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Full-Text Articles in Law

The Irony Of Health Care’S Public Option, Allison K. Hoffman Sep 2020

The Irony Of Health Care’S Public Option, Allison K. Hoffman

Faculty Scholarship at Penn Law

The idea of a public health insurance option is at least a half century old, but has not yet had its day in the limelight. This chapter explains why if that moment ever comes, health care’s public option will fall short of expectations that it will provide a differentiated, meaningful alternative to private health insurance and will spur health insurance competition.

Health care’s public option bubbled up in its best-known form in California in the early 2000s and got increasing mainstream attention in the lead up to the 2010 health reform, the Patient Protection and Affordable Care Act ...


Revisiting The Automation Tax Debate In Light Of Covid-19 And Resulting Structural Unemployment, Vincent Ooi Jul 2020

Revisiting The Automation Tax Debate In Light Of Covid-19 And Resulting Structural Unemployment, Vincent Ooi

Research Collection School Of Law

As lockdowns ease around the globe and businesses reopen, the threat of jobs being automated by machines and workers being displaced as a result has significantly increased. Businesses must keep the number of workers on site to a minimum to comply with safe distancing measures. Under these constraints while social distancing remains the norm, automation might be the way forward for companies that still want to continue production while minimising human contact. The threat of a workforce being replaced by robots and automation, a threat that has already alarmed the labour movement, is heightened with Covid-19. There will be considerable ...


What Role Can Regulations Play? A South African Public Law Perspective On The Potential Response Through Regulations To Constitutional Reservations About The Copyright Amendment Bill, B-13b Of 2017, Jonathan Klaaren Jul 2020

What Role Can Regulations Play? A South African Public Law Perspective On The Potential Response Through Regulations To Constitutional Reservations About The Copyright Amendment Bill, B-13b Of 2017, Jonathan Klaaren

Joint PIJIP/TLS Research Paper Series

This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.

After a background section ...


The Challenge Of Regulatory Excellence, Cary Coglianese Jun 2020

The Challenge Of Regulatory Excellence, Cary Coglianese

Faculty Scholarship at Penn Law

Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts across ...


Deploying Machine Learning For A Sustainable Future, Cary Coglianese May 2020

Deploying Machine Learning For A Sustainable Future, Cary Coglianese

Faculty Scholarship at Penn Law

To meet the environmental challenges of a warming planet and an increasingly complex, high tech economy, government must become smarter about how it makes policies and deploys its limited resources. It specifically needs to build a robust capacity to analyze large volumes of environmental and economic data by using machine-learning algorithms to improve regulatory oversight, monitoring, and decision-making. Three challenges can be expected to drive the need for algorithmic environmental governance: more problems, less funding, and growing public demands. This paper explains why algorithmic governance will prove pivotal in meeting these challenges, but it also presents four likely obstacles that ...


Telehealth For An Aging Population: How Can Law Influence Adoption Among Providers, Payors, And Patients?, Christopher Robertson, Tara Sklar May 2020

Telehealth For An Aging Population: How Can Law Influence Adoption Among Providers, Payors, And Patients?, Christopher Robertson, Tara Sklar

Faculty Scholarship

Telehealth continues to experience substantial investment, innovation, and unprecedented growth. However, telehealth has been slow to transform healthcare. Recent developments in telehealth technologies suggest great potential for chronic care management, mental health services, and care delivery in the home—all of which should be particularly impactful for an aging population with physical and cognitive limitations. While this alignment of technological capacity and market demand is promising, legal barriers remain for telehealth operators to scale up across large geographic areas. To better understand how federal and state law can be reformed to enable greater telehealth utilization, we review and extract lessons ...


Chain Restaurant Calorie Posting Laws, Obesity, And Consumer Welfare, Charles J. Courtemanche, David Frisvold, David Jimenez-Gomez, Mariétou H. Ouayogodé, Michael Price Mar 2020

Chain Restaurant Calorie Posting Laws, Obesity, And Consumer Welfare, Charles J. Courtemanche, David Frisvold, David Jimenez-Gomez, Mariétou H. Ouayogodé, Michael Price

Institute for the Study of Free Enterprise Working Papers

The 2010 Patient Protection and Affordable Care Act (ACA) introduced a mandate requiring chain restaurants to post calorie counts on menus and menu boards. This paper investigates whether and why calorie posting laws work. To do so, we develop a model of calories consumed that highlights two potential channels through which mandates influence choice and outlines an empirical strategy to disentangle these alternatives. We test the predictions of our model using data from the Behavioral Risk Factor Surveillance System to compare changes in body mass index (BMI), obesity, and consumer well-being in locations that implemented calorie-posting laws between 2008 and ...


Considering Law And Macroeconomics, Anna Gelpern, Adam J. Levitin Mar 2020

Considering Law And Macroeconomics, Anna Gelpern, Adam J. Levitin

Georgetown Law Faculty Publications and Other Works

The worst financial and economic crisis to hit the world’s richest economies since the Great Depression inspired a flood of scholarship that straddled the disciplines of law and macroeconomics. With few exceptions, this crisis scholarship did not set out to build a new interdisciplinary movement and did not claim the legacy of earlier efforts to mine the intersection of law and macroeconomics. What are we to make of this moment ten years on? Could Law and Macroeconomics (#LawMacro for short) be an important new turn in legal and economic thought, a casual interdisciplinary tryst on the margins of a ...


