000000Michael T. Maerowitz Beginning in 1878 with Wilkerson v. Utah, the Supreme Court has heard over forty cases where plaintiffs alleged that a method of execution violated the Eighth Amendment’s ban on cruel and unusual punishment. Though methods of execution have drastically changed over the years, the Supreme Court has never once held that a […]
This Comment argues that administrative agencies and courts that have extended the statutory language of ERISA’s church plan exemption to religiously affiliated hospitals have violated the unambiguous intent of Congress. It calls for special attention to be given to the analytical framework courts use in their analysis of the issue because courts that have ruled on the issue since 2013 have used a narrow analytical framework that has proven incomplete and caused some courts to reach the wrong result. Ideally, Congress would do away with the present chaos surrounding the church plan exemption by finally revisiting its language, scope, and policy implications. It is Congress’ duty to consider the policy implications of legislation it passes, and it is past time for Congress to adequately consider whether extending ERISA’s church plan exemption to religiously affiliated hospitals is what is best for the American people. By employing a cost-benefit analysis, Congress would likely realize that this extension is poor policy because the cost of allowing religiously affiliated hospitals, most of which more closely resemble corporate conglomerates than they do churches, to escape ERISA by hiding behind the church plan exemption far outweigh its benefits.
John F. Coyle & Jason W. Yackee
In an earlier era, treaties of Friendship, Commerce, and Navigation (FCNs) were the primary international law mechanism through which the U.S. government sought to promote and protect foreign investment. Conventional wisdom holds that FCNs are of only limited historical interest, having been replaced by more ambitious bilateral investment treaties (BITs).
In this Article we provide a partial challenge to the conventional wisdom. Our aim is to revive interest in the FCNs by arguing that these treaties, most of which remain in force, provide foreign investors with domestically enforceable rights in the courts of the United States. Many FCNs contain promises of favorable substantive treatment that are quite similar, if not identical, to the rights commonly extended to investors through BITs and investment chapters in free trade agreements such as NAFTA. We argue that because FCNs are self-executing and give rise to a private right of action, foreign nationals and companies can invoke these treaties against U.S. governmental entities in domestic litigation. The treaties thus provide investors with the ability to access substantive international investment law through domestic litigation rather than international arbitration.
This ability is of significant practical and theoretical importance. First, it could lead foreign companies to rethink their approach to asserting indirect or regulatory takings claims against governmental entities in the United
States. Second, it suggests that these entities’ risk exposure to international investment law is greater than commonly recognized. Third, it suggests a mechanism through which U.S. courts may play a meaningful role in interpreting, articulating, and developing international investment law. Fourth, and finally, it suggests that foreign investors may in some cases enjoy domestically enforceable rights that are superior to those accorded to citizens under the U.S. Constitution.
This Article will question some of the fundamental principles of federal Indian law—because it is still grounded in the biases of the past—and explain how the growing economic power of tribes is empowering the rapid growth of tribal law. I have stopped and started this Article and others like it several times. I have struggled to approach it like an academic article or as a good story. I decided to try to blend the styles. I will lay out the basic legal framework in a more traditional way and then switch to simply trying to tell the story of what tribes are doing to bypass the restrictions of federal Indian law. I hope that by telling the story, it will help the reader understand the natural progression of the thought process and lay the groundwork for further expansion.
Laurence Winer & Nina J. Crimm
How should we balance claims of religious liberty against demands for maintaining separation of church and state? Are privately held secular corporations, whose owners have sincere religious beliefs regarding contraception, entitled to disregard legal requirements that they provide health care insurance coverage for their employees that includes certain contraceptives? To what extent are some religious organizations exempt from such requirements? May a government official, a county clerk, assert her own religious objections as a basis for her office to refuse to issue a marriage license to a same-sex couple after Obergefell v. Hodges? May a private individual in a service industry—a wedding photographer or baker, for example—refuse out of religious conviction to provide that service at a same-sex wedding? Falling somewhere between the private individual and the government official, may a licensed professional—a pharmacist—rely on religious scruples in refusing to sell certain contraceptives to a willing customer? Finally, may a state rely on its constitutional provisions prohibiting financial aid to religious institutions to exclude a church-run day care and preschool from a state program that reimburses non profits for the purchase and installation of rubber playground surfaces made from recycled tires, a grant the school otherwise qualified for?