Slip Opinions

A Challenge to Sustainable Governments?

by Keith H. Hirokawa, April 2, 2009

“Sustainability,” an environmentally-friendly term that previously incited political unrest, economic uncertainty, and even emotional outrage, has become quite commonplace. In federal, state, and local agencies, sustainable practices have dominated dialogues relating to indoor air quality, water availability, energy use and production; but also growth planning and development controls, public spaces and aesthetics. Governmental entities are installing low-flow water fixtures and energy-efficient appliances, redesigning rooftops and skylines, and inviting industry and neighborhoods to the negotiation table to determine the character of future communities. Sustainability has become the vocabulary of politics and is changing those past practices that have become known as resource-wasteful, inefficient, and costly relative to human and environmental needs.

Beyond Fairness: The Economic and Legal Case for a Sweeping Federal Mortgage Modification Mandate

by Michael C. Macchiarola and Arun Abraham, March 22, 2009

The current housing crisis has hampered the ability of financial institutions to lend and has led to dire national and global macroeconomic consequences. The credit crisis and the most recent bouts of unemployment, GDP contraction, deflation and the retrenchment of the American consumer all have their roots in the American housing sector. It should, therefore, come as no surprise that a major piece of any solution to the credit crisis must address housing issues head on. The valuations of the mortgage-backed securities that are widely held by financial firms continue to deteriorate as mortgage default rates rise. These defaults, in turn, are causing further write-downs on bank balance sheets and consequent contractions in bank lending capacity. Credit will only loosen when mortgage default rates stop increasing. Today, the most expedient means to stem this rising tide is the fast and efficient implementation of drastic and far-reaching loss mitigation techniques by the financial institutions that own or service the nation’s mortgages. Unfortunately, numerous coordination problems, including the decentralized ownership structure of the many mortgages that were privately securitized, have prevented any efforts at loss mitigation from taking hold in a fast and efficient manner. These coordination problems necessitate swift and forceful federal intervention, embodying a standardized and efficient framework for across-the-board mortgage modifications. Unfortunately, to this point, meaningful efforts toward a legislative solution have been hampered by a blind and naive adherence to the sanctity of contract and various notions of fairness.

Abraham Lincoln Was a Framer of the Constitution

by Wilson Huhn, March 12, 2009

It is time to recognize Abraham Lincoln as a principal framer of the Constitution of the United States.

The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .

Kelo’s Lessons for Urban Redevelopment: History Forgotten

by Daniel R. Mandelker, November 24, 2008

No Supreme Court case created more backlash than Kelo v. City of New London, which allowed the use of eminent domain to acquire land for redevelopment. Commentators criticized, while voters and state legislatures acted to prohibit or restrict the use of eminent domain for redevelopment projects. Lost is any historical perspective, and how genetic weaknesses in the redevelopment concept provided opportunities for arguably abusive projects. Protest followed, concluding in the rejection of the Kelo decision. This article reviews the origins of urban redevelopment, and how it contributed to the backlash against the redevelopment idea.

Keepers of the U.S. Code: The Case for a Congressional Clerkship Program

by Dakota S. Rudesill, November 5, 2008

Under the Constitution, Congress drives the federal lawmaking process. Yet every year our best new lawyers focus their competitive energies not on landing jobs with the nation’s legislature but rather on judicial clerkships and other prestigious apprenticeships with executive branch agencies, law firms, and academe.

Congress should be concerned. But it needs to understand that this demand deficit is rooted in a supply problem. Unlike the courts, agencies, firms, and academe, Congress lacks an apprenticeship program to capture the interest, harness the abilities, and shape the minds of the law’s young elite, who over the course of their careers will exert great influence on the implementation of the U.S. Code Congress writes.

For the first time in the legal literature, I here set out the full case for a congressional clerkship program analogous to that of the judiciary.

Toward a Federal Forum for Systemic Sixth Amendment Claims

by Cara H. Drinan, October 22, 2008

In 1963, the Supreme Court held in Gideon v. Wainwright that the Sixth Amendment requires states to provide indigent criminal defendants with legal representation, noting that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Today, in some states, one would think that Gideon had never been handed down. In Mississippi, for example, the state provides no money for non-capital cases, and cash-strapped counties must shoulder the burden of funding indigent defense. As a result, a pre-trial defendant may spend months in jail before his case is resolved, and court-appointed lawyers routinely meet their clients for the first time on their trial day.