Digital Commons Network^™

Federally-Insured Money Market Funds And Narrow Banks: The Path Of Least Insurance, Mercer E. Bullard

Mercer E Bullard

In September 2008, the Treasury created a temporary insurance program for money market funds (“MMFs”), which had never previously been covered by government insurance. This essay argues that this program should be made permanent. To the extent that deposit insurance is intended to protect cash accounts that provide a stable foundation for our payments system, similar insurance should be made available to MMFs, which serve this function while presenting less risk than bank deposits. The argument that only bank accounts should be insured because the liquidity they create for long-term ventures otherwise would dry up might once have made sense, …

The Quiet National Security Revolution: Suing For Citizenship, Jeffrey A. Breinholt

Jeffrey A Breinholt

The article looks at an alarming trend of aliens suing for naturalization or adjustment of status where they feel that the post-9/11 terrorist screening mechanisms are too onerous. The article looks at current controversies over the No-Fly list, as well as the Cold War efforts to maintain the security of U.S. seaports, and, based on this history, concludes that it is just a matter of time before the judiciary begins to manage U.S. immigration policy and anti-terrorism measures.

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

Mark F. Grady

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

Institutional Design, Fcc Reform, And The Hidden Side Of The Administrative State, Phil Weiser

Phil Weiser

Legal scholars have long recognized the importance of the modern administrative state, focusing intently both on the substance of regulatory law and the process of administrative law. Neither focus, however, recognizes the importance of institutional design and institutional processes as determinants of the nature and shape of administrative regulation. The era of neglect towards institutional analysis by both scholars and policymakers may well be on its last legs, as it is increasingly clear that the institutional processes used by regulatory agencies—including when to act by rulemaking as opposed to by adjudication, how to engage the public, and how to collect …

Star Creation: The Manipulation Of Mutual Fund Performance Through Incubation, Ahmed E. Taha, Alan R. Palmiter

Ahmed E Taha

This article reveals how mutual fund companies mislead investors by marketing new funds with artificially high returns. Fund companies create a number of small, new funds (“incubator funds”) that initially operate out of public view. After a period of incubation, the strong performers are actively marketed to the public while the weak performers are quietly terminated. By highlighting the successful incubator funds and hiding the unsuccessful ones, funds companies create the illusion that that the successful funds’ returns were the result of skill rather than luck. In addition, fund companies often subsidize their incubator funds to further artificially boost their …

Understanding Congress's Choice Of Delegate: An Empirical Analysis Of Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Margaret H. Lemos

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants—and even less about the consequences—of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Smoking Out The Impact Of Tobacco-Related Decisions On Public Health Law, Micah Berman

Micah Berman

This article seeks to uncover and analyze the role that tobacco-related litigation has played in the evolution of public health law doctrine. Tobacco is a product – and public health problem – unlike any other. It is the only legal consumable product that kills approximately one-half of the people who consume it, and it cannot be used safely in moderation. These and other characteristics make tobacco use a highly unusual public health issue, and therefore courts addressing tobacco-related litigation have often streched or distorted precedents in order to accommodate the unique exigencies of such cases. In turn, these decisions have …

Delineating Administrative Exhaustion Requirements, And Establishing Federal Courts' Jurisdiction Under The Individuals With Disabilities Education Act: Lessons From The Case Law And Proposals For Congressional Action, Lewis M. Wasserman

Lewis M. Wasserman

No abstract provided.

The Future Of Internet Regulation, Phil Weiser

Phil Weiser

ABSTRACT: The Future of Internet Regulation Policymakers are at a precipice with regard to Internet regulation. The FCC's self-styled adjudication of the complaint that Comcast had violated the agency's Internet policy principles (requiring reasonable network management, among other things) made clear that the era of the non-regulation of the Internet is over. Equally clear is that the agency has yet to develop a model of regulation for a new era. As explained in this Article, the old models of regulation-reliance on command-and-control regulation and market forces subject only to antitrust law-are doomed to fail in a dynamic environment where cooperation …

The Future Of Internet Regulation, Phil Weiser

Phil Weiser

ABSTRACT: The Future of Internet Regulation Policymakers are at a precipice with regard to Internet regulation. The FCC's self-styled adjudication of the complaint that Comcast had violated the agency's Internet policy principles (requiring reasonable network management, among other things) made clear that the era of the non-regulation of the Internet is over. Equally clear is that the agency has yet to develop a model of regulation for a new era. As explained in this Article, the old models of regulation-reliance on command-and-control regulation and market forces subject only to antitrust law-are doomed to fail in a dynamic environment where cooperation …

