Federal Statutes Research Articles

Supports and Gatekeeping: Experiences of Schools of Social Work With Students With Mental Health Conditions

ABSTRACT Some social work educators advocate for people with mental health conditions to become social workers because they may possess experiential knowledge and insights that equip them to help others achieve recovery goals. Educators also are tasked with gatekeeping, ensuring that students demonstrate social work competencies. Minimal research exists about how schools handle these dual responsibilities. Using an online survey of deans and directors and BSW and MSW coordinators of programs accredited by the Council on Social Work Education, this mixed-methods study asked about program administrators’ (a) experiences with students with mental health conditions and (b) existing and needed policies and practices related to these students. According to findings, a large majority described problems experienced by students with mental health conditions; schools managed mental health-related issues in a variety of ways; most said these students have graduated using supports; about half indicated students had been terminated because of mental health-related issues; disruptive behaviors, absences, and boundary issues were key challenges; and some programs’ practices might violate federal statutes. Student counseling, legal advice, and relationships with disability resource centers were desired resources. Implications include considerations for policies that are consistent with social work’s social justice mandate, federal laws, and our gatekeeping responsibilities.

Impeaching a Federal Judge: Some Lessons from History

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the bench, Congress should begin impeachment proceedings. Federal judges serve during “good behavior,” and they can be impeached and removed from office only for “Treason, Bribery, or other high Crimes and Misdemeanors.” If the domestic-violence charges are substantiated, would that constitute an impeachable offense? In this statement, submitted at a hearing of the Task Force on Judicial Impeachment of the House Judiciary Committee, the author addresses some of the questions raised by a proposal to impeach a federal judge. What is the meaning of the constitutional language? No one argues that Judge Fuller has committed treason or bribery, so the question is whether his conduct falls within the category of “other high Crimes and Misdemeanors.” The author discusses the evidence from the founding generation and from the commentators, and he briefly surveys the impeachment precedents. These historical materials suggest two broad (and overlapping) categories of conduct that may justify impeachment. The first is serious abuse of power. The second is conduct that demonstrates that an official is “unworthy to fill” the office that he holds. Another question is the relevance of the pending criminal charges. Can the House rely on a criminal conviction as the basis for impeachment? Can the House proceed with impeachment if the criminal charges are dropped? The author concludes that the House must exercise an independent judgment; it is not bound by determinations of other actors in other proceedings. The statement was submitted to the Task Force on Judicial Impeachment at a hearing on the possible impeachment of Judge Samuel B. Kent of the Southern District of Texas. The written statement is followed by supplementary material that includes the author’s oral testimony and the colloquies that followed. Based on the testimony at the hearing and other evidence, the House approved four articles of impeachment. Judge Kent resigned from the bench before his Senate trial.

It’s Alright, Ma, It’s Life and Life Only: Are Colleges and Universities Legally Obligated during the Coronavirus Pandemic to Exempt High-Risk Faculty from In-Person Teaching Requirements?

Because there is no law specifically addressing colleges’ and universities’ legal obligations to allow faculty for health reasons to opt for online, rather than in-person, teaching during the coronavirus pandemic, colleges, universities, and their faculties generally seem to be proceeding on the assumption that any such legal obligations are no more than minimal. This Article challenges that widespread assumption and argues that colleges and universities in fact have very substantial legal obligations in this regard. We focus on the group of faculty whom we believe colleges and universities have the clearest legal obligation to protect -- those who, according to the Centers for Disease Control and Prevention, appear to be most vulnerable to getting seriously ill or even dying if they contract the coronavirus. In the language of the CDC, our focus is faculty members “at increased risk of severe illness from COVID-19,” which, according to the CDC, means anyone who has reached age 65 or who has one of various “medical conditions,” including cancer, chronic kidney disease, diabetes, hypertension, pregnancy, and more. We argue that four separate legal sources are best understood as requiring colleges and universities to exempt high-risk faculty from any in-person teaching requirement. Two of the four sources are federal statutes that qualify as major statements of national policy – the Americans with Disabilities Act and the Age Discrimination in Employment Act. The other two sources are important state-law doctrines with strong support in the American Law Institute’s most recent restatement of the law of torts – protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress. We hope our arguments will provide college and university leaders with a perspective that will prompt them to recognize the great importance of adopting an exemption policy that at a minimum covers high-risk faculty. Perhaps they would adopt such a policy simply to avoid possible legal liability. Ideally, however, they would do so at least in part out of a recognition that a college or university policy at odds with legal sources as weighty as the four discussed speaks very poorly for their institution.

