Cybercrime: Discretionary Jurisdiction Article
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Ellen S. Podgor, Cybercrime: Discretionary Jurisdiction, 47 U. Louisville L. Rev. 727 (2009)Clicking on the button will copy the full recommended citation.
Articles
Compensating for Wetland Losses under the Clean Water Act (Redux): Evaluating the Federal Compensatory Mitigation Regulation Article
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Royal C. Gardner et al., Compensating for Wetland Losses under the Clean Water Act (Redux): Evaluating the Federal Compensatory Mitigation Regulation, 38 Stetson L. Rev. 213 (2009)Clicking on the button will copy the full recommended citation.
In April 2008, the U.S. Army Corps of Engineers and the Environmental Protection Agency published a new rule on compensatory mitigation for aquatic resource losses. The preamble noted that an important resource in the development of the new rule was the 2001 National Research Council (NRC) report that comprehensively evaluated the effectiveness of compensatory mitigation efforts and whether they were contributing to the “no net loss” of wetlands. This article, written by nine former members of the NRC Committee on Mitigating Wetland Losses, examines how the new regulation incorporates the primary recommendations set forth in the NRC report. We consider how well the new rule addresses recommendations concerning: the watershed approach; operational guidelines and performance standards; and the treatment of mitigation banks, in-lieu fee programs, and permittee-mitigation. The article concludes with several recommendations to help with achieving the goal of no net loss.
Educating Compliance Article
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Ellen S. Podgor, Educating Compliance, 46 Am. Crim. L. Rev. 1523 (2009)Clicking on the button will copy the full recommended citation.
The most effective way to achieve corporate compliance is to have individuals comply with the law. The reality, however, is that punishing misconduct, a reactive model, is the common methodology used to attain future legal compliance. Focusing more resources on the front end and using a pro-active model to achieve compliance would keep the corporate structure whole and yet also provide a sound basis for eradicating corporate criminality. This Essay proposes that an education model be implemented, with the government more actively participating in promoting compliance with the law.
Fourteenth Amendment Citizenship and the Reconstruction-Era Black Public Sphere Article
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James W. Fox, Fourteenth Amendment Citizenship and the Reconstruction-Era Black Public Sphere, 42 Akron L. Rev. 1245 (2009)Clicking on the button will copy the full recommended citation.
This article, which is part of a symposium on the 140th anniversary of the fourteenth amendment, explores the Reconstruction-Era black public sphere as a source for possible meanings for the fourteenth amendment. Similar to some of the work of popular constitutionalism scholars, I propose that an important and overlooked source for meanings of constitutional citizenship lies in the statements and actions of those who attempted to redefine citizenship in a more egalitarian and democratic manner and who established meanings for citizenship on the ground. To do this I borrow theoretical frameworks from political and social theory: civil society and the public sphere. I do so because these concepts capture the structure of nineteenth century social experience while at the same time also connecting this experience to modern notions of politics and society. After explicating some of the main principles of civil society and public sphere theory, I analyze a particular form of civil society and the public sphere that I think reveals important aspects of democratic citizenship - the black convention movement. This movement both enacted citizenship on the ground and engaged in a discourse about citizenship in the public sphere that presented alternative, progressive visions of citizenship, ones that included political rights (suffrage) and social rights (access to the public sphere). The article concludes with thoughts on how the black public sphere reflected different and significant understandings of democratic citizenship, equality, freedom compared to how those concepts were constructed in the dominant public sphere.
Scientific Peer Review and Administrative Legitimacy Article
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Louis J. Virelli, Scientific Peer Review and Administrative Legitimacy, 61 Admin. L. Rev. 723 (2009)Clicking on the button will copy the full recommended citation.
The alleged misuse of scientific information to support public policy decisions has become one of the most prominent and controversial topics in American politics. Perceived government misuse of scientific data in highly controversial areas such as global warming, environmental protection, stem cell research, and contraception threatens to lead us not only toward policy positions that are inconsistent with scientific reality, but perhaps more importantly into a political environment where science-based policy decisions are no longer viewed as legitimate within our constitutional democracy. Due in part to these concerns about scientific integrity in administrative decisions, there is also a significant amount of attention being paid to scientific peer review in the administrative process ("administrative peer review"), a movement highlighted by a 2005 OMB bulletin mandating that administrative agencies obtain peer review of all important scientific information that they disseminate to the public.
