In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues.6 We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.
This is a perfect juncture for analyzing 2021 federal judicial clerkships. Many aspirants recently finished half of their legal education. Six appeals courts’ members have agreed to honor a new Federal Law Clerk Hiring Plan (hereinafter referred to as “the pilot”) that is currently in its second year. The pilot directly proscribes seeking and permitting clerkship applications and recommendation letters until June 15, 2020 and prohibits student clerkship interviews and judicial offers before June 16, 2020.1 However, certain judges within these six tribunals will not respect the pilot during its second year, even though jurists in the seven remaining courts of appeals might follow the new plan. The Administrative Office of the United States Courts (“AO”) extended 2L students OSCAR access in February while suspending in January 2014 the 2003 clerk hiring plan—whereby 3L employment began near Labor Day—and judges will soon consider aspirants. Clues offered below may assist prospects in securing the coveted positions which start in 2021.
This Article examines these questions through the lens of United States v. Hoskins, a recent Second Circuit case. Part I will provide background: Section I.A will discuss the circumstances that compelled Congress to pass the original FCPA, the FCPA’s subsequent amendments, and the controversy surrounding U.S. enforcement of the FCPA. Section I.B will provide a basic background of accomplice liability, the Gebardi principle, and subsequent interpretations of the Gebardi principle. Section I.C will briefly explain the presumption against extraterritoriality. Section I.D will provide a synopsis of Hoskins. Part II will argue that, as a matter of statutory interpretation and policy, the government should be allowed to prosecute accomplices to FCPA violations, even when they are beyond the extraterritorial reach of the FCPA’s principal liability. Section II.A will argue that the Hoskins Court misapplied the Gebardi principle and the presumption against extraterritoriality and that, as a matter of statutory interpretation, accomplice liability’s extraterritorial reach extends beyond those who can substantively violate the FCPA. Section II.B will argue that principles of international law allow the U.S. government to prosecute Hoskins. Section II.C will argue that expanded accomplice liability is necessary as a matter of policy. The conclusion will recommend that the Supreme Court take action and hold that accomplice liability is extended to foreign nationals that conspire with principal offenders of the FCPA, even if they cannot be held liable as principal offenders. It will also recommend that, in the absence of a Supreme Court decision, Congress should explicitly expand accomplice liability’s extraterritorial reach beyond the FCPA’s principal liability.
This Note will explain the constitutionality and legal scope of the executive order as a political tool of the president. It will then discuss the rise of nationwide injunctions and the judicial system’s changing attitudes toward such injunctions as a viable judicial tool. Next, it will explain the series of executive orders passed by President Donald Trump—which together constituted the Muslim ban—and the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawai’i Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawai’i paved the way: The Injunctive Authority Clarification Act of 2018, which sought to prohibit courts from issuing nationwide injunctions.
Ultimately, this Note will argue that Trump v. Hawai’i was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district- or circuit-wide injunctions.
This paper argues that doing so would unconstitutionally force individuals to choose between criminal prosecution or banishment. Part I of this paper will briefly provide an overview of homelessness in the United States, particularly in California, and place the Manhattan Beach ordinance within the various laws and practices localities have implemented in response to the rise of homelessness. Part II will examine the use of banishment in criminal law and explore various challenges to such conditions. Finally, Part III will demonstrate that Manhattan Beach’s ordinance and planned enforcement constitute banishment and are invalid for many of the same reasons courts have used to invalidate conditions of banishment imposed in criminal law.
This Note will propose and examine the constitutional bounds of more expansive legislation that targets not just SOCE at the hands of state-licensed mental healthcare providers, but also at the hands of unlicensed providers—specifically religious leaders. Though more expansive legislation would likely trigger constitutional objections under the First Amendment, particularly with respect to free speech and free exercise rights, this Note will examine the constitutionality of this proposed legislation through the lens of parental rights under the Fourteenth Amendment.
