Volume 68 | Winter 2016 | Issue 2
A COMMON LANGUAGE TO REMEDY DISTORTED FOREIGN CORRUPT PRACTICES ACT ENFORCEMENT STATISTICS
To clear up the FCPA conversation, this Article proposes an FCPA common language regarding the basic issue of what is an FCPA enforcement action. The FCPA common language proposed will improve the quality and reliability of FCPA statistics and thus allow a more cogent conversation to take place regarding FCPA issues. VIEW HERE
THE DEATH OF ADMINISTRATIVE COMMON LAW OR THE RISE OF THE ADMINISTRATIVE PROCEDURE ACT
This Article suggests how the administrative state is confronting its fifth phase of development. The first four phases exhibited judicial ripostes to pressing temporal concerns and a corresponding development of administrative common law. The consequence is that much of administrative common law is anachronistic, unnecessary, and, consequently, on the verge of being cast aside—leading us into a fifth phase—and exploring fundamental assumptions about modern administrative law. VIEW HERE
A SPECIAL DELIVERY: LITIGATING PREGNANCY ACCOMMODATION CLAIMS AFTER THE SUPREME COURT’S DECISION IN YOUNG v. UNITED PARCEL SERVICE, INC.
Lynn Ridgeway Zehrt
When the Supreme Court granted the petition for certiorari in July of 2014 in Young v. United Parcel Service, Inc., advocacy groups on both sides anticipated that it would resolve the longstanding division between the federal circuits and would identify which employees were proper comparators for pregnant employees under the PDA. Instead, the Court rejected both interpretations of the federal courts of appeals, creating a novel framework for analyzing pregnancy accommodation claims fashioned loosely upon the approach established in McDonnell Douglas Corp. v. Green. Unfortunately, this framework further complicates pregnancy accommodation decisions, leaving many unanswered questions for the lower federal courts to resolve in future cases.
This Article examines the Court’s complex decision in Young, identifies its ambiguities, and analyzes its impact in litigating pregnancy discrimination claims. VIEW HERE
This Article does not argue that we must sacrifice simplicity in the law for the sake of justice, but suggests that we can have them both. By expanding the range of remedies available to owners subject to expropriation, this Article offers a normative rule-based remedial scheme in takings law. To avoid ad hoc adjudication and practical assessment difficulties, this Article proposes categorization of the different prototype failures that characterize current law. Each prototype category requires different treatment in the law of takings, including different remedies available to owners. A remedial scheme, which is sensitive to property types, owners’ actual losses, and expropriation consequences, will restore a constitutional sense of justice to takings law. VIEW HERE
THE MEANING OF LIFE IN CRIMINAL LAW
This Article revisits theories of criminal punishments while offering a new perspective on determining nonmonetary criminal sanctions that recognizes life expectancy considerations. It examines the current and desirable approach toward life expectancy considerations in criminal punishment theories while reviewing statistical data on the increase of life expectancy in the United States since independence. After discussing criminal punishment theories, and evaluating the role of life expectancy considerations under them, I conclude that criminal law theories, to a great extent, support life expectancy considerations. Under both utilitarian and retributive approaches, lack of practical considerations of life expectancy in criminal punishments could lead to a misconception of criminal law theories and erode the important role played by criminal sanctions. Accordingly, this Article examines consequences of failing to apply life expectancy considerations in practice and proposes modest solutions to overcome this perceived problem. VIEW HERE
HOW ANTITRUST LAW COULD REFORM COLLEGE FOOTBALL: SECTION 1 OF THE SHERMAN ACT AND THE HOPE FOR TANGIBLE CHANGE
In today’s speech, I will discuss how the absurdity came to pass where college football has become a multibillion dollar business, yet a majority of college football players live below the poverty line. I also will discuss how antitrust litigation against the National Collegiate Athletic Association (the “NCAA”) and its member colleges could serve as the much-needed impetus for reform to the system, and why a proper antitrust remedy could yield economic reform and tangible change in college sports. Overall, this is a speech built on optimism, but only optimism presuming that the courts properly recognize that the NCAA’s current mode of business violates federal antitrust laws, and only if the courts ultimately require changes to better protect the legal rights of all stakeholder groups within the collegiate sports industry. VIEW HERE
“OPENING THE FLOODGATES”: ADULT CHILDREN SUING THEIR PARENTS FOR COLLEGE SUPPORT: HAS THE LAW IN NEW JERSEY GONE TOO FAR OR NOT FAR ENOUGH?
This Note argues that New Jersey needs to level the playing field by eliminating the disparate treatment of children of divorced parents and children of married parents by either expanding the present law to include all children or by joining the majority of states that do not allow courts to award college costs to children of divorced or unmarried parents. This Note also recommends that if New Jersey is unwilling to expand or reverse its current law, the state should explore imposing sensible alternatives to mitigate the perceived discrimination experienced by children of married parents. VIEW HERE
THE CASE FOR AN FCPA EXCEPTION TO DODD-FRANK’S ANTI-RETALIATION PROVISION
Kylie M. Huff
Dodd-Frank treats whistleblowers differently depending on who reports the tip, to whom the tip is reported, and the nature of the involved company’s corporate structure. This Note will examine the gaps where Dodd-Frank’s whistleblower program fails to adequately protect FCPA whistleblowers. To properly address these gaps, this Note argues that Congress should amend Dodd-Frank’s anti-retaliation provision to create an FCPA exception that eliminates the issuer/non-issuer distinction as it applies to FCPA whistleblowers and that permits the extraterritorial application of Dodd-Frank’s anti-retaliation provision to qualifying foreign whistleblowers reporting valid FCPA violations. VIEW HERE
FINDING SOMETHING MORE IN TARGETED CYBERSPACE ACTIVITIES
This Note focuses on the unique issues associated with recent trends in targeting activities that can occur in cyberspace. Several assertions are presented to support the argument that targeted interactions are sufficient for a finding of specific personal jurisdiction for non-resident defendants in today’s culture of pervasive and ubiquitous cyberspace interactions. This Note looks at the past, present, and future of specific personal jurisdiction based in Internet, web, digital, and other cyberspace conduct. VIEW HERE
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