Villanova law review最新文献

{"title":"Managing the 'Expectations Gap' in Investor Protection: The Sec and the Post-Enron Reform Agenda","authors":"Donald C. Langevoort","doi":"10.2139/SSRN.328080","DOIUrl":"https://doi.org/10.2139/SSRN.328080","url":null,"abstract":"One of the underlying questions in the aftermath of the Enron and comparable scandals is whether securities regulation failed, and if so, what kind of fix is appropriate. To answer that, we have to confront an apparent \"expectations gap\" in what the law can accomplish. Some investors (and politicians) seek greater confidence than is practicable, and the SEC has the political incentive to contribute to a mythology of \"market integrity\" - and then manage the fallout when corruption surfaces. This paper explores the SEC's political situation, and then moves on to discuss various reforms - including some in the recently enacted Sarbanes-Oxley Act - designed to improve investor protection. While some reforms do indeed improve securities regulation at the margin, an expectation gap remains.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"48 1","pages":"1139"},"PeriodicalIF":0.0,"publicationDate":"2002-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68581557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Natural Law and Public Reasons","authors":"K. Greenawalt","doi":"10.1093/acprof:oso/9780199756162.003.0006","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199756162.003.0006","url":null,"abstract":"","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"47 1","pages":"531"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60653362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Crack babies and the Constitution: ruminations about addicted pregnant women after Ferguson v. City of Charleston.","authors":"Ellen Marrus","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"47 2","pages":"299-340"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22328548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Foreign Affairs Federalism and the Separation of Powers","authors":"J. Yoo","doi":"10.2139/SSRN.291160","DOIUrl":"https://doi.org/10.2139/SSRN.291160","url":null,"abstract":"This essay argues that Crosby v. National Foreign Trade Council may not portend a more aggressive intervention by the federal courts in enforcing a federal common law of foreign relations. A significant concern that underlies foreign affairs preemption is concern that 50 states might undermine the sole voice of the federal government in representing the nation. This concern, however, applies equally to the federal courts, which are not structurally suited due to their slowness and decentralization for involvement in foreign affairs. Enhancing the effectiveness of foreign policy calls for a reduced role for the judiciary in favor of the concentration of authority in the political branches.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1341"},"PeriodicalIF":0.0,"publicationDate":"2001-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68429044","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Foreign Affairs of Federal Systems: A National Perspective on the Benefits of State Participation","authors":"Daniel Halberstam","doi":"10.2139/SSRN.290904","DOIUrl":"https://doi.org/10.2139/SSRN.290904","url":null,"abstract":"Recent debate surrounding the proper role of States in foreign affairs has largely focused on the existence and mitigation of adverse consequences of State's foreign affairs activities to the Nation as a whole. This symposium contribution, by contrast, considers the potential advantages to the Nation of state involvement in foreign affairs and, finding that such advantages exist, examines how state activities might be harnessed to reap those advantages. It will present the recent history of state participation in foreign affairs to illustrate the States' deep involvement in foreign policy matters and to present the many potential benefits thereof. After briefly considering the involvement of component states in foreign affairs in the European Union and Germany, this essay will suggest that in cases of tension between central and component state policies the major benefit of component state involvement in foreign affairs is overcoming bureaucratic inertia at the central level of governance. The doctrinal consequences for the United States of an approach centered around this recognition are that (1) States should not be categorically excluded from the foreign policy arena, (2) States must not discriminate against their sister States in the pursuit of foreign policy objectives, and (3) any positive federal policy as articulated by the political branches should be vigorously protected. The occasion for these reflections is the Supreme Court's decision last term in Crosby v. National Foreign Trade Council, in which the Court held that a federal statute preempted a Massachusetts public procurement law barring purchases from suppliers doing business in Burma. This essay suggests that Crosby is consistent with a recognition of the national benefits of state involvement in foreign affairs, and the view that States may participate in foreign affairs to the extent these benefits are realized.