Volume 22, Issue 2 (Spring 2025)
Navigating International Ethical Complexities: The Foreign Corrupt Practices Act’s Shortcomings in High-Risk International Operation
Cheryl Packwood
United States and international laws designed to prevent fraud, bribery, and corruption in business dealings seek to promote stability and economic growth. But, who do these laws protect in times of conflict? Are the exceptions and defenses to any prosecution under these laws too restrictive, impeding the eventual security of human life in an attempt to create and sustain the utopian goals of free economic markets? This article analyses the author’s encounters with armed military personnel as managing director of a cellular phone company in Abidjan, Côte d’Ivoire, in May 2001 and the aftermath which eventually led to the company’s closure in 2003. Read more.
Loper Bright and the Assault on Expertise
Brian McNamara
For decades, Chevron deference provided a strong, reliable, and predictable foundation upon which federal administrative agencies could deploy their expertise to address public policy problems. During this period of tremendous technological change, federal administrative agencies tackled a wide range of regulatory issues under the Chevron framework. Federal agencies could move forward boldly in this era, confident in their roles as “conveners” within the public policy system. Indeed, when federal agencies were at the height of their power, the legislative branch appeared to have become more polarized and less effective. Federal administrative agencies simply could not wait for ineffective elected representatives to update statutory authorities to keep up with technological changes and societal needs.
Against this background, Loper Bright upended Chevron deference by declaring it incompatible with the statutory text of the Administrative Procedure Act. At first glance, Loper Bright seems a reasonable return to the plain language of the APA. It may be tempting to treat the overturning of Chevron deference as merely a minor change in administrative law practice. After all, Skidmore deference likely remains in place. When viewed solely through a legal lens, Loper Bright is like that Jenga piece you thought was so important. You avoided removing the piece until forced, and when you did you were pleasantly surprised to see the game structure still standing. Read more.
The Elections Transparency Act: A Step Backward for Fair and Democratic Elections in the Soprano State
Sally Abdulraouf
Despite being described as the “antithesis of good government” and decried as a “transparent abuse of power” by former State Judge Stephen M. Holden, on April 3, 2023, New Jersey’s Governor Phil Murphy reshaped the state’s campaign finance laws and the independent Election Law Enforcement Commission by signing the Elections Transparency Act into law. Even though “all four members of the New Jersey Election Law Enforcement Commission (ELEC)” resigned in protest, the governor responded by utilizing his newly gained powers to appoint new commissioners who agreed “unanimously to toss 107 cases, including complaints against four of the ‘big six’ political party committees . . . [that] allegedly failed to comply with campaign finance quarterly reporting requirements in 2017.” Meanwhile, cities like Jersey City, which had strict pay-to-play ordinances in place, were forced to repeal their own local laws because of the new Act that preempted them. Read more.
The Burden-Shifting IDEA: Shifting the Burden of Proof from Parents to School Districts in Special Education Due Process Proceedings
Mary Casper
Parents typically request due process hearings in an effort to get their child with disabilities mandated services or the necessary support their child needs to succeed in the classroom. Due process proceedings initially were designed to resolve parent disagreements with schools but have now become new obstacles standing between children with disabilities and their access to the appropriate education. Due process proceedings have become time-consuming, costly, and further strain the relationship between parents and the school district.
One parent stated that many parents give up during due process because the “city wants to make them run around in circles.” In a survey conducted on special education attorneys regarding due process proceedings, attorneys representing parents generally rated their experience of due process proceedings as more complex and much more akin to a civil trial while the school district attorneys generally found the due process hearings to be fairly simple.
A contributing factor to the issues of due process proceedings is the burden of proof standard under the Individuals with Disabilities Act (IDEA). The IDEA does not assign burden of proof to parents or the school districts, but many states have required that the challenging party, the parents, bear the burden of proving the IEP is inadequate or improper. In the survey referenced above, parent attorneys found that the cases were more complex for them because of the pressure of having to pull together enough evidence to meet a preponderance standard while being limited in their access to evidence. Read more.
It Is Time to Admit Defeat in the War on Drugs and Allow its Victims to Heal
Randall Petronko
The War on Drugs officially started on June 17, 1971, and it has been a massive failure scientifically, fiscally, and societally. President Richard Nixon declared, “America’s public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.” In his address, he requested Congress give him $350 million to fund the War on Drugs, an over 400% increase in the federal drug budget from two years earlier. When President Nixon created the Drug Enforcement Administration (“DEA”) in 1973 it had a budget of less than $75 million and around 1,500 agents. Today those numbers have increased to a budget of over $2 billion and over 5,000 agents. The War on Drugs has been going on for fifty-three years and has cost $1 trillion, $39 billion of that in 2022. Despite the massive number of resources devoted, drugs are the clear winner. Read more.
The Prerogative of Mercy: Assisting Clemency Clients in Massachusetts
Stevie Leahy
Founding Father and Federalist Paper author Alexander Hamilton opined that “clemency was vital to temper the harshness of criminal codes because ‘without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.’” Hamilton and his contemporaries understood the need for a justice system that balanced strict enforcement of the law with the ability to recognize individual circumstances and extend compassion where warranted. Without the ability to make exceptions for people who are guilty but nonetheless deserving of compassion, the justice system would appear excessively harsh, violent, and unkind. The justice system in the United States has certainly been categorized as all those things in the centuries since Hamilton; in light of mass incarceration, systemic inequities, and overly punitive sentencing policies, the current state of the system is seemingly grounded in an unyielding pursuit of punishment over fairness or any other penological goal. At the federal or state level, clemency is one small tool that could provide some merciful balance. Read more.