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Full-Text Articles in Law
Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane
Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane
Articles
State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …
Small Change, Big Consequences — Partial Medicaid Expansions Under The Aca, Adrianna Mcintyre, Allan M. Joseph, Nicholas Bagley
Small Change, Big Consequences — Partial Medicaid Expansions Under The Aca, Adrianna Mcintyre, Allan M. Joseph, Nicholas Bagley
Articles
Though congressional efforts to repeal and replace the Affordable Care Act (ACA) seem to have stalled, the Trump administration retains broad executive authority to reshape the health care landscape. Perhaps the most consequential choices that the administration will make pertain to Medicaid, which today covers more than 1 in 5 Americans. Much has been made of proposals to introduce work requirements or cost sharing to the program. But another decision of arguably greater long-term significance has been overlooked: whether to allow “partial expansions” pursuant to a state Medicaid waiver. Arkansas has already submitted a waiver request for a partial expansion, …
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld
Articles
On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of …
London As Delaware?, Adam C. Pritchard
London As Delaware?, Adam C. Pritchard
Articles
Jurisdictional competition in corporate law has long been a staple of academic-and sometimes, political-debate in the United States. State corporate law, by long-standing tradition in the United States, determines most questions of internal corporate governance-the role of boards of directors, the allocation of authority between directors, managers and shareholders, etc.-while federal law governs questions of disclosure to shareholders-annual reports, proxy statements, and periodic filings. Despite substantial incursions by Congress, most recently in the Sarbanes-Oxley Act of 2002, this dividing line between state and federal law persists, so state law arguably has the most immediate impact on corporate governance outcomes.
London As Delaware?, Adam C. Pritchard
London As Delaware?, Adam C. Pritchard
Articles
In the United States, state corporate law determines most questions of internal corporate governance - the role of directors; the allocation of authority between directors, managers, and shareholders; etc. - while federal law governs questions of disclosure to shareholders - annual reports, proxy statements, and periodic filings. Despite substantial incursions by Congress, most recently with the Sarbanes-Oxley Act, this dividing line between state and federal law persists, so state law arguably has the most immediate effect on corporate governance outcomes.
A Presumption Against Agency Preemption, Nina A. Mendelson
A Presumption Against Agency Preemption, Nina A. Mendelson
Articles
Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
Tender Offers By Controlling Shareholders: The Specter Of Coercion And Fair Price, Adam C. Pritchard
Tender Offers By Controlling Shareholders: The Specter Of Coercion And Fair Price, Adam C. Pritchard
Articles
Taking your company private has never been so appealing. The collapse of the tech bubble has left many companies whose stock prices bordered on the stratospheric now trading at small fractions of their historical highs. The spate of accounting scandals that followed the bursting of the bubble has taken some of the shine off the aura of being a public company-the glare of the spotlight from stock analysts and the business press looks much less inviting, notwithstanding the monitoring benefits that the spotlight purports to confer. Moreover, the regulatory backlash against those accounting scandals has made the costs of being …
Introduction To The Banking Law Symposium: A 200 Year Journey From Anarchy To Oligarchy, James J. White
Introduction To The Banking Law Symposium: A 200 Year Journey From Anarchy To Oligarchy, James J. White
Articles
Each of the five articles in this symposium deals in one way or another with a single question: In what ways and to what end should banks be regulated? Although banks and bankers are the very symbols of a capitalist economy, banks and bankers are not free. No banker may set up business on his own; he must have a charter. With insignificant exceptions no bank or bank holding company can operate a steel mill, sell grass seed, manufacture snowmobiles, or engage in any other activity that is not related to banking. There are rules that limit the geographic scope …
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan
Articles
What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
Articles
For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …
Characteristics And Constitutionality Of Medical Legislation, Harry B. Hutchins
Characteristics And Constitutionality Of Medical Legislation, Harry B. Hutchins
Articles
Right to practice medicine regulated by statute.--In the absence of a statute upon the subject, any person is at liberty to practice medicine or surgery or both. This is the common law. And yet in the absence of a statute the physician necessarily assumes certain responsibilities that grow out of his relation to those whom he treats. He is bound to bring to the discharge of his duties the learning, skill and diligence usually possessed and exercised by physicians similarly situated. In other words, while in the absence of statutory regulation, the door of the profession is open to all, …
State Regulation Of Corporate Profits, Thomas M. Cooley
State Regulation Of Corporate Profits, Thomas M. Cooley
Articles
At the time when the Federal Constitution was adopted, municipal government in America was a very simple affair, and was managed with ease and economy through local officers, who provided for the making and repairing of roads, looked after disorderly characters, abated local nuisances, and levied rates for the few and simple public needs. When the growing population of a particular locality appeared to need larger powers of local government, the legislature granted them, but they often involved little more than the holding of fairs as a means of building up local trade, the institution of a local court for …