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1015"},"PeriodicalIF":0.0,"publicationDate":"2001-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68427105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward Political Safeguards of Self-Determination","authors":"Gregory P. Magarian","doi":"10.2139/SSRN.283995","DOIUrl":"https://doi.org/10.2139/SSRN.283995","url":null,"abstract":"The theorists of the political safeguards of federalism (primarily Herbert Wechsler, Jesse Choper, and Larry Kramer) contend that various features of the American political system are sufficient to protect the values of federalism, obviating the need for federalist judicial review. These theorists have identified constitutional features of the system (i.e., equal representation in the Senate) and extolled subconstitutional features (notably the strength of the major political parties) as guarantors of state prerogatives against the federal government. They have not, however, developed a substantial account of the reasons why state prerogatives need or deserve protection and how those reasons bear on the political safeguards theory. Advocates of judicial safeguards of federalism have offered various reasons for federalist judicial review. The most familiar and constitutionally salient reason is that vindicating the interests of state governments helps to preserve personal freedom. Unfortunately, the history of federalist judicial review demonstrates that, at the times of greatest conflict between federal and state authority, courts have asserted state prerogatives to undermine personal freedom. With that history in mind, I suggest state prerogatives are useful primarily for advancing two particular aspects of personal freedom. First, states afford citizens additional opportunities to create political structures and participate in government. Second, states can supplement federal regulation of the powerful private interests that threaten personal freedom in contemporary society. Both of these salutary consequences of federalism serve the value of political self-determination, a broad end toward which protection of state prerogatives is merely one means. Establishing political participation and supplemental regulation as the rationales for protecting state prerogatives will require a recalibration of the political safeguards theory. First, these goals do not justify states in opposing federal power but merely require states to supplement federal power. Thus, no political safeguard needs to aggrandize state power at the expense of the federal government. Second, the self-determination values suggest some features of the political system that theorists have extolled as political safeguards are actually counterproductive. Thus, legislatures and courts may need to reconsider how they manage the political system. The Supreme Court's recent cases that advance the rights of the major political parties - California Democratic Party v. Jones, Timmons v. Twin Cities Area New Party, Arkansas Educational Television Commission v. Forbes, FCC v. Colorado Republican Federal Campaign Committee - provide the primary example. Those decisions, while desirable for the political safeguards of federalism, contravene the underlying value of political self-determination.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1219"},"PeriodicalIF":0.0,"publicationDate":"2001-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68377361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism, Preclearance, and the Rehnquist Court","authors":"Ellen D. Katz","doi":"10.2139/SSRN.285551","DOIUrl":"https://doi.org/10.2139/SSRN.285551","url":null,"abstract":"The Article explores the Rehnquist Court's seemingly contradictory assessment of \"federalism costs\" in recent decisions construing section 5 of the Voting Rights Act. Reno v. Bossier Parish, 520 U.S. 471 (1997), and Reno v. Bossier Parish, 528 U.S. 320 (2000), narrowly construe the VRA's preclearance provision and invoke federalism concerns as justification. Lopez v. Monterey County, 525 U.S. 266 (1999), by contrast, interprets the preclearance provision broadly, acknowledging that \"substantial federalism costs\" result, but affirming as constitutionally permissible the infringement that the section 5 preclearance process \"by its nature\" effects on state sovereignty. This Article seeks to explain why the Court understood the federalism costs implicated in the Bossier Parish cases to be preclusively high while it viewed the costs at issue in Lopez to be the necessary and justifiable result of implementing the VRA. The Rehnquist Court has long been convinced that the Department of Justice has systematically abused its authority in the preclearance process and thereby exacerbated the federalism costs that inhere in the VRA. The Bossier Parish cases involved DOJ's refusal to preclear a districting plan that the agency deemed to contain an insufficient number of majority-minority districts, and thus they presented the Court with the type of DOJ conduct that the justices have repeatedly found most objectionable. The Bossier Parish decisions rejected the Department's position on preclearance, and construed section 5 narrowly in order to curb the opportunities for institutional overreaching by the Department. Lopez, by contrast, did not directly implicate conduct by DOJ, and instead addressed the question over which the Department has no authority, namely whether the disputed changes were subject to preclearance at all. While the decision renders more conduct subject to preclearance and hence to review by DOJ, Lopez required the Court neither to review a specific decision made by the Department nor to confront the prospect that DOJ would implement the construction of the statute adopted. The Court, consequently, was able to construe section 5 broadly without directly facing concerns about DOJ overreaching, and thereby to embrace the resulting federalism costs as a justified consequence of implementing congressional intent in the VRA.