Fragility, Not Superiority: "Substantial Burdens" on Religion and the Fairness of Special Protections

Fragility, Not Superiority: "Substantial Burdens" on Religion and the Fairness of Special Protections

Taming the Paper Tiger: Deterring Chinese Economic Cyber Espionage and Remediating Damage to U.S. Interests Caused by Such Attacks

The U.S. faces an increasingly complicated set of national security and economic threats. Chief among these are: (1) increasingly sophisticated and damaging cyber-attacks that threaten national security; harm government institutions, for-profit enterprises (including defense contractors), and institutions of higher learning; and undermine the country’s system of property rights; and (2) rising levels of national debt held by foreign competitors. China poses the greatest threat in both regards. China’s government carries out, organizes, and/or facilitates cyber-attacks to misappropriate intellectual property with serious consequences to the U.S.’s national security and economy. China also has acquired significant holdings in U.S. government issued debt instruments. Mounting U.S. government debt restricts annual federal government budgetary decisions, negatively affects the U.S.’s international standing as a borrower, and threatens national security by giving foreign debt holders, such as China, potential leverage in foreign relations negotiations. No policy prescription to date has achieved meaningful and lasting success in addressing these threats, and there are indications the threats are only worsening. The National Trade Secret Protection and Remedy Strategy (“NTSPS”) policy prescription proposed by this Article addresses the cyber attack and federal debt threats in a way that links and transforms them from vulnerabilities into leverage to protect the U.S.’s national security, system of property rights, and future economic well-being. Specifically, the U.S. government should pursue trade secret theft-related litigation and remedies against the Chinese government and its surrogates in U.S. federal courts. The proposed NTSPS would: (a) create a specific, limited government property interest in intellectual property developed under government defense contracts; (b) create extra-territorial jurisdiction for the U.S. government and personal jurisdiction over foreign nations that engage in trade secret misappropriation either directly, or indirectly through state-supported or enabled entities or persons; and (c) provide for ready availability of pre-judgment remedies, such as attachment and liens to secure the government’s remedy, and satisfaction of judgement through execution on U.S. debt held instruments held by the mis-appropriator — in this case, China. Successful implementation of the NTSPS would require amendments to several existing federal statutes and defense contracting regulations and procedures. Implementing the NTSPS strategy will allow the U.S. federal government to: (1) compensate itself and U.S.-based companies for the damages each has suffered as the result of Chinese-led or sponsored cyber-attacks; (2) deter future Chinese cyber-attacks by conveying a strong message that the U.S. will take meaningful action in response to said attacks; (3) slow the advancement of Chinese military technology by forcing China to internalize the significant research and development expenses incurred by the U.S. to develop the technological capabilities often targeted by cyber espionage initiatives; (4) significantly reduce U.S. debt and consequently the restrictions and burdens it places on the U.S. economy and national defense capability; and (5) pare down the financial leverage China holds over the U.S. in foreign relations.

Association of Minimum Age Laws for Handgun Purchase and Possession With Homicides Perpetrated by Young Adults Aged 18 to 20 Years

