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Articles 1 - 30 of 77
Full-Text Articles in Law
Essential Facilities And Trinko: Should Antitrust And Regulation Be Combined?, Timothy J. Brennan
Essential Facilities And Trinko: Should Antitrust And Regulation Be Combined?, Timothy J. Brennan
Federal Communications Law Journal
"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.
The Supreme Court's 2004 decision in Trinko represented a radical change from prior doctrine ensuring that antitrust laws applied in regulated industries. The change resulted from a failure to appreciate that regulation and antitrust can be complements. Regulation can boost the value of antitrust by creating incentives to refuse to deal in order to reap monopoly profit otherwise proscribed by regulation. Ironically, the essential facilities doctrine rejected by the Trinko court and the Trinko decision …
Toward A Unified Theory Of Access To Local Telephone Networks, Daniel F. Spulber, Christopher S. Yoo
Toward A Unified Theory Of Access To Local Telephone Networks, Daniel F. Spulber, Christopher S. Yoo
Federal Communications Law Journal
"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.
Over the past several decades, regulatory authorities have imposed an increasingly broad array of access requirements on local telephone providers. In so doing, policymakers typically applied previous approaches to access regulation without fully considering whether the regulatory justifications used in favor of those previous access requirements remained valid. They also allowed each access regime to be governed by a different pricing methodology and set access prices in a way that treated each network component as …
La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson
La Follette'S Folly: A Critique Of Party Associational Rights In Presidential Nomination Politics, Alan Martinson
University of Michigan Journal of Law Reform
Every four years, observers of the presidential nomination season decry the undue influence of those states that hold their primaries first, particularly Iowa and New Hampshire. Currently, Democratic Party rules protect the position of these states. In 2008, two states disregarded party rules in order to move their primaries to a more influential position in the primary season. As punishment for disobeying the rules, the national party diluted the influence of the delegates from these states at the national convention. Legislative solutions to the problems of the current nomination process appear unlikely. Moreover, Supreme Court jurisprudence places no limits on …
Managing Manure: Using Good Neighbor Agreements To Regulate Pollution From Agricultural Production, Tory H. Lewis
Managing Manure: Using Good Neighbor Agreements To Regulate Pollution From Agricultural Production, Tory H. Lewis
Vanderbilt Law Review
In an episode of the popular television series Seinfeld, George Costanza narrowly avoids stepping in a pile of horse manure and emphatically declares, "[M]anure's not that bad. I don't even mind the word 'manure.' You know, it's, it's 'nure,' which is good and a 'ma' in front of it. MA-NURE. When you consider the other choices, 'manure' is actually pretty refreshing."'
Not everyone shares George's enthusiasm for animal excrement. Agricultural waste has been a source of community distress for generations. In 1932, a California appellate court determined that a dairy, hog-raising, and cattle-raising operation constituted a nuisance under state law. …
Securities Class Actions As Pragmatic Ex Post Regulation, Elizabeth Chamblee Burch
Securities Class Actions As Pragmatic Ex Post Regulation, Elizabeth Chamblee Burch
Scholarly Works
Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions' negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle.
Thus, understanding the full picture and texture of securities class actions necessitates …
Optimal Political Control Of The Bureaucracy, Matthew C. Stephenson
Optimal Political Control Of The Bureaucracy, Matthew C. Stephenson
Michigan Law Review
It is widely believed that insulating an administrative agency from the influence of elected officials, whatever its other benefits orjustifications, reduces the agency's responsiveness to the preferences of political majorities. This Article argues, to the contrary, that a moderate degree of bureaucratic insulation from political control alleviates rather than exacerbates the countermajoritarian problems inherent in bureaucratic policymaking. An elected politician, though responsive to majoritarian preferences, will almost always deviate from the majority in one direction or the other Therefore, even if the average policy position of a given elected official tends to track the policy views of the median voter …
Regulating Search, Viva R. Moffat
Regulating Search, Viva R. Moffat
Viva R. Moffat
With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.
