years of experience than almost anyone else in House history focused on this area. While the other professors on this panel have done various …

Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor

University of Michigan Journal of Law Reform

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. …

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

Articles

If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that …

Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley

Articles

This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

Rent-Seeking And Inter Partes Review: An Analysis Of Invalidity Assertion Entities In Patent Law, W. Michael Schuster

Michigan Telecommunications & Technology Law Review

This Essay is the first analysis of a recent entrant on the patent landscape: the Invalidity Assertion Entity (IAE). IAEs engage in rent-seeking by demanding payment from patent holders in exchange for not attempting to invalidate their patents through administrative action before the U.S. Patent and Trademark Office. The response to IAEs has been uniformly negative. Reflexive proposals have been raised in Congress (unsurprisingly) to terminate the IAE business model. In contrast to the common response to IAEs, this Essay discusses how profit-driven IAEs may generate socially beneficial externalities and why legislating to end the IAE business model is imprudent.

What Bankruptcy Law Can And Cannot Do For Puerto Rico, John A. E. Pottow

Articles

This article is based on a February 2016 keynote address given at the University of Puerto Rico Law Review Symposium “Public Debt and the Future of Puerto Rico.” Thus, much of it remains written in the first person, and so the reader may imagine the joy of being in the audience. (Citations and footnotes have been inserted before publication ‒ sidebars that no reasonable person would ever have inflicted upon a live audience, even one interested in bankruptcy law. Rhetorical accuracy thus yields to scholarly pedantics.) The analysis explains how bankruptcy law not only can but will be required to …

Nfib V. Sebelius And The Individual Mandate: Thoughts On The Tax/Regulation Distinction, Kyle D. Logue

Michigan Business & Entrepreneurial Law Review

When Chief Justice John Roberts wrote the opinion of the Court in National Federation of Independent Businesses v. Sebelius (NFIB) explaining the constitutionality of the Affordable Care Act’s (ACA) minimum essential coverage provision (sometimes referred to as the individual mandate), he reasoned that the mandate—or, more precisely, the enforcement provision that accompanied the mandate (the Shared Responsibility Payment or SRP)—could be understood as a tax on the failure to purchase health insurance. According to this view, the enactment of the mandate and its accompanying enforcement provisions fell within Congress’s virtually unlimited power to “lay and collect taxes.” This tax-based interpretation …

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Scott-Mclaughlin

Touro Law Review

No abstract provided.

Congressional Management Of The District Of Columbia Prior To Home Rule: The Struggle To Understand Power Lines In The Nation's Capital, James Moeller

University of the District of Columbia Law Review

Article I, Section 8 of the U.S. Constitution authorizes the U.S.Congress to establish a federal capital and "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District."' For this reason, Congress has exclusive jurisdiction over the District ofColumbia ("District"), which has neither statehood nor voting representation in Congress. In 1973, Congress enacted the District of Columbia Home Rule Act,which delegated some measure of local self-governance to the District.2Since 1973, District residents have elected their own mayor and city council. Council legislation, however, is still subject to review by Congress, which also approves the annual budget for the District.

Race Representatives: Why Black Members Of Congress Matter, Shenika Mcdonald

Honors Theses

My research project consisted of examining 200 bills sponsored by six African American members of Congress during the Ninety-third Congress (1973-1975). These six members of Congress represented Chicago, Illinois; Detroit, Michigan; or New York, New York- three metropolitan cities with significant African American populations. This research emphasizes the importance of Black members of Congress to African Americans nationwide by highlighting the Congressional Black Caucus' formation and mission, examining the bills' key terms and public policy issues for racial implications, and consulting a variety of secondary source material that underscores the need for descriptive representation in the Black community. The primary …

The Indefinite Deflection Of Congressional Standing, Nat Stern

Pepperdine Law Review

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court …