Legislation Commons^™

Legalizing Midwifery In Missouri, Michael A. Wolff

All Faculty Scholarship

Two decades after the Missouri Supreme Court upheld an injunction against the practice of midwifery, two midwives became lobbyists for the cause and, with the remarkable cooperation of friendly legislators and lobbyists, got a provision inserted in a health bill legalizing the practice of tocology, a synonym for midwifery that went unnoticed by legislators who voted for the lengthy bill in which it was inserted. Medical associations sued to invalidate this "stealth" provision but their efforts failed when the Missouri Supreme Court declined to grant standing to the doctors to "protect" the interests of the public. Thirteen years later, the …

A Shield Or A Solution: Confronting The New Copyright Troll Problem, Michael Goodyear

Articles & Chapters

The past few years have seen the rise of a new threat to American access to knowledge and creativity: the attorney copyright troll. While previous scholarship has focused on the copyright owner as a copyright troll, this note examines the motivations and dangers of the attorney as a copyright troll. Guided by the rewards copyright infringement cases offer and equipped with mass mailed letters threatening thousands of purported infringers, these attorneys are practicing a new brand of copyright law focused on extorting money over pursuing legitimate claims. This poses a danger to the spirit of copyright.

Since the efforts of …

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

America's Paper Prisons: The Second Chance Gap, Colleen Chien

Michigan Law Review

Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and …

Caveat Emptor: Real Property Law’S “Get Out Of Jail Free” Card V. The Property Condition Disclosure Act, Alessandra E. Albano

Touro Law Review

No abstract provided.

Criminal Usury And Its Impact On New York Business Transactions, Christopher Basile

Touro Law Review

No abstract provided.

The Erosion Of Publisher Liability In American Law, Section 230, And The Future Of Online Curation, Brent Skorup, Jennifer Huddleston

Oklahoma Law Review

No abstract provided.

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 …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

Law, Race, And The Epistemology Of Ignorance, George A. Martinez

Faculty Journal Articles and Book Chapters

Philosophers and other theorists have developed the field of epistemology which is the study of human knowledge. Critical race theorists have begun to explore how epistemological theory and insights may illuminate the study of race, including the analysis of race and the law. Such use of epistemology is appropriate because theoretical work on knowledge can be used to advance one of the key goals of critical race theory which is to understand how a regime of white supremacy and its subordination of people of color have been created and maintained in America. In this regard, philosophers and other theorists have …

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.

The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan

Child and Family Law Journal

This article provides a critical analysis of the Trump Administration’s zero-tolerance policy that separated migrant families at the Southwest United States border from April to June 2018. It will provide a statistical analysis regarding the number of migrant children that were separated from their parents during this time period, and it will describe the poor living conditions that many of these children were subjected to as they waited for their parent’s immigration cases to be decided. Additionally, this article will also critically analyze the United States’ history of mistreating migrant children who started to flee their war-torn countries in Central …

Kicking The Law: The Effects Of Fifa Regulations On A World Cup Host Country’S Legislative Process In Regards To Intellectual Property Protection, Nicole-Amanda Brandofino

Brooklyn Journal of International Law

Brand protection is highly sought after by large organizations that seek to monetize valuable intellectual property. At the international level, treaties such as the TRIPS Agreement allow for protection amongst signatory nations. As a leader in the international sports field, FIFA has capitalized on its well-known brand throughout the world through the selling of merchandise and licensing to influential third parties. With the occurrence of the World Cup every four years, FIFA strives to uphold the high revenue it earns through its wide intellectual property portfolio. As the World Cup host country prepares for the tournament, it must abide by …

Global Implementation Of Soda Taxes: Is There A Better Solution For Combatting Obesity?, Lauren Cedeno

Brooklyn Journal of International Law

As incidences of overweight and obese populations continue to increase around the world, countries are looking for ways to decrease the prevalence of this epidemic. Soda and SSB taxes have increased in prevalence as countries seek to address the health problems associated with consumption of soda and other sugary beverages. This Note explores the implementation of these taxes in Mexico, Europe, and the United States. In analyzing these taxes, this Note seeks to gain a greater understanding of whether these taxes have impacted overweight and obesity rates in the countries and municipalities that have enacted them. This Note argues that …

Looking To The United Kingdom To Overhaul New York State’S Paid Family Leave Law And Close The Global Gender Gap, John Pietruszka

Brooklyn Journal of International Law

The World Economic Forum estimates that mitigating gender-based disparities in the area of economic participation could lead to substantial economic benefits for the global economy. However, the international system of sovereign states requires this effort be piecemeal, as each state must set priorities to achieve greater gender parity within its own economic, political, and cultural contexts. The United States, by virtue of being the largest economy in the world by nominal GDP, undoubtedly has one of the largest roles to play in the effort to mitigate this global problem. Nonetheless, it lags behind other nation-states in several key areas that …

Testimony Of Marcy L. Karin In Support Of B23-0494. The "Ban On Non-Compete Agreements Amendment Act Of 2019", Marcy L. Karin

D.C. Council Testimony

No abstract provided.

Trustee Liability For Breach Of Trust—Loss Or Profit, Or Loss And Profit?, Kenneth F. Joyce

Journal Articles

No abstract provided.

Ny State Marijuana Law Clears The Records Of Thousands, But Will It Help Immigrants?, Jaime Longoria, Harsha Nahata

Capstones

In July 2019, Governor Cuomo signed legislation that would clear criminal records for over 200,000 people with marijuana related convictions and reduce punishment for possession. But, there’s one group of New Yorkers who are left out — and that’s immigrants. With over 4 million immigrants in New York State, the lives of those with prior marijuana convictions are still in limbo. Harsha Nahata and Jaime Longoria spoke with immigrants and advocates to find out why. The full story can be found here: https://jaimelongoria.github.io/nys-marijuana-law/

Progressive Textualism In Administrative Law, Kathryn E. Kovacs

Michigan Law Review Online

Nicholas Bagley’s article The Procedure Fetish is destined to be a classic. In it, Bagley systematically dismantles administrative law’s obsession with procedure. He decimates the arguments that procedure is necessary to legit-imize the administrative state and avoid agency capture. He nullifies the con-tention that administrative law is neutral by showing how proceduralism inhibits regulation and “favors a libertarian agenda over a progressive one.” Bagley urges progressives to abandon “gauzy claims about legitimacy and accountability” and approach procedure with skepticism.

The Procedure Fetish addresses the normative question of what adminis-trative law ought to require. Bagley writes about how progressives should solve …

United We Stand, Divided We Fall? An Inquiry Into The Values And Shortcomings Of Uniform Methodology For Statutory Interpretation, Chelsea A. Bunge-Bollman

Notre Dame Law Review Reflection

How should courts interpret statutes? This question has fueled generations of debate. Some believe generally that legislative intent should be understood based on the greater purpose of the statute; others believe that would be “pure applesauce” and the legislative intent should be understood through the plain meaning of the statute as written. Where one lands on that spectrum dictates the acceptable use of various tools for statutory interpretation, from legislative history to dictionaries. But, this is largely a theoretical exercise because statutory interpretation is messy in practice. The judiciary employs a variety of methodologies across cases, courts, time periods, and …

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We …

The Audiences Of Statutes, David S. Louk

Cornell Law Review

Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can "get the message," conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many kinds of intended audiences, including administrative agencies, state and local governments, law enforcement officers, corporations, interest groups, lawyers, and laypeople. Influenced by lessons from the philosophies of law and language, this Article contends that Judicial statutory interpretation serves an important yet underappreciated role in providing a …

What’S The Point? The Missing Piece Of Criminal Justice Reform Through Consensus And Compromise, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Criminal justice reform has had a firm place in news headlines for more than a decade. When the mass incarceration crisis came to the fore in 2008, with reports that one in a hundred adults in America was behind bars, there had already long been cries for reducing the prison and jail populations. Reform has mainly been sought through two approaches: consensus through ballot initiative or legislative compromise. But these modes of reform share a fundamental failure: both often lack a clear articulation of the purpose of criminal sentencing. In other words, “What’s the point?” Without an agreement on …

The Land Use Act And The Nigerian Housing Sector, Yusuf Yahaya

Economic and Financial Review

The article discusses the Land Use Act and the and how it has affected developments in the Nigerian housing sector. Prior to the Land Use Act, all the existing tenure systems encouraged land holding without an obligation to develop them, fragmentation and uncoordinated alienation, hoarding speculatively for value appreciation and without precise documentation. Consequently, the Land Use Act was enacted to: make land easily accessible to all Nigerians; prevent speculative purchases of communal land; streamline and simplify the management and ownership of land; make land available to government at all levels for development; provide the system of government administration of …