Laws mandating a minimum age to purchase or possess firearms are viewed as a potentially effective policy tool to reduce homicide by decreasing young adults' access to firearms. To evaluate whether state laws that raised the minimum age to purchase and/or possess a handgun to 21 years were associated with lower rates of firearm homicide perpetrated by young adults aged 18 to 20 years. In this difference-in-differences analysis of a national cohort, young adult-perpetrated homicide rates were compared between states that did and did not implement stricter minimum age laws than the 1994 federal statute, adjusting for state-level factors. Under 1994 US federal law, the minimum age to purchase a handgun from a licensed dealer is 21 years; to purchase a handgun from an unlicensed dealer, 18 years; and to possess a handgun, 18 years. The 12 states that raised the minimum ages to purchase and/or possess a handgun beyond those set by federal law before 1994 were excluded from the stricter implementation group. Data were collected from January 1, 1995, to December 31, 2017, and analyzed from November 7, 2019, to June 23, 2020. Implementation of state law to raise the minimum age to purchase and/or possess a handgun beyond federal minimum age laws. During the study period, Massachusetts, Maryland, New Jersey, New York, and Wyoming raised the minimum age from 18 to 21 years to purchase a handgun from all dealers. With the exception of Wyoming, these states also increased the minimum age from 18 to 21 years to possess a handgun. Firearm homicides perpetrated by young adults aged 18 to 20 years. Homicide data were obtained from the Supplementary Homicide Reports. During the study period, 35 960 firearm homicides were perpetrated by young adults aged 18 to 20 years. There was no statistically significant change in the rates of homicide perpetrated by this age group in the 5 states that imposed stricter age limits compared with the 32 that did not (crude incidence rate ratio, 1.10; 95% CI, 0.86-1.40). The adjusted incidence rate ratio was 1.14 (95% CI, 0.89-1.45) in states that implemented stricter minimum age laws compared with those that did not. This study found that stricter state minimum age laws were not associated with significantly lower rates of young adult-perpetrated homicide in states that adopted them compared with states that did not, and policy makers should reassess their use.

Parental Leave and Classism: Balancing Rights and Interests Utilizing Weber’s Model of Analysis

Several federal statutes protect women from pregnancy-related discrimination (Americans with Disabilities Act, ADA Amendments Act, Pregnancy Discrimination Act) and provide for unpaid maternity lea...

СТАТУТНІ ДЖЕРЕЛА В ПРАВОВИХ СИСТЕМАХ ВЕЛИКОБРИТАНІЇ ТА США

У статті здійснено ґрунтовне комплексне загальнотеоретичне вивчення статутних джерел у правових системах Великобританії та США, які із судовими прецедентами становлять основу англо-американської правової сім`ї. В англійському праві традиційним є вузький підхід до розуміння статутів і статутного права як сукупності парламентських актів. Во-дночас статутне законодавство, згідно із широким підходом, поділяється на первинні (акти парламенту Великобританії, парламенту Шотландії, парламенту Уельсу та Асамблеї Північної Ірландії, законодавчі акти про церкву тощо) та вторинні акти (статутні інструменти, статутні правила, церковні інструменти тощо). Для США характерна тенденція збільшення масиву та ролі статутного законодавства, існує писана федеральна Конституція; ієрархія нормативних актів, яка засновується на найвищому авторитеті Основного закону; систематизація законодавства, яка полягає в значній кількості кодифікованих актів; поділ права на матеріальне та процесуальне, публічне та приватне; перевага федеральних статутних актів над судовими прецедентами та конституційний судовий контроль статутів.

The Abuse of the Pardon Power Prevention Act Would Criminalize Politics

At bottom, this statute would effect a radical change in how the presidency is understood. Historically, the President has been viewed as an independent political actor, with democratic bona fides, who was charged with making discretionary policy judgments. Now, he would be transformed into a slow-moving, process-bound, “nonpartisan” actor. Some readers may praise this change. But we do not think such a change is in the public interest. Of course, the public interest is always contestable because no one has the institutional knowledge or widely accepted power to declare a monopoly on what is in the common good. The President should be able to make important decisions with vigor, independence, and dispatch. This proposed bill would alter the presidency such that he would now second-guess his official actions for fear of prosecution. Federal prosecutors should not be authorized to dictate what is in the public interest. Many people who read this bill may not realize its likely consequences. Others can foresee these consequences, and approve of them, because they seek to transform the presidency. All should recognize that the consequences of this bill, if enacted, will extend far beyond President Trump, or even a President Biden. The presidency has far less to fear from this bill than the 535 members of Congress would. Indeed, our concerns apply more forcefully to Congress, which does not control the apparatus of federal prosecution. In December 2019, we wrote: Consider a third hypothetical in which personal and public motivations are inextricably intertwined. Two members of Congress are engaged in negotiations about a bill. Each agrees to support the bill only after it is amended to provide $1 billion in additional spending in their respective districts. They each have mixed motives. First, they believe that the extra $1 billion will help improve the welfare of their districts—which is part of the public good, as they conceive it. Second, they understand that bringing home the bacon will help their reelection campaigns. “All politics is local,” the old adage goes. The run-of-the-mill horse-trading described in this example might be bad policy and, arguably, is a misuse of discretion. But whatever else it is, it is not bribery. If we’re wrong, almost every member of Congress could be indicted under the federal bribery statute. Indeed, if every such deal or compromise is a presumptive crime, then the Department of Justice will have the power to investigate every set of political compromises that accrue on nearly all major spending bills. Such a theory of bribery would allow the department to investigate, and later indict and seek to convict, members of Congress involved in political compromise and log-rolling. We should resist efforts to criminalize politics. This bill may seem like a prudent idea in the current moment. But the bill criminalizes normal politics; it will end with criminalizing political speech. Do critics of the current President really want to give Attorney General Bill Barr the power to prosecute congressional log-rolling? Be careful what you wish for.

