SelectedWorks @ Widener University Commonwealth Law School
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Sovereign Immunity in Repo and Derivative Documentation: When to Worry - What to Do
No full textTrading derivatives or repos with a party potentially entitled to sovereign immunity imposes a risk that the party will either be immune from lawsuit or immune from the enforcement of a judgment. As a matter of best practice, counterparties should perform due diligence to ensure that a party is not entitled to a defense of sovereign immunity and require a legal opinion to that effect from the party’s legal counsel. A counterparty should insist that the party represent in the ISDA or the GMRA that it is not entitled to any of the various sovereign immunities. It should then require the party to waive any sovereign immunity and agree that it will not raise the defense in court
Getting the Dream Team on the Ballot: The Legality of Bipartisan Gubernatorial Tickets
No full textIn the mid-twentieth century, states began amending their constitutions to integrate their gubernatorial and lieutenantgubernatorial elections, creating a method of gubernatorial elections that frequently mirrored the presidential system. In the decades following these changes to state constitutions, there have frequently been pushes, both at the national and state level, for Democrats and Republicans to put aside their differences and to run together on a single ticket—a “dream team” of moderates who can transcend typical party politics and aspire to something greater. While pushes for a bipartisan ticket have not panned out in presidential elections, they have seen greater success at the state level. But the legality of bipartisan gubernatorial tickets remains far from clear. State statutes are often ambiguous on the question, no state court decisions have provided any significant guidance, and norms and practices have pointed in different directions. It is in light of this widespread ambiguity that this Article seeks to clarify the matter. It comprehensively reviews the legality of bipartisan gubernatorial tickets in every state with team-ticket gubernatorial elections, classifying states based on the legal feasibility of such a candidacy wherever possible—as a function of both major- and minor-party nomination or through an independent candidacy. Ultimately, it argues that states should allow bipartisan gubernatorial tickets only when the voters of a party are able to endorse the change
Harmonizing Wrongs and Compensation
No full textIn his seminal work, Tort Law in America, Ted White describes tort law as vacillating between a focus that is admonitory, based on conduct that is wrongful, and compensatory, providing the injured with resources to allay their injuries. Instead of continuing to vacillate between opposing theories of tort law, this article proposes to blend them. The concept is a tort law that is generally wrongs-based, but has a compensatory bypass.There are two significant reasons to adapt compensation to a wrongs-based theory of tort law. First, incorporating compensation into tort law would match the motivations of many parties in the tort system and help improve its administration. I practiced tort law for seven years. Some of my clients were interested in vindication, but the majority were motivated by compensation, by which I mean they needed money to pay for their medical bills and/or lost wages. There is a problem, however, with sending both types of plaintiffs into the same tort system. Tort law, particularly negligence, is uncertain, and that uncertainty leads to delay and transaction costs. For plaintiffs interested in vindication, perhaps the time needed to pay close attention to facts and circumstances makes sense. After all, determining whether one has been wronged is a serious inquiry. Those features, however, are counterproductive to compensating the injured. Tort law that was able to vindicate rights in proper cases, but also efficiently compensate in others, would be ideal.Second, history demonstrates that waves of injuries pressure tort law, and the law responds in a compensatory manner. It is foreseeable that injuries will continue to pressure tort law, and it makes sense to incorporate a mechanism to handle that pressure. Moreover, history provides guidance about the likely character of a compensatory bypass: compensation would become easier to obtain, but in smaller amounts
Advocating for the Future
No full textAttorneys in our varied roles need to step up and address the climate crisis for the sake of every person and for the public good. All lawyers must be sustainability lawyers now. This article explains why; it also offers an illustrative set of suggestions on how to get started and what to do
Legal Pathways to Deep Decarbonization in the Fields of Land Use and Zoning
