Legislation Commons^™

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the …

Reproductive Freedom And Virginia's 2012 General Assembly Session, Katherine Greenier

Richmond Public Interest Law Review

While the Governor approved H.B. 462, the mandatory ultrasound bill, H.B. 62, H.B. 1285, and S.B. 637 failed in the General Assembly.37 As introduced this 2012 session, H.B. 1 contained different bill language than the prior years it has been introduced. H.B. 62, H.B. 1285, and S.B. 637 were new bills, not seen in past years. An analysis and overview of these measures sheds light on the increasing attempts and the tactics used by legislators to undermine reproductive freedom.

Reproductive Freedom And Virginia's 2012 General Assembly Session, Katherine Greenier

Richmond Journal of Law and the Public Interest

While the Governor approved H.B. 462, the mandatory ultrasound bill, H.B. 62, H.B. 1285, and S.B. 637 failed in the General Assembly.37 As introduced this 2012 session, H.B. 1 contained different bill language than the prior years it has been introduced. H.B. 62, H.B. 1285, and S.B. 637 were new bills, not seen in past years. An analysis and overview of these measures sheds light on the increasing attempts and the tactics used by legislators to undermine reproductive freedom.

Distrust And Clarify: Appreciating Congressional Overrides, James J. Brudney

Faculty Scholarship

Deborah Widiss continues to make important contributions in an area of statutory interpretation that has been largely neglected: the consequences of congressional overrides. Professor Widiss previously demonstrated how the Supreme Court and lower courts often confine the reach of statutes that purposefully override prior court decisions, thereby reviving aspects of the overridden judicial interpretations as ―shadow precedents.‖ In Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, Professor Widiss addresses the Supreme Court‘s further expansion of judicial power in the aftermath of congressional disapproval. Faced with the override of its textual interpretation in one employment discrimination statute, the Court inferred …

A Proposal For An Alternate Dispute Resolution Process For The Fashion Industry After The Innovative Design Protection And Piracy Prevention Act, David Reap

Cardozo Journal of Conflict Resolution

This Note will explore the way alternative dispute resolution can be used to ensure that the proposed IDPPPA meets its stated goal without unnecessarily chilling creative efforts of unproven designers. Though the bill is aimed at stopping the proliferation of design copying (knockoffs), insiders are concerned that the bill will dissuade designers from producing designs that merely incorporate elements from other designs ("inspired-by" designs). Some believe that the judiciary will interpret the IDPPPA expansively, resulting in the punishment of designers who produce knockoffs as well as those who draw inspiration from other designs. However, a chilling effect could be mitigated …

A Moot Issue? Rethinking Holocaust Era Restitution Of Jewish Confiscated Personal Property In Poland, Lara Weissman

Cardozo Journal of Conflict Resolution

Part I of this note will recount the historical events in Poland that resulted in the massive and ruthless appropriation of Jewish property, not only by the Nazis and the Communist regime, but also by non-Jewish Poles. The inadequate restitution policies following Poland's independence will then be explored, demonstrating Poland's unwillingness to deal with the theft that occurred within its borders, instead favoring sheer dismissal of the issue in the hopes of concentrating on rebuilding its war-torn country.

Part IIA will explore Poland's continued refusal to create and enforce policies that would assist in the restitution process, marking Poland as …

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …

Copyright Policymaking As Procedural Democratic Process: A Discourse-Theoretic Perspective On Acta, Sopa, And Pipa, Annemarie Bridy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

School Districts And Families Under The Idea: Collaborative In Theory, Adversarial In Fact, Debra Chopp

Articles

To read the Individuals with Disabilities Education Act (IDEA) is to be impressed with the ambition and promise of special education. The statute guarantees disabled students a "free appropriate public education" (FAPE) in the "least restrictive environment." At the core of this guarantee lies an entitlement for the parents of a disabled child to collaborate with teachers and school administrators to craft an educational program that is both tailored to the child's unique needs and designed to help her make progress in her education. This entitlement, and the IDEA generally, represents an enormous advance for children with disabilities--a community that, …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson

Articles

China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …

The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann

Articles

When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental …

The Financial Crisis And The Path Of Reform, Michael S. Barr

Articles

In the lead-up to the financial crisis, the U.S. financial sector was overleveraged, short-funded, risky, and opaque. "Shadow banking" permitted institutions to avoid comprehensive supervision and capital requirements. Innovation outpaced the ability or willingness of private- and public-sector guardians to rein in risks. An asset bubble fed the system, until the market imploded in the fall of 2008. When the crisis hit, our society found itself illequipped to deal with the failure of leading financial firms. In the wake of the crisis, the Obama Administration proposed a set of reforms that were eventually embodied, in large part, in the Dodd-Frank …

Do Sex Offender Registries Make Us Less Safe?, J. J. Prescott

Articles

State legislatures enacted sex offender registration and notification (SORN) laws with the explicit and exclusive aim of reducing sex offender recidivism. The general idea that we ought to “regulate” released offenders — of any type — to reduce the likelihood of their returning to crime is an attractive one, at least in theory. Criminal recidivism generates significant social harm. Nevertheless, despite their now-widespread use, SORN laws became the norm without any systematic study of their consequences. Admittedly, the logic underlying these laws seems at first difficult to gainsay: if a known sex offender poses even a small risk to a …

When Federal And State Systems Converge: Foreign National Human Trafficking Victims Within Juvenile And Family Courts, Bridgette A. Carr

Articles

This article highlights the concerns facing foreign national children who are both victims of human trafficking and under the jurisdiction of juvenile and family courts. Human trafficking is modern day slavery in which individuals, including children, are compelled into service and exploited. Foreign national human trafficking victims in juvenile and family court systems must navigate both the state system and a complex federal immigration system. This article explains the federal benefits available to these children and identifies the best practice approaches for juvenile and family court systems to increase identification of and support for foreign national child trafficking victims.jfcj_1073

Why I Do Law Reform, Lawrence W. Waggoner

Articles

In this Article, Professor Waggoner, newly retired, provides a retrospective on his career in law reform. He was inspired to write the Article by a number of articles by law professors explaining why they write. He contrasts law-reform work with law-review writing, pointing out that the work product of a law-reform reporter is directed to duly constituted law-making authorities. He notes that before getting into the law-reform business, he had authored or co-authored law review articles that advocated reform, but he also notes that those articles did not move the law a whit. The articles did, however, lead to his …

Abuse, Mediation And The Catholic Church: How Enforcing And Improving Existing Statutes Will Help Victims Recover, Jeffrey Pruzan

Cardozo Journal of Conflict Resolution

Allegations of sexual abuse at the hands of religious figures is an epidemic that has spread throughout the United States and abroad.' In the United States alone, U.S. bishops have reported receiving allegations of abuse committed by 6,115 Catholic priests, or 5.6 percent of the 109,694 active U.S. priests since 1950. The U.S. bishops also reported receiving allegations from 15,235 victims, or 2.6 victims per priest; however, this figure is universally acknowledged to be low. Some estimates put the number of victims in the United States at over 280,000.

Valuing Art In An Estate: New Concerns, Anne-Marie Rhodes

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Houston, We've Got A [Provisional] Problem: An Analysis Of 35 U.S.C. § 154(D), Brian L. Tremer

Student Works

This article considers the inherent problems in granting provisional patent rights and the resulting tension between patent applicants and the public domain. Patent law is designed to encourage innovation and incentivize creation. To this end, there must be a balance struck between the private rights granted to a creator and the rights removed from the public. Patents, once issued, allow individuals to seize a limited monopoly over their intellectual property as a constitutional right. These exclusive rights provide incentive to disclose new works to society and thus justify weakening the public’s rights. 35 U.S.C. § 154(d) grants to a patent …

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …