Legislation Commons^™

Sticks, Stones, And So-Called Judges: Why The Era Of Trump Necessitates Revisiting Presidential Influence On The Courts, Quinn W. Crowley

Indiana Law Journal

This Note will be primarily divided into three main sections. Part I of this Note will begin by discussing the importance of judicial independence in modern society and the role of elected officials in shaping the public perception of the courts. Additionally, as problems of judicial legitimacy are age-old and date back to America’s founding, Part I will include a brief discussion of an early clash between President Thomas Jefferson and the courts.

Parts II and III of this Note will seek to place President Trump’s conduct towards the judicial branch within the proper historical context. Part II examines the …

Vehicle Rental Laws: Road Blocks To Evolving Mobility Models?, Wesley D. Hurst, Leslie J. Pujo

Journal of Law and Mobility

The laws and regulations governing mobility are inconsistent and antiquated and should be modernized to encourage innovation as we prepare for an autonomous car future. The National Highway Traffic Safety Administration (“NHTSA”) has concluded that Autonomous Vehicles, or Highly Automated Vehicles (“HAVs”) may “prove to be the greatest personal transportation revolution since the popularization of the personal automobile nearly a century ago.” Preparation for a HAV world is underway as the mobility industry evolves and transforms itself at a remarkable pace. New mobility platforms are becoming more convenient, more automated and more data driven—all of which will facilitate the evolution …

Crisis-Driven Tax Law: The Case Of Section 382, Albert H. Choi, Quinn Curtis, Andrew T. Hayashi

Articles

At the peak of the 2008 financial crisis, the Internal Revenue Service (IRS) issued Notice 2008–83 (the Notice), administrative guidance that limited Internal Revenue Code (the Code) section 382, an important tax rule designed to discourage tax-motivated acquisitions. Although styled as a mere interpretation of existing law, the Notice has been widely viewed as an improper exercise of the IRS’s authority that undermined its legitimacy. But did the Notice work? There were many extraordinary interventions during the financial crisis that raised questions about eroding the rule of law and the long-term destabilizing effects of bail­outs. In a financial crisis, regulators …

Privacy And Legal Automation: The Dmca As A Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

Advances in artificial intelligence, machine learning, computing capacity, and big data analytics are creating exciting new possibilities for legal automation. At the same time, these changes pose serious risks for civil liberties and other societal interests. Yet, existing scholarship is narrow, leaving uncertainty on a range of issues, including a glaring lack of systematic empirical work as to how legal automation may impact people’s privacy and freedom. This article addresses this gap with an original empirical analysis of the Digital Millennium Copyright Act (DMCA), which today sits at the forefront of algorithmic law due to its automated enforcement of copyright …

The Science, Law, And Politics Of Canada's Pathways To Paris: Introduction To Ubc Law Review's Special Section On Climate Change And Canada, Jason Maclean, Meinhard Doelle, Chris Tollefson

Articles, Book Chapters, & Popular Press

This brief essay introduces two articles comprising a special section of the UBC Law Review on climate change law and policy in Canada.

Feminist Statutory Interpretation, Kim Brooks

Articles, Book Chapters, & Popular Press

Leading Canadian scholar Ruth Sullivan describes the act of statutory interpretation as a mix of art and archeology. The collection, Feminist Judgments: Rewritten Tax Opinions, affirms her assessment. If the act of statutory interpretation requires us to deploy our interdisciplinary talents, at least somewhat unmoored from the constraints of formal expressions of legal doctrine, why haven’t feminists been more inclined to write about statutory interpretation? Put another way, some scholars acknowledge that judges “are subtly influenced by preconceptions, endemic privilegings and power hierarchies, and prevailing social norms and ‘conventional’ wisdom.” Those influences become the background for how judges read legislation. …

Immigration's Future: Closing The Door On The American Dream?, Ritcy Canelon

Barry Law Review

No abstract provided.

Congress Strikes Back: The Institutionalization Of The Congressional Review Act, Sam Batkins

Mitchell Hamline Law Review

No abstract provided.

The Winter Of Discontent: A Circumscribed Chevron, Nicholas R. Bednar

Mitchell Hamline Law Review

No abstract provided.

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Dickinson Law Review (2017-Present)

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement (“DRM”), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

The Anonymity Heuristic: How Surnames Stop Identifying People When They Become Trademarks, Russell W. Jacobs

Dickinson Law Review (2017-Present)

This Article explores the following question central to trademark law: if a homograph has both a surname and a trademark interpretation will consumers consider those interpretations as intrinsically overlapping or the surname and trademark as completely separate and unrelated words? While trademark jurisprudence typically has approached this question from a legal perspective or with assumptions about consumer behavior, this Article builds on the Law and Behavioral Science approach to legal scholarship by drawing from the fields of psychology, linguistics, economics, anthropology, sociology, and marketing.

The Article concludes that consumers will regard the two interpretations as separate and unrelated, processing surname …

Pennsylvania’S Need For Permanency: An Argument In Support Of Workable Standards For Representing Children In Involuntary Termination Of Parental Rights Proceedings, Anne M. Bingaman

Dickinson Law Review (2017-Present)

In cases of child abuse and neglect, Pennsylvania’s dependency laws both empower courts to act to protect the child and offer opportunities to bolster the parent-child relationship. However, when courts determine that maintenance of the parent-child relationship is not in the child’s best interest, termination of parental rights proceedings play an essential role in freeing the child for adoption.

Pennsylvania’s General Assembly has recognized that termination proceedings are both a necessary mechanism for permanency and a significant intrusion in the life of a child. As a result, the General Assembly enacted 23 PA. CONST. STAT. § 2313(a), a provision in …

Legislating Morality: Moral Theory And Turpitudinous Crimes In Immigration Jurisprudence, Abel Rodríguez, Jennifer A. Bulcock

Faculty Publications

Congress could have framed the country’s immigration policies in any number of ways. In significant part, it opted to frame them in moral terms. The crime involving moral turpitude is among the most pervasive and pernicious classifications in immigration law. In the Immigration and Nationality Act, it is virtually ubiquitous, appearing everywhere from the deportability and mandatory detention grounds to the inadmissibility and naturalization grounds. In effect, it acts as a gatekeeper for those who wish to enter and remain in the country, obtain lawful permanent residence, travel abroad after admission, or become United States citizens. With limited exceptions, noncitizens …

Deliberation's Demise: The Rise Of One-Party Rule In The Senate, Charles Tiefer, Kathleen Clark

Roger Williams University Law Review

Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Faculty Scholarship

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American – in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …