Immigrant Remittances

by Ezra Rosser

Immigrant RemittancesRemittances, the sending of money from immigrants back to their home countries, are the newest anti-poverty, development activity of the poor to be applauded by international institutions and economists. Exceeding foreign aid and private investment to many developing countries, remittances are being hailed as a new, untapped resource with powerful poverty alleviation and potential development attributes. After presenting the poverty, developmental, and economic characteristics of this new transnational connection between immigrants and their loved ones, as well as the dangerous effects of excessive remittance regulation, this Article argues that remittances should be understood as an anti-poverty tool, but not as a route to development. 

Disputants' Perceptions of Dispute Resolution Procedures: An Ex Ante and Ex Post Longitudinal Emperical Study

by Donna Shestowsky & Jeanne Brett

Disputants who file claims in civil court have more procedural options than ever before. They can settle via negotiation, mediation, arbitration, trial or a host of other alternatives. To the extent that courts and lawyers want to competently advise disputants about how various procedures might satisfy their needs, legal professionals face the challenge of understanding how disputants initially evaluate their options, and how they perceive procedures after they have experienced them. To date, empirical studies of actual civil disputants have examined their perceptions of procedures almost exclusively after their disputes have ended. Moreover, none of the published research has assessed their perceptions both before and after experiencing a dispute resolution procedure for the same dispute. The relevant research as a whole, then, appears to disregard important ways in which disputants’ perceptions might be dynamic. [. . . .]

Punitive Damages, Criminal Punishment, and Proportionality: The Importance of Legislative Limits

by Leo M. Romero

This Article addresses the timely and controversial topic of constitutional limits on punitive damages and brings a criminal punishment theory perspective to the analysis of this issue. The question of how to determine when punishment is unconstitutionally excessive has been and continues to be a subject of intense debate in the courts and scholarly circles. The United States Supreme Court has subjected criminal sanctions, criminal forfeitures, and punitive damages to a proportionality requirement, but the Court uses different approaches to the proportionality analysis depending on the type of punishment. [. . . .]

Fairly Random: On Compensating Audited Taxpayers

by Sarah B. Lawsky

Some academics and politicians have proposed that taxpayers should be reimbursed for costs of randomly imposed tax audits, because, they argue, randomly imposing audit costs is unfair. But none of those proposing audit compensation have explained why randomly imposed audit costs are unfair, or why, if these randomly imposed costs are unfair, this unfairness necessarily means that taxpayers should be compensated. These are important questions because explicit randomness is an essential tool for tax enforcement, and for other areas of law, but its use may be limited if randomness is equated with unfairness. [. . . .]

Clerk and Justice: The Ties That Bind John Paul Stevens and Wiley B. Rutledge

by Laura Krugman Ray

Justice John Paul Stevens, now starting his thirty-third full term on the Supreme Court, served as law clerk to Justice Wiley B. Rutledge during the Court’s 1947 Term. That experience has informed both elements of Stevens’s jurisprudence and aspects of his approach to his institutional role. Like Rutledge, Stevens has written powerful opinions on issues of individual rights, the Establishment Clause, and the reach of executive power in wartime. [. . . .]

Unspoken Assumptions: Examining Tribal Jurisdiction over Nonmembers Nearly Two Decades After Duro V. Reina

by Benjamin J. Cordiano

In a series of decisions beginning in 1978 with Oliphant v. Suquamish Indian Tribe, the Supreme Court has stripped Indian tribes of the ability to prosecute all criminal offenders within the borders of their territory. A decade after holding that non-Indians were not subject to the criminal jurisdiction of Indian tribes, the Supreme Court, in Duro v. Reina, held that Indian tribes do not possess criminal jurisdiction over Indians that were not members of the tribe. The decision created a jurisdictional void: for certain types of crimes neither the Federal, State, nor Tribal governments possessed the power to prosecute nonmember Indian offenders. [. . . .]

Form-Based Codes: Measured Success Through Both Mandatory and Optional Implementation

by John M. Barry

The conventional zoning practices that became widely accepted in the later part of the twentieth century have drastically changed the way American cities and towns have been physically planned and developed. Conventional zoning has encouraged suburban sprawl through its promotion of low density and single use development. The consequences of this type of zoning are not limited to the physical design of the neighborhoods in which we live and work. Sprawl has also changed the way in which Americans conduct their daily lives as we increasingly rely on the automobile to commute to school and work or run errands. [. . . .]

