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Royal C. Gardner, The Role of Wetland Mitigation and Conservation Banking in Sustainable Development: The United States Experience, 1 Forum of Public Policy 47 (2005)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Alb. L. Rev. 343 (2005)Clicking on the button will copy the full recommended citation.
This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.
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Darryl Wilson, Waltzing to R.A.P., 39 Creighton L. Rev. 129 (2005)Clicking on the button will copy the full recommended citation.
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Luz Estella Nagle, Global Terrorism in Our Own Backyard: Colombia’s Legal War against Illegal Armed Groups, 15 Transnational Law & Contemp. Probs. 2005 (2005)Clicking on the button will copy the full recommended citation.
In the aftermath of 9-11, the United States embarked on an aggressive and costly war on terrorism in far flung regions of the world, mainly in the middle east and Afghanistan. However, the United States largely overlooked the terrorist threat to national security emanating much closer to home – in Colombia, where illegal armed groups have formed close connections to international terrorists organizations or have themselves transformed into international terrorists organizations intent on launching terrorist attacks within Colombia and throughout the Americas.
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Joseph F. Morrissey, Simplifying the Foreign Service Immunities Act: If a Sovereign Acts Like a Private Party, Treat it Like One, 5 University of Chi. J. Int'l L. 675 (2005)Clicking on the button will copy the full recommended citation.
This article focuses on the commercial activities exception of the Foreign Sovereign Immunities Act (FSIA). That exception is at the heart of the FSIA and basically states that if a foreign sovereign engages in private commercial activities like a private party then it should not be immune from suit in the United States. Unfortunately, the special guidelines set forth in the FSIA for applying the commercial activities exception to foreign sovereigns are confusing and have resulted in split opinions among the federal circuit courts.
My article argues that those guidelines should be thrown away. My proposal would first have courts assess whether foreign sovereigns are in fact engaging in private commercial activities. If the answer is yes, then the FSIA should direct courts to simply treat the foreign sovereign in the same way that it would treat a foreign private party for purposes of establishing jurisdiction. Namely, the courts should undertake the same minimum contacts due process analysis it has undertaken for decades with respect to foreign private parties. This solution avoids the complicated rubric established by the FSIA and accomplishing exactly what the FSIA had wanted to accomplish. It treats foreign sovereigns like private parties when and if they behave like them.
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Michèle Alexandre, David Gelfand: A Tribute, 37 Urb. Law. 641 (2005)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Arthur Andersen, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice?, 44 Washburn L.J. 583 (2005)Clicking on the button will copy the full recommended citation.
Obstruction of justice, with its many different statutes, is a crime that prosecutors can use with relative ease. It covers a wide breadth of activity and has few limitations. This paper examines the prosecutorial use of obstruction charges in the cases of Martha Stewart and Arthur Andersen, LLP. Although the statutes differed in these two prosecutions, with Arthur Andersen, LLP., prosecuted for the crime of obstruction of justice under 18 U.S.C. Section 1512, and Martha Stewart, prosecuted for several criminal charges including obstruction of justice under 18 U.S.C. Section 1505, both demonstrate how prosecutors can leave unfinished the original activity that was the subject of investigation to proceed with the easier obstruction charge.
This article provides a way to restrict prosecutors in their use of the crime of obstruction of justice when it is used solely for expediency purposes. In essence, it reads in an element of materiality as required for this crime in a manner similar to how the Supreme Court included materiality for fraud prosecutions. By adding an element of materiality as a requirement for an obstruction conviction, prosecutors are forced to complete investigations that can be completed on the substantive charges. In contrast, investigations that cannot continue because the obstructive conduct precludes continuation because of either destruction of evidence or intimidation of witnesses, still have available the ability to appropriately punish the activity via a charge of obstruction of justice.
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Ellen S. Podgor, Foreword, Overcriminalization: The Politics of Crime, 54 Am. U. L. Rev. 541 (2005)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, Eminent Domain, Property Rights, and the Solution of Representation Reinforcement, 83 Denver University Law Review 1 (2005)Clicking on the button will copy the full recommended citation.
Courts at both the federal and state level are busy remaking the law of eminent domain, most notably in the controversial Kelo decision. Property rights advocates argue that courts should scrutinize more closely government's ability to take property with plans to transfer it to private developers. But asking courts to second-guess the wisdom of governmental policy decisions cannot be a workable solution. Instead, eminent domain could be tightened by relying on the idea of representation reinforcement, through which courts boost the interests of those groups who are unlikely to have their voices heard in the political realm. Across the nation, local governments are using eminent domain to discourage residency by poor persons. This article proposes that eminent domain be constitutionally impermissible when it is both used to take land destined for private hands and disproportionately hurts the poor or politically disadvantaged.
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Ellen S. Podgor, Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct?, 109 Penn St. L. Rev. 1059 (2005)Clicking on the button will copy the full recommended citation.