CISG Article
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Kristen David Adams and Candace Zierdt, CISG, 76 Bus. Law. 1407 (2021)Clicking on the button will copy the full recommended citation.
Articles
Systematic Injustice: The Need for Disaster and Pandemic Preparedness Legislation Article
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Christine E. Cerniglia, Systematic Injustice: The Need for Disaster and Pandemic Preparedness Legislation, 99 U. Det. Mercy L. Rev. 53 (2021)Clicking on the button will copy the full recommended citation.
Designing the Tax Supermajority Requirement Article
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Andrew D. Appleby, Designing the Tax Supermajority Requirement, 71 Syracuse L. Rev. 959 (2021)Clicking on the button will copy the full recommended citation.
States are rekindling the trend of broad constitutional amendments that require supermajority approval to create or increase taxes. This trend may inadvertently harm states' already precarious fiscal footing, particularly with several new imminent expenditure demands. States can minimize negative economic consequences, however, through proper supermajority requirement design.
This article makes three contributions. First, it examines broad constitutional tax supermajority requirements' history, asserted justifications, and effectiveness. This examination concludes that the motivations underlying the first and second supermajority waves differ importantly from those underlying the possible third wave. Recognizing this novel motivation-signaling low-tax competitive advantage-allows this article to present optimal supermajority provision design principles.
Second, this article investigates several new sources that can generate immense tax revenue for states, but that will likely be obstructed by tax supermajority provisions if not designed properly. This article also identifies several expenditure demands that are unlikely to be satisfied without new or increased taxes.
Finally, this article presents tax supermajority requirement design principles that achieve a strong low-tax signaling function while allowing flexibility to maintain a low-tax competitive advantage. Fundamentally, the constitutional tax supermajority requirement should expressly encompass personal income tax, business taxes, and fees, while excluding transaction taxes. If a state decides to pursue a broad tax supermajority requirement, these design principles will best position a state to attract businesses and wealthy individuals while also achieving fiscal stability.
The Jury is Still Out: Waiver or Conversion of the Seventh Amendment Right to Jury Trial in Bankruptcy Cases Article
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Theresa J. Pulley Radwan, The Jury is Still Out: Waiver or Conversion of the Seventh Amendment Right to Jury Trial in Bankruptcy Cases, 45 Am. J. Trial Advoc. 81 (2021)Clicking on the button will copy the full recommended citation.
A Survey of Law School Deans on the Impact of the COVID-19 Pandemic Article
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D. Benjamin Barros and Cameron M. Morrissey, A Survey of Law School Deans on the Impact of the COVID-19 Pandemic, 52 U. Tol. L. Rev. 241 (2021)Clicking on the button will copy the full recommended citation.
We conducted an anonymous survey of deans at ABA-accredited law schools asking questions about the impact of the COVID-19 pandemic on legal education and on law school students, faculty, and staff. Invitations to participate in the survey were distributed through a listserv maintained by the ABA. The first invitation was sent out on November 20, 2020 and the last response was received on December 18, 2020. The survey was comprised of 56 questions, including six optional, extended response prompts. We received 51 total responses, representing a bit more than 25% of the 199 deans of ABA-accredited law schools.1 Not all respondents completed all of the questions, but we received responses for all of the questions on the survey from at least 20% of the 199 deans of ABA-Accredited law schools.
Review of Recent Veterans Law Decisions of the Federal Circuit 2020 edition Article
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Angela Drake et al., Review of Recent Veterans Law Decisions of the Federal Circuit 2020 edition, 70 Am. U. L. Rev. 1381 (2021)Clicking on the button will copy the full recommended citation.
This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of VA’s duty to sympathetically read claims. The Federal Circuit also issued important decisions regarding “effective dates” impacting the amount of money veterans can receive where claims linger for years in the adjudicative process. Finally, the court confirmed the validity of VA’s definition of willful and persistent misconduct.
Supreme Court News Article
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 46 Administrative & Regulatory Law News 18 (2021)Clicking on the button will copy the full recommended citation.
Platforms: The Postscript Article
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Walter Hellerstein and Andrew D. Appleby, Platforms: The Postscript, 100 Tax Notes State 1365 (2021)Clicking on the button will copy the full recommended citation.
Not Quite Right: Representations of Eastern Europeans in ECJ Discourse Article
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Dagmar Rita Myslinska, Not Quite Right: Representations of Eastern Europeans in ECJ Discourse, 34 International Journal of Politics, Culture, and Society 271 (2021)Clicking on the button will copy the full recommended citation.
Although the increasing responsiveness of the Court of Justice of the European Union (the ‘ECJ’) jurisprudence to western Member States’ concerns regarding Central and Eastern European (‘CEE’) nationals’ mobility has garnered academic attention, ECJ discourse has not been scrutinised for how it approaches the CEE region or CEE movers. Applying postcolonial theory, this article seeks to fill this gap and to explore whether there are any indications that ECJ discourse is in line with the historical western-centric inferiorisation of the CEE region. A critical discourse analysis of a set of ECJ judgments and corresponding Advocate General opinions pertaining to CEE nationals illustrates not only how the ECJ adopts numerous discursive strategies to maintain its authority, but also how it tends to prioritise values of the western Member States, while overlooking interests of CEE movers. Its one-sided approach is further reinforced by referring to irrelevant facts and negative assumptions to create an image of CEE nationals as socially and economically inferior to westerners, as not belonging to the proper EU polity and as not quite deserving of EU law’s protections. By silencing CEE nationals’ voices, while disregarding the background of east/west socio-economic and political power differentials and precariousness experienced by many CEE workers in the west, such racialising discourse normalises ethnicity- and class-based stereotypes. These findings also help to contextualise both EU and western policies targeting CEE movers and evidence of their unequal outcomes in the west, and are in line with today’s nuanced expressions of racisms. By illustrating the ECJ’s role in addressing values pertinent to mobile CEE individuals, this study facilitates a fuller appreciation of the ECJ’s power in shaping and reflecting western-centric EU identity and policies. Engaging with such issues will not only allow us to better appreciate—and question—the ECJ’s legitimacy, but might also facilitate a better understanding of power dynamics within the EU. This study also makes significant theoretical and methodological contributions. It expands (and complicates) the application of postcolonial theory to contemporary intra-EU processes, while illustrating the usefulness of applying critical discourse analysis to exploring differentiation, exclusion, subordination and power within legal language.
The Dichotomy Between Overcriminalization and Underregulation Article
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Ellen S. Podgor, The Dichotomy Between Overcriminalization and Underregulation, 70 Am. U. L. Rev. 1061 (2021)Clicking on the button will copy the full recommended citation.
The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?
Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations; as well as their enforcement procedures—the prosecution of crimes or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: 1) those advocating for increased criminalization and regulation; or, 2) those claiming overcriminalization and overregulation.
This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.