Can You Hear Me Now?: the Myths Surrounding Cell Phone Use While Driving and Connecticut’s Failed Attempt at a Remedy

by Andre F. Amendola

The use of cell phones while driving has been demonized by many as a predominant cause of automobile accidents attributed to distracted driving. While there is no doubt that distracted driving is dangerous, and increases the risk of being involved in an automobile accident, this Note contends that cell phone use does not play as prominent a role in distracted driving as is typically portrayed. Many other distractive stimuli pose a more significant threat, and often occur more regularly than cell phone use. [. . . .]

The Devil in the Details: the Interrelationship Among Citizenship, Rule of Law and Form-Adhesive Contracts

by Zev. J. Eigen

Research on standard form contracts tends to focus on five areas: (1) analyzing the contents of common form contracts; (2) determining why competition mostly does not exist among firms drafting these contracts; (3) modeling consumer responses to boilerplate; (4) exploring judicial interpretation of these forms; and (5) discussing normatively how courts and laws should handle these contracts. This Study explores empirically how individuals experience and interpret form-adhesive agreements, in the hope of further understanding how they affect exchange relationships between organizations and individuals. [. . . .]

Cooperative Tax Regulation

by Dennis J. Ventry, Jr.

This Article describes a new approach to tax regulation based on cooperation, information sharing, and interest convergence. Currently, tax regulation in the United States relies too heavily on sticks and not enough on carrots. While recognizing that taxpayers will comply with the law in the presence of effective deterrence and enforcement, this Article optimizes the use of penalties as a compliance instrument by, among other things, rewarding compliant taxpayers, engaging taxpayers and their advisors in a participatory process, and appreciating the elegant power of cognitive devices that portray payment of taxes as a bonus rather than nonpayment of taxes as a penalty. [. . . .]

The Reach of Literal Claim Scope Into After-Arising Technology: on Thing Construction and the Meaning of Meaning

by Kevin Emerson Collins

Broadly speaking, courts and commentators have offered two theories to explain the relationship between the literal scope of a patent claim and after-arising technology (AAT), i.e. technology that is not discovered until after a claim has been filed. The fixation theory asserts that claim scope is and/or should be fixed on the date a claim is filed and that this fixation makes it impossible for the claim to encompass AAT because a claim must grow in some sense after the filing date in order to encompass AAT. [. . . .]

The Synergy of Toxic Tort Law and Public Health: Lessons from a Century of Cigarettes

by Jean Macchiaroli Eggen

Toxic torts is a relatively new area of the law, but its seeds were sown a century ago with developments in modern culture. The design, manufacture, and marketing of the cigarette constituted one such development, one with far-reaching legal consequences which continue to challenge the legal system today. This Article is built around Allan M. Brandt’s 2007 public health history of cigarettes, The Cigarette Century. It uses Brandt’s book as a stepping stone to a broader discussion of current critical issues in toxic tort law. [. . . .]

Rethinking Social Severance: Post-Termination Contact Between Birth Parents and Children

by Alexis T. Williams

Upon the termination of their parents’ parental rights, many foster children are left without any positive, ongoing relationship with an adult. Some foster children will move from one placement to another and will ultimately age-out of foster care without having been adopted. In light of this reality, courts are beginning to recognize the value of post-termination contact for children with little hope of adoption and strong emotional bonds to their birth parents. [. . . .]

Beyond Taxpayers’ Suits: Public Interest Standing in the States

by John DiManno

In the 2007 Term, the United States Supreme Court reinforced its narrow formulation of standing in public interest cases in Hein v. Freedom from Religion Foundation, Inc. The case was yet another in a long line of Supreme Court cases that have denied public interest litigation on standing grounds in cases where a litigant—as taxpayer and/or citizen—seeks to vindicate the public interest by challenging an alleged government illegality. [. . . .]

Principled Governance: the American Creed and Congressional Authority

by Alexander Tsesis

The Supreme Court recently limited Congress’s ability to pass civil rights statutes for the protection of fundamental rights. Decisions striking sections of the Violence Against Women Act and the Americans with Disabilities Act focused on states’ sovereign immunity. These holdings inadequately analyzed how the Reconstruction Amendments altered federalism by making the federal government primarily responsible for protecting civil rights. [. . . .]