Warn Act(Ion) In A Time Of Crisis, Alfred Benoit

Alfred Benoit

This paper will analyze the Worker Adjustment and Retraining Notification Act (“WARN Act”) through three separate prisms: (1) The aftermath of a modern day plant closing and how the specific employees and their representatives chose to respond to a alleged violation of the Act; (2) the conflict that exists in the Courts as to which of the multitude of tests is appropriate to determine the liability of an affiliated or subsidiary corporation under the Act; (3) how to reconcile a subsidiary’s need to have clear direction concerning the law so they may be able to reasonably assess their potential liability …

Dialogue With A Neurosurgeon: Toward A Dépeçage Approach To Achieve Tort Reform And Preserve Corrective Justice In Medical Malpractice Cases, Jeffrey A. Van Detta

Jeffrey A. Van Detta

comprised of a dialogue between me, a law professor who teaches torts among a wide array of subjects, and an orthopedic neurosurgeon, who also happens to have been one of my torts students. Our objective is to focus our tort-reform analysis on common errors that occur in complex neurosurgery. We seek to provide a new paradigm both for measuring the standard of care in such malpractice cases and for adjudicating those cases. The dialogue is used as the basis for creating what I call a Dépeçage Model For Classification Of Errors And Resolution Techniques For The Medical Malpractice Claim Arising …

Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard

Todd S Aagaard

This Article examines factual premises of statutory interpretation in agency review cases, and proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do so, courts generally assume that they retain the authority to decide the factual premises and thereby to answer questions of statutory interpretation that depend on factual premises. This is problematic from a functional standpoint, because courts often lack the information or expertise necessary to assess these underlying facts …

Massive Problems In The Administrative State: Strategies For Whittling Away, J.B. Ruhl, James E. Salzman

J.B. Ruhl

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, “agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best …

Homeland Security Planning: What Victory Gardens And Fidel Castro Can Teach Us In Preparing For Food Crises In The U.S., A. Bryan Endres, Jody M. Endres

A. Bryan Endres

Food security is an essential element of comprehensive government crisis response plans. The absence of a terrorist attack on the agricultural sector, however, has been “more by luck than design” and the American public has a false sense of food security due to the invisibility of its complicated food supply chain. Current planning efforts, grounded in the Bioterrorism Act of 2002 and a series of Presidential Directives, rely exclusively on the status quo of conventional agriculture and neglect the potential security benefits of regional and local food networks. Two historical examples, the World War II Victory Garden program and Cuba’s …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

Trust Or Profit: How Both Active Duty And Reserve Military Officers Are Bound By The Constitution, Michael C. Mcnerney

Michael C McNerney

This Comment examines the constitutional barriers that constrain military officers from holding certain public offices. Included is an examination of the Emoluments Clause, Incompatability Clause, and several seminal cases.

The Cost-Shifting Consequences Of Failed Managed Care Regulation: Some Lessons From Pennsylvania’S Experience With Addiction Treatment, Greg Heller

Greg Heller

When managed care companies fail to pay for medical treatment, the costs of treatment are sometimes shifted to the public. This phenomenon is particularly common in the area of addiction treatment, because the incentives and opportunities for cost shifting are so great. This article sets forth the results of an empirical analysis that examines the extent of cost shifting for addiction treatment in Pennsylvania. Pennsylvania has a strong law mandating coverage for addiction treatment, and much of the cost shifting was in violation of Pennsylvania law. This behavior was almost entirely missed by regulators. The article explores these regulatory failures, …

Case Studies In Abandoned Empiricism And The Lack Of Peer Review, Rob M. Frieden

Rob Frieden

In far too many instances, the Federal Communications Commission (“FCC”) engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion …

Incentivize Me!—How Incumbent Carriers In The United States Attempt To Extract Greater Deregulation And Incentives In Exchange For Making Next Generation Network Investments, Rob M. Frieden

Rob Frieden

Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (“NGNs”), particularly if regulations mandate unbundling of services into composite parts, with burdensome interconnection and below market pricing of access by competitors. Both incumbents, prospective market entrants and recent market entrants may seek to tilt the competitive playing field to their advantage typically by securing a regulatory sanction that helps them reduce investment costs, delay having to make an investment, or secure a competitive advantage …

