Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation,
2014
Seattle University School of Law
Invidious Deliberation: The Problem Of Congressional Bias In Federal Hate Crime Legislation, Sara Rankin
Faculty Articles
The intersection of power and prejudice can control the shape of statutory law, and yet a dearth of legal scholarship investigates it. Invidious Deliberation addresses that deficit. It tackles the problem of prejudice in Congressional deliberations at a particularly critical point: when Congress decides which groups to protect under federal hate crime legislation. The article contends that Congress’s own bias may exclude the most vulnerable groups from hate crime protection. To illustrate the point, this article systematically reviews over two decades of Congressional decisions with respect to expansions of the Hate Crime Statistics Act, a “gateway” for groups seeking protection …
A Reflection On Erisa Claims Administration And The Exhaustion Requirement,
2014
University at Buffalo School of Law
A Reflection On Erisa Claims Administration And The Exhaustion Requirement, James A. Wooten
Journal Articles
This essay, prepared in connection with the Drexel Law Review Symposium, ERISA at 40: What Were They Thinking?, examines ERISA’s regime for administering benefit claims and, in particular, the requirement that participants exhaust their plan’s review procedures before filing suit to recover benefits. Like other key elements of ERISA’s claims regime, the exhaustion requirement is a judicial creation that is not articulated in ERISA’s text. Interestingly, former congressional staffers who attended the Symposium said they assumed participants would be required to exhaust plan review procedures but failed to include such a requirement in the legislation. After reviewing the development of …
Unclaimed Remains And Next Of Kin: A New Path To The Final Resting Spot,
2014
University of Richmond
Unclaimed Remains And Next Of Kin: A New Path To The Final Resting Spot, W. Scott Johnson Esquire
Richmond Public Interest Law Review
In response to requests from health care facilities, law enforcement agencies, and funeral service establishments, Senator Kenny Alexander (DNorfolk) convened a workgroup of stakeholders to rewrite the statutes dealing with unclaimed remains and next of kin. In addition to serving the General Assembly, Senator Alexander owns several prominent funeral service establishments and is a funeral service licensee. His experience proved invaluable to the process. The stakeholder meetings began in the fall of 2013 and culminated in the introduction of Senate Bill 304 in the 2014 Session of the Virginia General Assembly. The bill passed without a single negative vote through …
The Evolution Of Federal Ea In Canada: One Step Forward, Two Steps Back?,
2014
Dalhousie University, Schulich School of Law
The Evolution Of Federal Ea In Canada: One Step Forward, Two Steps Back?, Meinhard Doelle
Research Papers, Working Papers, Conference Papers
This working paper provides a brief history of federal EA in Canada, and then offers an overview of the federal environmental assessment process (CEAA) before and after major changes introduced in 2012. The paper concludes with a brief summary of issues raised in two judicial review applications recently filed with respect to the application of CEAA 2012.
Liberty And Justice For All? Protecting The Right To Privacy For Incapacitated Individuals: The Need For Comprehensive Sterilization Legislation In All Fifty States,
2014
Benjamin N. Cardozo School of Law
Liberty And Justice For All? Protecting The Right To Privacy For Incapacitated Individuals: The Need For Comprehensive Sterilization Legislation In All Fifty States, Mindy K. Fersel
Cardozo Journal of Equal Rights & Social Justice
The note examines the intersection of disability rights and reproductive rights, highlighting the legal confusion and human rights violations that arise from the lack of comprehensive federal guidance on the sterilization of individuals with disabilities. While landmark Supreme Court decisions like Griswold v. Connecticut and Roe v. Wade established constitutional protections for reproductive autonomy, the legacy of cases such as Buck v. Bell and inconsistent state statutes continue to undermine the rights of individuals with disabilities. The article argues that the absence of clear legislative frameworks leaves vulnerable populations at risk of exploitation and discrimination, necessitating urgent reform to ensure …
After The Tiers: Windsor, Congressional Power To Enforce Equal Protection, And The Challenge Of Pointillist Constitutionalism,
2014
Brooklyn Law School
After The Tiers: Windsor, Congressional Power To Enforce Equal Protection, And The Challenge Of Pointillist Constitutionalism, William D. Araiza
Faculty Scholarship
No abstract provided.
