Digital Commons Network^™

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Lili Levi

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a “pay or play” approach that allows broadcasters to pay a fee to a fund for …

Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden

Rob Frieden

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the …

Pacifica Reconsidered: Implications For The Current Controversy Over Broadcast Indecency, Angela J. Campbell

Angela J. Campbell

This article tells the story of how and why a single letter complaining about “dirty words” in a comedy routine broadcast by a radio station ended up in the Supreme Court and how a closely divided Court found that it was constitutional for the Federal Communications Commission to admonish the station for the broadcast even though the speech was protected by the First Amendment and its distribution by other means could not be could not be prohibited. This case, FCC v. Pacifica Foundation, was controversial when it was decided in 1978, and it has become more controversial because of the …

Close Enough For Government Work: The Committee Rulemaking Game, Paul J. Stancil

Paul J Stancil

Procedural rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a game-theoretical lens. The model reveals that inferior players in the committee rulemaking game—advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court—are sometimes able to arbitrage Congressional transaction costs to obtain results at odds with the results Congress would prefer in a …

The Law, Economics, And Policy Of Urban Congestion, Christian Iaione

Fernando Christian Iaione

This paper argues that the best response to the tragedy of road congestion has to rely on market-based regulatory techniques and public policies aimed at controlling the demand-side of transportation congestion. In particular, among these market-based regulatory techniques, economists seem to favor price-based instruments (e.g. taxes and subsidies) over quantity-based instruments (i.e. cap-and-trade schemes). The main argument of this paper is instead that quantity instruments, such as tradable permits of road usage and/or of real estate development, can better internalize all the externalities that road congestion is capable of producing. This paper advances also the idea that quantity instruments are …

Protecting Foreign Investors From International Securities Fraud, Derek N. White

Derek N White

This article discusses the subject matter jurisdiction of national courts in a little-known type of international securities cause of action that has vexed courts of the developed world. The cause of action is labeled the “foreign-cubed class action”, which is brought when a dispute arises regarding purported improprieties in an international securities transaction that contains foreign investors who purchase securities of foreign issuers on foreign stock exchanges. Notice the three “foreign” elements of the transaction ("foreign" meaning foreign to the court presiding over the action).

The number of foreign-cubed class actions brought in U.S. courts has risen sharply over the …

A Healthy Diet Of Preemption: The Power Of The Fda And The Battle Over Restricting High Fructose Corn Syrup From Food And Beverages Labeled ‘Natural’, Adam C. Schlosser

Adam C. Schlosser

Americans today are facing a health crisis. These same Americans are increasingly trying to improve their well-being by purchasing healthy food and beverages and are flocking towards the supposed health benefits of those foods and beverages labeled ‘natural.’ Due to the FDA’s liberal requirements, consumer confusion currently exists regarding what ingredients may be used in products labeled ‘natural.’ In fact, many ‘natural’ food and beverages are actually less healthy than their counterparts not featuring any specific labeling claims. High fructose corn syrup (HFCS) is produced by a complex scientific manufacturing process and is used as an ingredient in millions of …

Warshak: A Test Case For The Intersection Of Law Enforcement And Cyber Security, Michael C. Mcnerney

Michael C McNerney

Often times, the lines between criminal investigations and intelligence activities can become blurred. How far can a government agency go in gathering electronic information on an American citizen suspected of a crime? What implications are there for Americans suspected of terrorist activities? The American people want their government to have the tools to keep them safe but they also want to be free from unreasonable searches and seizures. There are many difficult questions but very little settled law on the subject. Although only a small piece of the puzzle, a recent decision by the Sixth Circuit in a case called …

Mortgage Market Regulation And Moral Hazard: Equity Stripping Under Sanction Of Law, Vincent Di Lorenzo

Vincent Di Lorenzo

No abstract provided.

Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden

Rob Frieden

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the …

The Law And Economics Of The Fcc's Decency Standard, Brian J. Ewart

Brian J Ewart

The broadcasting industry is one of the most public and most scrutinized industries in America. Television and radio networks allow for the mass communication of programming simultaneously across the country. All of this is regulated by the Federal Communications Commission (“FCC”), a federal agency that claims among its powers, the ability to determine what content is and is not “decent” for public consumption.