In this paper, I …
Strengthening International Regulation Through "Transnational New Governance", Kenneth W. Abbott, Duncan Snidal
Strengthening International Regulation Through "Transnational New Governance", Kenneth W. Abbott, Duncan Snidal
Kenneth W. Abbott
A new kind of international regulatory system is emerging: “Transnational New Governance” (TNG). TNG is emerging spontaneously, largely out of dissatisfaction with the failure of international “Old Governance” (OG) – acting through treaties and intergovernmental organizations (IGOs) – to adequately regulate international business. NGOs, business firms and other actors, singly and in novel combinations, are creating a plethora of innovative institutions to apply transnational norms to business, especially on worker rights, environmental protection and human rights. These institutions are predominantly private, and operate through voluntary codes and standards: private transnational “soft law.”
We depict the range and diversity of the …
International Labor Standards, Soft Regulation, And National Government Roles, Sarosh C. Kuruvilla, Anil Verma
International Labor Standards, Soft Regulation, And National Government Roles, Sarosh C. Kuruvilla, Anil Verma
Sarosh Kuruvilla
[Excerpt] In this article, we briefly describe the different approaches to the regulation of international labor standards, and then argue for a new role for national governments based on soft rather than hard regulation approaches. We argue that this new role shows potential for significantly enhancing progress in international labor standards, since it enables governments to articulate a position without having to deal with the enforcement issues that hard regulation mandates. We justify this new role for governments based on the increasing use of soft regulation in the international arena. Of course, this approach is not without its own problems, …
Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela
Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela
Jed S Ela
Legal scholars have long argued that informal social norms can solve collective action problems, as long as these problems occur in close-knit groups. This “group knittedness hypothesis” may suggest that social norms, by themselves, will not be able to solve the world’s largest collective action problem: anthropogenic climate change. Yet recent scholarship has taken the group knittedness hypothesis too far, suggesting that any attempt to manage social influences in large, loose-knit groups is likely to be relatively ineffective.
In fact, social norms can shape individual behavior even in loose-knit groups, and climate policies that ignore norms may miss important opportunities …
Midnight Regulations And Regulatory Review, Jerry Brito
Midnight Regulations And Regulatory Review, Jerry Brito
Jerry Brito
The term “midnight regulations” describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period—the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new …
Deeply And Persistently Conflicted: Credit Rating Agencies In The Current Regulatory Environment, Timothy E. Lynch
Deeply And Persistently Conflicted: Credit Rating Agencies In The Current Regulatory Environment, Timothy E. Lynch
Timothy E. Lynch
Credit rating agencies have a pervasive and potentially devastating influence on the financial well-being of the public. Yet, despite the recent passage of the Credit Rating Agency Reform Act, credit rating agencies enjoy a relative lack of regulatory oversight. One explanation for this lack of oversight has been the appeal of the potentially self-regulating nature of credit rating agencies that claim to rely deeply on their reputational standing within the financial world. There are strong arguments for doubting this reputational concern, including the conflicting self-interest of credit rating agencies whose profits are gained or lost depending on their ability to …
"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton
"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton
Jacqueline D Lipton
In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …
From Court-Surrogate To Regulatory Tool: Re-Framing The Empirical Study Of Employment Arbitration, W. Mark C. Weidemaier
From Court-Surrogate To Regulatory Tool: Re-Framing The Empirical Study Of Employment Arbitration, W. Mark C. Weidemaier
University of Michigan Journal of Law Reform
A growing body of empirical research explores the use of arbitration to resolve employment disputes, typically by comparing arbitration to litigation using relatively traditional outcome measures: who wins, how much, and how quickly. On the whole, this research suggests that employees fare reasonably well in arbitration. Yet there remain sizeable gaps in our knowledge. This Article explores these gaps with two goals in mind. The first and narrower goal is to explain why it remains exceedingly difficult to assess the relative fairness of arbitration and litigation. The outcome research does not account for a variety of 'filtering" mechanisms that influence …
Slides: Linking Growth, Land Use And Water, Jim Holway
Slides: Linking Growth, Land Use And Water, Jim Holway
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
Presenter: Jim Holway, Global Institute of Sustainability, Civil and Environmental Engineering, Arizona Water Institute, Arizona State University
29 slides
Slides: The Big Questions, Doug Kenney
Slides: The Big Questions, Doug Kenney
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
Presenter: Doug Kenney, Natural Resources Law Center, University of Colorado Law School
7 slides
The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle Ward Ghetti
The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle Ward Ghetti
Federal Communications Law Journal
Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as …
Fda New Drug Review Times, Prescription Drug User Fee Acts, And R&D Spending, John Vernon
Fda New Drug Review Times, Prescription Drug User Fee Acts, And R&D Spending, John Vernon
John Vernon
FDA approval times have declined significantly since the enactment of the Prescription Drug User Fee Act (PDUFA) in 1992. As a result, present value expected returns to pharmaceutical R&D have likely increased. In the current paper we employ a unique survey dataset, one which includes data from 1990 to 1999 on firm-level pharmaceutical R&D expenditures for 7 large, U.S.-based drug companies. We estimate the effect FDA approval times have on firm R&D spending. Controlling for other factors such as pharmaceutical profitability and cash flows, we estimate that a 10 percent decrease (increase) in FDA approval times leads to an increase …
A Tale Of Two Cities: Is Lozano V. City Of Hazelton The Judicial Epilogue To The Story Of Local Immigration Regulation In Beaufort County, South Carolina, Jason P. Luther
A Tale Of Two Cities: Is Lozano V. City Of Hazelton The Judicial Epilogue To The Story Of Local Immigration Regulation In Beaufort County, South Carolina, Jason P. Luther
South Carolina Law Review
No abstract provided.
