Legislation Commons^™

Engineering The Endgame, Ellen D. Katz

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

Pleading With Congress To Resist The Urge To Overrule Twombly And Iqbal, Michael R. Huston

Michigan Law Review

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court changed the rhetoric of the federal pleading system. Those decisions have been decried by members of the bar, scholars, and legislators as judicial activism and a rewriting of the Federal Rules of Civil Procedure. Such criticism has led members of both houses of Congress to introduce legislation to overrule the decisions and return to some variation of the "notice pleading" regime that existed before Twombly. This Note argues that both of the current proposals to overrule Twombly and Iqbal should be rejected. Although the bills take different …

Structure And Precedent, Jeffrey C. Dobbins

Michigan Law Review

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …

Populist Retribution And International Competition In Financial Services Regulation, Adam C. Pritchard

Articles

The pattern of regulatory reform in financial services regulation follows a predictable pattern in democratic states. A hyperactive market generates a bubble, the bubble deflates, and much financial pain ensues for those individuals who bought at the top of the market. The financial mess brings the scrutiny of politicians, who vow "Never again!" A political battle ensues, with representatives of the financial services industry fighting a rearguard action to preserve its prerogatives amidst cries for the bankers' scalps. Regulations, carefully crafted to win the last war, are promulgated. Memories fade of the foolish enthusiasm that fed the last bubble. Slowly, …

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …

The Costs Of Consensus In Statutory Construction, Ethan J. Leib, Michael Serota

Faculty Scholarship

Finding methodological consensus for statutory interpretation cases is all the rage these days.1 Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s authoritative article, Laboratories of Statutory Interpretation, proponents of interpretive uniformity have evidence that some state courts seem to be applying methodological stare decisis to decide questions of statutory interpretation. After exhaustive reading and analysis of state statutory interpretation cases—cases that have received far less attention than their federal counterparts—Gluck describes several …

In The Manner Prescribed By The State: Potential Challenges To State-Enforced Hospital Limitations On Childbirth Options, Krista Stone-Manista

Cardozo Journal of Equal Rights & Social Justice

The article argues that hospital bans on vaginal births after cesarean (VBAC) infringe upon women's legal and constitutional rights, violating principles of autonomy and equality. These bans are not only medically unnecessary but also undermine international human rights standards that protect women's decisional autonomy in healthcare. The analysis posits that such bans discriminate against women and set a dangerous precedent for state and medical control over women's bodies during pregnancy.

What Went Wrong? Why Family Preservation Programs Failed To Achieve Their Potential, Steven M. Cytryn

Cardozo Journal of Equal Rights & Social Justice

The failure of family preservation programs in the child welfare system stems from structural and legal shortcomings, including inadequate funding, unclear guidelines, and insufficient oversight. These issues, compounded by the Supreme Court's Suter v. Artist M. decision, which undermined the enforceability of the "reasonable efforts" standard, have led to inconsistent implementation and reduced accountability. To address these challenges, the article advocates for reforms such as aligning funding incentives with family preservation goals, establishing clear program standards, and distinguishing between neglect caused by poverty and other forms of maltreatment. By implementing these changes, the child welfare system can better support families …

Civil Rights And Federal Courts: Creating A Two-Course Sequence, Howard M. Wasserman

Faculty Publications

No abstract provided.

It’S Not A Small World After All: Regulating Obesity Globally, Eloisa Rodriguez-Dod

Faculty Publications

The rate of obesity and overweight among the world population has increased dramatically over the past several years in both adults and children. Childhood obesity is a critical health care concern. There have been well-publicized efforts to regulate children‘s obesity both in the U.S. and abroad through such measures as mandated nutritional school lunch programs.

This article focuses, however, on a less examined area of regulation—the recent worldwide efforts to curb obesity among adults. The regulations discussed in this article include measures proposed or adopted by either administrative agencies or legislative bodies, whether on a local or national level. The …

Faithful Agent, Integrative, And Welfarist Interpretation, Thomas W. Merrill

Faculty Scholarship

We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between "originalists" and "nonoriginalists". In the statutory arena, we have a three-way battle between "textualists," "intentionalists", and "pragmatists." A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the Practice of interpretation. Real world interpreters – to a person – deploy a variety of interpretative methods when they seek to resolve …

Canon Shortfalls And The Virtues Of Political Branch Interpretive Assets Tribute Issue In Honor Of Philip P. Frickey: Festschrift, James J. Brudney

Faculty Scholarship

As a legislation scholar, Philip Frickey was present at the creation.I Along with his coauthor William Eskridge, Frickey reconceptualized the field of legislation and statutory interpretation. In doing so, he opened the door to an unparalleled period of inquiry and debate about the meaning of statutes, among both judges and academics. The Eskridge and Frickey casebook, published in 1988, was justly hailed by Judge Richard Posner as having "done for legislation what Hart and Sacks did for legal process, or Hart and Wechsler for federal courts: it has demonstrated the existence of a subject." Over the ensuing two decades, Frickey …

The Insurance Policy As Statute, Jeffrey W. Stempel

Scholarly Works

Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective primacy …