Motor Freight Brokers: A Tale of Federal Regulatory Pandemonium

Motor freight brokers are the connecting link between shippers and carriers, uniting shippers who have cargo to deliver with carriers who have available motor transportation. Acting as traffic managers for shippers and sales agents for carriers, brokers arrange thousands of transactions each day, many of which either start or end up in the international stream of commerce. If used effectively, brokers can lower the transportation costs of domestic and international shippers and increase the revenue of carriers, which ultimately will stimulate interstate and overseas trade. International shippers must often rely on freight brokers to arrange motor transportation for their freight once it arrives in a U.S. port. Cognizant of this reliance, brokers frequently extort excessive freight charges from international shippers. More often than not, the international shipper\u27s only recourse is in the U.S. court system. To foreigners, U.S. courts are confusing, costly and intimidating, and thus many international shippers are left without adequate recourse against disreputable brokers. If the freight brokerage industry continues on its current path, a time will come when international shippers, who essentially require the services of freight middlemen, will discontinue, or at the very least decrease, business with companies in the United States because it is no longer economically feasible to transport their freight. The brokerage industry\u27s ills must be cured before this occurs. The answer to the brokerage industry\u27s problems lies somewhere between the two extremes of massive regulation and total deregulation. Congress needs to find an amicable middle ground between the stifling regulation of the past and the unstable deregulation of the present. Responsible regulations can be enacted to stabilize the brokerage industry without imposing undue financial or administrative burdens on brokers and without unnecessarily impeding competition. This article proposes a set of regulations which, if enacted, will provide stability to an industry that has teetered on the brink of disaster since 1935. Section II of this article depicts the brokerage industry as it exists today. Section III details the history of federal regulation of freight brokers. Section IV illustrates the recurring problems posed by unregulated and undercapitalized brokers. Finally, section V proposes a series of regulations that are intended to cure many of the current ills of the brokerage industry

Exposure to Tobacco Smoke is More than Offensive, It is Cruel and Unusual Punishment

In McKinney v. Anderson, the Ninth Circuit Court of Appeals found that compelled exposure to environmental tobacco smoke (ETS) may constitute cruel and unusual punishment. The Fifth, Seventh, and Tenth Circuits, however, have reached the opposite conclusion. The Supreme Court should affirm the Ninth Circuit\u27s ruling in McKinney for two reasons. First, the medical evidence introduced since the Ninth Circuit decided McKinney confirms that court\u27s belief that the attitude of our society has evolved at least to a point that it violates current standards of decency to expose unwilling prisoners to ETS levels that pose an unreasonable risk of harm to their health. Thus, any debate concerning ETS\u27s dangers ended with the issuance of the 1993 EPA Report. Second, the Ninth Circuit\u27s decision in McKinney should be upheld because it is consistent with Eighth Amendment precedent. The relationship of inmates to prison officials is one of entrustment. As such, prison officials are bound not only to protect inmates from physical harm, but also to provide them with safe living conditions. Furthermore, compelling prisoners to live in hazardous environments, such as smoke-filled cells, is as dangerous, if not as cruel and unusual, as many of the punishments that the framers of the Constitution envisioned. In the past twenty years, federal courts have repeatedly held that exposing inmates to substances or conditions less dangerous than ETS constitutes cruel and unusual punishment. Therefore, since no legal or medical reason exists to draw the line at ETS, courts must now insist that prisons ban smoking or, at the very least, restrict it to certain cell-blocks within the prison. Section II of this Article explores the medical evidence linking ETS to lung cancer, heart disease, and certain other health risks in nonsmokers. Section III examines the history of the Eighth Amendment\u27s ban on cruel and unusual punishment, particularly as it relates to dangerous or unhealthy prison conditions. Section IV analyzes the Ninth Circuit\u27s decision in McKinney v. Anderson.\u27I Section V questions whether a judicial ban on smoking would itself constitute cruel and unusual punishment to smokers. Finally, Section VI sets forth two reasons, in addition to those enunciated by the Ninth Circuit, for the Supreme Court to affirm McKinney

Joseph McCarthy, The Law Student

Much is known about Joseph McCarthy, the United States Senator. A fair amount is also known about Joseph McCarthy, the lawyer and Circuit Court Judge; particularly in his home state of Wisconsin. Not much is known, however, about Joe McCarthy, the law student. This is unfortunate because, arguably, many of the traits that catapulted McCarthy to the top and bottom of American politics were first exhibited in law school. It is a safe bet that very few of the current students at Marquette University Law School (MULS) are even aware that Joe McCarthy is an alumnus (LL.B., 1935) of the law school. This unawareness, however, is excusable. The halls, offices, and classrooms of most law schools are teeming with portraits, plaques, and busts of prominent alumni. It is not uncommon for law schools to name buildings, classrooms, courtrooms, professorships, and scholarships after prominent graduates. At MULS, however, Joe McCarthy ― undoubtedly the law school\u27s most famous alumnus and a man Lyndon B. Johnson said will never be forgotten ― is persona non grata. This essay is designed to reacquaint Joe McCarthy and MULS

