Law Commons^™

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Faculty Scholarship

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

Agenda: Opportunities And Obstacles To Reducing The Environmental Footprint Of Natural Gas Development In The Uintah Basin, Utah State University. Bingham Entrepreneurship And Energy Research Center, University Of Colorado Boulder. Natural Resources Law Center. Intermountain Oil And Gas Bmp Project, Houston Advanced Research Center. Environmentally Friendly Drilling Systems Program

Opportunities and Obstacles to Reducing the Environmental Footprint of Natural Gas Development in Uintah Basin (October 14)

A public workshop to discuss “Opportunities and Constraints to Reducing the Environmental Footprint of Natural Gas Development” was held in Vernal, Utah on October 14, 2010 at the Vernal campus of Utah State University. The workshop was sponsored by Utah State University, The Bingham Energy Research Center; The University of Colorado Natural Resources Law Center; and the Houston Advanced Research Center, Environmentally Friendly Drilling Program.

The meeting included presentations and panel discussions on:

• Trends and environmental issues related to natural gas development
• Examples of environmental innovations being used in the Uintah Basin
• Examples of innovation & tools from outside the …

Best Practices For Mediation Training And Regulation: Preliminary Findings, Susan S. Raines, Tim Hedeen, Ansley B. Barton

Faculty and Research Publications

This article makes recommendations as to “Best Practices” for the training of mediators in court-connected settings. The authors’ findings cover issues including the design of training programs, the importance of experiential learning through role-plays, teaching methods for adult learners, class size and length, training ethical mediators, suggested trainer qualifications, and recommended regulatory practices for administrators. Data comes primarily from an assessment of mediation training and regulation in Florida, but the findings hold insights for court-connected mediation programs throughout the United States. Additionally, the authors highlight the benefits of a collaborative assessment approach involving all stakeholder groups and facilitating smooth implementation …

Slides: Livestock Grazing On The Public Lands, Joe Feller

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Joe Feller, Professor of Law, Arizona State University Law School; Visiting Professor, University of Colorado Law School

33 slides

Combating Antimicrobial Resistance: Regulatory Strategies And Institutional Capacity, William M. Sage, David A. Hyman

Faculty Scholarship

Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available--some …

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

Articles

This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …

Can The Law Track Scientific Risk And Technological Innovation?: The Problem Of Regulatory Definitions And Nanotechnology, David A. Dana

Faculty Working Papers

The functioning of a regulatory regime often turns on what is defined to be included in the scope of regulation and what is defined to be outside. In constructing the definitions of what is regulated, two key challenges are to align the defintions with the risks that motivated the establishment of the regulatory regime and to build in dynamism into the defintions so that they adapt to changes in scientific understanding and technology. This Chapter of a forthcoming book from Cambridge University Press (David Dana, ed., The Nanotechnology Challenge), explores these challnegs in the context of nanotechnology.

Promoting Urban Agriculture As An Alternative Land Use For Vacant Properties In The City Of Detroit: Benefits, Problems, And Proposals For A Regulatory Framework For Successful Land Use Integration, John E. Mogk, Sarah Kwiatkowski, Mary J. Weindorf

Law Faculty Research Publications

No abstract provided.

Private Regulation And Foreign Conduct, Adam I. Muchmore

Journal Articles

Current U.S. policy on safety regulation for imported food is based largely on ex post measures. Several reform proposals seek to strengthen the ex ante component of this regulatory program. These proposals rely on one or more of three basic strategies: direct extraterritorial regulation; delegation of regulatory authority to private entities; and delegation of regulatory authority to foreign government agencies. This paper explores the ability of each strategy to respond to several principal-agent problems relevant to imported-food safety: the regulatory license problem; interest group capture; and the reality of bribery and threats in many food-exporting countries. Through the lens of …

The European Council Regulation On Illegal, Unreported And Unregulated Fishing: An International Fisheries Law Perspective, Martin Tsamenyi, Mary Ann Palma, Ben Milligan, Kwame Mfodwo

Faculty of Law - Papers (Archive)

On 29 September 2008, the Council of the European Union (EU) adopted Council Regulation (EC) No. 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fi shing. Essentially, the EU IUU Regulation establishes a framework in which access to EU markets for fi sheries products is partly conditioned by the extent to which a country, area or region of origin is demonstrably or increasingly free of IUU fi shing. Aside from the amendments to US legislation in 2007, the EU IUU Regulation is the only other domestic legislative measure adopted solely to combat IUU …

Coastal State Regulation Of Navigation In Adjacent Waters - The Example Of The Torres Strait And Great Barrier Reef, Sam Bateman

Faculty of Law, Humanities and the Arts - Papers (Archive)

