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Crime Victims\u27 Rights
Get PDFOver the last 40 years, advocates for crime victims have succeeded in enshrining victims’ rights in state constitutions and other enactments. These provisions show that a consensus has developed around the country on certain core victims’ rights. Included in the core are, among other things, the right to notice of court hearings, to attend court hearings, to be heard at appropriate court hearings, to proceedings free from unreasonable delay, to consideration of the victims’ safety during the process, and to restitution. The current challenge for the country is ensuring that these core rights are fully and effectively implemented and that victims have a means for enforcing these rights. Strengthened enforcement language in state constitutions and, ultimately, perhaps placing victims’ rights in the United States Constitution offer the best prospects for fully protecting crime victims’ interests in the criminal justice system
Will Congress Remove Consumer Credit “Seat Belts”?
Get PDFThe CFPB has faced criticism not because it is out of control, but because it is effective. If the CFPB were bringing crazy cases, hundreds of federal judges appointed by Republican and Democratic presidents would simply dismiss the agency’s complaints. And some of those judges would enjoy doing so. Too many of America’s financiers are betting it will be easier to strangle the watchdog than actually follow the rules or pay up when they make a mistake. And worse, too many politicians, pundits, and astroturf-think-tanks-for-the-wealthy want to score political points by taking down what may be the best recent example of a government actually doing really great work for the public. If cooler heads prevail, then we can hope in the coming years the CFPB’s no-nonsense approach to consumer protection will be as universally accepted as seat belts are today
Policy Paper: The Need to Enhance Victims’ Rights in the Florida Constitution to Fully Protect Crime Victims’ Rights
Get PDFGiven the emerging consensus concerning victims\u27 rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy\u27s Law
Climate Change and Common But Differentiated Responsibilities for the Ocean
Get PDFNations’ impacts on the ocean and their impacts on climate change are linked, especially given the synergistic interactions among these impacts on the two largest global commons—the atmosphere and the ocean. This article argues that climate change mitigation law, as represented internationally by the United Nations Framework Convention on Climate Change and its follow-on agreements, can better reflect nations’ broader Common but Differentiated Responsibilities (CBDR) by taking ocean impacts into account—in particular, contributions to ocean acidification and to marine fishing
NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning in the Mountain West
Get PDFThis Article reviews Environmental Impact Statements (EIS) completed in conjunction with Resource Management Plan (RMP) revisions conducted by the Bureau of Land Management (BLM) in Colorado, Montana, Utah, and Wyoming between 2004 and 2014. Based on our review of sixteen EISs, we found that RMP revisions increased application of more protective surface use stipulations by statistically significant amounts without causing a statistically significant change in either the number of jobs created or the pace of oil and gas development. In fact, both the number of jobs created and wells drilled increased slightly despite strengthened environmental protections. We also found that Draft RMP EISs that are completed on an accelerated timeline come with a heightened risk that supplementation will be needed. The delays associated with preparing a Supplemental EIS far outweigh the timesaving associated with fast-tracking Draft EIS preparation and provide a strong caution against rushing the NEPA process
Growth and Legal Implications of Energy Storage Technologies
Get PDFThe energy storage industry is growing at burgeoning rates. New technologies are lowering the cost and improving the efficiency of energy storage devices. But with widespread adoption comes a myriad of legal issues. When states are creating their own legal frameworks to encourage or discourage investment in energy storage, the industry is hampered by inconsistency and a lack of predictability. By implementing broad federal regulations, the federal government can remove uncertainty and encourage growth and development of energy storage technologies. Thanks to companies like Tesla who are making energy storage more appealing and affordable, demand for behind-the-meter energy storage is increasing. The world is at the cusp of an energy storage revolution, and the United States has an opportunity to lead in that revolution by passing legislation that spurs on the rapid growth of energy storage
The Anti-Suit Injunction - A Transnational Remedy for Multi-Jurisdictional SEP Litigation
