OSHA Enforcement of the “As Effective As” Standard for State Plans: Serving Process or People?

Courtney M. Malveaux *

Since the passage of the Occupational Safety and Health Act of 1970 (“OSH Act”) in 1971, the federal Occupational Safety and Health Administration (“OSHA”) has perplexed many states tasked with its enforcement. Congress passed the OSH Act to nationalize workplace safety and health standards. It empowered OSHA to enforce these standards, either on its own or through an approved workplace safety and health plan operated by a state (“State Plan”). The OSH Act provides matching funds and oversight for states choosing to operate their own programs on the condition that participating states operate a regime that is “at least as effective as” that of federal OSHA.

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A Vanishing Virginia Constitution?

The Honorable Stephen R. McCullough *

Virginia’s constitution was first established in 1776, when the rift with the mother country thrust upon Virginia colonists the obligation to establish their own government. A rather modest affair when compared to our modern Virginia Constitution, Virginia’s initial charter of government consisted of two documents: a Declaration of Rights and a constitution proper that set forth the more mechanical aspects of operating a government. Chiefly the handiwork of George Mason, the Declaration of Rights called for, among other protections, the separation of powers, religious liberty, freedom of the press, and protections for persons accused of crimes. One writer notes that this “Declaration of Rights is, indeed, a remarkable production. As an intellectual effort, it possesses exalted merit. It is the quintessence of all the great principles and doctrines of freedom which had been wrought out by the people of England from the earliest times.” Although the Virginia Constitution has evolved significantly over the more than two centuries that followed, some of the provisions in the current constitution remain unchanged from the quill of George Mason.

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Virginia Should Abolish the Archaic Tort Defense of Contributory Negligence and Adopt a Comparative Negligence Defense in Its Place

Peter Nash Swisher *

Contributory negligence is conduct on the part of the plaintiff, contributing as a proximate cause to the tortuous harm the plaintiff has suffered, which falls below the standard of care to which the plaintiff is required to conform for his or her own protection. When contributory negligence is found, it constitutes a complete defense to the plaintiff’s negligence cause of action, even though the defendant’s negligence may have greatly exceeded the plaintiff’s negligence.

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Economic Policy After a Lost Decade – From Over-Spending to Innovation

Timothy M. Kaine *

Writings on the economic collapse that began in 2007 are legion.[1] Analysts take different perspectives on the causes of the recession and on the policies that must be implemented to return to prosperity. And, at the national level, the President and Congress vigorously contend over the appropriate strategies to put in place to both grow the economy and guard against future collapses such as we’ve experienced in recent years.

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Mixed Agendas and Government Regulation of Business: Can We Clean Up the Mess?

Thomas M. Arnold*
Jerry L. Stevens**

The history of regulation in the U.S. economy shows a cumulative growth of government involvement in private enterprise that has helped business at times and has been at odds with business at other times. The wavering views on how much regulation is warranted change over time and cut across political and philosophical ideologies. For example, in the first two years of President Barack Obama’s administration there was a push for new and large increases in regulation of healthcare and financial markets along with intervention into public markets with massive spending to bailout automakers and financial institutions. Now, in the second half of the Obama term we are seeing a call for regulatory review with an eye on reducing regulatory burdens on economic growth and job creation.

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The Chapter 13 Alternative: A Legislative Solution to Undersecured Home Mortgages

The Honorable Samuel L. Bufford*

The Great Recession that began in approximately 2008 brought severe financial difficulties to a large number of homeowners in the United States. With a rise in the unemployment rate from 4.6% to 10%,many lost their jobs and their ability to make their home payments. At the same time, with an average 30.3% reduction in housing values (which in some places has approached nearly 60%), many homes are now worth substantially less than the debt owed on mortgages secured by the homes. Some 5 million homeowners are at least two months behind in their mortgage payments, and RealtyTrac predicts that some 1.2 million homes will be foreclosed on in 2011. The housing crisis continues to get worse, not better.

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The Immediate and Lasting Impacts of the 2008 Economic Collapse – Lehman Brothers, General Motors, and the Secured Credit Markets

Edward J. Estrada *

Following the economic meltdown that began in the spring of 2008, immediate and longer term ramifications began to ripple through all aspects of the economy. Clearly, these tremors have not yet subsided, and continued fallout will be felt in the coming years. Importantly, even those companies and industries that have seemingly passed through the most immediate wave of impacts will be susceptible to the ongoing struggle to achieve sustainable growth. Many such companies may experience future defaults, largely dependent upon the strength and vitality of economic growth in the coming year and their industry performance in that time frame.

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Orderly Liquidation Authority: A New Insolvency Regime to Address Systemic Risk

Hollace T. Cohen *

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) was enacted on July 21, 2010. A key element of the Dodd-Frank Act is Title II, entitled Orderly Liquidation Authority. Title II of the Dodd-Frank Act is a new insolvency regime intended to end “too big to fail” bailouts by providing the United States government with the ability to appoint the Federal Deposit Insurance Corporation (the “FDIC”) as receiver to administer the orderly liquidation of a nonbank financial company or bank holding company whose failure presents systemic risk to the financial stability of the United States.

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The Silver Lining in the Red Giant: China’s Residential Mortgage Laws Promote Temperance Among the Surging Middle Class

Clayton D. LaForge*

The nascent Chinese middle class bypassed the “Great Recession” despite China’s global infrastructure investments suffering dire consequences. Wall Street’s toxic tranches stacked atop one another in collateralized debt obligations seemingly comprised the most epidemic and obscure entity in financial history. Media outlets reported China’s second largest commercial bank held over nine billion dollars in U.S. subprime mortgage-backed securities, yet China’s gross domestic product surged as usual by 8.7% in 2009. Members of the middle class marched on, renovating the apartment and following the latest trends.

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History Repeats Itself: The Post-Furman Return to Arbitrariness in Capital Punishment

Lindsey Vann*

The 1972 landmark ruling in Furman v. Georgia appeared to be the end of the arbitrary imposition of the death penalty in the United States. Almost everyone around the country, including the Justices who decided Furman, believed the decision permanently invalidated America’s death penalty. Though each of the five Justices voting in the Furman majority authored individual opinions with differing reasoning, each relied on the arbitrary imposition of the death penalty in concluding the punishment was unconstitutional under the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Justices in the majority had little Eighth Amendment precedent to rely upon in declaring the death penalty unconstitutional, but Furman came to be known for condemning the arbitrary imposition of the penalty. The Court’s concern that the unique punishment of death not be imposed in an “arbitrary and capricious manner” seemed to indicate the Constitution would not tolerate a system where the penalty was “so wantonly and so freakishly imposed.”

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