Legislation Commons^™

Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo

Journal of Legislation

This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.

Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …

The Legislative History Of The Administrative Procedure Act, Roni A. Elias

Student Works

During the twentieth century, one of the most important developments in American government and politics was the expanding power of administrative agencies of all kinds. The enactment of the Administrative Procedure Act (“APA”) of 1946 was the crucial event in the course of this expansion. The APA was the culmination of long-term efforts to regulate the decision-making of administrative agencies, and it reflected a significant political compromise. This paper traces the outlines of that reflection. In Part I, it reviews the political background leading up to the proposal of the legislation in the 79th Congress that became the APA. In …

Preventing Preemption: Finding Space For States To Protect Consumers' Reputations, Elizabeth De Armond

All Faculty Scholarship

The Great Recession awoke state legislators to the power of individuals’ credit reports to hinder their economic opportunities. Many legislators would like to assuage the effects of bad historical events on the futures of the citizens that they represent. Among the topics they can address are employers’ use of credit reports, the presence of criminal record information in credit reports, and the toxic effects of identity theft and medical debt on credit reports. However, the federal Fair Credit Reporting Act’s preemptive effects must be acknowledged and negotiated. This article evaluates potential state legislative efforts against the FCRA’s preemption provisions and …

Preventing Preemption: Finding Freedom For States To Protect Their Citizens’ Personal History Information, Elizabeth De Armond

All Faculty Scholarship

The Great Recession awoke state legislators to the power of individuals’ credit reports to hinder their economic opportunities. Many legislators would like to assuage the effects of bad historical events on the futures of the citizens that they represent. Among the topics they can address are employers’ use of credit reports, the presence of criminal record information in credit reports, and the toxic effects of identity theft and medical debt on credit reports. However, the federal Fair Credit Reporting Act’s preemptive effects must be acknowledged and negotiated. This article evaluates potential state legislative efforts against the FCRA’s preemption provisions and …

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Scholarly Articles

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look at …

Justified Outbreak: Bringing Together Law, Public Health, And Ethics During An Infectious Disease Emergency, Clark Colwell

LLM Theses

Infectious diseases have recently found renewed significance in Canadian scholarship, with a corresponding increased interest in Canada's overall preparedness, including legal preparedness, to combat infectious disease emergencies. Nearly every Canadian province has emergency legislation containing a "basket clause" - a provision which, for the duration of an emergency, authorizes a decision maker to take 'all necessary measures' to defeat it. Public health legal preparedness scholarship has not yet examined what criteria the decision maker must consider before deciding to deploy measures that could seriously impact the rights of individuals, including those under the Canadian Charter of Rights and Freedoms. This …

Filling The Gap Of Domestic Violence Protection: Returning Human Rights To U.S. Victims, Melanie Kalmanson

Florida State University Law Review

The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current state-based system inadequately serves victims of domestic violence, and previous US. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one's human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for …

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …

Does A House Of Congress Have Standing Over Appropriations?: The House Of Representatives Challenges The Affordable Care Act, Bradford Mank

Faculty Articles and Other Publications

In U.S. House of Representatives v. Sylvia Matthews Burwell, the District Court for D.C. in 2015 held that the House of Representatives has Article III standing to challenge certain provisions of the Affordable Care Act as violations of the Constitution’s Appropriations Clause. The Supreme Court’s jurisprudence on legislative standing is complicated. The Court has generally avoided the contentious question of whether Congress has standing to challenge certain presidential actions because of the difficult separation-of-powers concerns in such cases. In Raines v. Byrd, the Court held that individual members of Congress generally do not have Article III standing by simply holding …

Where Are The Jobs In The Jobs Act? An Examination Of The Uneasy Connection Between Securities Disclosure And Job Creation, Ian K. Peck

American University Business Law Review

No abstract provided.

