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Articles 1 - 30 of 41
Full-Text Articles in Law
Aclp - Comments To The Fcc Re Net Neutrality - December 2023, New York Law School
Aclp - Comments To The Fcc Re Net Neutrality - December 2023, New York Law School
Reports and Resources
No abstract provided.
Towards An Effective Transnational Regulation Of Ai, Daniel J. Gervais
Towards An Effective Transnational Regulation Of Ai, Daniel J. Gervais
Vanderbilt Law School Faculty Publications
Law and the legal system through which law is effected are very powerful, yet the power of the law has always been limited by the laws of nature, upon which the law has now direct grip. Human law now faces an unprecedented challenge, the emergence of a second limit on its grip, a new “species” of intelligent agents (AI machines) that can perform cognitive tasks that until recently only humans could. What happens, as a matter of law, when another species interacts with us, can be integrated into human minds and bodies, makes “real-world” decisions—not through human proxies, but directly—and …
Revisiting Immigration Exceptionalism In Administrative Law, Christopher J. Walker
Revisiting Immigration Exceptionalism In Administrative Law, Christopher J. Walker
Reviews
With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in …
Risk-Seeking Governance, Brian Broughman, Matthew T. Wansley
Risk-Seeking Governance, Brian Broughman, Matthew T. Wansley
Vanderbilt Law School Faculty Publications
Venture capitalists (“VCs”) are increasingly abandoning their traditional role as monitors of their portfolio companies. They are giving startup founders more equity and control and promising not to replace them with outside executives. At the same time, startups are taking unprecedented risks—defying regulators, scaling in unsustainable ways, and racking up billion-dollar losses. These trends raise doubts about the dominant model of VC behavior, which claims that VCs actively monitor startups to reduce the risk of moral hazard and adverse selection. We propose a new theory in which VCs use their role in corporate governance to persuade risk-averse founders to pursue …
Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren
Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren
Fellow, Adjunct, Lecturer, and Research Scholar Works
Over the past few years, several countries have undertaken to regulate the speculation in sovereign debt pursued by so-called “vulture funds.” The various realizations and attempts present a series of loopholes that make a new regulation of this speculation advisable. A proposal for a new regulation, legally justified and precisely framed, is all the more desirable given that some legislators, in particular from the New York State Legislature, have recently taken up the issue of speculation.
Debt sustainability is the only realistic regulation benchmark. It is inconceivable to ban debt purchases on the secondary market as this would significantly impact …
The Problematic Forgotten Buyback, Yesha Yadav
The Problematic Forgotten Buyback, Yesha Yadav
Vanderbilt Law School Faculty Publications
Totaling in excess of $100 billion dollars in transactions annually, debt buybacks allow a company to repurchase bonds from investors, rewriting bargains and stripping away creditor control rights in the process. This Article shows that regulation systematically underprotects bondholders in the context of debt buybacks. It makes three points. First, bondholders confront information asymmetries that enable issuers to buy back creditor claims cheaply. Regulation imposes near negligible requirements on issuers to disclose information about the transaction. Lacking fiduciary protection, bondholder interests are vulnerable to being extinguished by issuers in the interests of promoting those of shareholders and managers. Second, buybacks …
How To Understand China's Approach To Central Bank Digital Currency?, Heng Wang
How To Understand China's Approach To Central Bank Digital Currency?, Heng Wang
Research Collection Yong Pung How School Of Law
China's central bank digital currency (CBDC), digital yuan or e-CNY, is likely to profoundly affect the international financial system. China's CBDC is fast evolving. Understanding the influencing factors of China's CBDC will likely be crucial to explore its future direction. Major influencing factors include (i) China's perception and conception of regulation and technology, (ii) complementarity between China's preferences and CBDC development, (iii) domestic and international legitimacy, and (iv) institutional development. This paper argues that these influencing factors contribute to China's likely approach of selectively reshaping the international financial system. Given the potential wide-ranging implications of the introduction of CBDC globally, …
Office Of Attorney General Peter F. Neronha, Attorney General: Access To Public Records Act, Open Meetings Act, Attorney General, State Of Rhode Island, Roger Williams University School Of Law
Office Of Attorney General Peter F. Neronha, Attorney General: Access To Public Records Act, Open Meetings Act, Attorney General, State Of Rhode Island, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Cyber Plungers: Colonial Pipeline And The Case For An Omnibus Cybersecurity Legislation, Asaf Lubin
Cyber Plungers: Colonial Pipeline And The Case For An Omnibus Cybersecurity Legislation, Asaf Lubin
Articles by Maurer Faculty