With the proliferation of cable and satellite distribution of programming, however, the broadcast networks have encountered more and more pressure to push the limits of the FCC’s edicts. With more choices than ever, does it still make …

Trust Or Profit: How Military Officers Are Bound By The Constitution, Michael C. Mcnerney

Michael C McNerney

This paper examines the ability of reserve and active duty military officers to serve in certain political offices, such as Congress and the Electoral College. The seminal case on this issue, U.S. v. Lane, dealt with a U.S. senator who served as a reserve military judge. In deciding the case, the Court of Appeals for the Armed Forces only stated that a member of Congress may not also serve as a judge, but did not reach the ultimate issue of concurrent military service. This paper will attempt to show in exactly which political offices military officers may serve. In making …

Major Issues Affecting The Individuals With Disabilities Education Act, Jonathan Blackmore

Jonathan Blackmore

This article seeks to explore some of the major aspects of the Individuals with Disabilities Education Act through the examination of case law, and gives suggestions which could help remedy some of the troubling situations faced by those affected by the Act. Many of the cases cited are brought by the parents of children suffering from Autism Spectrum Disorder. School districts face enormous challenges in attempting to comply with the Act’s mandates while servicing children and families struggling with the complexities of this disease.

Should The Hvcc Settlement Be Treated As An Agency Rulemaking?, Ted C. Koshiol

Ted C. Koshiol

Abstract On March 3, 2008, the New York Attorney General’s reached an important settlement with Fannie Mae, Freddie Mac, and the Office of Federal Housing Enterprise Oversight. Under the terms of the agreement, Fannie and Freddie agreed to only purchase mortgages from banks that would abide by a new set of appraisal standards. Observers immediately recognized that the impact of the agreement would be widespread, effectively imposing new rules on every mortgage lender in America. The scenario raises a novel legal issue: is a settlement agreement always an adjudicatory action, or are there instances where it should be required to …

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

Akron Law Faculty Publications

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 …

Delineating Administrative Exhaustion Requirements, And Establishing Federal Courts' Jurisdiction Uner 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 Architecture Of Accountability: A Case Study Of The Warrantless Surveillance Program, Kathleen Clark

Kathleen Clark

Several Democratic members of Congress and human rights organizations are calling for establishing a “truth commission” to investigate the Bush Administration’s interrogation and warrantless surveillance policies. Others advocate criminal investigation and even prosecution of Bush Administration officials who authorized these policies. Republican legislators and some commentators oppose any commission or criminal investigation of Bush Administration policies, arguing that they would constitute an attempt by those currently in power to criminalize their policy differences with their predecessors. Is it necessary or appropriate to hold Bush Administration officials accountable for their actions through a criminal or commission investigation? This article contributes to …

"Stationarity Is Dead" -- Long Live Transformation: Five Principles For Climate Change Adaptation Law, Robin K. Craig

Robin K. Craig

While there is no question that successful mitigation strategies remain critical in the quest to avoid worst-case climate change scenarios, we’ve passed the point where mitigation efforts alone can deal with the problems that climate change is creating. Because of “committed” warming – climate change that will occur regardless of mitigation measures, a result of the already-accumulated greenhouse gases in the atmosphere – what happens to social-ecological systems over the next decades, and most likely over the next few centuries, will largely be beyond human control. The time to start preparing for these changes is now, by making adaptation part …

Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

This Article considers the role of property rights in efforts to transport, inject, and store underground hundreds of million of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to combat dangerous climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement CCS, private operators and state and federal governments must be able to access hundreds of millions of acres of “pore space” roughly a kilometer below the earth’s surface in which to store …

Wilderness And The Judiciary, Peter A. Appel

Peter A. Appel

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies’ decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies …

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine Klein

Christine A. Klein

In 2007, the nation entered a financial downturn unprecedented since the Great Depression of the 1930s. A period of national introspection followed, including memorable moments such as Federal Chairman Alan Greenspan’s gut-wrenching admission that his “whole intellectual edifice” had collapsed during the summer of 2007. Although prescriptions for financial rescue varied widely in the details, a surprisingly-broad consensus began to emerge as to the underlying pathology of the crisis. This Essay focuses on three underlying errors: rejecting rules through deregulation, trivializing risk through overly-optimistic analyses, and recklessly borrowing and lending money. Those powerful lessons, accepted by a stunned nation in …

Depoliticizing Judicial Review Of Agency Rulemaking, Scott A. Keller

Scott A Keller

Administrative law doctrines for reviewing agency rulemaking currently give judges a significant amount of discretion to invalidate agency rules. Many commentators have recognized that this has politicized judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration.

This Article therefore argues for the elimination of the Supreme …

Probabilities, Planning Failures, And Environmental Law, David R. Owen

David R Owen

Environmental laws often mandate specific environmental outcomes and require agencies to adopt plans designed to achieve those outcomes. But because of pervasive uncertainties, agencies are often unsure whether their plans will succeed. That uncertainty creates important dilemmas; decision-makers must decide how to balance risks of plan failure against the costs of possible over-regulation. This article explores and evaluates legal responses to those dilemmas. I find that planning uncertainties recur throughout existing environmental laws and will likely have important consequences for legal responses to climate change. I also find that environmental statutes and regulations use a patchwork of measures to manage …

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.