Applying State Consumer Finance and Protection Laws to Income Share Agreements

This article analyzes the application of state and certain federal laws to Income Share Agreements (“ISAs”) in light of previous scholarship concluding that ISAs meet the definitions of “credit” and “debt” under federal statutes including the Equal Credit Opportunity Act (ECOA), the Fair Debt Collection Practices Act (FDCPA), the Truth in Lending Act (TILA), and the Consumer Financial Protection Act of 2010 (CFPA). The paper concludes that a wide assortment of consumer protection laws enforceable by state regulators and attorneys general apply to the marketing, origination, servicing, and collection of ISAs. State consumer protection statutes, which prohibit unfair and deceptive acts or practices in any trade or commerce affecting residents, apply to educational ISAs. This paper identifies several ways in which companies and schools marketing ISAs may run afoul of these generally applicable statutes. In addition, typical education ISAs qualify as “loans” for the purpose of many state consumer finance statutes, as such are subject to a variety of regulations from usury limits to licensing requirements for ISA originators and servicers. The growing market of educational ISAs requires a comprehensive approach by state education and financial regulators, as well as attorneys general, in order to protect students.

Oceans Apart?: The Rule of Lenity in Australia and the United States

Abstract Occasionally traced back to Byzantine times, the rule that penal statutes are to be interpreted strictly in favor of the subject, also known as the rule of lenity, now finds expression in common law countries across the world. This Article compares the origins and evolution of the rule in Australia and the United States. The comparison is timely because of the current uncertainty in both jurisdictions about the rule's rationale and scope and because of an emerging global trend towards the “constitutionalization” of common law rules of interpretation. In the course of the analysis, various facets of the rule are discussed, including its common law origins; jurisprudential development; purported constitutional foundations; and modifications by state and federal statutes. Tracing the rule's development in each country reveals significant commonalities, but also important differences, in the respective approaches to the interpretation of criminal statutes. Most importantly, despite similarities in the two countries’ constitutional structures, the rule has assumed constitutional significance in the United States but not in Australia. Identification of this marked difference provides an opportunity to reflect on the separation of powers, and the federal structure, of each country.

Federal Family Drug Treatment Courts: Providing Positive Possibilities

Due to the lack of family drug treatment courts, families are often torn apart when a parent has a substance abuse problem. Children of substance abusers are often abused and neglected. However, children in these tough living situations fear seeking help because they do not want to be the reason that their family is torn apart and they are placed in the foster care system. This Note proposes a federal statute that requires all states to implement family drug treatment courts. These courts allow families to stay intact while providing the parent with the help that he or she needs.

Should Title VII of the United States Code Prohibiting Sex Discrimination Be Based on Sexual Orientation: An Argument

The article considers the issue of what is sex and sexual orientation discrimination and should under the federal statute 2000 Esexual orientation be encompassed under the term sex. The statute has long been intrepreted as directed to physical sex and not read as including sex orientation as an aspect of sex. The article however traces and identifies a clear trend in the federal court system of the United States to interpreting and includng sexual orientation or homosexuality and lesbianism within this statute’s prohibition against traditional sex discrimimation. The author holds the view that homosexuality and sexual orientation should be given the same and equal protection as sex discrimimation in the federal courts of the United States and in time this statute will rightly be interpreted not only to include sex discriminataion as directed in its tradidtional understanding but be analayzed and interpreted to include protection against sexual orientation discrimination.

