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Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137 (2013)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, International Environmental Law, 47 American Bar Association Section of International Law Year in Review 435 (2013)Clicking on the button will copy the full recommended citation.
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Elizabeth Berenguer, In Defense of Scholarship, 27 Second Draft 4 (2013)Clicking on the button will copy the full recommended citation.
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Ashley Krenelka, Put Your Library on the Map, Part 2: The Waiting Game, AALL Spectrum Online (2013)Clicking on the button will copy the full recommended citation.
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Ciara Torres-Spelliscy, Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics, 12 Conn. Pub. Int. L.J. 361 (2013)Clicking on the button will copy the full recommended citation.
At first blush, the SEC’s regulation of money in politics may seem to fall outside of its jurisdiction, but this is a mistake. This view ignores three previous times when the SEC stepped in to curb pay to play: (1) in the municipal bond market in 1994; (2) in the public pension fund market in 2010; and (3) in investigating questionable payments post-Watergate from 1974 to 1977. The result of the first two interventions led to new Commission rules and the third intervention resulted in the Foreign Corrupt Practices Act (a federal statute).
When these three previous SEC interventions into the role of money in politics are examined, a principled model emerges for when the Commission’s regulatory intervention is appropriate. The principled model, hereinafter known as the “Money in Politics Model,” has the following characteristics: there must be (1) a potential for market inefficiencies; (2) a problem that is not likely self-correct through normal market forces; (3) a lack of transparency; (4) a material amount of aggregated money at stake; and (5) a high probability for corruption of the government.
The Money in Politics Model’s characteristics were present in the all three past SEC interventions. As will be explained in more detail below, in the municipal bond market and public pension funds, there was an endemic problem of pay to play between state elected officials and businesses eager to contract with them for lucrative fees. The post-Watergate investigation revealed even more profound problem of secret corporate funds used for political contributions domestically and bribes of foreign officials abroad.
So does the post-Citizens United world of corporate political spending rise to the same level as these three previous examples? Does post-Citizens United political spending fit the SEC’s Money in Politics Model and merit the SEC’s intervention? This article will argue that the Model fits and the SEC should act.
The SEC is not new to the inherent conflicts of interest between business and government, especially when elected officials have the ability to make private contractors in the financial services industry rich through commissions and fees. The risk of corruption is intrinsic in such a situation. Here corruption is best captured by the definition as “the misuse of public…office for direct or indirect personal gain.” What is new as of January 2010, thanks to Citizens United, is the potential for every publicly traded company to try to influence the government not just through traditional lobbying, but also through campaign expenditures. This new problem merits a new SEC intervention to reveal the campaign activities of public companies.
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Elizabeth Berenguer, Gideon’s Legacy: Taking Pedagogical Inspiration from the Briefs that Made History, 18 Barry L. Rev. 227 (2013)Clicking on the button will copy the full recommended citation.
In honor of the fiftieth anniversary of the Gideon decision, this article guides the rhetorical study of the party briefs as a strategy for cultivating individual voice in legal writing. It is a rhetorical study of the party briefs filed in Gideon v. Wainwright, a 1963 U.S. Supreme Court decision establishing the constitutional right to counsel in state criminal proceedings and provides specific lessons to be used in the classroom setting to enhance students’ understanding of advanced persuasive techniques such as logos, ethos, pathos, and storytelling. Each lesson has been created through the lens of cognitive theory, in particular the concept of categories as organizers of perception. This article proposes that categories can either be reinforced or redefined to accomplish rhetorical purposes, and having a meta-cognitive understanding of that power is essential effective advocacy.
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Michael S. Finch, Florida Appellate Law: Certiorari Review of Non-Final Orders: Introduction, 42 Stetson L. Rev. 373 (2013)Clicking on the button will copy the full recommended citation.
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Joseph F. Morrissey, A Contractarian Critique of Citizens United, 15 U. Pa. J. Const. L. 765 (2013)Clicking on the button will copy the full recommended citation.
