Volume 68 | Winter 2016 | Issue 2
A COMMON LANGUAGE TO REMEDY DISTORTED FOREIGN CORRUPT PRACTICES ACT ENFORCEMENT STATISTICS
The Foreign Corrupt Practices Act (“FCPA”) has emerged during the past decade as a niche practice area for lawyers, accountants, and other compliance professionals. At present, however, the FCPA’s conversational waters are muddied because this niche practice area (often referred to as FCPA Inc.) lacks a lingua franca, or common language. Rather, various FCPA Inc. participants have adopted creative and haphazard counting methods that infect the quality and reliability of FCPA enforcement and related statistics of interest to many in the legal and business communities.
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
The academy is engaged in a robust dialogue about discrete aspects of changes and challenges confronting our modern administrative state. This Article suggests the current dialogue is too myopic: the existing conversation, while critical, fails to appreciate how the array of disparate administrative law issues unfolded as a consequence of the evolution of administrative common law. Administrative common law, or judge-made law untethered to particular statutory language, captured the judiciary’s attention during the evolution of our administrative state. Today, that is changing. Administrative law has become exceedingly dynamic during the Roberts Court. The past few terms, the Court has focused more acutely than before on the problems precipitated by administrative common law precedent in a post-Administrative Procedure Act era. 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
For over twenty years, the federal courts of appeals have been divided over the extent to which the Pregnancy Discrimination Act requires employers to offer light-duty or other work accommodations to pregnant employees. The division between circuits centers on the interpretation of the language in the second clause of the Pregnancy Discrimination Act mandating that employers “shall” treat pregnant employees “the same . . . as other persons . . . similar in their ability or inability to work.” Four circuits interpreted this clause to merely explain the first clause, thereby refusing to enforce any significant obligation on employers to accommodate pregnancy-related physical limitations, even when they offer accommodations to nonpregnant employees. In contrast, three circuits interpreted this clause to have independent meaning and to provide pregnant women with a right to comparative accommodation if their employer provides accommodations for nonpregnant employees with similar physical limitations. In March of 2015, the Supreme Court rejected both of these interpretations and instead attempted to fashion a compromise based on the creation of a novel framework that it confined to claims brought under the Pregnancy Discrimination Act. While the Court’s decision may allow greater access to light-duty positions for some pregnant employees, its new framework creates significant uncertainty by imposing ambiguous and burdensome requirements on pregnant employees seeking accommodation under the statute. This Article concludes that the limitations of the Court’s decision may outweigh its benefits to pregnant employees. Given the inherent complexity of the Court’s new approach, congressional reform is needed to provide pregnant employees with a clear entitlement to accommodation of pregnancy-related medical conditions. VIEW HERE
This Article challenges the preference in takings law for remedial simplicity over remedial justice, and demonstrates why this preference—which is manifested by the application of a universal compensation standard—fails to fulfill the constitutional requirement of “just compensation.” This failure exists at both the normative and positive levels. In a normative sense, the universal compensation mechanism is inadequate because it ignores important differences among owners, among types of property, and in the consequences of expropriation. Consequently, current takings law is at odds with the pluralistic nature of property ownership. In a positive sense, takings law is ill-equipped to assess the actual loss incurred by owners whose property is taken. Courts apply a universal compensation standard—the fair market value of the taken property—which makes compensation exclusively dependent on the market, imports the failures of the market to state action, ignores non-market values and losses incurred by owners, and excludes market values that are not directly linked with the property’s price.
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. First, a brief review of personal jurisdiction is presented, looking back at the historical jurisprudence of personal jurisdiction. It is critical to note that the core principles and foundations of personal jurisdiction are bedrock and do not change. Second, personal jurisdiction is considered in terms of the present digital interactions of the early twenty-first century. While the precepts of personal jurisdiction may not change, the nature of interactions in the digital age of ubiquitous online and mobile interactions do change. These advances renew the discussion of what establishes constitutionally sufficient interaction for a finding of personal jurisdiction. Finally, this Note explores new and evolving technologies that are only recently beginning to emerge and, while still being only novel and nascent, these technologies may prove to be the interwoven and inextricable aspects of the next and future generations. VIEW HERE
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