President Obama And The New Politics Of Inclusion In The Climate Change Debate,
2014
Florida A&M University College of Law
President Obama And The New Politics Of Inclusion In The Climate Change Debate, Leslie G. Fields, Royce G. Brooks
Florida A & M University Law Review
No abstract provided.
There Oughta Be A Law—A Model Law,
2014
University of Washington School of Law
There Oughta Be A Law—A Model Law, Mary Whisner
Librarians' Articles
Uniform and model laws are frequently proposed to standardize “what the law is or should be” for specific jurisdictions. These model acts can come from national or international drafting organizations, such as the Uniform Law Commission, or from interest groups or associations that want to promote specific policies. Ms. Whisner provides an overview of the various types of model laws that researchers should know about.
Report: The Need To Renew Tria Aba Tips Task Force On Federal Involvement In Insurance Regulation Modernization,
2014
University of Missouri - Kansas City, School of Law
Report: The Need To Renew Tria Aba Tips Task Force On Federal Involvement In Insurance Regulation Modernization, Jeffrey E. Thomas
Faculty Works
This Report support’s the position by the ABA TIPS Task Force on Federal Involvement in Insurance Regulation Modernization that the Terrorism Risk Insurance Act (TRIA) should be renewed. Although the market for terrorism insurance has developed with the support of TRIA, the fundamental nature of terrorism risk has not changed and continues to require the Federal backstop. Because of the unpredictability of terrorism risk, without a Federal backstop many insurers will withdraw from the terrorism market, the price of terrorism insurance will rise and take-up rates will fall. Other countries facing terrorism risk, in some cases substantially less risk than …
The Individual Mandate Tax Penalty,
2014
Florida State University College of Law
The Individual Mandate Tax Penalty, Jeffrey H. Kahn
University of Michigan Journal of Law Reform
In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court upheld the constitutionality of that provision under Congress’s taxing power. Despite the Supreme Court upholding the individual mandate, fundamental questions remain. This Article addresses the question of whether the use of a tax penalty to encourage taxpayers to do something that the government desires is …
Ridding The Law Of Outdated Statutory Exemptions To Antitrust Law: A Proposal For Reform,
2014
University of Michigan Law School
Ridding The Law Of Outdated Statutory Exemptions To Antitrust Law: A Proposal For Reform, Anne Mcginnis
University of Michigan Journal of Law Reform
Antitrust law is designed to be an overarching check against anticompetitive conduct that harms the free market system. Almost as soon as the first antitrust laws were enacted in the United States, however, industry groups began lobbying Congress for exemptions from these laws. Most of the statutory exemptions created over the last one hundred years remain in place, despite widespread changes in economic theory, market structures, and overall antitrust law. Today, some exemptions are merely irrelevant, while others actively harm society by transferring wealth to private individuals and hampering beneficial competition. This Note proposes a fourpart legislative solution to rid …
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act,
2014
University of Michigan Law School
Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers
University of Michigan Journal of Law Reform
This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …
Decorating The Structure: The Art Of Making Human Law,
2014
University of Oklahoma College of Law
Decorating The Structure: The Art Of Making Human Law, Brian Mccall
Faculty Articles
This article continues to develop the theme of law as architecture begun in two published articles, The Architecture of Law: Building Law on a Solid Foundation, the Eternal and Natural Law and Consulting the Architect when Problems Arise: The Divine Law. Having considered the foundation and framework of human law, this article turns to the decoration of the structure through the craft of human law making. It examines the process whereby the natural law is determined in particular political communities. Human law is the craft of particularizing the general principles of natural law in a community’s laws. It relies on …
In Defense Of Idea Due Process,
2014
DePaul University College of Law
In Defense Of Idea Due Process, Mark Weber
College of Law Faculty
Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …
