SelectedWorks @ Widener University Commonwealth Law School
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Argument Preview: Calculating Relief from Removal
No full textHolder v. Gutierrez and Holder v. Sawyers call into question the BIA’s decision to forbid the imputation of a parent’s immigration status and residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal. Scratching that simple surface reveals a complex history of imputation and relief from removal
Mortgage Modification, Equitable Subordination, and the Honest but Unfortunate Creditor
No full textMortgage foreclosures are at an all-time high and property values in many parts of the country have declined precipitously. Yet bankruptcy, which is often a last resort for individuals in financial distress, provides little relief to a homeowner who finds that her mortgage debt exceeds the value of her home. The reason for bankruptcy’s inadequacy in this regard is the Bankruptcy Code’s prohibition on the modification of home mortgages, a prohibition that became part of bankruptcy law in 1978, when most home mortgage loans were 30-year fixed rate loans made by savings and loan associations. While most secured loans can be stripped down in bankruptcy, reflecting the payment that the lender would receive if it were forced to foreclose on the collateral, a home mortgage loan must be paid in full, giving the lender more than it would receive under state law.In recent years, abusive mortgage practices have proliferated. These abusive practices, which have prevented homeowners from building equity in their homes, harm not only the debtor, but also the debtor’s other creditors. Despite their behavior, however, home mortgage lenders who engage in these practices continue to receive favorable treatment in bankruptcy. In this paper, I argue that creditors should be denied special treatment in bankruptcy unless they behave in an “honest but unfortunate” manner. Judges can deny this special treatment by using a time-honored bankruptcy principle, the principle of equitable subordination, to subordinate the unsecured portion of a home mortgage loan to all secured and priority claims. While equitable subordination, by itself, will not solve the foreclosure crisis, it may, by reducing the claims of abusive mortgagees, deter abusive lending practices in the future
Energy Efficiency and Conservation: New Legal Tools and Opportunities
No full textMany new and ambitious energy efficiency and conservation laws are being enacted at all levels of government—and with greater financial incentives than provided previously. These innovations are intended to overcome or minimize market barriers such as principal-agent problems, information and transaction costs, high internal discount rates, and up-front capital needs that discourage cost-saving investments. Innovations such as public-private partnerships also require significant legal input and creativity for the client to reap the often remarkably large energy and cost savings. This article reviews a range of these tools, especially financial legal mechanisms, that could help significantly reduce U.S. energy consumption
How Students’ Gratitude for Feedback Can Identify the Right Attitude for Success: Disciplined Optimism
No full textStudents’ reactions to feedback are intriguing. Why is it that some students resist, and in fact almost resent, receiving suggestions for improving their work while others are grateful and clamor for more help? This short article examines the role of gratitude in legal education. It suggests that students who engage in disciplined optimism, i.e., positive attitude and hard work, are more likely to succeed in law school than students who avoid feedback and self-handicap their efforts
Environmental Laws and Sustainability: An Introduction
No full textIn this introduction to the special issue of Sustainability on environmental laws and sustainability, we attempt to synthesize key lessons from the issue’s ten substantive articles. These lessons involve the use of law to achieve integrated decision-making, the use of pre-existing laws to foster sustainability, the centrality of sub-national governments in achieving sustainability, the background law of unsustainable development, the growing importance of climate change, the need to use law to protect and restore ecological integrity, the importance of judicial review and nongovernmental organizations, the need to translate sustainability into specific legal principles, the challenge of creating an appropriate national legal structure for sustainability, the importance of sustainability assessment tools and institutions before and after laws are adopted, and the importance of “soft” law
Kennedy, Kennedy, and the Eighth Amendment: Still in Search of a Unifying Principle ?