The Law of Genetic Privacy: Applications, Implications, and Limitations

Recent advances in technology have significantly improved the accuracy of genetic testing and analysis, and substantially reduced its cost, resulting in a dramatic increase in the amount of genetic information generated, analysed, shared, and stored by diverse individuals and entities. Given the diversity of actors and their interests, coupled with the wide variety of ways genetic data are held, it has been difficult to develop broadly applicable legal principles for genetic privacy. This article examines the current landscape of genetic privacy to identify the roles that the law does or should play, with a focus on federal statutes and regulations, including the Health Insurance Portability and Accountability Act (HIPAA) and the Genetic Information Nondiscrimination Act (GINA). After considering the many contexts in which issues of genetic privacy arise, the article concludes that few, if any, applicable legal doctrines or enactments provide adequate protection or meaningful control to individuals over disclosures that may affect them. The article describes why it may be time to shift attention from attempting to control access to genetic information to considering the more challenging question of how these data can be used and under what conditions, explicitly addressing trade-offs between individual and social goods in numerous applications.

A Unified Approach to Erie Analysis for Federal Statutes, Rules, and Common Law

This Article proposes overhauling the Supreme Court’s approach to choice of law under Erie and Hanna. It develops three primary points. First, Hanna’s “unguided” “twin aims” of Erie test for resolving conflicts between federal common law and state law is irredeemably flawed. The test is a canon of interpretation masquerading as a choice-of-law rule and fails at both tasks. The Hanna approach: (1) relies on an arbitrary distinction between federal common law and statutory law that elides the indeterminate boundary between lawmaking and interpretation; (2) fails to directly confront questions about federal common law’s validity and scope; (3) cannot rely on the oft-cited but inapposite Rules of Decision Act; and (4) ignores the judiciary’s authority to fill gaps in procedural codes with federal common law. This Article is also the first to extensively explore how FRCP 83’s authorization of gap-filling undermines Hanna’s approach to choice of law. Second, preemption doctrine implementing the Supremacy Clause should fill the choice-of-law role that courts mistakenly assign to Hanna. Under the Supremacy Clause, valid federal law — including federal common law — preempts state law on matters within the federal law’s scope. The “unguided” Hanna inquiry is misguided because it invents a distracting alternative to preemption analysis. Third, reframing choice of law in terms of preemption spotlights policy questions that courts applying Hanna overlook. Preemption can occur only when a particular federal law is a valid exercise of federal lawmaking power and encompasses a disputed issue. Courts considering whether to apply federal law — including federal common law — must therefore assess the federal law’s validity and breadth. Relevant questions include: (1) whether the federal government has authority to create law covering the issue; (2) if so, which federal institutions — Congress or the judiciary — can create law; and (3) whether federal courts should interpret the ensuing federal law broadly or narrowly to embrace or avoid conflict with state law. These sensitive policy questions would benefit from direct attention and should not be blurred with Hanna’s tangents. This approach would make choice of law analysis more coherent, enhance understanding of federal common law, and require courts to directly engage the federalism and separation of powers concerns at Erie’s core.

Are Your Quality Assessment and Assurance Documents Safe From Prying Eyes?

Are Your Quality Assessment and Assurance Documents Safe From Prying Eyes?

Brief of Appellant in C.W. V. Denver County School District, No. 19-14-07 (U.S. Court of Appeals for the Tenth Circuit)

In Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the U.S. Supreme Court decided important questions concerning the administrative-exhaustion requirements of the federal special-education statute, the Individuals with Disabilities Education Act (IDEA). But Fry left open at least one important interpretive question, see id. at 752 n.4, and Fry’s new standards demand application in the lower courts. This brief, filed in C.W. v. Denver County Public School (No. 19-1407) — an appeal pending before the U.S. Court of Appeals for the Tenth Circuit — addresses Fry’s open question. It also addresses a wide range of issues concerning when a federal court may hear claims under the IDEA and other statutes, such as the Americans with Disabilities Act and the Rehabilitation Act, that protect children with disabilities. Given the brief’s breadth, it likely will provide guidance to others seeking to navigate the IDEA's administrative processes and the federal courts post-Fry. Notably, the first-line drafters of this brief were second- and third-year student-lawyers at Georgetown Law’s Appellate Courts Immersion Clinic: Ana Builes, Erin O’Neill, Grace Paras, Rachel Scholz-Bright, and Rachel Schwartz.

