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Kenneth G. Dau-Schmidt et al., Legal Protection for the Individual Employee (6th ed., West Academic, 2021)Clicking on the button will copy the full recommended citation.
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Darryl Wilson, Keeping Current-Property, 35 Probate and Property 22 (2021)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, The Dichotomy Between Overcriminalization and Underregulation, 70 Am. U. L. Rev. 1061 (2021)Clicking on the button will copy the full recommended citation.
The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?
Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations; as well as their enforcement procedures—the prosecution of crimes or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: 1) those advocating for increased criminalization and regulation; or, 2) those claiming overcriminalization and overregulation.
This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.
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Darryl Wilson, Keeping Current–Property, 35 Probate and Property 20 (2021)Clicking on the button will copy the full recommended citation.
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Christine E. Cerniglia, Creating Legal First Responders: Requiring Service Hours for Admission to the Bar, 14 John Marshall Law Journal 74 (2021)Clicking on the button will copy the full recommended citation.
When Covid-19 created unprecedented medical needs in 2020, the medical profession swiftly responded by creating pathways for medical students to graduate early and become first responders. The medical profession quickly adapted and students asked to enter the profession early in order to serve. As frontline responders to the pandemic, the medical profession cultivated a deeper understanding of their responsibility and integrity to serve the larger community.
Meanwhile, the legal profession wrestled with how to maintain the unnecessary barriers to enter the profession instead of focusing on the unprecedented legal needs created by the pandemic. Decisions to safely administer a bar exam or allow entry through diploma privilege were important concerns but did not focus on the needed legal response for lawyers to address the access to justice gap. The heavy dependence on the National Conference of Bar Examiners became evident as many jurisdictions waited for NCBE's decisions when states could release the standardized exams, while bar applicants were at the mercy of decision-makers and unable to enter the profession.
This article highlights the disruption to bar admissions during the summer of 2020 and advocates that supervised practice and a service requirement is now possible for admission into the profession. The article proposes a 500-hour service requirement for admission to cultivate service leadership and create legal first responders to address the rising legal needs in the community. The supervised practice rules adopted this past summer by thirty-one jurisdictions showcases the ability to implement such a requirement and allow the profession to come together to implement change.
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 46 Administrative & Regulatory Law News 20 (2021)Clicking on the button will copy the full recommended citation.
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Andrew D. Appleby, Subnational Digital Services Taxation, 81 Md. L. Rev. 1 (2021)Clicking on the button will copy the full recommended citation.
Existing tax regimes fail to tax digital services appropriately. Digital services based on extracting and monetizing user data-most notably digital advertising-are particularly problematic because tax regimes do not adequately account for the enormous value derived from user data.
Internationally, taxing jurisdictions have recognized these failures and commenced a controversial push toward new digital services taxes, or DSTs. Subnational taxing jurisdictions in the United States face the same issues and are searching for solutions.
This Article begins by examining the motivations and justifications for digital service taxation at both the international and subnational levels. These justifications center on antiquated tax regimes that do not sufficiently capture profit from new business models, particularly business models that rely on valuable data extracted from users in the taxing jurisdiction.
Next, this Article presents options for subnational digital service taxation. These options range from slightly modified existing tax regimes to novel approaches that may more appropriately tax digital services, specifically those services that extract and monetize user data. This Article also analyzes the constitutional, federal preemption, and sourcing challenges facing subnational digital services taxes.
This Article concludes by examining how subnational taxing jurisdictions may most effectively tax digital services. Although states have started to embrace digital advertising taxes modeled after European digital services taxes, these taxes are narrow and susceptible to challenge. Subnational jurisdictions have several better options, including publicly traded stock-based taxes and data mining taxes.
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Marco Jimenez, On Measuring Damages Where a Contract Breach Benefits the Promisee: Response to Mark Giancaspro, Quantifying Damages in Cases of Advantageous Breach: The Curious Case of McDonald’s Milkshakes (2021)Clicking on the button will copy the full recommended citation.
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Jason Bent, Fairness in Algorithmic Employment Selection: How to Comply with Title VII, 35 A.B.A. J. Lab. & Emp. L. 241 (2021)Clicking on the button will copy the full recommended citation.
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Will Bunting, Curbing the Anticompetitive Impact of Commercial Land Use Regulation: An Administrative Approach, 66 Vill. L. Rev. 681 (2021)Clicking on the button will copy the full recommended citation.
This Article explores how the anticompetitive impact of a zoning ordinance is assessed under the antitrust laws and substantive due process and concludes that neither is likely to satisfactorily curb the anticompetitive impact of commercial land use regulation. The Article highlights the distinction between a local government’s zoning power and its more general police power. For rational basis review to act as a meaningful check on zoning power, as distinguished from more general police powers, this Article contends that such review must require a local government to produce evidence of a causal link between the zoning action and the stated government interest. Rejecting antitrust law as the proper doctrinal vehicle through which to curb the anticompetitive impact of commercial zoning restrictions, this Article proposes a three-part administrative procedure, grounded in notions of due process and the legitimate exercise of a locality’s zoning power, to reduce the frequency with which local governments impose socially inefficient restrictions on commercial land use. The concept of an economic impact statement is introduced.