In Citizens United v. Federal Election Commission, a 5-4 majority overturned a congressional enactment limiting corporate electioneering. Decided in 2010, the Citizens United opinion has already been harshly criticized by a broad spectrum of people, ranging from President Obama to Ben & Jerry. A group of senators has even called for a constitutional amendment to undo the results of that decision.
In this article, I criticize the majority opinion in Citizens United for ignoring the prevailing contractarian view of a corporation. In so doing, the majority arrived at the false conclusion that corporations should be entitled to the constitutional protections of individual citizens. This article presents a new way of using the contractarian paradigm as a defense of corporation regulation.
Under the contractarian paradigm, corporations are understood as a nexus of contracts among the corporation’s constituents. The contractarians typically draw the normative conclusion that since parties freely enter into those contracts, parties should be at liberty to set whatever terms they like without government regulation.
My article argues for the opposite normative conclusion, that exactly because the contracts at stake are often not in fact bargained for freely or fairly, as the theoreticians argue, that there is need for government regulation to make sure that the contracting process and the resulting bargains are fair. I use contract law jurisprudence to show that defenses to contract enforcement ex post, can justify government regulation of corporations ex ante. Further, I develop this idea into a general analytical framework for assessing whether and when regulation of a corporation is both constitutional and prudential. I then illustrate how to use this paradigm by applying it to the Citizens United decision and to proposed regulatory responses to that decision.
This reconceived contractarian paradigm should empower both judicial and legislative bodies to appropriately regulate and even limit the activities of corporations. It is my hope that this article might encourage jurists and legislators to do just that.
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Mark D. Bauer, Freedom of Association for College Fraternities After Christian Legal Society and Citizens United, 39 J.C. & U.L. 247 (2013)Clicking on the button will copy the full recommended citation.
The First Amendment and its associational rights and freedoms are not tested by popular groups or causes. Only controversy can help establish the limits of constitutional rights. Fraternities and sororities (“fraternities”) have certainly been controversial during their 236 years of existence.
Colleges often regulate fraternities more strictly than any other organization. Fraternity members may be barred from wearing their letters or mentioning their affinity during certain times of the year. Recruitment of new members is generally permitted only at certain times and in certain ways. Fraternity members may be required to engage in philanthropy or maintain a specific grade point average, where unaffiliated students have no such requirement. And many colleges have banned entire fraternity systems, while encouraging substantially similar themed dormitory housing, or fraternity-like living arrangement controlled by the school. At some point these restrictions certainly must violate the associational freedoms in the First Amendment.
Two recent Supreme Court cases suggest that there is a greater freedom of association for college fraternities than has been previously recognized by lower courts. This article discusses in great detail the history of fraternities and the freedom of association. The article discusses and critiques every relevant case and analyzes existing case law in light of Christian Legal Society and Citizens United. The article concludes by suggesting that these two Supreme Court cases may have opened a new path for fraternities to assert their associational freedoms under the First Amendment.
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Royal C. Gardner, The Legal Status of Environmental Credit Stacking, 40 Ecology L.Q. 713 (2013)Clicking on the button will copy the full recommended citation.
Environmental credit markets have been established to offset impacts to wetlands, endangered species habitat, water quality, and the global climate system. As these markets mature, participants are exploring the concept of credit stacking, whereby a conservation project or parcel produces different types of mitigation credits for multiple markets (such as wetland and endangered species credits or water quality and carbon sequestration credits). If these stacked credits are unbundled, they may be sold in different credit markets to offset impacts from different activities. Such transactions raise concerns about additionality, interagency coordination, verification of ecological improvements, monitoring and management, and transparency. This Article examines eight different credit stacking scenarios and the emerging rules that govern the sale of credits. Generally, there is diversity in how different federal and state agencies handle credit stacking, and they have not issued clear rules on when unbundling stacked credits is permissible. The Article closes with considerations that agencies could take into account in developing a credit stacking protocol to avoid double counting and ecological loss. The credit stacking scenario where it may be most appropriate to consider unbundling is when the accounting units are pollutant-specific, such as is the case with water quality and carbon markets.