Law Commons^™

Trouble On The Exchanges — Does The United Owe Billions To Health Insurers?, Nicholas Bagley

Articles

Yet another bruising fight has erupted over health care reform. On September 9, 2016, the Obama administration offered to open settlement negotiations with health insurers that have sued the United States to recover billions of dollars that they claim they are owed. Congressional Republicans are incensed, believing that any settlement would illegally squander taxpayer dollars in a lastgasp effort to save the Affordable Care Act (ACA).

The Sec, Administrative Usurpation, And Insider Trading, Adam C. Pritchard

Articles

The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason why lies in the deference that the Supreme Court gave to the SEC in its formative years. The roots of insider trading law are commonly traced to the SEC’s decision in Cady, Roberts & Co. Cady, Roberts was only made possible, however, by the …

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

Articles

Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …

Manufacturing Barriers To Biologics Competition And Innovation, W. Nicholson Price Ii., Arti K. Rai

Articles

As finding breakthrough small-molecule drugs becomes more difficult, drug companies are increasingly turning to "large molecule" biologics. Although biologics represent many of the most promising new therapies for previously intractable diseases, they are extremely expensive. Moreover, the pathway for generic-type competition set up by Congress in 2010 is unlikely to yield significant cost savings. This Article provides a fresh diagnosis of and prescription for this major public policy problem. It argues that the key cause is pervasive trade secrecy in the complex area of biologics manufacturing. Under the current regime, this trade secrecy, combined with certain features of Food and …

Classing Up The Agency, Sergio J. Campos

Articles

No abstract provided.

Medicaid Planning In Idaho, John A. Miller

Articles

No abstract provided.

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Amy J. Wildermuth, Sanne H. Knudsen

Articles

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Galperin, Zahir Hadi Tajani

Articles

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …

Controlling Presidential Control, Kathryn A. Watts

Articles

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

First Principles For Regulating The Sharing Economy, Stephen R. Miller

Articles

This Article posits ten first principles on which a regulatory response to the sharing economy must rest. Given the rapid diversification of products in the sharing economy, this Article gives particular focus to the short-term rental market, typified by Airbnb, as one lens through which to illustrate these principles. This Article then turns to review existing regulatory responses to the sharing economy. Here again, the Article focuses on regulations related to the short-term rental market with a particular emphasis on the two strictest, existing local government regulatory structures: those of San Francisco, California and Portland, Oregon. This Article next proposes …

First Principles For Regulating The Sharing Economy, Stephen R. Miller

Articles

This Article posits ten first principles on which a regulatory response to the sharing economy must rest. Given the rapid diversification of products in the sharing economy, this Article gives particular focus to the short-term rental market, typified by Airbnb, as one lens through which to illustrate these principles. This Article then turns to review existing regulatory responses to the sharing economy. Here again, the Article focuses on regulations related to the shortterm rental market with a particular emphasis on the two strictest, existing local government regulatory structures: those of San Francisco, California and Portland, Oregon. This Article next proposes …

Debunking Humphrey's Executor, Daniel A. Crane

Articles

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …

The Pendulum Swings: Reconsidering Corporate Criminal Prosecution, David M. Uhlmann

Articles

Corporate crime continues to occur at an alarming rate, yet disagreement persists among scholars and practitioners about the role of corporate criminal prosecution. Some argue that corporations should face criminal prosecution for their misconduct, while others would reserve criminal prosecution for individual corporate officials. Perhaps as a result of this conflict, there has been a dramatic increase over the last decade in the use of deferred prosecution and non-prosecution agreements for some corporate crimes, even as the government continues to bring criminal charges for other corporate crimes. To move beyond our erratic approach to corporate crime, we need a better …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …

Actic Law & Policy Year In Review: 2015, Craig H. Allen, Bridgette J. Cooper, Adam Murray

Articles

A review of significant legal developments affecting the Arctic, including treaties and other international agreements; actions by the U.S. Congress, President, and other federal agencies; developments from the European Union and ten foreign countries; and several international organizations. Also addressed are themes including arctic marine shipping; indigneous residents; marine resources; military activities; polar icebreakers; pollution prevention, response, and liability; and scientific research.