Legislation Commons^™

Consumer Credit In Canada: A Regulatory Patchwork, Micheline Gleixner

Dalhousie Law Journal

With unlimited access and consequent increased use of consumer credit in Canada and the federal government’s gradual abandonment of consumer credit regulation since Confederation, Provinces and Territories have progressively enacted provincial consumer protection legislation aiming to regulate the consumer credit industry and protect vulnerable consumers.

A review of current provincial and territorial legislative frameworks governing consumer credit reveals significant discrepancies and limitations. Given the expansion of the consumer credit industry and the inherent vulnerability of consumers, the article confirms the need and urgency of strengthening financial consumer protection and provides possible avenues of reform.

It is recommended that Parliament reassert …

The Conceptual Gap Between Doré And Vavilov, Mark Mancini

Dalhousie Law Journal

This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a “culture of justification” for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decision- makers is emphasized. The paper explores the doctrinal …

Symmetry’S Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Faculty Scholarship

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 …

Predictable Punishments, Brian Galle, Murat C. Mungan

Faculty Scholarship

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we present elsewhere, we show that …

A Constitutional Right To A Functioning United States Government? Are Government Shutdowns Unconstitutional?, Allen Shoenberger

Brigham Young University Journal of Public Law

No abstract provided.

Buckeyes Against The Boycott: Why Ohio's Law Opposing Bds Is Protected Under The First Amendment, Hannah Kraus

Cleveland State Law Review

In 2016, Ohio became the fourteenth state to enact legislation denouncing the Boycott, Divestment, and Sanctions movement against Israel. Codified as § 9.76 of the Ohio Revised Code, this legislation prohibits any state agency from contracting with a company that boycotts Israel during the contractual period. While the constitutionality of § 9.76 has not been challenged, anti-BDS statutes passed by other state legislatures have faced First Amendment challenges. This Note argues that § 9.76 of the Ohio Revised Code complies with the First Amendment under the government speech doctrine. In 1991, the Supreme Court applied the government speech doctrine in …

A History Of United States Cannabis Law, David V. Patton

Journal of Law and Health

Perhaps the best way to understand early-Twenty-First Century state and federal cannabis law in the United States is to examine the relevant history. Justice Oliver Wendell Holmes, Jr.’s statement is apropos: "[A] page of history is worth a volume of logic." This article begins by discussing the early history of cannabis and its uses. Next, the article examines the first state and federal marijuana laws. After a brief comparison of alcohol prohibition to cannabis prohibition, this article addresses cannabis laws from the 1920s to the early 1950s. Then, the article takes up the reorganization of the federal drug regulatory bureaucracy …

Testimony In Support Of B23-0887, The "Expanding Student Access To Period Products Act Of 2020" Before The Committee Of The Whole And The Committee On Education, Marcy L. Karin, Galina M. Abdel Aziz

D.C. Council Testimony

No abstract provided.

Energy Emergencies, Amy L. Stein

Northwestern University Law Review

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability.

This Article challenges …

Postponing Federal Elections Due To Election Emergencies, Michael T. Morley

Washington and Lee Law Review Online

Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Same-Party Legislative Appointments And The Problem Of Party-Switching, Tyler Yeargain

Texas A&M Law Review

For half of the states and almost every territory in the United States, legislative vacancies are filled by some system of temporary appointments rather than by special elections. Most of these systems utilize “same-party” appointments to ensure continuity of representation. But few states have anticipated the problem of state legislators switching parties. Though party-switching is rare, it happens frequently enough that several state supreme courts have already interpreted same-party appointment statutes as applied to party-switchers.

This Article argues for a uniform approach to the problem of party-switchers in same-party appointment systems. First, this Article reviews the current legislative appointment schemes …

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 …

An Interprofessional Approach To Teaching Advocacy Skills: Lessons From An Academic Medical-Legal Partnership, Vicki W. Girard, Eileen S. Moore, Lisa P. Kessler, Deborah F. Perry, Yael Cannon

Georgetown Law Faculty Publications and Other Works

Medical students and educators recognize that preparing the next generation of health leaders to address seemingly intractable problems like health disparities should include advocacy training. Opportunities to acquire the knowledge and skills needed to effectively advocate at the policy level to promote systems-, community-, and population-level solutions are a critical component of such training. But formal advocacy training programs that develop and measure such skills are scarce. Even less common are interprofessional advocacy training programs that include legal and policy experts to help medical students learn such skills.

This 2016–2017 pilot study started with a legislative advocacy training program for …

Fun With Reverse Ejusdem Generis, Jay D. Wexler

Faculty Scholarship

In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. The canon of ejusdem generis has a long and storied history in the law, has been used by judges in countless cases, and has been the subject of a large body of scholarly …

Good Governance Paper No. 17: How To Use The Bureaucracy To Govern Well, Rebecca Ingber

Online Publications

In every new presidential administration, the President and political appointees come to power with strong views about the policies they wish to enact and the substantive breaks they wish to make with the administration that came before – including views on where the U.S. government should change legal positions on key issues. But views on substantive positions alone are not enough preparation for a new administration seeking to impose its values on the government. And policy preparation on substance is especially insufficient when an incoming administration’s values include norms of process – such as adherence to the rule of law, …

How Congress Can Help Raise Vaccine Rates, Dorit Rubinstein Reiss, Y. Tony Yang

Notre Dame Law Review Reflection

2019 saw an unusually high number of measles cases, and other preventable disease outbreaks, at least in part linked to vaccines refusal. States are considering legislative responses. This Essay examines what role the federal government can fill in increasing vaccines rates. The Essay suggests that the federal government has an important role to fill in funding research, coordination, and local efforts. It also suggests that a federal school vaccine mandate is likely not the solution: first, such mandates can run into plausible constitutional challenges, and second, there are policy arguments against it. The policy contentions include the unfairness of imposing …

The Weaponization Of The “Alien Harboring” Statute In A New-Era Of Racial Animus Towards Immigrants, Hannah Hamley

Seattle University Law Review

Federal law 8 U.S.C. § 1324(a)(1)(A)(iii), commonly referred to as the “Alien Harboring” statute, was passed sixty-eight years ago and has been used as a weapon against immigrants and their allies. Spanning back decades, numerous scholars, alarmed by the dangerous use of the statute, have written about its muddled congressional intent and the unclear definition of “harboring.” These issues continue to be relevant and are foundational concerns with the enforcement of the harboring statute. However, in the era of President Donald J. Trump, we are faced with a new danger. We are confronted with an Administration that is ferociously anti-immigrant …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

“Public Use” Or Public Abuse? A New Test For Public Use In Light Of Kelo, Taylor Haines

Seattle University Law Review

The Takings Clause of the Fifth Amendment has long been controversial. It allows the government to take private property for the purpose of “public use.” But what does public use mean? The definition is one of judicial interpretation. It has evolved from the original meaning intended by the drafters of the Constitution. Now, the meaning is extremely broad. This Note argues that both the original and contemporary meaning of public use are problematic. It explores the issues with both definitions and suggests a new test, solidified in legislation instead of judicial interpretation.