Should Us Tax Law Be Constitutionalized? Centennial Reflections on Eisner v. Macomber (1920)

The US Supreme Court last decided a federal tax case on constitutional grounds in 1920, a century ago. The case was Eisner v. Macomber, and the issue was whether Congress had the power under the Sixteenth Amendment (authorizing an income tax, 1913) to include stock dividends in the tax base. The Court answered no because “income” in the Sixteenth Amendment meant “the gain derived from capital, from labor, or from both combined.” A stock dividend, since it did not increase the wealth of the shareholder, was not “income.” Macomber was never formally overruled, and it is sometime still cited by academics and practitioners for the proposition that the Constitution requires that income be “realized” to be subject to tax. However, in Glenshaw Glass, the Court held in the context of treble antitrust damages that the Macomber definition of income for constitutional purposes “was not meant to provide a touchstone to all future gross income questions” and that a better definition encompassed all “instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” In the century that has passed since Macomber, the Court has never held that a federal tax statute was unconstitutional. This behavior of the Court constitutes a remarkable example of American tax exceptionalism, because in most other countries tax laws are subject to constitutional review and are frequently ruled unconstitutional. In what follows, we will first examine three examples of how tax law is constitutionalized in other countries (part 2). We will then look at some of the larger tax expenditures in the US and ask how they would fare under constitutional scrutiny (part 3). Finally, we will attempt to answer the question whether US tax law should be constitutionalized, and answer in a reluctant negative (part 4). But we will also urge Congress, which is equally charged with upholding constitutional values, to take horizontal equity more into consideration when evaluating tax expenditures.

Beyond Data Ownership

Data ownership proposals are widely misunderstood, aim at the wrong goal, and would be self-defeating if implemented. This Article, first, shows that data ownership proposals do not argue for the bundle of ownership rights that exists over property at common law. Instead, these proposals focus on transferring rights over personal information solely through consent. Second, this Article shows the flaws of a property approach to personal information. Such an approach magnifies well-known problems of consent in privacy law: asymmetric information, asymmetric bargaining power, and leaving out inferred data. It also creates a fatal problem: a moral hazard problem where corporations lack incentives to reduce privacy harm. That moral hazard problem makes data ownership self-defeating. Recognizing these deficiencies entails abandoning the idea that property over personal data can achieve meaningful protection. This Article, third, develops proposals for privacy law reform amidst a national discussion on how to formulate federal and state privacy statutes. These involve implementing a combination of what the Calabresi-Melamed framework calls property and liability rules. This mixed rule system is essential because property rules alone fail to protect data subjects from the risks of future uses and abuses of their personal information. The Article implements this reform proposal with two recommendations. First, it proposes bolstering private rights of action for privacy harm irrespective of whether such harm was coupled with a statutory breach. Second, it proposes reinforcing ongoing use restrictions over personal data by strengthening the purpose limitation principle, a key and underutilized ongoing use restriction in American law.

Representing Veterans

Federal law has long deprived American veterans of certain fundamental legal rights enjoyed by non-veterans and attributable to veteran sacrifice. Federal case law, for example, denies veterans the right to bring an action in tort against the federal government to vindicate in-service injuries. And the United States Code deprives veterans of their right to robust judicial oversight of Department of Veterans Affairs (VA) service-connected benefit decisions. This pair of due process deprivations is compounded by the federal statute that prohibits veterans from exercising the fundamental right to counsel during the initial stage of the VA claims process. This Article examines the federal statutory scheme and pertinent case law that has long denied veterans the right to counsel throughout the VA veteran claims adjudication process, debunks the rationales underlying that law, and concludes by recommending that the federal government extend to veterans the right to counsel throughout the VA’s benefits adjudication proceedings.