VOLUME 109 FIRST IMPRESSIONS
COMMENTARIES

Establishing a "Due Care" Standard Under the Lacey Act Amendments of 2008

Rachel Saltzman

The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife "taken, possessed, transported, or sold" in violation of state and foreign laws. For the past three decades, the amended statute has provided the federal government with a powerful tool for regulating imports of fish and wildlife. In 2008 Congress expanded its reach still further, responding to widespread concern about the effects of illegal logging on local governance, the environment, and American business by extending the Act's protections to imported plants.

The Lacey Act's penalty provision imposes both civil and criminal liability for wildlife trafficking. At its most stringent, the Act imposes felony liability on those who "knowingly" import fish and wildlife harvested in violation of foreign laws. Importers and subsequent purchasers of imports who fail to exercise "due care" in determining whether their products are legal may be subject to misdemeanor liability or civil penalties. The due care standard, which originated in the 1981 amendments, is now almost three decades old, yet key differences exist between companies in the timber market and the business enterprises whose operations were traditionally regulated under the Lacey Act's fish and wildlife provisions. These differences limit the applicability of the few existing precedents that have interpreted and applied this standard.

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Kids Are Different

Stephen St.Vincent
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Citizens United and the Threat to the Regulatory State

Tamara R. Piety
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Message to Congress: Halt the Tax Exemption for Perpetual Trusts

Lawrence W. Waggoner
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Strong Medicine: Toward Effective Sentencing Of Child Pornography Offenders

Kristin Carlson
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Insterstitial Exclusivities After Association for Molecular Pathology

Mary Mitchell & Dana A. Remus
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"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity in the National Childhood Vaccine Injury Act

Jason LaFond
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On the Role and Regulation of Proxy Advisors

Paul Rose
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When Will Race No Longer Matter in Jury Selection?

Bidish Sarma
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Reconstructing the Individual Mandate as an Escrow Account

Gregg D. Polsky
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Why Governance Might Work in Mutual Funds

Michael C. Schouten
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Beating the Bluebook Blues: A Response to Judge Posner

Stephen M. Darrow and Jonathan J. Darrow
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Unclaimed Financial Assets and the Promotion of Microfinance

Andrew W. Hartlage
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RESPONSES

Response to "Snyder v. Lousiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges"

Bidish J. Sarma

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El II]. If lawyers challenging discriminatory peremptory strikes and trial courts replicate Snyder's single-juror approach but ignore concomitant Miller-El circumstantial evidence of intentional discrimination, Snyder may (counterintuitively) sap Miller-El II of its on-the-ground transformative potential. In other words, lawyers should not rely too much on the "more individualized focus" observed and applauded by the author because a narrow framing of a Batson challenge in the Snyder opinion's image (rather than a wider framing with a focus on the Miller-El factors) may fail in front of courts that view Snyder differently than does Bringewatt. A slightly different interpretation of the historical arc of the relevant cases and a critical reconsideration of Snyder's circumstances foreshadow the outcome in Haynes and reveal nuances that suggest problems with Bringewatt's theory.

 

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Commerce in the Commerce Clause: A Response to Jack Balkin

Robert G. Natelson & David Kopel
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