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Ellen S. Podgor, Introduction: Corporate Criminal Liability 2.0, 46 Stetson L. Rev. 1 (2016)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Transparency and Policymaking at the Supreme Court, 32 Ga. St. U. L. Rev. 903 (2016)Clicking on the button will copy the full recommended citation.
Transparency is undoubtedly an important principle in a democratic government. It is not, however, necessarily a one-size-fits-all proposition. This holds true for issues of transparency at the Supreme Court. Whereas the Court’s traditional adjudicative responsibilities fit comfortably within norms of transparent decision making like publishing written opinions in merits cases, some of its other, more policy-oriented roles do not. This short paper considers two areas in which the Court’s activities more closely resemble policy judgments than traditional adjudication — certiorari and recusal — and uses them as examples of how the nature of the Court’s activity can impact the value of transparency in that activity. It does not seek to prove that transparency is per se less valuable in certiorari and recusal decisions, but rather to highlight the highly discretionary nature of those decisions and to propose that granting such a high degree of latitude to the Court also triggers some of the protections, like the deliberative process privilege, that are more commonly associated with policymaking by administrative agencies. The result is a call for a more context-based dialogue about transparency at the Court in hopes of promoting both our democratic values and the legitimacy of one of our most important institutions.
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Royal C. Gardner, Achieving Aichi Biodiversity Target to Improve the Performance of Protected Areas and Conserve Freshwater Biodiversity, 26 Aquatic Conservation: Marine Freshwater Ecosystems 133 (2016)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor and Lucian Dervan, White Collar Crime: Still Hazy After All These Years, 50 Ga. L. Rev. 709 (2016)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor and Darnesha K. Carter, Miranda at 50, 40 Champion 16 (2016)Clicking on the button will copy the full recommended citation.
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Robyn Powell and Michael Ashley Stein, Persons with Disabilities and their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis Focus: Disability Rights in China and in the World, 11 Frontiers of Law in China 53 (2016)Clicking on the button will copy the full recommended citation.
Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.
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Theresa J. Pulley Radwan, With Malice Toward One? — Defining Nondischargeability of Debts For Willful and Malicious Injury Under Section 523(a)(6) of the Bankruptcy Code, 7 Wm. & Mary Bus. L. Rev. 151 (2016)Clicking on the button will copy the full recommended citation.
The federal bankruptcy system strikes a balance between the rights of debtors seeking a fresh start and the rights of creditors seeking repayment for debt. While many areas of the Bankruptcy Code provide examples of this balancing act, perhaps no area of the Code embodies this balance better than discharge of debt. Discharge of debt provides the fresh start for debtors on which the bankruptcy system rests, but the Code also protects the interests of creditors who would otherwise have their claims against the debtor discharged.
Section 523(a)(6) excepts from discharge any debt for willful and malicious injury by the debtor to another entity or to the property of another entity. Clearly, this section prohibits discharge for debts that result from a bad act of the debtor, and serves a punitive function by not allowing a debtor to use the bankruptcy system to avoid debts when the debtor acted wrongfully in incurring those debts. While the Supreme Court has had the opportunity to consider the definition of willful and malicious injury, it has done so only in the context of a tort claim, leaving courts to determine the applicability of § 523(a)(6) in the context of breach of contract claims.
This article merges traditional tort doctrine regarding levels of intent to harm, traditional contract doctrine of efficient breach, and modern developments recognizing punitive damages in contract actions to conclude that § 523(a)(6) should permit nondischargeability of intentional breaches of contract that lack business justification.
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Grant Christensen, Personal Jurisdiction and Tribal Courts After Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country, 68 Rutgers U. L. Rev. 1367 (2016)Clicking on the button will copy the full recommended citation.
In 2014 the United States Supreme Court added two new cases to the canon on the meaning of due process in the context of personal jurisdiction. These cases clarified the metes and bounds of specific and general personal jurisdiction. However, decisions that fit within the state and federal court system do not always easily have cross applications to tribal courts – which nonetheless are obliged to extend due process rights via the Indian Civil Rights Act. This article takes the Supreme Court’s 2014 decisions and discusses their potential application to tribal courts and their use within Indian Country.
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Paul Boudreaux, Lotting Large: Reconsidering Large Lot Zoning, 68 Me. L. Rev. 1 (2016)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Administrative Abstention, 67 Ala. L. Rev. 1019 (2016)Clicking on the button will copy the full recommended citation.
Abstention — a federal court’s decision to avoid interfering with an ongoing state proceeding — offers a snapshot into the foundations of our constitutional arrangement. In addition to notions of equity and comity, abstention conjures issues of federalism, the separation of powers, and democratic legitimacy. When abstention intersects with state administrative law, these issues take on new force and, in some instances, new meaning. Unlike state courts, administrative agencies occupy a tenuous position in a tripartite democracy and are tasked with making often difficult and controversial policy decisions. A federal court’s decision to interfere with that policymaking process has consequences for state government far beyond the interruption of a purely judicial proceeding. Yet despite the different stakes raised by administrative abstention, the Supreme Court and the academic literature have largely overlooked the unique interplay between abstention and administrative law. This Article recasts administrative abstention as a distinct species of abstention and evaluates it in terms of the principles of democratic legitimacy and good government that provide the foundation for the administrative state. Only by thinking of abstention in distinctly administrative terms can we fashion a relationship between federal courts and state agencies that protects the legitimacy of state administrative governance while maintaining a robust forum for the vindication of federal rights.