No full textLegal pathways exist for state and local land use and zoning practitioners to contribute to the fight against climate change. The project Legal Pathways to Deep Decarbonization (LPDD.org) drafts original model laws and legal documents, and also catalogs existing laws and best practices, which each address over 1,000 recommendations made in the 2019 text, Legal Pathways to Deep Decarbonization in the United States. From this exhaustive resource, the authors survey opportunities for state and local practitioners to use the tools of land use and zoning to affect energy production, building performance, and transportation emissions. On the energy front, land use considerations are critical for the efficient siting of large-scale renewable energy, as well as permitting smaller, distributed resources at the site of the utility customer. In building codes, practitioners should be aware of emerging tools like building energy performance standards, natural gas bans, net zero requirements, and electrification incentives. In the field of transportation, practitioners should be cognizant of tools to expand access to EV charging infrastructure, as well as tools to make neighborhoods denser, more walkable, and ultimately require fewer vehicle miles traveled
The Oyster vs. the View: Legal Attempts to Hinder Maryland’s Shellfish Aquaculture Industry
No full textOysters are filter feeders that cleanse water of nitrogen and phosphorus, the two primary nutrients polluting the Bay, and declining wild oyster stock from overharvesting and disease have contributed to increased Bay pollution. Because a single adult oyster can filter up to 50 gallons of water a day, oyster aquaculture represents a promising means of improving Bay water quality
Book Review: Sexual Citizens: Sex, Power, and Assault on Campus
No full textJennifer Hirsch and Shamus Khan’s book Sexual Citizens offers an outstanding contribution to existing literature on campus sexual assault by applying a public health approach to understanding this phenomenon. Their extraordinary work not only identifies the root causes of this prevalent problem but also provides an array of appropriate solutions to address it. The book provides a much-needed conceptual shift that breaks away from familiar paradigms that largely focus on adjudication models toward implementing forward-looking preventive measures to address the problem of campus sexual assault. This innovative approach transforms our understanding of sexual assault in general and campus sexual assault in particular
An Invisible Border Wall and The Dangers of Internal Agency Control
No full textAdministrative law long has struggled to determine the appropriate balance between internal and external control over federal agencies. Some scholars posit that internal agency controls (those from within the executive branch) are optimal checks on agency behavior. In fact, some argue that external control (from Congress or the courts) is detrimental to agency governance. This article presents a cautionary tale for those who discount the role of external control; it depicts a case study that poses a major challenge to those who theorize that internal agency controls are a sufficient check on agency behavior. The case study is the Trump Administration’s invisible border wall. By building an invisible border wall, the Trump Administration reduced the amount of legal immigration to the United States in the absence of statutory change. The wall is invisible because it is not a physical barrier, but rather is the culmination of various federal agency maneuvers that make accessing lawful immigration benefits more difficult. The agency in charge of adjudicating most applications for statutory immigration benefits, United States Citizenship and Immigration Services (USCIS), developed what it called “workarounds” to the statute. Through its internal agency processes, it effectively made it harder to obtain immigration benefits authorized by Congress. This article sheds light on this administrative law coup, including analysis of empirical data that presents the most exhaustive measure to date of the increase in litigation against USCIS during the Trump Administration. The invisible wall represents a challenge to those skeptical of external control because no facet of internal administrative law prevented construction of the invisible wall. The Trump Administration abused its internal power over executive branch agencies to build the invisible wall and no internal executive branch power stopped it. In the absence of effective internal control mechanisms, data collected for this case study reveal a dramatic increase in efforts to activate external control over the administration’s actions as a means of ameliorating the effects of the invisible wall. Federal court challenges to USCIS denials of benefits applications are up 200% since 2016. In response to the internal administrative law failure, attorneys turned to external control. While this case study shows that external control plays a crucial role in administrative law, external control is an imperfect solution. It did not stop the building of the invisible wall and its restorative effects are not absolute. In fact, some aspects of the wall cannot be controlled externally. For those that could be, the number of complaints seeking judicial review is still quite small relative to the number of denials. This case study therefore illuminates a gap in control over executive power where internal mechanisms failed and where external control is not wholly effective. Without internal or external control, there is unchecked power. This article argues that internal administrative law needs to be improved to fill this gap. The conundrum is that any improvements to internal administrative law rely on adherence to rule of law values. As the invisible border wall illustrates, without fidelity to those values, internal control mechanisms are easily defeated