Public-Private Partnerships And Insurance Regulation, Alexander A. Boni-Saenz
Public-Private Partnerships And Insurance Regulation, Alexander A. Boni-Saenz
All Faculty Scholarship
A public-private partnership (PPP) is an institutional arrangement that embodies a collaborative approach to policy and regulation; it is a joint venture between the government and one or more private sector entities. Joint financing partnerships link public financing and private insurance to pay for certain social goods. Where the financing for social goods is fragmented and overlapping, as it is for health and social care, joint financing PPPs may help organize existing financing streams. This piece argues that partnerships of this type also present an opportunity for consumer-protective regulation of the insurance industry if certain conditions are met. Private insurers …
Another Approach To Corporate Stock Basis, Alan L. Feld
Another Approach To Corporate Stock Basis, Alan L. Feld
Faculty Scholarship
Gordon Warnke's article makes a significant contribution. It helps to map a largely unexplored continent of tax law, the use and determination of adjusted basis in corporate shares in connection with certain nonrecognition transactions, recently elaborated in Reg. §1.358-2.2 The regulation provides guidance of particular relevance to the allocation of basis when the shareholder owns two or more batches of stock with differing adjusted bases. As Gordon's article makes clear, apparently simple tax law directives concerning the treatment of adjusted basis raise difficult questions and choices, often in common situations. In this article, I propose to make explicit some of …
Regulation Of Pharmacy Benefit Managers: An Economic Analysis Of Regulation And Litigation As Agents Of Health Care Change, Kevin C. Green
Regulation Of Pharmacy Benefit Managers: An Economic Analysis Of Regulation And Litigation As Agents Of Health Care Change, Kevin C. Green
Kevin C Green
Pharmacy benefit managers or “PBMs” have come under intense legal and regulatory scrutiny in recent years. Each of the major PBMs has been targeted by public and private litigation including a major ongoing task force comprised of U.S. Attorneys and Attorneys General from twenty states. Moreover, more than 30 bills to regulate PBMs have been introduced in state legislatures since 2002. This paper provides an economic analysis of PBM regulation. I analyze the economic arguments put forward on both sides of the regulation debate and evaluate the existing empirical evidence on PBM conduct in the context of these arguments. I …
Survey Of The Federal Government On Supervisor Practices In Employment Of People With Disabilities, Susanne M. Bruyere, William Erickson, Richard L. Horne
Survey Of The Federal Government On Supervisor Practices In Employment Of People With Disabilities, Susanne M. Bruyere, William Erickson, Richard L. Horne
Susanne Bruyère
In 1999, the Presidential Task Force on the Employment of Adults with Disabilities (PTFEAD) funded Cornell University to conduct a survey of federal sector HR and EEO representatives regarding their experience implementing the employment disability nondiscrimination requirements of the Americans with Disabilities Act of 1990(ADA) and the Rehabilitation Act of 1973, as amended. One of the recommendations from this research was to conduct a follow-up study of federal agency supervisors and managers about their experience in accommodation and employment of persons with disabilities in the federal sector, and in addition to inquire about their awareness of the series of Executive …
Securities Regulation In Low-Tier Listing Venues: The Rise Of The Alternative Investment Market, Jose M. Mendoza
Securities Regulation In Low-Tier Listing Venues: The Rise Of The Alternative Investment Market, Jose M. Mendoza
Fordham Journal of Corporate & Financial Law
No abstract provided.