The May 2021 ransomware attack on Colonial Pipeline was a wake-up call for a federal administration slow to realize the dangers that cybersecurity threats pose to our critical national infrastructure. The attack forced hundreds of thousands of Americans along the east coast to stand in endless lines for gas, spiking both prices and public fears. These stressors on our economy and supply chains triggered emergency proclamations in four states, including Georgia. That a single cyberattack could lead to a national emergency of this magnitude was seen by many as proof of even more crippling threats to come. Executive Director of …
Interest Rates, Venture Capital, And Financial Stability, Hilary J. Allen
Interest Rates, Venture Capital, And Financial Stability, Hilary J. Allen
Articles in Law Reviews & Other Academic Journals
Following several prominent bank failures and as central banks continue to tighten interest rates to fight inflation, there is increasing interest in the relationship between monetary policy and financial stability. This Article illuminates one path through which the prolonged period of low interest rates from 2009-2021 has impacted financial stability: it traces how yield-seeking behavior in the wake of the Global Financial Crisis and Covid pandemic led to a bubble in the venture capital industry, which in turn spawned a crypto bubble as well as a run on the VC-favored Silicon Valley Bank. This Article uses this narrative to illustrate …
Is A Child's Life Twice As Valuable As An Adult's?, W. Kip Viscusi
Is A Child's Life Twice As Valuable As An Adult's?, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The rise of interest in evidence-based policymaking has created incentives for regulatory agencies to demonstrate the overall benefit-cost merits of their policies. An agency can use evidence to choose more cost-beneficial policies, or it can create the appearance of desirable policies by changing the ground rules by which it assesses a policy's merits.
The Consumer Product Safety Commission (CPSC) recently chose the latter course when monetizing the benefit of mortality risk reductions for children from a proposed safety standard for operating cords on custom window coverings. The cords are currently estimated to be responsible for nine fatal injuries annually. Each …
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Administrative Regulation Of Programmatic Policing: Why "Leaders Of A Beautiful Struggle" Is Both Right And Wrong, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit Court of Appeals held that Aerial Investigation Research (AIR), Baltimore's aerial surveillance program, violated the Fourth Amendment because it was not authorized by a warrant. AIR was constitutionaly problematic, but not for the reason given by the Fourth Circuit. AIR, like many other technologically-enhanced policing programs that rely on closed-circuit television (CCTV), automated license plate readers and the like, involves the collection and retention of information about huge numbers ofpeople. Because individualized suspicion does not exist with respect to any of these people's information, an individual-specific warrant …
Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit
Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit
Faculty Scholarship
Transforming the electric power grid is central to any viable scenario for addressing global climate change, but the process and politics of this transformation are complex. The desire to transform the grid creates an “energy trilemma” involving often conflicting desires for reliability, cost, and decarbonization; and, at least in the short run, it is difficult to avoid making tradeoffs between these different goals. It is somewhat shocking, then, that many crucial decisions about electric power service in the United States are made not by consumers or their utilities, nor by state public utilities commissions or federal regulators. Instead, for much …
The Future Of Natural Property Law: Comments On Eric Claeys's Natural Property Rights, Christopher Serkin
The Future Of Natural Property Law: Comments On Eric Claeys's Natural Property Rights, Christopher Serkin
Vanderbilt Law School Faculty Publications
Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.
There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of …
How Far Does Natural Law Protect Private Property, James W. Ely Jr.
How Far Does Natural Law Protect Private Property, James W. Ely Jr.
Vanderbilt Law School Faculty Publications
This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …
Ambiguities And Absences: Occupational Health And Safety Regulation Of Platform-Mediated Work In Ontario, Canada, Eric Tucker
Ambiguities And Absences: Occupational Health And Safety Regulation Of Platform-Mediated Work In Ontario, Canada, Eric Tucker
Articles & Book Chapters
Platform-mediated work, whether location-based, as in the case of Uber, or cloud-based, as in the case of Amazon Mechanical Turk, poses severe challenges to effective occupational health and safety (OHS) regulation. While the work performed in the platform environment is not usually very different from work performed in more traditional employment settings, the platform environment often exacerbates those risks by, for example, increasing stress and incentivizing long hours and work intensification. Regulating these hazards is impeded by ambiguities surrounding the legal relationship between platform operators and platform workers that make it uncertain whether the OHS regime even applies. As well …
Outsourcing Agency Rulemaking, Christopher J. Walker
Outsourcing Agency Rulemaking, Christopher J. Walker
Reviews
When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes.
A Major Answer To The Major Questions Doctrine, Edward L. Rubin
A Major Answer To The Major Questions Doctrine, Edward L. Rubin
Vanderbilt Law School Faculty Publications
The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an …
A Settlement In Crisis: How In Re Opioid Litigation Fails To Put People Before Corporations, Gabrielle Hunter
A Settlement In Crisis: How In Re Opioid Litigation Fails To Put People Before Corporations, Gabrielle Hunter
Emory Corporate Governance and Accountability Review Perspectives
Since 1999, 932,000 people in the United States have died from a drug overdose. In 2021 alone over 100,000 people died from a drug overdose. Seventy-eight percent of those overdoses involved opioids. As the opioid epidemic has torn families apart and decimated American communities, the natural response is to find someone to blame. State and local governments, Native-American tribes, labor unions, insurance companies, hospitals, and individuals have all pointed the finger at the same culprits: opioid manufacturers and distributors.
The result—over 3,000 state and local governments alongside Native American tribes joined In Re Opiate Litigation, a multidistrict litigation, alleging …
Place-Based Versus Practice-Based Norms For American Lawyers: "It's The End Of The World As We Know It (And I Feel Fine)", James E. Moliterno
Place-Based Versus Practice-Based Norms For American Lawyers: "It's The End Of The World As We Know It (And I Feel Fine)", James E. Moliterno
Scholarly Articles
This Article acknowledges the growing trend toward practice-based lawyer norms, points out how it allows interaction between the existing place-based norms and the new practice-based norms, and compares this movement with the existing regulatory conditions outside the US. If there is movement from the world as we know it (place-based norms) to a world as it may come to be (practice-based norms), is the change tragic, inevitable, risky, in line with the rest of the global legal profession, or all of the above and more? Specifically, how would such an evolution affect the core duty of lawyer-client confidentiality?
Federal Rules Of Private Enforcement, Luke Norris, David L. Noll
Federal Rules Of Private Enforcement, Luke Norris, David L. Noll
Law Faculty Publications
The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between "substantive" rights and the "procedure" used to adjudicate them. The role of procedure, the rulemakers believed, was to resolve private disputes fairly and efficiently. Today, a substantial portion of litigation in federal court is brought under regulatory statutes that deploy private lawsuits to enforce public regulatory policy. This type of litigation, which scholars refer to as "private enforcement," is the engine for …
Changemakers: 'You Have To Adapt To Survive', Roger Williams University School Of Law
Changemakers: 'You Have To Adapt To Survive', Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Digital Nudges: Contours And Challenges, Avishalom Tor
Digital Nudges: Contours And Challenges, Avishalom Tor
Book Chapters
Digital nudges—that is, significantly behavioral interventions that use software and its user-interface design elements—are an increasingly pervasive feature of online environments that shapes behavior both online (e.g., changing online privacy settings) and offline (e.g., taking a flu vaccine due to a text message reminder). Although digital nudges share many characteristics of their offline counterparts, they merit particular attention and analysis for two important reasons: First, the growing ubiquity of digital nudges makes encountering them nearly unavoidable in daily life, thereby bringing into sharper relief the promise and perils of nudges more generally. Second, the potentially greater potency of digital—compared to …
The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos
The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos
Faculty Scholarship
Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …
Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker
Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker
Journal Articles
Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the field of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.
In our contribution to this Ensuring Democratic Accountability in the Administrative State Symposium, we make a modest intervention …
Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore
Food And Drug Regulation: Statutory And Regulatory Supplement (2023), Adam I. Muchmore
Journal Articles
This Statutory and Regulatory Supplement is intended for use with its companion casebook, Food and Drug Regulation: A Statutory Approach (2021). This is not a traditional statutory supplement. Instead, it contains selected, aggressively edited provisions of the Federal Food, Drug and Cosmetic Act (FFDCA), related statutes, and the Code of Federal Regulations. The Supplement includes all provisions assigned as reading in the casebook, as well as a few additional provisions that some professors may wish to cover. The excerpts are designed to be teachable rather than
Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang
Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang
Faculty Scholarship
State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack — from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as …
Humans In The Loop, Nicholson Price Ii, Rebecca Crootof, Margot Kaminski
Humans In The Loop, Nicholson Price Ii, Rebecca Crootof, Margot Kaminski
Articles
From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these “human in the loop” systems. We make four contributions to the discourse.
First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify “the MABA-MABA trap,” which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into decision making process. Regardless …
Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker
Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker
Articles
Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.
The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy
The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy
All Faculty Publications
"The Legal Innovation Sandbox" examines a novel regulatory approach, called the innovation sandbox, in the context of the legal profession. The paper makes the claim that the “sandbox” regulatory model is in fact better suited to fostering innovation in the legal services arena than it is in the financial technology, or fintech, arena in which the sandbox concept developed. However, any effort to transplant a technique from one context to another needs to be carefully considered. This article is comparative across disciplines – financial regulation and legal services regulation – and across jurisdictions – covering the United Kingdom, the United …