SelectedWorks @ Widener University Commonwealth Law School
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Threats to the Future of the Immigration Class Action
No full textThe immigration class action, a form of action that litigants have used to achieve systematic reform, is under threat. This paper examines three threats to the immigration class action: (1) a general congressional willingness to restrict immigration judicial review; (2) the application of waivers of judicial review to immigration law and (3) legislative jurisdiction-stripping attacks more specific to the immigration class action. The general congressional willingness to strip immigration judicial review sets the atmosphere for proposals to require judicial review waivers as a condition of obtaining an immigration benefit and for jurisdiction-stripping legislation aimed more specifically at the class action. The identification and analysis of these threats links the immigration class action to efforts to limit other types of class actions. It initiates a discussion about the threat presented by judicial review waivers, including the collective action waiver, to immigration class actions. The government has argued that the relationship between itself and a foreign national sounds in contract and that a judicial review waiver is simply a term of the contract. This paper argues that using the contract analogy to justify immigration judicial review waivers simply stretches the analogy too far while raising serious constitutional questions about congressional power
Survey of the Law of Cyberspace: Electronic Contracting Cases 2007-2008
No full textIn this survey, we discuss electronic contracting cases decided between July 1, 2007 and June 30, 2008. In addition to cases adding to the literature on the enforceability of online contracts, this survey includes cases discussing modification of online contracts, incorporation by reference, and unconscionability. We conclude that our common law is developing nicely to address the issues presented by internet contracting
The Central Bank’s Role in the Payment System: Legal and Policy Aspects
No full textThe paper starts with a brief overview of the payment system and the roles central banks have traditionally played as payment intermediaries. In particular, it discusses interbank settlement and the role of bank money as a settlement asset. The paper shows that the concept of settlement finality, which has both legal and risk management dimensions, is a key attribute of any form of payment and is not a unique attribute of payments made through a central bank
Establishing Separate Criminal and Civil Evidence Codes
No full textThis article suggests that the Federal Rules of Evidence (Rules) should be separated into distinct criminal and civil evidence codes. The arguments for this separation are both practical and theoretical, and this article is the first comprehensive discussion of this proposed separation. The most important of the arguments for bifurcation is that our current unified evidence code leads to inappropriate admission decisions. These inappropriate admission decisions most often occur when the interpretation of a rule in a criminal case is applied in later civil law cases. This result is in part because our rules, and their interpretations, are transubstantive; they apply across substantive law areas, including the very diverse areas of criminal and civil law. The inappropriateness is also the result of the non-explicit infusion of constitutional and criminal law principles into courts\u27 interpretations of the Rules and the criminal law normative considerations that implicitly affect courts\u27 decisions. Practical arguments supporting bifurcation include the substantive area specific provisions in our Rules, the varying interpretations of the Rules by some courts, the vast differences between criminal and civil discovery and trial practices, and the increasing specialization of law practice. While a unified code was appropriate when the Federal Rules of Evidence were adopted in 1975, the state of our evidence law now suggests the need for separate codes
Accountability Before the Fact
No full textThis Essay argues that such a balance is possible if we abandon the notion that independence requires that there be no direct role for the public in judicial selection and that accountability requires that the public be able to express its disagreement with judicial rulings by voting the offending judges out of office. The balance suggested here has two elements
Climate Change Law: An Introduction
No full textThis article explains the basic elements of climate change law, with a particular focus on those issues that promise to be important for a considerable time as well as the major factors that are driving the development of this law. The emerging law of climate change is being constructed at the intersection of several areas of law, including environmental law, energy law, business law, and international law. Any effort to address climate change also raises issues about the proper role of state and federal governments, as well as their relationship. This article is intended as an introduction to this complex and rapidly changing subject