Australia has established a compulsory pilotage regime for the Torres Strait and Inner Route of the Great Barrier Reef. The introduction of the regime for the Torres Strait was controversial. It was opposed by other countries on the grounds that compulsory pilotage in the strait was contrary to the UNCLOS regime of transit passage through straits used for international navigation. Australia has now submitted a proposal to the International Maritime Organization (IMO) to extend its mandatory ship reporting system for the Great Barrier Reef to include the southernmost part of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA). These …

Money Market Fund Reform Viewed Through A Systemic Risk Lens, Hilary Allen

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: Money market funds ("MMFs") were first developed in the 1970s, and since that time, they have become increasingly popular as an alternative to deposit accounts. Since the financial crisis of September 2008, there has been much discussion about the systemic risks posed by alternatives to commercial banking products. One of the key themes of this discussion is whether the systemic importance of these alternative banking products justifies the imposition of heightened regulation and supervision. This article takes the view, after a comparison of deposit accounts and MMFs, that MMFs are systemically important. It then goes on to consider, through …

What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton

Articles

Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail …

Fcc Regulation And Increased Ownership Concentration In The Radio Industry, Peter Dicola

Faculty Working Papers

In 1996, Congress increased the limits on how many radio stations one firm can own within a single "radio market." To enforce these limits, the FCC used an idiosyncratic method of defining radio markets, based on the complex geometry of the signal contour patterns of radio stations' broadcasts. Using a unique geographic data set, this paper provides the first calculations of the pre- and post-1996 limits on local radio ownership as actually implemented by the FCC. The limits are surprisingly permissive and vary considerably from city to city. While the limits were seldom binding on radio firms, I find a …

Populist Retribution And International Competition In Financial Services Regulation, Adam C. Pritchard

Articles

The pattern of regulatory reform in financial services regulation follows a predictable pattern in democratic states. A hyperactive market generates a bubble, the bubble deflates, and much financial pain ensues for those individuals who bought at the top of the market. The financial mess brings the scrutiny of politicians, who vow "Never again!" A political battle ensues, with representatives of the financial services industry fighting a rearguard action to preserve its prerogatives amidst cries for the bankers' scalps. Regulations, carefully crafted to win the last war, are promulgated. Memories fade of the foolish enthusiasm that fed the last bubble. Slowly, …

The Ilc And The Reconstruction Of U.S. Banking, Mehrsa Baradaran

Scholarly Works

Since the Great Depression, bank regulators in the United States have endeavored to separate banking institutions from commercial firms, believing such separation was necessary for stability and growth. The recent collapse of our financial system indicates that this premise may be false, as Industrial Loan Companies ("ILCs") – the only institutions where commercial firms are permitted to own banks – remain sound. ILCs have persisted throughout U.S. banking history through exceptions and omissions in banking legislation, but the strength and resilience they have exhibited in the current financial collapse are worth investigating and even emulating. This article examines recent controversy …

A Portrait Of The Internet As A Young Man, Ann Bartow

Law Faculty Scholarship

In brief, the core theory of Jonathan Zittrain’s1 2008 book The Future of the Internet - and How to Stop It is this: good laws, norms, and code are needed to regulate the Internet, to prevent bad laws, norms, and code from compromising its creative capabilities and fettering its fecund flexibility. A far snarkier if less alliterative summary would be “We have to regulate the Internet to preserve its open, unregulated nature.” Zittrain posits that either a substantive series of unfortunate Internet events or one catastrophic one will motivate governments to try to regulate cyberspace in a way that promotes …

Policy Challenges Of The Heterogeneity Of The Value Of Statistical Life, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Economic research has developed estimates of the heterogeneity of the value of statistical life (VSL) on dimensions such as individual age, income, immigrant status, and the nature of the risk exposure. This paper examines the empirical evidence on the heterogeneity of VSL and explores the potential implications for the valuation of regulatory policies. Previously, the U.S. Environmental Protection Agency (EPA) unsuccessfully sought to adopt a simple age discount percentage for VSL based on survey evidence. However, labor market estimates of VSL indicate a pattern that tracks lifetime consumption trajectories, as the VSL rises with age and eventually tapers off but …

The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail Moncrieff

Faculty Scholarship

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least four important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

Echo Epidemics: Control Frauds Generate White-Collar Street Crime Waves, William K. Black

Faculty Works

“Control fraud” drove the crisis. Control fraud occurs when those that control a seemingly legitimate entity use it as a “weapon” to defraud. In finance, accounting is the “weapon of choice.” Regulators, criminologists, and criminologists have documented the pervasive role of control fraud in causing the second phase of the S&L debacle. That crisis was followed by the accounting control frauds of Enron and its ilk.

