Why Enumeration Matters,
2016
University of Michigan Law School
Why Enumeration Matters, Richard A. Primus
Michigan Law Review
The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is …
A Secular Test For A Secular Statute,
2016
Fordham University School of Law
A Secular Test For A Secular Statute, Abner S. Greene
Faculty Scholarship
This short essay argues that a secular test is available to determine what constitutes a “substantial burden” on religious exercise under the Religious Freedom Restoration Act. It takes issue with the Court’s approach that is more deferential to the claimant, and with approaches offered by Professors Sepinwall and Helfand. It resists Sepinwall’s argument that proximity in law tracks a subjective sense of complicity, and it takes issue with Helfand’s argument that examining the substantiality of burden would implicate the religious question doctrine.
Congress And The Reconstruction Of Foreign Affairs Federalism,
2016
United States Court of Appeals for the District of Columbia Circuit
Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash
Michigan Law Review
Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …
The Law Of Remedies – The Importance Of Comparative And Integrated Analysis,
2016
Singapore Management University
The Law Of Remedies – The Importance Of Comparative And Integrated Analysis, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
Two simple – and related – theses are advanced in this essay. The first is that, in the search for principle (whether in the law of remedies in particular or in the law in general), comparative analysis is extremely important. Secondly, this essay seeks to explain as well as demonstrate the importance of integrating academic scholarship with practical analysis. While both these theses are deceptively simple, they are by no means easy to accomplish and (perhaps as, if not more) importantly, might even entail a change in one’s mindset.
Much On The Agenda In New Term Of Parliament,
2016
Singapore Management University
Much On The Agenda In New Term Of Parliament, Tan K. B. Eugene
Research Collection Yong Pung How School Of Law
In a commentary, SMU Associate Professor of Law Eugene Tan highlighted several key issues as President Tony Tan Keng Yam opens the 13th Parliament’s five-year term tomorrow, which include the challenges facing the fourth generation (4G) leaders, the role of the Worker’s Party, as well as the critical issues for Parliament to tackle. Associate Prof Tan said that the 4G leaders will have to develop individual and collective identities and be able to win the confidence and trust of Singaporeans as the leadership transition substantially progresses further in the next few years. He noted that the critical issues for Parliament …
Talking Textualism, Practicing Pragmatism: Rethinking The Supreme Court's Approach To Statutory Interpretation,
2016
Pepperdine University School of Law
Talking Textualism, Practicing Pragmatism: Rethinking The Supreme Court's Approach To Statutory Interpretation, Robert J. Pushaw Jr.
Georgia Law Review
The Supreme Court's general approach to statutory
interpretation is analytically incoherent. On the one
hand, the Court has expressly endorsed "textualism":
enforcing the plain meaning (i.e., ordinary usage) of a
statute's words, and therefore refusing to consider non-
textual evidence unless the language is unclear. On the
other hand, the Court has implicitly applied
'oragmatism"-reaching the best practical result after
examining not only a statute's text but also Congress's
intent (as revealed by legislative history), its overall
purposes, precedent, and policy.
The two cases upholding the Affordable Care Act (ACA)
illustrate this practice of purporting to follow textualism,
but then …
The Restorative Workplace: An Organizational Learning Approach To Discrimination,
2016
University of Maryland Francis King Carey School of Law
The Restorative Workplace: An Organizational Learning Approach To Discrimination, Deborah Thompson Eisenberg
University of Richmond Law Review
No abstract provided.
Hillenmeyer, "Convenience Of The Employer," And The Taxation Of Nonresidents' Incomes,
2016
Benjamin N. Cardozo School of Law
Hillenmeyer, "Convenience Of The Employer," And The Taxation Of Nonresidents' Incomes, Edward A. Zelinsky
Articles
In Hillenmeyer v. Cleveland Board of Review, Ohio’s Supreme Court unanimously declared that Cleveland’s municipal income tax violated the Due Process Clause of the U.S. Constitution by taxing a nonresident athlete under the “games-played” method rather than the “duty-days” method. According to the Ohio court, the games-played approach overtaxed Mr. Hillenmeyer by allocating to Cleveland Mr. Hillenmeyer’s compensation from the Chicago Bears using the percentage of the Bears’ games played in Cleveland. By this approach, Cleveland taxed Mr. Hillenmeyer extraterritorially, reaching income he earned from services he performed for the Bears outside of Cleveland’s borders. Due Process, the Ohio …
H. R. 4241, To Establish The United States Copyright Office As An Independent Agency, And For Other Purposes [Discussion Draft], 114th Congress, 1st Session,
2015
United States House of Representatives
H. R. 4241, To Establish The United States Copyright Office As An Independent Agency, And For Other Purposes [Discussion Draft], 114th Congress, 1st Session, Tom Marino, Judy Chu, Barbara Comstock
Copyright, Fair Use, Scholarly Communication, etc.
A bill put forth during the first Session of the 114th Congress to establish the United States Copyright Office as an independent agency, and for other purposes. This Act may be cited as the "Copyright Office for the Digital Economy Act."
Proposes enacting changes to Section 701 and Section 408 of Title 17 of the United States Code to remove the United States Copyright Office from the Legislative branch of the federal government and move it to the Executive branch of the federal government, along with proposals for associated transfer of administrative and technical functions.
Family Law In The Republic Of Ireland,
2015
University of Georgia School of Law
Family Law In The Republic Of Ireland, William Binchy
Georgia Journal of International & Comparative Law
No abstract provided.
Palandt, Burgerliches Gesetzbuch. Commentaries On The German Civil Code, 36th Rev. Ed.,
2015
University of Georgia School of Law
Palandt, Burgerliches Gesetzbuch. Commentaries On The German Civil Code, 36th Rev. Ed., Hugo Hahn
Georgia Journal of International & Comparative Law
No abstract provided.
The International Banking Act Of 1978: Federal Regulation Of Foreign Banks In The United States,
2015
University of Georgia School of Law
The International Banking Act Of 1978: Federal Regulation Of Foreign Banks In The United States, Patrick F. Mcmahon
Georgia Journal of International & Comparative Law
No abstract provided.
Why Ban "Assault Weapons"?,
2015
NYU School of Law
The Origins Of Legislation,
2015
Vanderbilt Law School
The Origins Of Legislation, Ganesh Sitaraman
Notre Dame Law Review
Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to …
Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act,
2015
Benjamin N. Cardozo School of Law
Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein
Cardozo Law Review
No abstract provided.
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation,
2015
William & Mary Law School
Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015),
2015
University of Montana - Missoula
Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore
Public Land & Resources Law Review
In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.
Recidivism Recourse: Cracking Down On Florida's Sexually Violent Predators,
2015
Barry University School of Law
Recidivism Recourse: Cracking Down On Florida's Sexually Violent Predators, Nicole Canha
Barry Law Review
No abstract provided.
Defining The "Defined"—Problem Gambling, Pathological Gambling, And Gambling Disorder: Impact On Policy And Legislation,
2015
Barry University School of Law
Defining The "Defined"—Problem Gambling, Pathological Gambling, And Gambling Disorder: Impact On Policy And Legislation, Sarah A. Hinchliffe
Barry Law Review
No abstract provided.
Law Of The Sea - Proposed Deep Seabed Hard Mineral Resources Act,
2015
University of Georgia School of Law
Law Of The Sea - Proposed Deep Seabed Hard Mineral Resources Act, Betsy Cox, Frank Brogan
Georgia Journal of International & Comparative Law
No abstract provided.
