Current Issue

Volume 64, Fall 2011, Issue 1

Articles

WHAT CONSERVATIVE CONSTITUTIONAL REVOLUTION? MODERATING FIVE DEGREES OF JUDICIAL CONSERVATISM AFTER SIX YEARS OF THE ROBERTS COURT
Charles W. “Rocky” Rhodes
Recent headlines trumpet that the Roberts Court is “The Most Conservative Court in Decades.” Current and former Supreme Court Justices complain that precedents are being “dismantled” and lament that “[i]t is not often in the law that so few have so quickly changed so much.” The President and Democratic Senators decry the Court for allowing “powerful interests” to bankroll American elections, alleging that “the strike zone for corporations gets better every day.” Academics join the chorus as well, contending, in the words of Professor Laurence H. Tribe, that the Roberts Court has lost any “legitimate claim” of abiding “to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-a-vis the political branches, or to a genuine concern with adherence to precedent.” Download PDF

RISK REGULATION AND REGULATORY LITIGATION
Patrick Luff
The appropriate scope of regulation has been a ubiquitous policy debate in the United States since the nation’s founding. For some time now, a unique phenomenon has been developing in the world of litigation—litigation has become a regulatory device as a result of courts more frequently issuing decisions with widespread regulatory effects. This use of the judiciary as a forum for regulatory policy developed partly through congressional design—the civil rights statutes, for example, were designed with private regulatory enforcement in mind6—and partly through necessity. Download PDF

RESOLVING THE DISJUNCTION BETWEEN CULTURAL PROPERTY POLICY AND LAW: A CALL FOR REFORM 
Andrew L. Adler & Stephen K. Urice
Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the executive branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the executive branch’s (the “Executive”) current cultural property policies and the existing legal framework established by Congress and the Judiciary. We document that disjunction in this Article. Download PDF

OUTING—AND OUSTING—THE “HIDDEN” HYDE: TOWARD REPEAL AND REPLACEMENT OF THE HYDE AMENDMENT
Rebecca K. Stewart
Poorly crafted statutes have always created interpretive quandaries for judges and litigants, and these problems naturally tend to be exacerbated when substantive legislation is passed as a result of less than substantive legislative processes, such as through limitations riders to appropriations bills. However, these issues become vastly more troublesome when Congress intentionally subverts measures intended to restrain such processes. This Article examines the passage of one such rider, commonly known as the Hyde Amendment, exploring its origins and curious subtextual codification, and analyzing its life in the federal courts over more than a dozen years. Download PDF

Notes

NAVIGATING THE GOAT PATHS: COMPULSIVE HOARDING, OR COLLYER BROTHERS SYNDROME, AND THE LEGAL REALITY OF CLUTTER
Keith P. Ronan
In a society that spends an average of over $800 per person on holiday shopping, contributes consumer spending to 70% of the gross domestic product, and has the lowest savings rate in the world at 0.4%, it is easy to recognize America’s obsession with objects. Advertisers are masterminds at creating a nexus between what is necessary and what is desired while manipulating consumer anxiety to drive demand for products. Not surprisingly, many Americans feel an attachment to their possessions. This Note, however, specifically addresses the legal consequences for those American consumers suffering from a mental disability that drives their need to acquire and hoard objects. Known as compulsive hoarders, these individuals may accumulate enough clutter to threaten the safety of the members of their households and unduly burden the surrounding community.  Download PDF

FOR-PROFIT EDUCATION AND FEDERAL FUNDING: BAD OUTCOMES FOR STUDENTS AND TAXPAYERS
Joseph Sipley
The federal government spent an estimated $145 billion in fiscal year 2010 for post-secondary education in the form of grants and loans.1 Nearly a quarter of such funding now goes to for-profit, post- secondary institutions.2 While for-profit institutions do increase access to higher education, they also charge higher tuition, have higher drop-out rates, have students graduate with higher debt loads, and spend more on noneducation items such as marketing, administrative expenses, and executive compensation than do comparable not-for-profit institutions. Download PDF

“OPPORTUNITY” FOR ALL?: HOW TAX CREDIT SCHOLARSHIPS WILL FARE IN NEW JERSEY
Isabel Chou
Recent media attention has created yet another firestorm around the national debate over education reform. From the much-publicized $100 million donation by Facebook CEO Mark Zuckerberg to support public schools in Newark, New Jersey, to protests staged by schoolteachers against the elimination of collective bargaining rights, political, education, and civil rights leaders across the country have seized the limelight to advance their agendas in the latest push in education reform.

Perhaps in no other state has the battle over education reform been more politically charged than in New Jersey, with Republican Governor Chris Christie aggressively taking on the state’s teachers union over tenure reform, cuts in pension and health benefits, teacher evaluation, and school choice. As a result, many of the state’s education reform discussions have fallen along traditional political lines. Download PDF