Legislation Commons^™

Constitutional Law - First Amendment - Shield Or Spotlight - Doe V. Reed And The First Amendment's Application To Petitioners And Disclosure Requirements In The Citizen Lawmaking Process, Clark Jennings

University of Arkansas at Little Rock Law Review

No abstract provided.

"Till Death (Or Doma) Does Us Part": How Doma Imposes An Unconstitutional Classifying And Coercive Condition On Federal Funding In The Wake Of Massachusetts V. United States Department Of Health And Human Services, Erin Bender

Law Student Publications

Part II of this Note provides a short legislative history of DOMA and an overview of Spending Clause jurisprudence. Part III provides an overview of Judge Tauro‘s opinion in Massachusetts. Finally, Part IV of this Note analyzes Section Three of DOMA under the proposed classifying/coercive condition approach to the Spending Clause and concludes that Section Three of DOMA would be unconstitutional as either type of condition.

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan

Working Paper Series

Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no …

Statutory Meanings: Deriving Interpretive Principles From A Theory Of Communication And Lawmaking, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

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 …

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 …

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 …

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 …

Secret Inventions, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Patent law - and innovation policy more generally - has traditionally been conceptualized as antithetical to secrecy. Not only does the patent system require inventors to publicly disclose their inventions in order to receive a patent, but various patent doctrines are designed to encourage inventors to forego trade secrecy. This Article offers a critique of the law’s preference for patents. In particular, this Article examines whether and under what circumstances the law should prefer patents over secrets, and vice versa.

As an initial step towards a theoretically-supported system of inventor incentives, this Article constructs a framework that attempts to balance …

Construction Law, Christopher G. Hill

University of Richmond Law Review

This article will review recent case law and legislative enactments in Virginia of significance to Virginia's contractors, subcontractors, material suppliers and design professionals. The article will also discuss the growing sustainable or "green" building trend in Virginia and elsewhere and the potential issues that this relatively new phenomenon will raise.

Environmental Law, Caleb A. Jaffe, Sean M. Carney

University of Richmond Law Review

No abstract provided.

Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

The 2010 Session of the General Assembly enacted wills, trusts, and estates legislation (i) adopting the Uniform Power ofAttorney Act, (ii) passing emergency legislation for the construction of tax-oriented wills and trusts of persons who die during 2010 with documents drafted prior thereto, (iii) revising the small-estate statutes, and (iv) clarifying the burial power of attorney. In addition, there were six other enactments, and seven opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2010 that present issues of interest in thisarea. This article reports on all of these legislative and judicial developments, along with …

Barack Obama And Congress: How The Rules Of The Caucus Hinder The President’S Legislative Agenda, Jordan Acker

Legislation and Policy Brief

In order to fix the Democratic caucus, strong leadership, combined with effective rules, are needed. First, the overall leadership needs to be restructured according to the ideology of the caucus. While strong leadership may come from the center or the left, it is important that leadership tend toward the center of the caucus, not the national political center. A moderate member of the caucus who is under no threat of removal, such as Senator Schumer, Senator Stabenow, or Senator Durbin, would make effective leaders. Part of the problem with the current leadership is, at times, it has failed to “pull …

Government Transparency And The Obama Era, Ross Schulman

Legislation and Policy Brief

Government transparency has been a focus of President Barack Obama’s campaign and administration, but effort has been expended on programs that have emphasized policy and legislative transparency over ethical and data transparency. This emphasis is misplaced. During the 2008 Presidential Election, the Obama campaign tapped into a large reserve of predominantly younger people who demanded a connection with the candidates before them. A large part of that connection was focused on the transparency that came from this highly networked campaign. President Obama’s campaign in particular embodied that approach, both through its promises and its actions. Now that the Obama administration …

The Scarlet "L": Lobbying Reform And The First Amendment, Mona Sheth

Legislation and Policy Brief

While the enactment of the Honest Leadership and Open Government Act of 2007 (HLOGA) in Congress shifted the lobbying industry towards heightened transparency and stronger ethics, future reforms of the executive branch threatened the constitutional rights of lobbyists. As the following pages summarize, the collective forces of the 2008 presidential campaign, executive ethics order, and stimulus restrictions also endangered the success of the congressional response. An examination of the Obama Administration’s executive directives and an exploration of the constitutional issues implicated in the ARRA guidance on stimulus funds reveal that disclosure and enforcement are more effective (and constitutional) methods to …

Disincentives To Data Breach: Problems With Notification And Future Legislative Possibilities, Ross Schulman