This article addresses the cross-section of these two issues through a normative analysis of peer review's impact on administrative legitimacy. To date, commentary on peer review in the administrative context has been limited to treating peer review either descriptively or as a largely monolithic enterprise. This article departs from that approach by asking the next logical questions - what model(s) of peer review are available to administrative agencies, and which of these is best suited to promote legitimacy in administrative decisions - and by creating a framework for answering them, first through the development of four distinct models of administrative peer review, and then by establishing a series of normative approaches, including a cost-benefit analysis, through which to evaluate each of the models. In addition to providing a new theoretical context in which to consider peer review, the results of the analyses are interesting in that they overwhelmingly support the multifaceted treatment of peer review developed here and raise serious questions about the most commonly used model of administrative peer review.
Race-ing Prosecutors’ Ethics Codes Article
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Ellen S. Podgor, Race-ing Prosecutors’ Ethics Codes, 44 Harv. C.R.-C.L. L. Rev. 461 (2009)Clicking on the button will copy the full recommended citation.
This Essay examines prosecutorial discretion, using the decisions made in the Jena Six incident as its example for change. Two crucial considerations, omitted in this decision-making process, are offered here. First is the importance of examining cases globally as opposed to making prosecutorial decisions using a one-dimensional process. Looking only at whether specific facts support a particular charge fails to account for promoting justice in situations that might be threaded to a particular theme. Merely matching facts to elements of a statute fails to provide a thoughtful recognition of what is in fact a "just" resolution. Second is the need to be vocal when an injustice warrants correction. The affirmative duty of a prosecutor to promote justice has both symbolic and practical implications.
This Essay examines the discretionary decision-making process from the perspective of legal and ethical mandates that are intended to guide prosecutors in their choices. In looking at the hortatory guidance provided to prosecutors, it considers the role of compassion and how compassion can be used to ensure fairness in the process. While personalities can clearly influence a charging decision, it is important to make certain that the decisions are not made as a one-dimensional process. Rather, it is necessary that the decision-making process examines all factors and circumstances in order to make certain that the prosecutor acts as a true "minister of justice."
Jumping Off the Merry-Go-Round: How the Federal Courts Will Reconcile the Circular Deference Problem Between HIPAA and FOIA Article
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Catherine J. Cameron, Jumping Off the Merry-Go-Round: How the Federal Courts Will Reconcile the Circular Deference Problem Between HIPAA and FOIA, 58 Cath. U. L. Rev. 333 (2009)Clicking on the button will copy the full recommended citation.
This Article introduces the conflict between HIPAA and FOIA in Part II, which explains the provisions of HIPAA and FOIA and the HHS regulations that cover access to medical records held by the federal government. Part II delineates the practical realities agency personnel will face when a record request falls under both HIPAA and FOIA. Part IV of this Article highlights how two states have dealt with HIPAA’s conflict with state statutes to see how those courts have resolved a similar conflict. Part V delves into the case law interpreting Exemption Six of FOIA to conclude that HHS’s assessment that Exemption Six should not cause a conflict with FOIA is inaccurate. Finally, this Article argues that a federal court should decide that public access to a medical record held by a government health provider is dictated by FOIA’s Exemption Six instead of HIPAA and HHS regulations.
Teaching to Different Levels of Experience: What I Learned From Working With Experienced Writers From Different Fields Article
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Ann Piccard, Teaching to Different Levels of Experience: What I Learned From Working With Experienced Writers From Different Fields, 17 Perspectives 115 (2009)Clicking on the button will copy the full recommended citation.
Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward A Reformation of Drug and Prostitution Regulations Article
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Michèle Alexandre, Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward A Reformation of Drug and Prostitution Regulations, 78 UMKC L. Rev. 101 (2009)Clicking on the button will copy the full recommended citation.
