Legislation Commons^™

Reforming Military Justice: An Analysis Of The Military Justice Act Of 2016, David A. Schlueter

St. Mary's Law Journal

The Uniform Code of Military Justice (UCMJ), 10 USC §§ 801-946, is the statutory template for the United States' military justice system. The UCMJ addresses topics such as court-martial jurisdiction, and pretrial, trial, and appellate procedures. It also includes punitive articles which proscribe, not only common law offenses, but also offenses unique to the military. Congress made significant changes to the UCMJ in the Military Justice Act of 2016. The legislation not only amended a significant number of existing articles, but also added many new articles. In addition, Congress completely reorganized the punitive articles. In this article, Professor Schlueter addresses …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Faculty Scholarship

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

Mandated Ethical Hacking—A Repackaged Solution, Corinne Moini

Law Student Publications

Hacking to prove a point or to expose technological vulnerabilities has been around since the 1960s, but it has been labeled and packaged differently as “white hacking” or “ethical hacking.” This article suggests that smart toy manufacturers, such as Mattel and VTech, should be subject to required vulnerability testing which utilizes ethical hacking under the Consumer Product Safety Improvement Act (“CPSIA”). More specifically, this article proposes to amend the Toy Safety Standard, ASTMF- 963-11, to include smart toys connected to the internet. The CPSIA and Consumer Product Safety Commission (“CPSC”) impose safety testing on all toys intended for use by …

A Legal And Policy Analysis Of Driver's Licenses For Undocumented Rhode Islanders, Deborah Gonzalez, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Perspectives On The Tax Avoidance Culture: Legislative, Administrative, And Judicial Ambiguity, Henry Ordower

All Faculty Scholarship

Henry Ordower discusses the effect that legislating economic incentives through the tax system has on taxpayer behaviour and explores the resulting difficulty in drawing the line between legitimate and objectionable tax avoidance. He argues that while the attempts to separate the two types of tax avoidance – attempts such as enacting general anti-avoidance rules (GAARs) and following general principles of economic substance – may be partially successful, subsidies delivered through the tax system will inherently limit their effect. The lack of clear delineation between legitimate tax planning and objectionable tax avoidance enables an even firmer embedding of “the culture of …

Special Issue "Health Care Law And The Rights Of Individuals With Disabilities", Elizabeth Pendo, Guest Editor

All Faculty Scholarship

People with disabilities are vulnerable. They carry high risk for poor health and health outcomes. As a group, they experience social disadvantages such as poverty, underemployment and unemployment, isolation, and discrimination at a higher rate than the general population. They also face multiple barriers to quality health care and report poorer health status than people without disabilities. This Special Issue will explore the key health disparities and barriers to health care experienced by people with disabilities, and explore the legal, ethical, and social issues they raise. It will investigate the legal requirements of the Americans with Disabilities and other antidiscrimination …

The Persistence Of Memory: The Continuing Influence Of Antebellum Missouri Laws Regarding African Americans, Roy Dripps

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Introducing Govinfo: A New Source For Federal Government Documents Online, Erik Beck

Publications

No abstract provided.

Eli Lilly V. Teva: Generic Companies Infringe Under Akamai Iv In Case Of Divided Infringement, Christopher M. Holman

Faculty Works

The U.S. Supreme Court’s 2014 decision in Limelight Networks v. Akamai Technologies decision (Akamai III), in conjunction with the Federal Circuit’s stance on divided infringement claims, effectively undermined the value of method claims, particularly in the realm of pharmaceuticals, diagnostics, and other biotechnology related innovation, by limiting the ability of patentees to establish liability in cases where steps of the claimed method are performed by multiple parties. On remand, the en banc Federal Circuit in Akamai Technologies v. Limelight Networks (Akamai IV) sought to address the problem by expanding the definition of direct infringement under 271(a) to encompass more scenarios …

Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article examines how a director’s social capital might affect his or her behavior, the board’s performance, and corporate governance, as well as the potential normative implications of the director’s social network. We argue that the quality of board performance could be improved where the social network closure within the board is high and there are many non-redundant contacts beyond the board. Network closure can improve trust and collaboration within a board, while external contacts may benefit a company with more diverse sources of information. Moreover, different network positioning leads to the inequality of social capital for directors. With more …

After The Override: An Empirical Analysis Of Shadow Precedent, Deborah A. Widiss, Brian J. Broughman

Articles by Maurer Faculty

Congressional overrides of prior judicial interpretations of statutory language are typically de­fined as equivalent to judicial overrulings, and they are presumed to play a central role in maintaining legislative supremacy. Our study is the first to empirically test these assumptions. Using a differences-in-differences research design, we find that citation levels decrease far less after legislative overrides than after judicial overrulings. This pattern holds true even when controlling for depth of the superseding event or considering only the specific proposition that was superseded. Moreover, contrary to what one might expect, citation levels decrease more quickly after restorative overrides—in which Congress repudiates …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Reconciling Expectations With Reality: The Real Id Act's Corroboration Exception For Otherwise Credible Asylum Applicants, Alexandra Lane Reed

Michigan Law Review

The international community finds itself today in the throes of the largest refugee crisis since World War II. As millions of refugees continue to flee violence and persecution at home, the immediate concern is humanitarian, but in the long-term, the important question becomes: What are our obligations to those who cannot return home? U.S. asylum law is designed not only to offer shelter to legitimate refugees, but also to protect the country from those who seek asylum under false pretenses. Lawmakers and policymakers have struggled to calibrate corroboration requirements for asylum claims with the reality that many legitimate asylum seekers …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Michigan Law Review

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

Tradition And Culture In Africa: Practices That Facilitate Trafficking Of Women And Children, Norah Hashim Msuya

Dignity: A Journal of Analysis of Exploitation and Violence

Many states in Africa have adopted legislative, administrative and institutional measures to combat trafficking in human beings. These measures include, among other things, the formulation and implementation of both national and regional action plans by African states to provide for comprehensive and coordinated interventions. Many African countries have also enacted an anti-trafficking legislation at the country level. Despite these measures, African women and children have been trafficked annually worldwide for purposes of forced labor, sexual exploitation, and domestic servitude. Additionally, women and children are trafficked within their countries from rural to urban areas. Misconception and abuse of African tradition and …

Enhanced Preservation: Modifying The Protect And Preserve International Cultural Property Act To Better Protect Syrian Antiquities, Anthony Prinzivalli

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ea Expert Panel Report: Reflections On Canada's Proposed Next Generation Assessment Process, Meinhard Doelle, A. John Sinclair

Articles, Book Chapters, & Popular Press

In this paper, we share our preliminary reflections on the Expert Panel Report on the reform of the federal environmental assessment process. The report, entitled: Building Common Ground: A New Vision for Impact Assessment in Canada, was released by Minister McKenna on April 5, 2017. The report is the result of an open and thorough public engagement process that heard from a large number of Canadians with a keen interest in EA. The Expert Panel Report offers a blueprint broadly consistent with proposals for next generation federal assessment. Some elements will require further thought, and much of the critical detail …

Dead Or Alive? The Law, Policy, And Market Effects Of Legislation On Unclaimed Life Insurance Benefits, James M. Carson, Robert E. Hoyt, Tim R. Samples

Notre Dame Journal of Law, Ethics & Public Policy

A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, …