Shoring Up The Hear Act: Proposed Amendments To Federal Legislation Designed To Assist Heirs And Claimants Of Nazi-Looted Art, Alexander Hull

Journal of Law and Policy

From 1933 to 1945, Nazi German forces executed a mass campaign of property confiscation, stealing as many as 600,000 pieces of art, including paintings, tapestries and sculptures from museums and private collections across Europe. It is estimated that some 300,000 pieces of art are still missing or are currently in the possession of someone other than the so-called “true” owner, based on reviews of Nazi documentation conducted by the Jewish Restitution Organization. While Nazi art looting has been regarded as “dehumanizing,” “self-advancing” and concomitant with the Nazi regime’s larger genocidal crusade, restitution in this context has been framed as a …

High Stakes: Throwing A Hail Mary To Congress For A Federal Ban On Sports Betting In College Athletics, Kaitlyn Kallert

Journal of Law and Policy

The Supreme Court’s 2018 decision overruling the Professional and Amateur Sports Protection Act’s (“PASPA”) federal prohibition on sports betting as unconstitutional under the Tenth Amendment has cleared the way for states to legalize sports gambling, which, in turn, has proven a controversial subject. Supporters of state legalization of sports gambling “argue that legalization will generate revenue for states and critically weaken illegal sports betting operations, which are often commissioned by organized crime.” However, as the Supreme Court notes, opponents contend that the legalization of sports betting will expose America’s youth to accessible gambling, “encourage people of modest means to squander …

Standing Up For Your Rights: A Review Of The Law Of Standing In Judicial Review In Singapore, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

There are two types of rules on standing to apply for judicial review of legislation or executive action on constitutional grounds. ‘Interest-based’ rules grant standing to a person who can demonstrate a ‘sufficient interest’ in the subject matter of the application. ‘Rights-based’ rules require the applicant to identify a specific constitutional right vested in him that has allegedly been violated. Singapore’s standing rules are now rights-based. Rights-based standing rules are distinctively advantageous as they provide a forum for the courts to develop the content of constitutional rights as part of the standing inquiry; such development is not always possible at …

Beauty Shouldn’T Cause Pain: A Makeover Proposal For The Fda’S Cosmetics Regulation, Lauren Jacobs

Journal of the National Association of Administrative Law Judiciary

The American cosmetics industry is not required by the Food and Drug Administration (FDA) to conduct pre-market safety assessments of cosmetics. The FDA only reviews personal care products when people voluntarily report problems. Further, companies continue to test animals for cosmetics, despite the FDA’s recommendation that manufacturers seek more humane and accurate testing. Although the FDA does not require animal testing for product safety or premarket approval, the United States is one of the largest users of laboratory animals for product testing. There are two pending pieces of legislation, which if passed would be the first acts of cosmetic regulation …

When Do Chinese Subnational Governments Make Law?, Wei Cui, Jiang Wan

All Faculty Publications

How often does law get made in China, and what kinds of law? We construct a dataset on subnational lawmaking to address these questions. The dataset builds on a basic insight: Chinese politicians choose among three types of instruments to implement policy—statutes, regulations, and informal policy directives (IPDs). IPDs are easier to promulgate than statutes and regulations, and the fact that they lack the force of law rarely impedes enforcement. Why then do politicians make law at all? Several findings shed light on this puzzle. First, the choice between formal lawmaking and IPDs depends on the policy subject. Second, provinces …

Accounting For Adolescents’ Twice Diminished Culpability In California’S Felony Murder Rule, Raychel Teasdale

Loyola of Los Angeles Law Review

In 2018, the California legislature passed S.B. 1437 to narrow California’s felony murder rule and theoretically apply the rule only to those with the greatest culpability in a murder. However, whether intentionally or negligently, the law leaves room to disproportionally and unjustly affect adolescents by charging those with “reckless indifference” with first-degree murder. Imbedded in psychology and neuroscience research is the conclusion that adolescent brain structure and function are still rapidly developing. As a result, adolescents are less able to weigh the risks of their actions, resist peer pressure, regulate their emotions, and control their impulses. Therefore, this Note argues …