When Patients Say No (To Save Money): an Essay on the Tectonics of Health Law

by Mark A. Hall & Carl E. Schneider

The ultimate aim of health care public policy is good care at good prices. Managed care stalled at achieving this goal by trying to influence providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy are now pressuring patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s watchword. [. . . .]

The Last Minstrel Show? Racial Profiling, the War on Terrorism and the Mass Media

by John Tehranian

This Article examines and critiques media portraits of the Middle East and Middle-Eastern Americans by tracing the alarming impact of this last minstrel show on public policy and the war on terrorism The Article begins by analyzing racial profiling’s problematic discourse of legitimation, deracinating its unsound roots and charting the intricate relationship between representation and reality in the narration of the Middle-Eastern threat, especially after 9/11. The Article then examines the instrumental role of the mass media in both ossifying and perpetuating stereotypes that have rationalized policies targeting individuals of Middle- Eastern descent. [. . . .]

The Death and Reincarnation of Plain Meaning in Connecticut: a Case Study

by Thomas A. Bishop

Judges have been required to interpret statutes for as long as there have been legislative enactments. To perform this task, courts have adopted various canons to guide their analytical paths. One of these judicially-created canons, the plain meaning rule, has been subjected to praise as an indication of the court's subordination to legislative will and criticism as wooden and inadequate to the task of implementing legislative intent. [. . . .]

Evolving Innovation Paradigms and the Global Intellectual Property Regime

by Katherine J. Strandburg

Since the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1994, the innovative landscape has undergone dramatic changes due to technological advances in fields such as biotechnology, nanotechnology, and digital communications and computation. The increasing potential for user innovation, and open and collaborative innovation has brought an explosion of innovative activity that does not fit into the sales-oriented, mass market model which underlies the global intellectual property regime. [. . . .]

Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide

by Kathryn M. Foley

Fictional characters have become exceptionally valuable assets, now consistently the subject of lucrative licensing agreements. Their unique ability to serve expressive as well as source identifying functions supports such agreements by allowing strong intellectual property protection to be granted under both copyright and trademark doctrines. Nonetheless, the intellectual property protection afforded to fictional characters must be carefully considered in order to avoid unjustified encroachments upon the public domain. [. . . .]

The Dark Side of Universal Banking: Financial Conglomerates and the Origins of the Subprime Financial Crisis

by Arthur E. Wilmarth, Jr.

Since the subprime financial crisis began in mid-2007, banks and insurers around the world have reported $1.1 trillion of losses. Seventeen large universal banks account for more than half of those losses, and nine of them either failed, were nationalized or were placed on government- funded life support. To prevent the collapse of global financial markets, central banks and governments in the U.S., U.K. and Europe have provided $9 trillion of support to financial institutions. [. . . .]

Financial Crisis Containment

by Anna Gelpern

This Article maps financial crisis containment—extraordinary measures to stop the spread of financial distress—as a category of legal and policy choice. I make three claims.

First, containment is distinct from financial regulation, crisis prevention and resolution. Containment is brief; it targets the immediate term. It involves claims of emergency, rule-breaking, time inconsistency and moral hazard. In contrast, regulation, prevention and resolution seek to establish sound incentives for the long term. Second, containment decisions deviate from non-crisis norms in predictable ways, and are consistent across diverse countries and crises. Containment invariably entails three kinds of choices: choices between wholesale and case-by-case response to financial distress, choices about whether to enforce private contracts and government regulations, and choices about distributing losses from crisis. [. . . .]

Deleveraging the American Homeowner: The Failure of 2008 Voluntary Mortgage Contract Modifications

by Alan M. White

The subprime foreclosure crisis has resulted in residential mortgage debt burdens far beyond what borrowers can repay. Many economists have recognized the need to deleverage the American homeowner. Empirical evidence from mortgage servicer reports to investors show that for the most part, the necessary deleveraging of homeowners is not happening. This Article reports on a study of data from more than 3.5 million subprime and alt-A mortgages, including about one-sixth of all foreclosures pending, and about 20% of the monthly total modifications in November 2008. The key findings are the following:  [. . . .]

