WATERS OF THE UNITED STATES: THEORY, PRACTICE, AND INTEGRITY AT THE SUPREME COURT
Jamison E. Colburn
In the Supreme Court’s two wetlands cases in the 2005 Term, a question of statutory interpretation divided the Justices sharply, in part because so much rides on the particular statutory provision at issue. The provision—a cryptic definition within the Clean Water Act (CWA)1—has now provided three separate occasions for the Justices to confront (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA’s enormous project of restoring the chemical, physical, and biological integrity of the nation’s waters. In this Article, I argue that the way the Court went about resolving its differences is, unfortunately, not just instructive to environmental lawyers. It is illustrative of the Court’s failed minimalism, disregard for its own precedents, and tired use of semantics where truly substantive problems are confronting our society.
THE SEC AND THE FAILURE OF FEDERAL TAKEOVER REGULATION
Steven M. Davidoff
There is a belief that the federal government is on the march in the corporate law realm. The common wisdom is that a reengaged federal government will, at least in some measure, preempt or otherwise regulate corporate matters traditionally left to the states. It is evidenced by congressional action in the Sarbanes-Oxley Act and Securities and Exchange Commission (SEC) initiatives. It has spurred some in academia to recast the seemingly eternal race-to-thebottom/race-to-the-top state corporate law debate into a struggle between the federal government and Delaware. It has revealed itself in public handwringing by Delaware authorities over the possibility, and undesirability, of their reduced role in corporate regulation. In short, it is a viewpoint that has become pervasive and consequential.
MEDIATORS AS MANDATORY REPORTERS OF CHILD ABUSE: PRESERVING MEDIATION’S CORE VALUES
Consider the following: During a joint session of a child custody mediation one parent says to the other, “The children are afraid of spending time with you. Let’s just put it on the table, your disciplining of the children is nothing short of abuse!” Following a predictable response that the discipline situation is being blown out of proportion, the accusing parent describes three episodes of apparently abusive behavior. What responsibilities does the mediator have once the information is divulged? Should the mediator immediately contact the state Child Protection Services and report the alleged abuse? What happens if the mediator does not make a report? The answers to these questions depend on several factors, but should they?
REASONABLE BURDENS: RESOLVING THE CONFLICT BETWEEN DISABLED EMPLOYEES AND THEIR COWORKERS
Nicole B. Porter
This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in U.S. Airways, Inc. v. Barnett)1 have weighed in on this debate, but their analyses fall short of the ultimate goal of this Article—to achieve equal opportunity for individuals with disabilities without unnecessarily interfering with the rights of other employees. In order to achieve that goal, this Article proposes a statutory amendment to the reasonable accommodation provision of the ADA. This amendment would make reasonable most accommodations that affect other employees, unless the accommodation results in the termination of another employee. In this way, more productive disabled employees will remain employed, while only placing a reasonable burden on the rest of the workforce.
CANONS, THE PLENARY POWER DOCTRINE, AND IMMIGRATION LAW
Brian G. Slocum
There is a fundamental dichotomy in immigration law. On one hand, courts have consistently maintained that Congress has “plenary power” over immigration and reject most constitutional challenges on that basis. On the other hand, courts frequently use canons of statutory construction aggressively to help interpret immigration statutes in favor of aliens. Immigration scholars have almost exclusively focused on the plenary power doctrine. They have either ignored the important role played by canons in immigration law or have viewed canons as serving only the temporary and marginally legitimate role of substitutes for the constitutional rights not afforded aliens. In this Article, I defend canons and argue that they should be viewed as having a permanent and legitimate role in interpreting immigration provisions, even in cases where no constitutional issues are raised. I explain that part of the function of some canons is to require courts to often adopt second-best interpretations of statutes. Contrary to the claims of some scholars, these second-best interpretations do not add unpredictability to the law. While I defend the canons that courts have chosen to apply in immigration cases on normative grounds, the Court’s recent application of the canon of constitutional avoidance presents new concerns. The Court has recently transformed the canon, which requires courts to avoid serious constitutional issues through statutory interpretations, into a device that often gives aliens as a whole greater rights, at least temporarily, than would a decision that rested on constitutional grounds. The expansion of the canon of constitutional avoidance means that courts should be particularly careful when applying it to avoid unnecessarily disrupting Congress’s legislative designs.
FUNCTIONAL NEUROIMAGING INFORMATION: A CASE FOR NEURO EXCEPTIONALISM?
Stacey A. Tovino
The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.
ESTABLISHING A MORAL DUTY TO OBEY THE LAW THROUGH A JURISPRUDENCE OF LAW AND ECONOMICS
This Article will examine whether a legal system with a jurisprudence of law and economics can establish a moral duty to obey the law. It is assumed that a jurisprudential system of law and economics is wealth-maximizing.1 If the jurisprudence can also be found to command a moral duty to obey the law, then a legal system has been established that simultaneously answers two of the most fundamental issues in society. This investigation limits its scope of wealthmaximizing legal systems to two schools of “free market” law and economics—the Chicago and Austrian schools. Part II of this Article determines that the most effective methodology to establish a moral duty to obey the law measures the procedural assurances of substantive justice. This methodology was recently developed by Randy Barnett. Part III of this Article establishes substantive justice through the natural rights recognized by the philosophy of classical liberalism, the protection of which will establish substantive justice. Finally, Part IV evaluates the policies of the two law and economics schools to determine the level of procedural protection they would provide for those natural rights as a jurisprudence.
THE WIND AND THE WAVES: THE EVOLUTION OF FLORIDA PROPERTY INSURANCE LAW IN RESPONSE TO MULTIPLECAUSATON HURRICANE DAMAGE
Property insurance in Florida has long been regulated by the Valued Policy Law. Its aim is simple: to prevent litigation and promote fairness to consumers of insurance by requiring that, in the event of a total loss to a building, an insurer pay the full value of the policy limits under the insurance contract. The law protects homeowners and facilitates the quick settlement of claims by preventing the insurer from claiming that the structure was, in fact, worth less than the amount it was insured for.
HAVE ESTATE PLANNERS HIJACKED THE LLC? HOW RESTRICTIONS ON DISSOLUTION HAVE CRIPPLED THE LLC AS A VIABLE SMALL BUSINESS ENTITY
When blushing couples walk down the aisle, they hope to live happily ever after, promising “ ’til death do us part.” Even with such high hopes, many savvy couples sign prenuptial agreements in anticipation of the possibility that the marriage might not turn out as they had planned. Indeed, many individuals will not enter into a marriage without having such an agreement in place. How many would enter into a marriage today if it were possible that their state might not permit them to divorce at all?
INTERNATIONAL ILLICIT CONVERGENCE: THE GROWING PROBLEM OF TRANSNATIONAL ORGANIZED CRIME GROUPS’ INVOLVEMENT IN INTELLECTUAL PROPERTY RIGHTS VIOLATIONS
The European Council’s case study of Russia and economic crimes showed intellectual property as one of “the primary targets for the infiltration of organised economic crime.” All six organized crime groups from Taiwan and Hong Kong in a pilot study were involved in pirating CDs and DVDs, and pirating was the dominant activity for one group. NATO reported that Nigerian organized crime groups were engaged in large-scale counterfeiting operations. DrinkOrDie, a group founded in Russia, grew to the largest online piracy network before getting caught by U.S. federal authorities and included hackers from the United States, Australia, Norway, Finland, the United Kingdom, and others.