Top economists, criminologists, and the S&L regulators agreed that lenders engaged in accounting control fraud optimize through a four-part recipe that is a “sure thing” – it produces guaranteed, record (fictional) near-term profits and …

Rethinking Environmental Contracting, Natasha Affolder

All Faculty Publications

Environmental contracts occupy an ill-defined middle ground between command and control regulation and voluntary initiatives. These agreements have captured the imagination of policymakers and scholars in the U.S. and Europe in particular. They are heralded as promising examples of “new governance.” This Article explores a little known example of environmental contracting which emerged in the context of a Canadian diamond mine — the Ekati Environmental Agreement. Through a fine-grained case study of the Ekati Agreement, this article challenges some of the assumptions that shape the “environmental contracting literature as well as the wider literature on “new governance.” By debunking the …

Two Masters, Carl E. Schneider

Articles

American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...

Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger

Articles

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …

Testimony Before The Financial Crisis Inquiry Commission, Miami, Florida September 21, 2010, William K. Black

Faculty Works

"Control frauds" are seemingly legitimate entities controlled by persons that use them as a fraud "weapon." (The person that controls the firm is typically the CEO, so that term is used in this testimony.) A single control fraud can cause greater losses than all other forms of property crime combined. Neo-classical economic theory, methodology, and praxis combine to optimize criminogenic environments that hyper-inflate financial bubbles and produce recurrent, intensifying financial crises. A criminogenic environment is one that creates such perverse incentives that it leads to widespread crime. Financial control frauds’ "weapon of choice" is accounting. Neoclassical theory, which dominates law …

On Regulating Conflicts Of Interest In The Credit Rating Industry, Lin (Lynn) Bai

Faculty Articles and Other Publications

This paper discusses issues giving rise to conflict of interest concerns in the credit rating industry and examines whether and how those issues are addressed in the current regulation that builds on the guidelines of the Credit Rating Agency Reform Act of 2006, the SEC rules that were initially adopted in 2007 and recently amended in 2009, and the internal code of conducts of rating agencies. The examination leads to a conclusion that conflict of interest at the individual rating analyst level and some concerns of conflict of interest at the agency level have been largely addressed in the current …

Wall St. Fraud And Fiduciary Responsibilities: Can Jail Time Serve As An Adequate Deterrent For Willful Violations?, William K. Black

Faculty Works

The answer to the question posed by the title of this hearing is: only prison sentences can deter the violations that caused the debacle. We should, however, never rely solely on prosecutions to constrain crimes. The criminal justice system needs to work with regulation not only to make regulation more effective, but also to prevent “private market discipline” from becoming a “criminogenic” oxymoron. To understand the vital role that the criminal justice system must play if we are to avoid the recurrent, intensifying financial crises that have beset this and many other nations for nearly three decades we must begin …

Insurance Law Between Business Law And Consumer Law, Jeffrey E. Thomas

Faculty Works

The U.S. legal system has multiple and complex regulatory regimes for insurance which combine statutes, administrative regulations and common law rules. Regulation of insurance is predominantly done by the fifty states, and this increases the system’s complexity. The regulatory regimes generally divide the industry, the subject of regulation, from the consumers, which are to be protected, without regard for the status or sophistication of the insurance consumer. This article focuses on the role of insurance law and regulation within the legal system, and in particular the divide between business or commercial insurance and that provided for consumers, more commonly known …

Addressing Government Failure Through International Financial Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article discusses the recent financial crisis and argues that the government’s actions contributed to the collapse as much as market failure did. The article also notes that preventive and cleanup measures need to be instituted and the economy needs to be made more resilient so that it can survive temporary credit crises. These goals can be accomplished by increasing competitiveness, renewing trade liberalization, eliminating subsidies for domestic products, and avoiding demagoguery. Finally, international institutions should play a role in financial regulation; specifically, the international community should some of the WTO and ILO’s techniques. I conclude by noting that effective …

Addressing Government Failure Through International Financial Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article discusses the recent financial crisis and argues that the government’s actions contributed to the collapse as much as market failure did. The article also notes that preventive and cleanup measures need to be instituted and the economy needs to be made more resilient so that it can survive temporary credit crises. These goals can be accomplished by increasing competitiveness, renewing trade liberalization, eliminating subsidies for domestic products, and avoiding demagoguery. Finally, international institutions should play a role in financial regulation; specifically, the international community should some of the WTO and ILO’s techniques. I conclude by noting that effective …

Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust and intellectual property law both seek to improve economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust reform began in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition - furthering goals of antitrust policy. Today, patent law has begun its own reform journey, but it is in a much earlier …