Legislation and Policy Brief

In the modern digitized and networked world, personal identifying information has quickly become a commodity that can be traded, sold, or given away like any other. The uses and potential abuses of personal identifying information, however, distinguish this commodity from any other. Personal identifying information can be copied infinitely, is often not protected nearly as well as physical commodities, and, most importantly, can have particular importance to the person identified by that information. The producer of a bushel of apples presumably cares very little about where his apples end up, as long as he is paid for them to begin …

Armed And Dangerous: The Crime Of Mortgage Fraud And What Congress Must Do To Stop It, Gabriel Zitrin

Legislation and Policy Brief

Instead, it will simply argue that while the relevant monetary policymakers continue far too slowly in the pursuit of mortgage securities reform, lawmakers whose purview includes the housing sector should use this opportunity to pursue a two-part strategy of aggressively combating fraud in the terms and sales of individual mortgages and taking bold measures to ensure that not simply embattled mortgage-holders but the victims of fraudulent lending behavior can achieve financial sustainability, even as they keep ownership of their homes.

Tax Relief In The American Recovery And Reinvestment Act Of 2009, Steven Gassert

Legislation and Policy Brief

On February 17, 2009, less than thirty days after his inauguration, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA). This new law was one of many measures from the new administration designed to quickly stimulate the ailing American economy. The $789 billion package was divided between direct government spending, tax reductions and financial relief to states and individuals. The bill contains $285.6 billion in tax reductions, which is about 36.3% of the legislation. In this article, I will analyze some of the tax provisions that were written into ARRA, and attempt to assess their …

Help America Vote Act Enforcement, Tiana Butcher

Legislation and Policy Brief

Although the Help America Vote Act of 2002 (HAVA) features extensive mandates, its enforcement provisions of are weaker than those found in previous federal election reform laws, including the Voting Rights Act and the National Voter Registration Act. Activists argue this limited enforcement power is a failing of the Act. Congress may have chosen to adopt weak enforcement mechanisms due to political posturing, lack of funding, faulty technology, or lobbying by the states. Regardless of the reason behind this choice, stronger enforcement mechanisms in HAVA would, paradoxically, fail to encourage election reform or deter election reform altogether.

Prosecute The Cheerleader, Save The World?: Asserting Federal Jurisdiction Over Child Pornography Crimes Committed Through “Sexting”, Isaac A. Mcbeth

Law Student Publications

This comment explores the possible scenarios in which sexting could give rise to prosecution under Protection of Children Against Sexual Exploitation Act of 1977 (“PCASEA”) for transporting, distributing, receiving, or possessing child pornography.2 Part II provides background information on the practice and prevalence of sexting. Part III discusses the definition of child pornography within the meaning of federal law and applies that definition to sexting. Part IV presents the concept of the transporting or shipping in interstate or foreign commerce jurisdictional hook and its potential relation to sexting. Part V applies the principles of statutory interpretation to the relevant provisions …

Eliminating Earmarks: Why The Congressional Line Item Vote Can Succeed Where The Presidential Line Item Veto Failed, Jason Iuliano

West Virginia Law Review

No abstract provided.

The Place Of 'Higher Law' In The Quotidian Practice Of Law: Herein Of Practical Reason, Natural Law, Natural Rights, And Sex Toys, Patrick Mckinley Brennan

Working Paper Series

The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the …

Are Legislation And Rules A Problem In Law? Thoughts On The Work Of Joseph Vining, Patrick Mckinley Brennan

Working Paper Series

Written for a conference at Villanova Law School held to celebrate and explore the work of Joseph Vining over forty years, this paper considers the adequacy of Vining’s phenomenology of law. Specifically, it inquires into the accuracy of Vining’s startling claims that “legislation is a problem in law, not central to law” and “rules are nowhere to be found” in law. The argument of the paper is that when -- but only when -- law is understood to be an ordinance of reason in the mind of him or them who have care of the community, for the common good, …

Legislative Updates, Keyla Bade

The Modern American

No abstract provided.

Legislating In The Dark: How Congress Regulates Tax-Exempt Organizations In Ignorance, John F. Coverdale

University of Richmond Law Review

No abstract provided.

Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan

Publications

No abstract provided.

It’S Not A Small World After All: Regulating Obesity Globally, Eloisa Rodriguez-Dod

Faculty Publications

The rate of obesity and overweight among the world population has increased dramatically over the past several years in both adults and children. Childhood obesity is a critical health care concern. There have been well-publicized efforts to regulate children‘s obesity both in the U.S. and abroad through such measures as mandated nutritional school lunch programs.

This article focuses, however, on a less examined area of regulation—the recent worldwide efforts to curb obesity among adults. The regulations discussed in this article include measures proposed or adopted by either administrative agencies or legislative bodies, whether on a local or national level. The …

Misplaced Modifiers - Say What, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Writer's Block: Why Punctuation Matters, Part Two, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.