Pure Insanity Article
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Susan D. Rozelle, Pure Insanity, 42 Tex. Tech L. Rev. 543 (2009)Clicking on the button will copy the full recommended citation.
Articles
African Wetlands of International Importance: Assessment of Benefits Associated with Designations Under the Ramsar Convention Article
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Royal C. Gardner et al., African Wetlands of International Importance: Assessment of Benefits Associated with Designations Under the Ramsar Convention, 21 Georgetown International Envtl. L. Review 257 (2009)Clicking on the button will copy the full recommended citation.
A party to the Ramsar Convention on Wetlands must designate at least one site within its territory as a Wetland of International Importance. To assess the benefits associated with these international designations, the authors conducted a survey of 26 Ramsar sites in 18 countries in Africa. After a brief introduction to the Ramsar Convention, the article describes the sites that were surveyed, focusing on the ecosystem services they provide and the challenges they face. The article then examines how the sites are identified with the Ramsar Convention and found that designation provided benefits such as: increased support for protection and management of the sites; increased scientific studies; increased funding opportunities; increased ecotourism; and poverty alleviation. The article concludes with recommendations on how to strengthen the Ramsar Convention in Africa.
U.S. Narcotic Kingpin List Snares Innocents in Its Impersonal Web Article
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Luz Estella Nagle, U.S. Narcotic Kingpin List Snares Innocents in Its Impersonal Web, 25 Int'l Enforcement L. Reporter 263 (2009)Clicking on the button will copy the full recommended citation.
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.
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.