No full textIn Kennedy v. Louisiana, the United States Supreme Court held unconstitutional a state law that provided for the imposition of death upon one convicted of raping, but not killing or attempting to kill, a child. Justice Anthony Kennedy wrote the opinion for the Court, in which the majority, employing various analytical tools, brought its “own judgment” to bear on the excessiveness, and therefore the constitutionality, of the death sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause. In emphasizing the Court’s use of its own judgment in making the determination of excessiveness or disproportionality, Justice Kennedy and the majority risked the same public and internal, dissenting Court criticisms that accompanied previous death penalty opinions in which Court majorities and pluralities similarly employed their own judgments. In the sharp divide over these issues, critics have accused those jurists of disguising their personal views of morality as the doctrinal application of their “own judgment” on these questions. This article argues that despite the criticisms, and despite the Court’s statement that at least some of its capital punishment case law is “still in search of a unifying principle,” there is a precedential thread unifying and justifying the Court’s own assessment of excessiveness under the Eighth Amendment. Historical analysis of the Court’s Eighth Amendment statements shows that the clear thread in the cases is respect for human dignity and restraint that plays out through the Amendment’s proportionality guarantee. The Court’s application of that guarantee against excessiveness has time and again invoked the Court’s own judgment, based on contemporary knowledge of punishment, of punishment’s goals, and about decency in punishment. The article argues that approach is the sound and historical one and that the Court should continue to apply its own judgment about decency, excessiveness, and proportionality, despite criticisms from the Court’s conservative members about personal predilections
Next Generation Recycling & Waste Reduction: Building on the Success of Pennsylvania’s 1988 Legislation
No full textThe Municipal Waste Planning, Recycling, and Waste Reduction Act (Act 101 of 1988) keeps millions of tons of materials out of landfills every year. It supports a multi-billion dollar industry that provides tens of thousands of jobs. It also probably affects human environmental behavior more than any other statute in state history. And it reduces greenhouse gas emissions at the same time because of the materials and energy that are saved.
Yet the program is now rudderless and drifting. While the Act contains specific goals, those goals have either been met or ignored, and no new goals have been set. It is impossible to say with a reasonable level of confidence whether recycling of Act 101 materials has increased or decreased over the past decade, let alone by how much. Per capita waste disposal is about the same now as it was when the Act was passed, and was much higher before the current economic downturn.
This White Paper is a collaboration with law students who learned to “reduce, reuse, recycle” in elementary school. They are part of the first generation who grew up under Act 101.
This Paper recommends that Pennsylvania set new and more ambitious recycling and waste reduction goals, use accurate and accessible data to measure progress, and once again give priority to public education on recycling and waste reduction. This Paper also contains many specific recommendations for reducing the amount of waste that is disposed of, and for increasing the amount of material that is recycled. These include expansion of the municipalities required to recycle as well as the materials to be included in recycling, greater emphasis on commercial and institutional recycling, requiring the use of “pay-as-you-throw” systems, use of the grant program to support innovations in recycling and waste reduction, and creation of an honor roll to recognize companies for their contributions to recycling and waste reduction. Finally, it recommends stable and permanent financial support for the program.
These recommendations would lead to a more dynamic and effective program—a program more capable of turning waste into economic opportunity and job creation. These recommendations provide a platform for a serious conversation about the future direction of this program. To ensure that the opportunities of this program are fully available to the next generation of Pennsylvanians, including children who are now in elementary school, that conversation needs to begin now
Thurgood Marshall: The Writer
No full textThis article profiles Thurgood Marshall as a writer in his roles as an advocate and social activist, a legal scholar and a Supreme Court Justice. It examines the techniques that he used as a writer to inform and persuade his audiences in his life-long endeavor to achieve equality for everyone. This examination of Marshall’s legal, scholarly, and judicial writings can help lawyers, academics, and students increase their knowledge of how the written word profoundly impacts society. The article first studies his arguments and legal strategy in two early civil rights cases, University of Maryland v. Murray and Smith v. Allwright. It goes on to examine several letters Marshall wrote while he was working on Lyons v. Oklahoma, a capital murder trial. It explains how his creativity as a legal strategist was fashioned of necessity as a young African-American lawyer representing African-American clients in a still segregated society. The second profile explores how the social context and the ethical dilemma that Marshall faced in drafting his brief in Brown v. Board of Education influenced his use of persuasive writing techniques. It shows how Marshall’s choices as a writer accomplished an effective strategy that was simultaneously principled and practical. The article then considers Marshall as a moral activist by examining his speech and writing on the occasion of the Bicentennial Celebration of the Constitution in which he famously refused to applaud it. It compares the contemporaneous reaction to his stance to the consequent controversy about his position that arose during the Senate confirmation hearings of Marshall’s most famous clerk, Elena Kagan. Finally, the article looks at Justice Marshall as a writer in his dissent in Payne v. Tennessee, a capital sentencing case. It demonstrates that by choosing to attack the assumptions underlying the majority’s argument, he was able to craft a broad and powerful writing in which he not only advocated his position opposing the death penalty, but also defended a panoply of individual rights that he believed essential to attaining and maintaining his aspiration of equality for everyone