Same-Sex Parenting Among A Patchwork Of Laws: An Analysis Of New York Same-Sex Parents’ Options For Gaining Legal Parental Status, Alexander Newman

Cardozo Law Review de•novo

While national attention has focused on the recent Supreme Court decision, Obergefell v. Hodges, which legalized same-sex marriage, less attention has been paid to the aftermath: how will those same-sex couples, now legally married, use laws drafted for different-sex couples? This Note will focus on one of these conflicts: the children born to and adopted by same-sex couples, and the legal relationship between the couples and their children within the state of New York. As nontraditional families have become more prevalent, the law has lagged behind and families have been forced to apply outdated laws to new arrangements. This …

The Inapplicability Of First Amendment Protections To Bds Movement Boycotts, Marc A. Greendorfer

Cardozo Law Review de•novo

This paper has been derived from, and is an expansion of, certain arguments the author made in an earlier legal study of the BDS Movement under United States law entitled, “The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal,” and is meant to rebut recent misleading assertions that the First Amendment protects participation by United States persons in foreign boycotts of Israel.

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch

Brooklyn Law Review

Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past 40 years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”

Delaware law has largely taken …

Perpetual Twilight: How The Usda's Change To The Sunset Process Violates The Organic Foods Production Act Of 1990, Valentina Lumaj

Brooklyn Law Review

In 1990, Congress enacted the Organic Foods Production Act of 1990 (OFPA) in response to consumer and industry demands for uniform standards in organic production. The drafters recognized that the basic tenet of the legislation was that organic foods would be produced without the use of synthetic materials, but they left room for minimal exceptions in the National List of Allowed and Prohibited Substances (the National List). The National List enumerates the exemptions for synthetic substances, as well as prohibitions of natural substances, such as arsenic, in organic production. In September 2013, the USDA amended the Sunset Process, which is …

Book Review (Reviewing Louis Fisher's Congress: Protecting Individual Rights), Adeen Postar

All Faculty Scholarship

Fisher is currently the Scholar in Residence at the Constitution Project, and is well known for his many years as Senior Specialist on Separation of Powers at the Congressional Research Service and as Specialist in Constitutional Law at the Law Library of Congress. He has extensive experience testifying before Congress on topics that include Congress and the constitution, war powers, executive power and privilege, and several aspects of the federal budget and its processes. He has written numerous books on these topics, including (to name only a few) The President and Congress: Power and Policy (1972); Defending Congress and the …

The Second Amendment In The 21st Century: An In-Depth Examination Of Firearm Freedoms And Their Relationship With Public Safety And Interests, Mathew E. Klein

Honors Undergraduate Theses

One of the most hotly contested topics in the world today revolves around an object. An object that has caused debate among all members of society both in the United States, and all across the globe. But how could an object, something that on its own does nothing, spur such heated argument? This object is the evolution of invention and the product of fighting amongst each other. This object changes the way people think and how they act. This object can be used for both good and bad. This object is a gun.

This research project will explore the Second …

The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs

Michigan Telecommunications & Technology Law Review

The 1886 Berne Convention was the most influential copyright related treaty for over a century, and provided important minimum substantive protections for authors. Key provisions included the establishment of the principle of National Treatment, the abolishment of formalities in order to receive copyright protection, a required copyright term of life of the author plus fifty years, and most offensive to the U.S. copyright system, the mandate that signatories provide authors non-economic moral rights. Despite the international importance and widespread acceptance of the Berne Convention, the U.S. did not join the Convention for over one hundred years, making it one of …

Interpretation: Article I, Section 5, Ronald Weich, Martin B. Gold

All Faculty Scholarship

In Article I of the Constitution, the Framers vest the legislative authority of the United States government in a bicameral Congress, and over the ten sections of the Article they systematically flesh out the structure, duties, and powers of that Congress. In the early sections of Article I they describe the membership of each House, giving life to the “Great Compromise” of the Constitutional Convention under which each state has equal representation in the Senate but population-based representation in the House of Representatives. In Section 5, they grant Congress the power to govern itself.