Regulatory Trust, Rebecca M. Bratspies

rebecca m bratspies

When regulators make decisions in the face of uncertainty, what gives legitimacy to their decisions? Trust clearly plays a role in bridging regulatory uncertainty, but what is the relationship between law and trust? This article offers framework for thinking about trust in regulatory contexts by developing a broad-based, multi-dimensional conception of the roles that trust plays in regulatory systems. Positing that ”regulatory trust” is unique kind of social trust, this framework traces the reflexive relationship among regulatory trust’s components, and explores means to cultivate the regulatory trust necessary to to allow regulatory agencies to govern effectively in the face of …

Regulating Greenhouse Gases In Canada: Constitutional And Policy Dimensions, Shi-Ling Hsu, Robin Elliot

Shi-Ling Hsu

Canada’s greenhouse gas emissions have risen dramatically since the 1997 negotiation of the Kyoto Protocol, and that rise has continued through Canada’s 2002 ratification of the Protocol. Along with economic dislocation, constitutional barriers to regulation have sometimes been cited as the reason for caution in regulating greenhouse gases. This article critically evaluates the constitutional arguments and examines the policy considerations surrounding various regulatory instruments that might be used to reduce greenhouse gases. We conclude that the Canadian constitution does not present any significant barriers to federal or provincial regulation and that policy considerations strongly favour the use of two instruments: …

Lessons The Veterans Benefits System Must Learn On Gathering Expert Witness Evidence, James D. Ridgway

James D. Ridgway

An adjudication system that lacks adequate evidence-gathering tools is destined to be both inefficient and rancorous. Accordingly, the time has come to examine how Congress can overhaul the evidence-gathering procedures for veterans benefits claims in order to conform with the modern process of claims adjudication. Fundamentally, the system has transformed from panels with legal and medical professionals deciding claims for which a veteran's evidence was insufficient as a matter of law, into groups of individual lay adjudicators weighing private and VA medical evidence on equal terms. The current evidence gathering procedures are insufficient to clarify the complex questions that arise …

Why So Many Remands?: A Comparative Analysis Of Appellate Review By The United States Court Of Appeals For Veterans Claims, James D. Ridgway

James D. Ridgway

Many commentators have offered opinions about the outcome of cases at the United States Court of Appeals for Veterans Claims (CAVC). Most opinions assume the premise that the CAVC rarely reverses decisions of the Board of Veterans Appeals and remands matters for further proceedings at a very high rate. However, the statistical information available is limited and there has never been an empirical analysis of whether this premise is true. This article tests that premise by looking at the factors that shape CAVC decisions, conducting a detailed statistical analysis of outcomes in CAVC decisions, and comparing those results to published …

Is Growth Share Working For New Jersey?, Daniel W. Meyler

Daniel W. Meyler

The current administrative iteration of the Mount Laurel doctrine presents a familiar problem of local government law: when should the state defer to its constituent municipalities’ zoning choices, and when should the state tell those municipalities what to build?

The Mount Laurel doctrine has both modified and been modified by the political and geographical landscape of New Jersey. The doctrine morphed from a judge-made constitutional command, to a litigation remedy, to a legislative edict, to an administrative matrix. To many who initiated and inspired the Mount Laurel movement in New Jersey, the present form of the law barely resembles the …

The Failure Of Adversary Process In The Administrative State, Bryan T. Camp

Bryan T Camp

In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions made …

Chevron And Hearing Rights: An Unintended Combination, William S. Jordan

William S Jordan III

Section 554(a) of the Administrative Procedure Act provides that if a statute requires an agency an adjudicatory decision “to be determined on the record after opportunity for agency hearing,” that hearing will be subject to various requirements, including the use of an independent Administrative Law Judge, separation of the functions of investigation/prosecution and decision, and a prohibition on ex parte contacts. The courts of appeals have reached three distinct positions with respect to the question of when a statutory hearing requirement triggers § 554(a) of the APA. First, the First Circuit articulated a presumption that, for adjudications, a statutory hearing …

Stakeholder Reaction To Emissions Trading In The United States, The European Union, And The Netherlands, Bryant Walker Smith

Bryant Walker Smith

As a contribution to the debate over market-based environmental regulation, this article examines the reaction of stakeholders to cap-and-trade programs proposed and/or implemented in the United States, the European Union, and the Netherlands for industrial emissions of certain pollutants. Those pollutants include nitrogen oxides (NOX), sulfur dioxide (SO2), mercury (Hg), and greenhouse gases such as carbon dioxide (CO2). For the purpose of the article, stakeholders include environmental groups, regulators, and particularly industry.

The broad conclusion, to which the remainder of the article provides context, is straightforward: Industry dislikes regulation. It strongly dislikes redundancy. It loathes uncertainty. Even emitters that have …

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

Mark Fenster