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1179"},"PeriodicalIF":0.0,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68392991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does Commerce Clause Review Have Perverse Effects","authors":"Adrian Vermeule","doi":"10.2139/SSRN.285338","DOIUrl":"https://doi.org/10.2139/SSRN.285338","url":null,"abstract":"There is a crucial empirical assumption that pervades the debate about federal judicial review of federal statutes under the affirmative Commerce Clause. The assumption, indulged by many different camps in the debate, is that Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states. This essay argues that, on equally plausible empirical assumptions, Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization have chosen a course of action with potentially perverse effects. The essay concludes by examining how the possibility of perverse effects should affect the decisional calculus of judges in each of the various camps.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"46 1","pages":"1325"},"PeriodicalIF":0.0,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68391452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Women Do Not Report the Violence They Suffer: Violence Against Women and the State Action Doctrine","authors":"Michelle Anderson","doi":"10.2139/SSRN.285367","DOIUrl":"https://doi.org/10.2139/SSRN.285367","url":null,"abstract":"Section 13981 of the Violence Against Women Act gave victims of criminal violence motivated by gender animus the opportunity to lodge civil complaints against their attackers in federal court. In United States v. Morrison the United States Supreme Court struck down Section 13981 as unconstitutional because, inter alia, Congress lacked the authority to enact it under Section Five of the Fourteenth Amendment. In its decision, Professor Anderson argues, the Court failed to consider the full scope of state action regarding violence against women that violates Section One of the Fourteenth Amendment. States deter women from turning to their authority because of the unequal protection they offer against crimes motivated by gender animus. For example, the traditional legal rules for rape complaints - the marital rape exemption and the requirements of utmost resistance, corroboration, and prompt complaint - were grounded in gender bias. Although these rules have been formally ameliorated in the past twenty-five years, the biased imperatives behind them continue to direct the discretionary decisions of police and prosecutors today. When a woman fails to resist her attacker forcefully enough, succumbing without a fight that would create corroborative evidence, or fails to complain promptly enough, or is unlucky enough to be assaulted by her husband or boyfriend, she has little chance of obtaining a conviction. Police often discourage women from proceeding with these complaints. For those who do wish to proceed, police disproportionately code these rapes as \"unfounded\" or place them in non-criminal codes where they receive little to no investigation. For those complaints that are investigated seriously, prosecutors disproportionately dismiss these cases. Through these discretionary decisions, state actors deny women who are raped the equal protection of the criminal law. In response to such state action, Anderson argues, women have little to no faith in the formal structures of police power to remedy gender-motivated violence. When states' violations of Section One of the Fourteenth Amendment deter women from turning to the public system of criminal justice for relief, Congress must have the authority under Section Five to provide women a legal remedy in the form of civil claims against private actors. Only if Section Five authorizes this remedial help will the Fourteenth Amendment redress the true scope of state malfeasance regarding violence against women.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"27 1","pages":"907"},"PeriodicalIF":0.0,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68391886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Disease Management and Liability in the Human Genome Era","authors":"L. Palmer","doi":"10.2139/SSRN.285833","DOIUrl":"https://doi.org/10.2139/SSRN.285833","url":null,"abstract":"47 Villanova Law Review 1 (2002)The completion of a rough draft of the Human Genome presents both tremendous potential for improvements in health care delivery and challenges to providing appropriate incentives that will bring forth new treatments while protecting individuals and groups from genetic discrimination. As \"genetics\" becomes an integral part of health care delivery, there are no existing coherent legal doctrines for balancing the risks and benefits of this technological and scientific achievement. Developing a coherent legal approach to these risks and benefits requires a reexamination of the purposes of the liability doctrines that govern the management of disease processes. At the moment, a genetic approach to human disease primarily involves attempts at prevention - which means genetic screening of individuals, fetuses in utero, and embryos. This screening process requires the cooperation of population groups identified by genotype, or ethnic or social group. The nature of this cooperation or the \"voluntariness\" of the consent to donate tissue and other samples of DNA is now the subject of at least one lawsuit in which the plaintiffs claim that the physician/scientist should have disclosed his intention to patent the gene and screening test for a rare genetic disorder. In order to develop a framework to resolve this case and other liability claims in the Human Genome Era, this article analyzes and proposes a coherent theory of liability for mishaps. This theory is based on: 1) the difference between informed consent liability doctrines in research and clinical settings; 2) the relationship between the regulatory scheme for research and liability claims; and 3) the implications of the Nuremberg Code for determining the parameters of informed consent in research settings.","PeriodicalId":83467,"journal":{"name":"Villanova law review","volume":"47 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2001-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68395330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}