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Brickman on Aggregate Settlements & Advance Client Waivers

Lester Brickman (Benjamin N. Cardozo School of Law) has posted Anatomy of an Aggregate Settlement: The Triumph of Temptation Over Ethics on SSRN. Here is the abstract: In an aggregate settlement, usually of a mass tort claim, a defendant agrees...

Posted on: 29 July 2010 | 7:00 pm, Author: Lawrence Solum



A few not-so-accurate headlines about Congress's work on crack sentences

One can find lots and lots of effective traditional media coverage of yesterday's work by Congress to finally pass a bill to reform crack mandatory minimum sentencing provisions (basics here). However, in looking over some of the headlines in Google...

Posted on: 29 July 2010 | 5:00 pm, Author: Doug B.



Jackson on Disclosure in Securitization Transactions

Howell E. Jackson (Harvard Law School) has posted Loan-Level Disclosure in Securitization Transactions: A Problem with Three Dimensions on SSRN. Here is the abstract: The collapse of the credit markets revealed that information critical to assessing the quality of many...

Posted on: 29 July 2010 | 4:55 pm, Author: Lawrence Solum



"Are Opponents of Marijuana Legalization Getting Dumber?"

The title of this post is the heading of this amusing new item over at Stop the Drug War on the challenges experienced by those challenging the proposed legalization of marijuana in California. Here is the full text: The opposition...

Posted on: 29 July 2010 | 4:21 pm, Author: Doug B.



Interesting chart of world-wide execution numbers for 2009

The Economist has this interesting chart which spotlights various nations' execution numbers for 2009. The chart comes from this little article, which is headlined "China and the death penalty: High executioners." Here is the text that accompanies the graphic: China...

Posted on: 29 July 2010 | 3:50 pm, Author: Doug B.



Muchmore on Private Regulation & Foreign Conduct

Adam I. Muchmore (Penn State University - Dickinson School of Law) has posted Private Regulation and Foreign Conduct (San Diego Law Review, Vol. 47, No. 2, 2010) on SSRN. Here is the abstract: Current U.S. policy on safety regulation for...

Posted on: 29 July 2010 | 11:40 am, Author: Lawrence Solum



Wells on Snyder v. Phelps

Christina E. Wells (University of Missouri School of Law) has posted Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment on SSRN. Here is the abstract: In its upcoming term, the Court will decide in Snyder v. Phelps whether...

Posted on: 29 July 2010 | 7:34 am, Author: Lawrence Solum



Fruitless efforts to mainstream child justify more restrictive placement

A California district demonstrated that a kindergartener had significant behavioral issues that impeded her ability and the ability of her classmates to access the curriculum in a general education classroom. Therefore, its proposal to place the student in a special...

Posted on: 29 July 2010 | 7:00 am, Author: Adjunct LawProfs



Redding on the Constitutionality of Non-State Muslim Civil Dispute Resolution in India

Jeff Redding (Saint Louis University School of Law) has posted Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems (Journal of Islamic State Practices in International Law, Vol. 6, No. 1, 2010) on SSRN. Here is the...

Posted on: 29 July 2010 | 3:35 am, Author: Lawrence Solum



Republican Regulatory "Reform" aka Repeal

The answer to the question I proposed earlier today -- how can the Republican proposal for regulatory "reform" be consistent with Chadha -- appears to be this, with thanks to two correspondents: The statute if enacted would repeal all existing authority in all agencies to adopt major rules, and would convert their "rules" into proposals for legislation, which would receive favored status on the legislative dockets in each chamber.


Fair enough. There's obviously no constitutional problem with either step in that (repeal, favored status for proposals of a specified sort). But: This would be the effect of the Republican proposal, but the statutory language sure doesn't look on its face as if that's what's going on. And, in this area, labels may matter. The Court invalidated the Line Item Veto Act in the face of a cogent argument, offered by Justice Scalia, that if you looked at what the statute did rather than what it said (in its title), there was nothing at all unconstitutional about it. (There's also the canon of statutory construction that repeals by implication are disfavored, though that can be countered by the canon that courts should do their best to construe statutes to avoid finding them constitutional when their language can fairly be read to conform to the Constitution. Whether the "this statute repeals all existing authority to adopt major regulations" interpretation can be described as a "construction" of the statutory language seems to me questionable.)

In addition, if there is something like a constitutional truth-in-labeling requirement, which there might be, the Republican proposal seems to me a good candidate for a finding of deceptive (and therefore unconstitutional?) labeling. The truth-in-labeling requirement might be found in the Line Item Veto decision coupled with Hampton v. Mow Sun Wong, as part of what Laurence Tribe calls "structural due process."

Posted on: 29 July 2010 | 2:58 am, Author: Mark Tushnet



The Huge, Obvious Problem with the Law

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it's not there. It's so large as to be beyond overwhelming. The problem is this: Our system of justice is absurdly complex and time consuming. A mighty swamp is our law. (Image: Nat'l Park Service) I know - it's not news. But that's the rub. The shadow cast by this cloud is so vast that our eyes adjust to the darkness. Several aspects of the Big Problem are shocking to 1Ls and stub-year associates. But eventually, we all become desensitized....

Posted on: 29 July 2010 | 1:18 am, Author: Eric E. Johnson



"A Brief and Modest Proposal" ... an original essay from US District Judeg Richard Kopf

I am very pleased to be able to reprint a timely e-mail that landed in my in-box this afternoon from Richard G. Kopf, United States District Judge for the District of Nebraska. Here is the Judge's wind-up and pitch: I...

Posted on: 29 July 2010 | 12:19 am, Author: Doug B.



Cummings & NeJaime on Marriage Equality Lawyering

Scott Cummings (University of California, Los Angeles (UCLA) - School of Law) & Douglas NeJaime (Loyola Law School Los Angeles) have posted Lawyering for Marriage Equality (UCLA L. Rev. Vol. 57, p, 1235, 2010). Here is the abstract: Critics of...

Posted on: 28 July 2010 | 11:53 pm, Author: Lawrence Solum



Questions and more questions as a reformed crack bill heads to the President's desk

As reported here, the House of Representatives, by voice vote, finally approved the compromise federal sentencing bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. Here is the...

Posted on: 28 July 2010 | 10:01 pm, Author: Doug B.



A Different Kind of K-2 High

I saw an interesting article out of Ft. Wayne, Indiana today about K-2, a synthetic herb that is sold for aromatherapy purposes and as incense but is also "marketed" to teens as a way to get high (supposedly it has marijuana-like side effects--but see below--and has a much more powerful high than THC, marijuana's active ingredient). K-2 was originally created in 1995 by a chemistry professor named John Huffman, for the potential treatment of nausea and glaucoma and as an appetite stimulant. The recipe for Huffman's compoud was allegedly published in a scientific journal, where manufacturers in Korea and China...

Posted on: 28 July 2010 | 8:39 pm, Author: Jody Madeira



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