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Kirsten K. Davis, Three Key Plays for the Writing Coach, 40 Arizona Attorney 12 (2004)Clicking on the button will copy the full recommended citation.
This article describes techniques a supervising lawyer can use to give feedback to other lawyers on writing projects.
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Judith A.M. Scully, Eugenics, Women of Color and Reproductive Health: The Saga Continues, 1 Africalogical Perspectives (2004)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, The Police Power and the Takings Clause, 58 U. Miami L. Rev. 471 (2004)Clicking on the button will copy the full recommended citation.
One of the more enduring puzzles in constitutional law is the problem of regulatory takings, and it has become something of a ritual to begin articles on the issue by noting the widespread confusion that the doctrine has caused. This Article seeks to clarify the regulatory takings debate by examining the scope and nature of the police power and discussing its relationship with the Just Compensation Clause.
The recent increase in federal regulation notwithstanding, the regulatory takings doctrine is primarily the product of challenges to state police power regulations. But despite the centrality of the police power to the problem of regulatory takings, an observation made nearly one hundred years ago still holds true today: No phrase is more frequently used and at the same time less understood. Contemporary regulatory takings jurisprudence is plagued by misunderstandings about the police power, in part because no one has seriously attempted to analyze or define the police power since 1907 - fifteen years before the landmark regulatory takings case Pennsylvania Coal v. Mahon was decided by the United States Supreme Court.
The uncertainty and confusion over the police power, however, is unnecessary. The term police power was introduced and defined by the Supreme Court, and has a clear meaning as a concept of American constitutional law - though one that unfortunately has been ignored in contemporary takings jurisprudence. The purpose of this Article is to explore the precise nature of the police power and its lessons for clarifying the regulatory takings debate.
Part I of this Article addresses the question: What is the police power? It begins by discussing the early federalism cases in which the Supreme Court introduced and defined the phrase police power to be synonymous with the entirety of the states' sovereign power. It then examines the practical development of police regulations in the state courts, including the landmark decision Commonwealth v. Alger and the evolution from community-based common-law regulation toward the modern regulatory state. Finally, it discusses various attempts to limit the scope of the police power, from Lochner-era substantive due process to various academic definitions of the police power based on political theory. Part I concludes that the police power, as a concept of American constitutional law, is synonymous with the entirety of the sovereign power of the states that remained after the constitutional grant of limited powers to the federal government.
Part II discusses the interaction between the police power and the Just Compensation Clause. It begins with the ambiguous foundation of modern regulatory takings, Justice Holmes's cryptic opinion in Pennsylvania Coal v. Mahon. Placing the holding in Mahon in the context of Holmes's prior writings on the police power and his substantive due process dissents shows that Holmes understood the broad scope of the police power while at the same time rejected the formalistic rule that exercises of the police power could never be takings. Part II then examines the historical record and text of the Just Compensation Clause, and concludes that the central holding in Mahon - that exercises of the police power can in some circumstances be takings - is correct when an exercise of the police power renders the property in question valueless, but not when the exercise of the police power results in a lesser diminution of the property's value.
Part II then looks to the nature and scope of the police power, and the history and text of the Just Compensation Clause, to make a few observations that help to clarify the regulatory takings problem. Much of the confusion in regulatory takings is due to a misunderstanding of the nature and scope of the police power, which has led to the regulatory takings question being framed in incorrect terms. Most significantly, recognition that the broad scope of the police power is not tied to the prevention of harm helps demonstrate that the character of the government act in question should have no place in the regulatory takings inquiry, and that its central role in contemporary regulatory takings cases is misplaced. When properly stated, the regulatory takings question should simply ask whether the government act has rendered the property in question valueless - if the answer is yes, then compensation is due. Finally, Part II concludes that despite their analytical incoherence, the Supreme Court's contemporary takings cases have reached results that are consistent with both the historical record and text of the Just Compensation Clause.
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Ellen S. Podgor, Book Review, Murder and the Reasonable Man, 27 Champion (2019)Clicking on the button will copy the full recommended citation.