Native American Restricted Allotments: A Surviving Spouse\u27s Elective Share Rights

Nearly all states have laws that prohibit decedents from disinheriting their spouses. In these states, if a surviving spouse is disinherited, the spouse may renounce the will and elect to take a certain percentage of the decedent\u27s estate. In Oklahoma and Nebraska, for instance, a surviving spouse may elect to take one-half of the decedent\u27s estate in lieu of the devises, if any, made for the surviving spouse in the will. These elective share statutes afford long-term financial security for surviving spouses. A century ago, Native Americans acquired real estate by allotment. Under the allotment system, the federal government issued Native Americans parcels of former reservation land in order to assimilate them into white society. Native Americans received individual land allotments, with the United States holding title in trust for the allottees for twenty-five years, during which time the allotment could not be sold, mortgaged, or taxed without the consent of the Secretary of the Interior. After twenty-five years the allottee received the land in fee simple. Subject to certain restrictions, federal law permits Native Americans to dispose of their allotments by will. There are no federal laws, however, mandating elective shares for the surviving spouses of Native American allottees, and state elective share statutes are not applicable to the disposal of allotted lands. Accordingly, a Native American can bequeath an allotment to someone other than his or her spouse, which is tantamount to disinheriting the surviving spouse because the allotment is often the only significant asset in the decedent\u27s estate. The absence of a federal elective share statute means, ironically, that a Native American\u27s devise of restricted allotments is less restricted than the devise of real property by non-Native Americans. It is time to rectify this injustice by enacting a federal elective share regulation to protect Native American spouses from disinheritance

Motor Freight Brokers: A Tale of Federal Regulatory Pandemonium

Most brokerage problems are traceable to the troubled history of freight brokers, which has been a constant struggle between regulation and deregulation. Arguably, brokers have been subjected to more extremist regulation than any other industry during the last fifty years. The pattern of extremism began when Congress imposed massive regulations on freight brokers as part of the Motor Carrier Act of 1935. The 1935 regulations completely stifled the U.S. brokerage industry. Forty-five years later, Congress moved to the other regulatory extreme when it passed the Motor Carrier Act of 1980,6 which virtually deregulated the brokerage industry The eased entry controls of the 1980 Act have led to considerable broker abuse.8 Since deregulation, the industry has been inundated with undercapitalized, fly-by-night brokers who are preying on unsuspecting carriers and shippers.9 While the strict entry controls of the 1935 Act stifled the brokerage industry\u27s development, the eased entry controls of the 1980 Act resulted in higher prices, financial instability, protracted litigation1\u27 and an increase in bankruptcies. 1 Due to this regulatorypandemonium, brokers present an exemplary microcosm of the intrinsic struggle between the forces of regulation and deregulation

Circuit-Specific Application of the Internal Revenue Code: An Unconstitutional Tax

For all practical purposes, the Constitution prescribes only one limit on the federal government\u27s power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be uniform throughout the United States ... It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions. Unfortunately, the Internal Revenue Service ( IRS ) has not always been so careful. In recent years, the IRS has adopted a practice of applying different tax laws to different states. This occurs when the IRS issues a formal opinion declaring that it will not enforce certain provisions of the Internal Revenue Code in states located within certain federal circuits. This Article submits that the IRS\u27s non-uniform application of the tax law violates the Uniformity Clause of the U.S. Constitution. In an endeavor to substantiate this hypothesis, Part I will analyze the constitutional restrictions on the federal government\u27s power to tax and the effect of the Sixteenth Amendment on those restrictions. Part II will offer examples of the IRS\u27s practice of applying tax laws in a non-uniform manner. Part III will demonstrate why the IRS\u27s practice violates the Uniformity Clause. Part IV will propose a practical and constitutional solution to the IRS\u27s arguably unconstitutional practice

Sensible Application of Stare Decisis or a Rewriting of the Constitution: An Examination of Helling V. Mckinney

In Helling v. McKinney, the Supreme Court held that compelled exposure to environmental tobacco smoke ( ETS ) may constitute cruel and unusual punishment in violation of the Eighth Amendment. Section I of this article explores the medical evidence linking ETS to lung cancer, heart disease and certain other health risks in nonsmokers. Section II examines the history of the Eighth Amendment\u27s ban on cruel and unusual punishment, particularly as it relates to dangerous or unhealthy prison conditions. Section III analyzes the decision in Helling v. McKinney. Section IV questions whether a judicial ban on smoking would itself constitute cruel and unusual punishment to smokers. Finally, Section V illustrates that the Supreme Court\u27s decision in Helling is consistent with Eighth Amendment history and precedent