This Note will proceed in the following order: Part I will examine the history and nature of SOCE, detail the current position of mainstream mental health professional associations regarding SOCE, and analyze current SOCE legislation and its deficiencies. Part II will propose more expansive SOCE legislation and establish that such legislation would not unconstitutionally infringe upon parental rights under the Fourteenth Amendment. Part III will analyze the limits that the Supreme Court has hitherto placed on parental rights, taking the defined limits of these rights in light of claims of religious freedom into special consideration. Parts IV and V will respond to anticipated critiques of the proposed legislation, focusing on the potential ease with which the legislation may be evaded and the ramifications that the legislation may have with respect to parental rights. Finally, Part VI will provide several policy justifications for the proposed legislation.
Although CEQA plays an important role in protecting communities from significant adverse environmental impacts, its self-executing nature allows it also to be used as a tool to halt or impede development for the wrong reasons. While many CEQA disputes are based on legitimate environmental concerns, CEQA litigation is also used to prevent development for discriminatory or nonenvironmental reasons. CEQA litigation is an attractive vehicle for this purpose due to overly broad standing requirements, unpredictable judicial results, extreme remedies, and attorney’s fees awards. Projects impeded by CEQA litigation include multifamily residential projects, homeless housing, health clinics, youth centers, and a multitude of other quasi-public uses. Since CEQA lacks uniform standards, local governments and developers must resort to costly overcompliance and guess work when confronted with the threat of litigation. To remedy the problem of CEQA abuse and unpredictability, this Note proposes moving away from judicial enforcement of CEQA and creating a state or regional agency dedicated to regulation, enforcement, and adjudication of CEQA.
Part I of this Note reviews CEQA processes, the history of exclusionary and discriminatory land use policies, and evidence of CEQA’s misuse for discriminatory and nonenvironmental reasons. Part I of this Note explores why CEQA is such an attractive tool for people to oppose development projects for exclusionary or nonenvironmental reasons and concludes that the judicial system is unsuitable for primarily enforcing CEQA. Part II proposes a dedicated agency that would handle adjudication, enforcement, and legislation under CEQA and discusses how the agency may fit into the broader environmental review process.
This Note will center on the TCJA’s unpopularity, the charitable contribution deduction, and the adverse effect the TCJA is projected to have on charitable giving. It will conclude that now is an optimal time to expand the charitable contribution deduction. The expansion of the charitable contribution deduction would likely be popular for many of the same reasons that the TCJA is currently unpopular. The proposed expansion will also address some of the problems with charitable giving created or exacerbated by the TCJA…
This Note will use various tax-policy projections regarding the effects of the TCJA for tax year 2018. These projections cannot account for all outside variables, such as the state of the economy, which is affected by many factors besides taxation. With this in mind, the aspects of this Note that rely on the projections are tax policy specific, and the outside variables that affect the actual tax year 2018 statistics are not themselves within the scope of this Note. Therefore, unless there are significant, long-term, unexpected outcomes to the TCJA that lead to the alteration of tax policy projection methods, the projections can reasonably be used as data for the purposes of this Note.
From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.
In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.
Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.
A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction because of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. legal system that attract foreign litigants. The problem is ubiquitous. For instance, four cases decided in the Supreme Court’s 2017 October Term raised international comity concerns and illustrate the Court’s difficulty grappling with these issues.
This Article cuts against prevailing academic commentary (endorsed, to some extent, by the newly-minted Restatement (Fourth) of the Foreign Relations Law of the United States) and presents the first sustained defense of the widespread practice of international comity abstention in the lower federal courts—a practice the Supreme Court has not yet passed on but will almost certainly decide soon. At the same time, we acknowledge that the critics are right to assert that the way lower courts currently implement international comity—through a multi-factored interest analysis—is too manipulable and invites judicial shirking. Consequently, we propose a new federal common law framework for international comity based in part on historical practice from the Founding to the early twentieth century when federal courts frequently dealt with cases implicating foreign governmental interests with scant congressional or executive guidance, primarily in the maritime context. That old law is newly relevant. What is called for is forthright recognition of a federal common law doctrine of international comity that enables courts to exercise principled discretion in dealing with asserted foreign governmental interests and clears up conceptual confusion between prescriptive and adjudicative manifestations of international comity.