This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient. In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations. Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”. Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means." (See, e.g., Mario J. Rizzo, The Problem of Moral Dirigisme: A New Argument Against Moralistic Legislation, 1 N.Y.U. J.L. & LIBERTY 789, 791 (2005). Moral dirigisme (John Stuart Mill, On Liberty 13 (Stefan Collini ed., 1989) (1859) is an economic term, which describes an economic structure for which the government provides strong direction. (See generally Élie Cohen, Le Colbertisme “High Tech”: Économie Des Telecom et du Grand Projet (1992); David Baker, The Political Economy of Fascism: Myth or Reality, or Myth and Reality?, 11 NEW POL. ECON., 157, 227-50 (2006). The term dirigisme derives from the French word diriger, which means to guide. (see WordReference.com, French to English Dictionary, (last visited Sept. 3, 2009). Moral dirigisme, by analogy, refers to the underlying philosophy which believes that moral behaviors can be changed through formal regulation. It is referred to, by Mario J. Rizzo, as “the attempt or tendency to control certain kinds of moral behavior by formal legal means.” (See Rizzo, supra note 2, at 791). Rizzo views acts by the state to prohibit or authorize certain conduct of individuals in an attempt to force them to act morally as flawed. Id. The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy. I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient.
From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion. While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules. This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition. Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition. Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution.
Consequently, the Article is divided as follows. Part II considers the inefficiency of the prohibition of drugs and prostitution. Part III discusses the underlying legal and philosophical theories that support prohibitory legislation and analyzes why prohibition of drugs and prostitution, although a popular default mechanism, is ineffective at eradicating these behaviors. Part III also identifies the Smithian-Humean view of justice as a basis to evaluate prohibition-based laws. Part IV explores the issues inherent in the prohibition of drugs and considers alternative approaches. Part V explores issues that result from the prohibition of prostitution and Part VI proposes an alternative framework to the prohibition of prostitution. Part VII explores ways of preventing pro-prostitution regulations from strengthening the sex trafficking market. Finally, Part VIII borrows from philosophical frameworks to formulate a standard that helps differentiate between effective and ineffective prohibition. Through an analysis of the unintended effects of prohibition, this Article provides a strong economic and legal argument for the legalization of prostitution and, at the very least, marginal changes in U.S. drug policy.
Systemic Harassment Article
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Jason Bent, Systemic Harassment, 77 Tenn. L. Rev. 151 (2009)Clicking on the button will copy the full recommended citation.
Systemic employment discrimination cases, including private class actions and EEOC "pattern or practice" actions, have been used since the 1960s to redress overt forms of discrimination in the workplace. Today, however, there is an emerging area of systemic employment litigation that holds the potential to play an important role in combating the sources of structural or "second generation" discrimination: systemic harassment litigation. Unfortunately, litigants and courts are generally confused about how systemic harassment claims should be pursued and litigated. Harassment cases do not fit the mold for "pattern or practice" cases outlined by the Supreme Court in International Brotherhood of Teamsters v. United States, leaving the federal courts divided over key substantive and procedural issues in systemic harassment cases.
In this Article, I propose a litigation framework and enforcement strategy for systemic harassment cases that is founded upon the statutory language of Title VII. By carefully observing the distinction between those provisions of Title VII aimed at protecting the interests of individual "aggrieved persons" and the separate provisions aimed at protecting the public interest, a sensible litigation framework can be formulated for systemic harassment cases. Failing to observe this statutory distinction has led the EEOC to pursue an ineffective enforcement strategy. The EEOC's focus in systemic harassment cases has been to obtain monetary damages for individual victims under an increasingly outdated rules-enforcement paradigm, rather than to obtain meaningful prospective relief. As a result, the EEOC has missed an important opportunity to begin addressing structural forms of discrimination. I propose an alternative public enforcement strategy for systemic harassment cases that focuses on obtaining effective consent orders that will usher in structural reform and will result in a more efficient allocation of enforcement resources.