An Economic View of the Housing Crisis

by Christopher A. Richardson

This past year, 2008, was a watershed year in terms of the devastation in the United States residential housing market. Not since the Great Depression have home values fallen so far and so fast. A look at current housing market statistics such as median home prices, market inventories of existing homes, delinquency rates, and foreclosure rates suggests that it will be quite some time before the housing market returns to a sense of normalcy, with much economic pain to be felt by homeowners in the process. [. . . .]

Industry Changes in the Market for Mortgage Loans

by Dr. Marsha Courchane, Rajeev Darolia, Dr. Peter Zorn

The Federal Housing Administration (FHA) offers mortgages insured by the federal government to a segment of the residential mortgage market. Its share of the market for residential mortgages declined substantially from 1997 through 2007, most significantly among minority borrowers who accounted for a growing share of subprime loans during that period. After that time, in part due to the collapse of the subprime market and in part due to tightened prime market underwriting standards, FHA mortgage loan originations have surged. [. . . .]

The Great Collapse: How Securitization Caused the Subprime Meltdown

by Kurt Eggert

This Article argues that one of the primary causes of the subprime meltdown and the resulting economic collapse was the structure of securitization as applied to subprime and other non-prime residential loans, along with the resecuritization of the resulting mortgage-backed securities. Securitization weakened underwriting by discouraging originators from gathering “soft information” about the likelihood of borrower default and instead caused loan originators and other market participants to focus almost exclusively on such “hard information” as FICO scores and loan to value ratios. [. . . .]

The Future of Securitization

by Steven L. Schwarcz

Securitization, a process in which firms can raise low-cost financing by efficiently allocating asset risks with investor appetite for risk, has been one of the most dominant and fastest-growing means of capital formation in the United States and the world. The subprime financial crisis, however, has revealed certain defects with how securitization is sometimes utilized. This Article examines these defects and the extent they can, and should, be remedied going forward. 

Systemic Risk Through Securitization: the Result of Deregulation and Regulatory failure

by Patricia A. McCoy, Andrey D. Pavlov, Susan M. Wachter

During the recent housing boom, private-label securitization without regulation was unsustainable. Without regulation, securitization allowed mortgage industry actors to gain fees and to put off risks. The ability to pass off risk allowed lenders and securitizers to compete for market share by lowering their lending standards, which activated more borrowing. Lenders who did not join in the easing of lending standards were crowded out of the market.  [. . . .]

Commentary Introduction

by Gregory D. Smith

On October 10, 2008, in a 4-3 decision, the Connecticut Supreme Court held that it was a violation of the Constitution of the State of Connecticut to prohibit same-sex couples from entering into a marriage. The decision in Kerrigan v. Department of Public Health established Connecticut as the third state, following Massachusetts and California (which later reversed its position on same-sex marriage), to recognize the right of same-sex couples to marry. The Kerrigan decision is unique since the state previously passed legislation allowing civil unions, which granted all of the rights of marriage to same-sex couples but did so under a different nomenclature. [. . . .]

From Separate to Equal: Litigating Marriage Equality in a Civil Union State

by Bennett Klein & Daniel Redman

Kerrigan v. Commissioner of Public Health,1 the Connecticut Supreme Court case establishing the right to marry for same-sex couples, is unique in the history of marriage equality litigation. It is the first such case to be litigated in the context of an existing statute that granted all of the state- based legal rights, benefits, and obligations of marriage to same-sex couples but denied to them the status of marriage, and created instead a separate legal category only for gay people called “civil union.” [. . . .]

Marriage As Monopoly: History, Tradition Incrementalism, and the Marriage/Civil Union Distinction

by Suzanne B. Goldberg

History and tradition have taken a prominent place as favored rationales for the exclusion of same-sex couples from marriage. Incrementalism likewise has been invoked to suggest that states can permissibly move “one step at a time” to redress the unequal status of same-sex couples, including by creating a civil union/marriage regime instead of providing marriage for all. Yet constitutional jurisprudence is clear that neither longevity nor tradition alone can justify the continuation of a discriminatory rule. This Article asks, then, what work these rationales perform in the marriage/civil union jurisprudence and debate, given their inadequacy from a doctrinal standpoint. [. . . .]