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James W. Fox, Relational Contract Theory and Democratic Citizenship, 54 Case W. Res. L. Rev. 1 (2003)Clicking on the button will copy the full recommended citation.
In this article I engage Relational Contract Theory ("RCT"), with a focus on the theory of Ian Macneil. I argue that while RCT is a valuable approach to contract and contract law, it has an impoverished approach to the role of the democratic state in contract law. I then contend that by mining some political theories which parallel RCT, particularly the work of Michael Walzer and David Miller, we can construct a relational approach to contract law that credits the democratic state with a significant role in contract law. Such an approach, I argue, provides a more compelling theoretical justification for integrating democratic and dignity-based rights and protections, such as protections against gender and racial discrimination, into contract law. Moreover, a Walzerian approach allows us to view contract law and contract generally as one aspect, or "sphere", of an integrated democratic pluralism and so enables challenges to the colonization of all activities by contract and contract ideology. Ultimately it is the hope of this article to reinvigorate discussions of the role of contract and contract law in democratic society. Along the way I also explore, among other things, the strong links between contract and democracy during the American Reconstruction period, modern issues such as consumer form contracting and unconscionability, and the problem of anormativity in relational contract and other "norms"-oriented theories.
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Royal C. Gardner, Perspectives on Wetlands and Biodiversity: International Law, Iraqi Marshlands and Incentives for Restoration, 15 Colorado Journal of International Envtl. L. and POlicy 1 (2003)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, Rehabilitating Nature: A Comparative Review of Legal Mechanisms That Encourage Wetland Restoration Efforts, 52 Cath. U. L. Rev. 573 (2003)Clicking on the button will copy the full recommended citation.
This article reviews the current legal mechanisms throughout the world that are designed to encourage wetland restoration activities. Part I examines international law that calls for wetland restoration. Part II explores non-regulatory programs that offer financial incentives for wetland restoration. In particular, direct payments to landowners and indirect payments through tax deductions and credits are noted. Part III explores domestic, non-cash incentives that are outside of traditional, permit-based regulatory programs. Such incentives include the generation of good will or favorable publicity for corporations (or their desire to avoid unfavorable publicity), governmental permission to conduct harvesting activities that would otherwise be limited or prohibited, and governmental assurances not to impose stricter land-use controls if the restoration project results in environmental improvements. Part IV reviews several domestic regulatory programs and indentifes incentives for wetland restoration, including mitigation banking.
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Joseph F. Morrissey, Catching the Culprits: Is Sarbanes-Oxley Enough?, 2003 Colum. Bus. L. Rev. 801 (2003)Clicking on the button will copy the full recommended citation.
Catching the Culprits: Is Sarbanes-Oxley Enough discusses the fact that three major events occurred in the mid to late 1990s to make the securities fraud regulatory regime more lax. Those three events were: the elimination of a private right of action for aiding and abetting securities fraud, the passage of the Private Securities Litigation Reform Act of 1995 (the PSLRA) and the passage of Securities Litigation Uniform Standards Act of 1998 (the SLUSA). My conclusion is that while the Sarbanes-Oxley Act does create certain safeguards for investors, it does not undo the harm that those three events of the 1990s caused. My article argues that what is needed is for aiding and abetting liability to be revived and for the harsh anti-liability provisions of the PSLRA and the SLUSA to be rescinded.
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Luz Estella Nagle, Foreward, 32 Stetson L. Rev. 725 (2003)Clicking on the button will copy the full recommended citation.
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Luz Estella Nagle, The Challenges of Fighting Global Organized Crime in Latin America, 26 Fordham Int'l L.J. 1649 (2003)Clicking on the button will copy the full recommended citation.
Latin American states have long been fertile ground for organized crime. Some of the world’s busiest corridors for trafficking in drugs, weapons, documents, and human beings run between and through Latin America and the United States and Canada. While Latin American states are signatories to many conventions and international agreements to fight organized crime, endemic corruption and the inability to Latin American states to enforce domestic law and honor international agreements hinders the capacity of international law enforcement partnerships to address transborder crime. This article looks as the duties of Latin American states to fight organized crime and the difficulties the states have in honoring is international responsibilities.