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Ellen S. Podgor, The Impact of Criminal Sanctions on Corporate Misconduct, 2 J. Bus. & Tech. L. 119 (2007)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, Biodiversity and a New Best Case for Applying the Environmental Statues Extraterritorially, 37 Envtl. L. 1107 (2007)Clicking on the button will copy the full recommended citation.
The federal courts have applied a presumption that environmental statutes do not apply to conduct overseas. Efforts to overcome this presumption through the supposed intent of Congress have largely failed. This Article argues for a new best case for applying environmental laws extraterritorially, focusing on the Endangered Species Act's powerful section 7. This best case would assert that (1) the overseas action affects interests within the United States, such as the interest in preserving biodiversity for future needs, and (2) the action would not create a clash with the expectations of foreign governments or culture.
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Theresa J. Pulley Radwan, Keeping the Faith: The Rights of Parishioners in Church Reorganizations, 82 Wash. L. Rev. 75 (2007)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, A New Clean Water Act, 37 Envtl. L. Reporter News and Analysis 10171 (2007)Clicking on the button will copy the full recommended citation.
The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. In 2007, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover "navigable waters," but its practical definition has never been clear. The result is a statutory and jurisprudential mess, with lessons that extend across issues of constitutional law, statutory construction, and, of course, federalism. This article proposes to jettison the Act’s reliance on the misguided term "navigable waters." Instead, the statute should directly regulate activities that substantially affect interstate commerce, such as fisheries, migratory birds, floods, and agriculture. An Act whose limits are tied to the law of the commerce power would be shielded from the federalist ax.
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Elizabeth Ippolito Boals, State v. Sanchez: Case File and Teaching Guide (1st ed., NITA, 2007)Clicking on the button will copy the full recommended citation.
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Kirsten K. Davis, The Rhetoric of Accommodation: Considering the Language of Work/Family Discourse, 3 U. St. Thomas L.J. 530 (2007)Clicking on the button will copy the full recommended citation.
The language used to describe work-family issues reflects certain ways of thinking about the interconnectedness and segmentation of work and family. "Accommodate" or "accommodation" is a word that is often used in discussions about policies that apply to work and family. This article uses a cluster method of rhetorical analysis to look at the history of "accommodation" in legal discourse. It concludes that the use of the word "accommodation" in other legal contexts can constrain the ways of envisioning the roles, relationships, and possibilities for work and family in discussions about work-family policies.
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Candace Zierdt and Ellen S. Podgor, Corporate Deferred Prosecution through the Looking Glass of Contract “Policing”, 96 Ky. L.J. 1 (2007)Clicking on the button will copy the full recommended citation.
This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.
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Joseph F. Morrissey, Rhetoric and Reality: Investor Protection and the Securities Regulation Reform of 2005, 56 Cath. U. L. Rev. 561 (2007)Clicking on the button will copy the full recommended citation.
Amidst all the recent publicity surrounding government action in combating corporate wrong-doing (passage of the Sarbanes-Oxley Act and the prosecution of the top brass at Enron and other scandal-ridden companies) little attention has been focused on the dramatic reform of the securities regulations that was enacted in late 2005. This article attempts to survey and assess the merits of that reform.
The new regulations essentially provide that most companies no longer have to comply with basic restrictions on the securities offering process that have been the cornerstone of the securities regulatory regime since its inception in 1933. Chief among these restrictions are those pertaining to communications. Where communications have traditionally been widely curtailed during a new offering of securities to the public, the new reforms now allow most companies to communicate with the public relatively freely. Further, the heightened liability that attached to communications prior to the reforms will not apply to the new free communications. In the name of efficiency the restrictions and heightened liability have been eliminated. At the same time, I will argue, investors actually are being left more vulnerable to potential manipulations of corporate wrongdoers. In addition, the article will directly call into question whether the SEC has in fact exceeded its rule making authority by altering so dramatically the very character of the regulatory regime that the Securities Act sought to construct.
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Rebecca C. Morgan, Health Decisions and Directives About the End of Life, in Handbook of Gerontology: Evidence-Based Approaches to Theory, Practice & Policy (Wiley, 2007)Clicking on the button will copy the full recommended citation.
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Ann Piccard, When the Rent Is Due, Where Is the Process? Residential Evictions in Florida, 36 Stetson L. Rev. 149 (2007)Clicking on the button will copy the full recommended citation.