Name Calling: Identifying Stigma in the “Civil Union”/”Marriage” Distinction

by Marc R. Poirier

The Connecticut marriage equality case, Kerrigan v. Comm’r of Public Health, turns on a threshold determination that the state legislature’s distinction between “civil union” and “marriage” creates a cognizable injury of constitutional dimension. The court’s short explanation of its conclusion hinges on two social facts. First, “marriage” names a long-standing, complex, and revered social institution, while “civil union” is a new name with virtually no history. Second, the “civil union”/“marriage” distinction is framed against a historical background of stereotyping, prejudice, and discrimination against gay men and lesbians. The court’s explanation, while accurate, is all too brief. [. . . .]

Changing the Immutable

by Susan R. Schmeiser

Over the past few decades, questions about the chosen or compelled nature of sexual orientation have become both a political and a constitutional litmus test for progressive approaches to LGBT rights. While choice occupies a hallowed place in American culture, its invocation in the context of sexual orientation generally has a more ambivalent, and often sinister, ring. High-profile gaffes by prominent politicians make clear that, in this context at least, pro-gay does not mean pro-choice. This Article illuminates the rhetorical confusion surrounding homosexuality and choice, linking it to a misguided jurisprudence of immutability. [. . . .]

Sexual Politics and Social Change

by Darren Lenard Hutchinson

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the “political opportunity” for the Lawrence ruling and made the opinion relatively “safe.” [. . . .]

Form and Function in the National Security Constitution

by Deborah N. Pearlstein

Since Alexander Hamilton first wrote of the functional virtues of the presidency in matters of foreign affairs, his claim that a unitary executive is specially blessed with advantages of “[d]ecision, activity, secrecy, and dispatch” has been invoked regularly to argue for a limited role for Congress in national security decision-making, and even more rigorous deference to executive preferences by the courts. The Hamiltonian virtues have proven particularly compelling to a modern set of functionalist scholars, from Bruce Ackerman to John Yoo, who rely on the same metrics of institutional competence to defend executive-heavy security detention programs (and other initiatives) against separation-of- powers arguments that the Constitution requires greater multi-branch engagement. [. . . .]

Making the Jump from Gene Pools to Patent Pools: How Patent Pools Can Facilitate the Development of Pharmacogenomics

by Courtney C. Scala

While promising great advancement in the understanding of genetic variability and drug response, the rapidly growing field of pharmacogenomics is plagued with an increasingly complex landscape of intellectual property rights. The often prohibitive transaction costs of negotiating a multitude of licensing agreements threaten to stifle innovation and limit the success that many hope pharmacogenomics will bring to personalized medicine. By aggregating intellectual property rights, patent pools offer an intriguing solution to some of the access issues confronting the pharmacogenomics industry.  [. . . .]

Fourth and Short on Equality: The Disparate Impact of the NFL’s Use of the Wonderlic Intelligence Test and the Case for a Football-Specific Test

by Christopher Hatch

Prior to being selected in the NFL draft, a player must undergo a series of physical and mental evaluations, including the Wonderlic Intelligence Test. The twelve-minute test, which measures “cognitive ability,” has been shown to have a disparate impact on minorities in various employment situations. This Note contends that the NFL’s use of the Wonderlic also has a disparate impact because of its effect on a player’s draft status and ultimately his salary. The test cannot be justified by business necessity because there is no correlation between a player’s Wonderlic score and their on-field performance. As such, this Note calls for the creation of a football-specific intelligence test that would be less likely to have a disparate impact than the Wonderlic, while also being sufficiently job-related and more reliable in predicting a player’s success. 

The Need for Change: An Economic Analysis of Marijuana Policy

by Cynthia S. Duncan

The Controlled Substances Act was enacted in 1970. Since that time, billions of dollars have been spent enforcing marijuana prohibition and millions of individuals have been arrested. Despite these efforts, there has been little to no success in controlling the availability of marijuana. Federal and state efforts to reduce marijuana production and use through prohibition have been ineffective, and those efforts have been far less than equitably applied across economic and racial divisions. [. . . .]

Limping Toward Elysium: Impediments Create by the Myth of Westphalia on Humanitarian Intervention in the International Legal System

by Stephen Carley

The present international system is broadly thought to consist of nation-states possessing certain essential characteristics: a fixed population and territory, formal equality in external relations and, in nearly all cases, unquestioned domestic authority to conduct its internal affairs in any way it deems fit. That last characteristic, often viewed by historians, legal actors and diplomats as a central and indispensable principle of the international system, is the one most commonly associated with status as a nation-state and, in the language of international law, is understood as the essence of sovereignty. [. . . .]

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