Cybersecurity And The Administrative National Security State: Framing The Issues For Federal Legislation,
2014
Indiana University Maurer School of Law
Cybersecurity And The Administrative National Security State: Framing The Issues For Federal Legislation, David G. Delaney
Articles by Maurer Faculty
In the digital age, every part of federal government has critical cybersecurity interests. Many of those issues are brought into sharp focus by Edward Snowden's disclosure of sensitive government cyber intelligence programs conducted by the National Security Agency, the Federal Bureau of Investigation, and the Central Intelligence Agency. Courts are reviewing various constitutional and statutory challenges to those programs, two government review groups have reported on related legal and policy issues, and Congress is considering cyber intelligence reform proposals. All of this action comes on the heels of significant efforts by successive administrations to restructure government and pass comprehensive cybersecurity …
We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes,
2014
Benjamin N. Cardozo School of Law
We Are Not Who We Pretend To Be: Odr Alternatives To Online Impersonation Statutes, Kori Clanton
Cardozo Journal of Conflict Resolution
This Note focuses on how online dispute resolution ("ODR") processes, as opposed to litigation, offer a more efficient and effective legal solution to resolving online impersonation disputes. The purpose of this Note is to analyze the measures state legislatures and social media websites have implemented to combat online impersonation cases, and to propose a practical ODR solution that will eliminate the burdens of litigation and provide a cost-efficient and time-effective remedy. Section I provides an introduction to the current relevance and rising incidents of online impersonation via social media websites such as Facebook and Twitter. Section II explores the historical …
Is The Independent Director Model Broken?,
2014
Brooklyn Law School
Is The Independent Director Model Broken?, Roberta Karmel
Faculty Scholarship
No abstract provided.
Viva Conditional Federal Spending!,
2014
University of Michigan Law School
Viva Conditional Federal Spending!, Samuel R. Bagenstos
Articles
From the rise of the New Deal through the constitutional litigation over the Affordable Care Act (ACA), conditional federal spending has been a major target for those who have sought to limit the scope of federal power. There are a couple of reasons for this. First, as the Supreme Court narrowed Congress's power to regulate private primary conduct and state conduct in the last twenty years,' conditional spending looked like the way Congress might be able to circumvent the limitations imposed by the Court's decisions. Thus, members of Congress quickly sought to blunt the impact of the Court's decision to …
The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy,
2014
University of Michigan Law School
The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane
Articles
Of all Robert Bork’s many important contributions to antitrust law, none was more significant than his identification of economic efficiency, disguised as consumer welfare, as the sole normative objective of U.S. antitrust law. The Supreme Court relied primarily on Bork’s argument that Congress intended the Sherman Act to advance consumer welfare in making its landmark statement in Reiter v. Sonotone that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’” This singular normative vision proved foundational to the reorientation of antitrust law away from an interventionist, populist, Brandeisian, and vaguely Jeffersonian conception of antitrust law as a constraint on …
Understanding The Amt, And Its Unadopted Sibling, The Amxt,
2014
University of Michigan Law School
Understanding The Amt, And Its Unadopted Sibling, The Amxt, James R. Hines Jr., Kyle D. Logue
Articles
Four million Americans with extensive tax preferences are subject to the Alternative Minimum Tax (AMT). By taxing a broad definition of income, the AMT makes it possible to have a tax system that both encourages certain activities with generous tax preferences and maintains a semblance of distributional equity. The same rationale supports the imposition of an Alternative Maximum Tax (AMxT), which would cap tax liabilities of individuals with very few preference items and thereby afford Congress greater flexibility in designing the income tax. The original 1969 AMT proposal included an AMxT; it is difficult to justify imposing one without the …