Section 5 consists of four separate …

To Catch A Terrorist: The Improper Use Of Profiling In U.S. Post-9/11 Counterterrorism, Kamillia Crawford

Honors Undergraduate Theses

The attacks of September 11, 2001 (9/11) caused thousands of deaths, national and global panic, and immediate action by the federal government to protect the borders of the United States of America (USA) from terrorism. In response to these attacks, the United States (U.S.) government enacted laws for law enforcement agencies to protect against terrorist activities. Law enforcement agencies are effective in combating terrorism, but their measures contain a major flaw - the improper use of race in profiling to address national security and public safety concerns. Racial profiling is an ineffective measure for preventing terrorism. There are solutions to …

No More Quid Pro Quo: Abandoning The Personal Benefit Requirement In Insider Trading Law, Shannon Seiferth

University of Michigan Journal of Law Reform

A circuit split between the Second Circuit’s 2014 decision, United States v. Newman, and the Ninth Circuit’s 2015 decision, United States v. Salman, illustrates problems in insider trading law dating back over thirty years to the Supreme Court’s decision in Dirks v. SEC. Dirks held that when a corporate insider provides information to an outside party who then trades on the information, it must be shown that the insider received some form of a personal benefit for providing the information in order to impute liability. The courts in Newman and Salman disagreed on the sort of evidence …

Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan

Scholarly Works

President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …

Beyond Severability, Lisa Marshall Manheim

Articles

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act.

Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of …

A Research Exemption For The 21st Century, Nicholas Short

University of Michigan Journal of Law Reform Caveat

On March 20, 2015, Robert Kastenmeier, who represented Wisconsin’s Second Congressional District from 1959 to 1991, passed away at his home in Arlington, Virginia. Though Kastenmeier may not have been well known outside of legislative circles and his home state of Wisconsin, he was in fact one of the most prolific policy makers—if not the most prolific policy maker—in the field of intellectual property law in the 20th century. He is impressively credited with authoring more than forty-eight laws dealing with intellectual property matters during his legislative tenure, including the Copyright Act of 1976, which remains the primary legal framework …

Is Textualism Required By Constitutional Separation Of Powers?, Ofer Raban

Loyola of Los Angeles Law Review

This article examines the often-heard claim that textualism in statutory interpretation is mandated by constitutional separation of powers. The claim is examined using both the formalist and the functionalist approaches to separation of powers doctrine under the Federal Constitution. As we shall see, these doctrinal inquiries quickly devolve into examinations of the purposes and justification of textualism, and of separating the three branches of government. The article concludes not only that standing constitutional doctrine fails to support the textualist claim, but also that, as a matter of fact, textualism is a judicial philosophy that runs counter to the most basic …

Human Trafficking In Southeast Asia: Uncovering The Dynamics Of State Commitment And Compliance, Catherine Renshaw

Michigan Journal of International Law

In Part I of this Article, Renshaw explains some of the current theories about how and why states come to adopt human rights norms and then translates these norms into laws and policies. In Part II, she sets out the contours of the TVPA and the global regime with which it coexists, the United Nations Palermo Protocol. Part III considers how ASEAN States have responded to the global anti-trafficking regime. Part IV explores how ASEAN states perceive the issue of human trafficking. Part V describes how ASEAN states have responded to the threat of sanctions under the TVPA. Part VI …

Payment Law: Legislative Competence In Canada, Benjamin Geva

Osgoode Legal Studies Research Paper Series

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 baking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.

Beyond Transparency: The Semantics Of Rulemaking For An Open Internet, Reza Rajabiun

Indiana Law Journal

In trying to promote the development of an open Internet, the U.S. Federal Communications Commission (FCC) has primarily tried to encourage network providers to be transparent about their traffic management practices and quality of service prioritization policies. Dominant network operators have successfully challenged this minimalist approach to addressing end-user concerns about the rise of a two-tiered Internet, motivating the FCC to engage in yet another public consultation process to assess its future approach to the problem. This article maps the debate using Natural Language Processing (NLP) tools that allow us to build a systematic picture of the positions of the …

The Double-Edged Sword Of Health Care Integration: Consolidation And Cost Control, Erin C. Fuse Brown, Jaime S. King

Indiana Law Journal

The average family of four in the United States spends $25,826 per year on health care. American health care costs so much because we both overuse and overpay for health care goods and services. The Affordable Care Act’s cost control policies focus on curbing overutilization by encouraging health care providers to integrate to pro-mote efficiency and eliminate waste, but the cost control policies largely ignore prices. This article examines this overlooked half of health care cost control policy: rising prices and the policy levers held by the states to address them. We challenge the conventional wisdom that reducing overutilization through …