Energy Efficiency And Federalism, Ann E. Carlson
Energy Efficiency And Federalism, Ann E. Carlson
Michigan Law Review First Impressions
The U.S. system for regulating appliances—which account for a huge percentage of the nation’s carbon emissions—is a mess. Since the federal government began regulating appliance efficiency in the 1970s, the process has been characterized by frequent delays and foot-dragging, followed by lawsuits and legislative overhauls. Amidst the turmoil, a number of states have attempted to assert leadership in setting appliance standards but have often faced federal roadblocks in doing so.
The Environmental Effects Of Cruelty To Agricultural Animals, Kyle H. Landis-Marinello
The Environmental Effects Of Cruelty To Agricultural Animals, Kyle H. Landis-Marinello
Michigan Law Review First Impressions
Laws criminalizing animal abuse should apply to the agricultural industry. When we exempt the agricultural industry from these laws, factory farms increase production to unnaturally high levels. This increased production causes devastating environmental effects, such as climate change, water shortages, and the loss of topsoil. In light of these effects, the law needs to do much more to regulate the agricultural industry, and the first step should be to criminalize cruelty to agricultural animals. This would force the industry to slow down production to more natural levels that are much less harmful to the environment.
One Bad Day: Thoughts On The Difference Between Animal Rights And Animal Welfare, Neil D. Hamilton
One Bad Day: Thoughts On The Difference Between Animal Rights And Animal Welfare, Neil D. Hamilton
Michigan Law Review First Impressions
The lawsuit pitting the New Jersey Society for the Prevention of Cruelty to Animals against the New Jersey Department of Agriculture brings into sharp focus the issue of animal rights versus animal welfare that has been dividing animal activists, farmers, and society for decades. On one side are proponents of animal rights—a set of rights articulated by humans but granted to animals to govern how we treat them. For many believers this includes the right not to be owned and certainly not to be eaten. On the other side are proponents of animal welfare—also a set of human derived standards …
"It's The Right Thing To Do": Why The Animal Agriculture Industry Should Not Oppose Science-Based Regulations Protecting The Welfare Of Animals Raised For Food, Angela J. Geiman
"It's The Right Thing To Do": Why The Animal Agriculture Industry Should Not Oppose Science-Based Regulations Protecting The Welfare Of Animals Raised For Food, Angela J. Geiman
Michigan Law Review First Impressions
Since the beginning of history, people have used farm animals to assist with their work and to provide a source of food. These agricultural pursuits were not questioned; rather, they were a widely-accepted way of life. In fact, many people still say that the very purpose of livestock on this Earth is to provide these resources for mankind. As for the proper way to treat our livestock, we commonly hear farmers and livestock producers make comments like, “If we take care of the animals, they will take care of us,” and, “We treat our animals well because that’s just good …
A Case Study On Cruelty To Farm Animals: Lessons Learned From The Hallmark Meat Packing Case, Nancy Perry, Peter Brandt
A Case Study On Cruelty To Farm Animals: Lessons Learned From The Hallmark Meat Packing Case, Nancy Perry, Peter Brandt
Michigan Law Review First Impressions
“I need the public to understand that my office takes all cases involving animal cruelty very seriously . . . [and i]t doesn’t matter whether the mistreated animal is a beloved family pet or a cow at a slaughterhouse. Unnecessary cruelty will not be tolerated and will be prosecuted to the fullest extent allowed by law.” San Bernardino County District Attorney Michael A. Ramos (February 15, 2008) One morning in January 2008, images of horrific animal cruelty were blasted by Internet, television, and print media throughout the country. The story was all the more shocking in that the animals at …
A Single-License Approach To Regulating Insurance, Henry N. Butler, Larry E. Ribstein
A Single-License Approach To Regulating Insurance, Henry N. Butler, Larry E. Ribstein
Faculty Working Papers
State regulation of insurance companies has been criticized for many years because of the burden imposed on insurers by having to comply with the laws of many jurisdictions. These higher costs are passed on to consumers. The problems with the current regulatory structure are prompting calls for increased federal regulation of insurance. However, all proposals to federalize insurance regulation create opportunities for abuse at the hands of the federal government and fail to utilize the benefits of a federal system. This article shows how many of the problems of the current system can be addressed without resorting to a large …