Get PDFLitigation concerning standards-essential patents (SEPs) has become increasingly global, with parallel litigation occurring over the same issues in multiple jurisdictions throughout North America, Europe and Asia. As a result, litigants have sought mechanisms to coordinate these actions both to manage costs and to avoid inconsistent and incompatible results. One little-known procedural mechanism that has long been available to manage multi-jurisdictional litigation, and which is growing in popularity in SEP disputes, is the anti-suit injunction.An anti-suit injunction is an interlocutory remedy issued by a court in one jurisdiction which prohibits a litigant from initiating or continuing parallel litigation in another jurisdiction or jurisdictions. Anti-suit injunctions thus contain litigation costs and reduce the likelihood of inconsistent results by ensuring that issues are resolved in one jurisdiction before they are litigated elsewhere. In the standards context, anti-suit injunctions can be particularly powerful tools for prospective licensees alleging that SEP holders have failed to comply with their FRAND licensing obligations. Specifically, a court reviewing a SEP holder’s compliance with a FRAND licensing commitment may issue an anti-suit injunction to prevent the SEP holder from bringing foreign patent infringement claims (including injunctions against the sale of infringing products) until the FRAND licensing dispute has been resolved in the issuing jurisdiction. This chapter discusses the historical development and procedural requirements for anti-suit injunctions in both the United States and Europe. It also reviews recent SEP cases in which anti-suit injunctions have been granted, including Microsoft v. Motorola, Vringo v. ZTE and TCL v. Ericsson
ERISA and Graham-Cassidy: A Disaster in Waiting for Employee Health Benefits and for Dependents under 26 on their Parents’ Plans
Get PDFGraham Cassidy § 105 would repeal the ACA “employer mandate”. Although its sponsors claim that the bill will give states a great deal of flexibility, it will do nothing to help states ensure that employers provide their employees with decent health insurance; quite the reverse. It will also give employers the freedom to ignore the popular ACA requirement that allows children up to age 26 to receive coverage through their parent’ plans, at least when their parents get health insurance from their employers. Here’s why
Blank Slates
Get PDFCourts sometimes confront gaps in formal law, where doctrinal sources like text, history, and precedent offer no guidance in resolving a particular case. When these gaps are narrow, judges can generally address them through analogical reasoning or intuition. But sometimes legal gaps are too substantial to be filled with one-off decisions, and judges are called upon to create whole legal tests without formal guidance or constraint. Courts lack a theoretical framework for addressing these difficult situations.
This Article analyzes these phenomena, which I refer to as legal blank slates, and provides a framework for addressing them. Blank slates are less common than other types of legal indeterminacy, like interpretive controversies, institutional conflicts, or narrow formal gaps. But they arise fairly regularly and often involve important legal issues. This Article surveys examples of blank slates in areas like Fourth Amendment law, free speech, the dormant Commerce Clause, and anti-discrimination law and draws lessons for a general theory of blank slates. It offers several strategies that courts might use to effectively address blank slates and develops a framework for choosing the best approach for a given situation.
Ultimately, blank slate theory can shed light on concrete doctrinal questions as well as broader debates about legal interpretation. It can, for example, suggest a new approach for determining the Fourth Amendment’s scope and help explain why previous Fourth Amendment regimes have been unsuccessful. More generally, the theory can provide a unique perspective on interpretive debates, using the extreme case of blank slates to gain fresh insights into legal interpretation as a whole
Justice Scalia’s Bankruptcy Jurisprudence: The Right Judicial Philosophy for the Modern Bankruptcy Code?
Get PDFThis Article surveys an area of Justice Scalia’s legacy that is often overlooked by scholars who write broadly about the Supreme Court: his many contributions to the field of bankruptcy law. The Bankruptcy Code is rife with statutory interpretation questions that demand clear and predictable answers, due to the efficiency interests at stake and the absence of any intermediate interpretive forces, such as administrative agencies. Justice Scalia arrived on the high court at the outset of the modern bankruptcy era and this Article argues that his brand of rulebased textualism is a particularly good fit for bankruptcy law.
Specifically, four themes emerge from Justice Scalia’s bankruptcy writings: a holistic approach to the Bankruptcy Code, a commitment to textual justice, a vocal crusade against legislative history, and an insistence on clear rules to delineate bankruptcy judges’ powers. A review of Justice Scalia’s decisions exemplifying these themes leads to some surprising and perhaps counterintuitive conclusions about the ways in which his approach to the Bankruptcy Code often benefited individual debtors over larger creditors, particularly consumer lenders. This Article argues that each aspect of this philosophy promotes predictability and clarity, thereby furthering the ultimate purposes of the Bankruptcy Code.
Despite these advantages, Justice Scalia’s philosophy has not been widely embraced. To help explain this paradox, this Article identifies several bankruptcy decisions in which Justice Scalia did not faithfully follow his own rules, thereby muddying his overall message to lower courts and litigants. Nonetheless, this Article concludes by urging bankruptcy judges and practitioners to look past these exceptions and continue to press a rule-based textualist approach