Net Neutrality: An Explainer, Kincaid C. Brown Jan 2020

Net Neutrality: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Net neutrality is the idea that internet services or broadband providers should treat all content streaming through their systems the same, and providers who use their discretion to create “fast lanes,” block particular content, or throttle (slow down) internet speeds are not in keeping with how the internet ought to work.


Mining The Harvard Caselaw Access Project, Felix B. Chang Jan 2020

Mining The Harvard Caselaw Access Project, Felix B. Chang

Faculty Articles and Other Publications

This Essay illustrates how machine learning can disrupt legal scholarship through the algorithmic extraction and analysis of big data. Specifically, we utilize data from Harvard Law School’s Caselaw Access Project to model how courts tackle two thorny question in antitrust: the measure of market power and the balance between antitrust and regulation.


A Regulatory Roadmap For Financial Innovation, Cristie Ford Jan 2020

A Regulatory Roadmap For Financial Innovation, Cristie Ford

Faculty Publications

Private sector innovation – whether it is fintech, biotechnology, the platformisation of the economy, or other developments – is the single most profound challenge that regulators confront today. Financial innovations, which are intangible and fast-moving, are especially challenging. Financial regulators are at the operational front line of making sense of the promise and the risks associated with fintech, and helping to ensure it operates for public benefit.

Faced with such a changeable and fast-moving problem, how can regulators “future proof” themselves?

This chapter outlines a roadmap for financial regulators who confront fast-moving and profound change in their sectors. It argues that regulators ...


The Segregation Of Markets, Christian Turner Jan 2020

The Segregation Of Markets, Christian Turner

Scholarly Works

Campaign-finance reformers fear that rich donors’ money can be used disproportionately to influence the content of campaign advertising and thus, perhaps, the results of elections. In European football, UEFA has attempted to ban “financial doping,” rich owners’ use of money earned in sectors other than football to pay large sums for the best football players. Campaign-finance reform efforts and “financial fair play” rules in sport may seem like bespoke solutions to different problems. In fact, they are the same solution to the same problem. Both are attempts to ensure that power accumulated in one market is not brought into another ...


How The Administrative State Got To This Challenging Place, Peter L. Strauss Jan 2020

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

This essay has been written to set the context for a future issue of Daedalus, the quarterly of the American Academy of Arts and Sciences, addressing the prospects of American administrative law in the Twenty-first Century. It recounts the growth of American government over the centuries since its founding, in response to the profound changes in the technology, economy, and scientific understandings it must deal with, under a Constitution written for the governance of a dispersed agrarian population operating with hand tools in a localized economy. It then suggests profound challenges of the present day facing administrative law’s development ...


Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo Nov 2019

Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo

Faculty Scholarship

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in ...


The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo Oct 2019

The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo

Faculty Scholarship

An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One ...


Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese Aug 2019

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

Faculty Scholarship at Penn Law

Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city ...


Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane May 2019

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 ...


Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee May 2019

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald ...


Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn Apr 2019

Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn

Faculty Scholarship at Penn Law

Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second ...


Digital Market Perfection, Rory Van Loo Mar 2019

Digital Market Perfection, Rory Van Loo

Faculty Scholarship

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap first by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous ...


Taxation Of Automation And Artificial Intelligence As A Tool Of Labour Policy, Vincent Ooi, Glendon Goh Feb 2019

Taxation Of Automation And Artificial Intelligence As A Tool Of Labour Policy, Vincent Ooi, Glendon Goh

Centre for AI & Data Governance

Rapid developments in automation technology pose a risk of massdisplacement of human labour, resulting in the need to support and retraindisplaced workers (a negative externality). We propose an “automation tax”that would slow the adoption of automation technology in appropriatecircumstances, giving workers and social support systems time to adapt. Thiscould be easily implemented through changes to the existing schedular systemof depreciation/ capital allowances, reducing the uncertainty of its applicationand implementation costs. Such a system would be flexible enough to keepup with rapid technological developments. Two main dimensions may beadjusted to produce intended distortionary effects: 1) accelerated depreciation,and 2) bonus ...


Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein Jan 2019

Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein

Law School Blogs

No abstract provided.


Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody Jan 2019

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Scholarly Articles

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which ...


Data-Informed Duties In Ai Development, Frank A. Pasquale Jan 2019

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only ...


Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka Jan 2019

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

UF Law Faculty Publications

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose differen limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based ...


Global Networks And The Legal Profession, Laurel S. Terry Jan 2019

Global Networks And The Legal Profession, Laurel S. Terry

Faculty Scholarly Works

The importance of networks and the power of exponential growth within networks have become much more apparent to the world as a result of the COVID-19 pandemic. This Article addresses the topic of global legal profession networks. The introductory section provides information about our global economy and society that helps explain why global legal profession networks are valuable. It argues that global networks are beneficial for clients, lawyers, and other legal services stakeholders.

After introducing some of the scientific literature about networks in general and legal profession networks specifically, Section II identifies ways in which lawyers participate in global legal ...


Keeping College Pricey: The Bootlegger And Baptist Story Of Higher Education Accreditation, Mary Watson Smith, Joshua C. Hall Jan 2019

Keeping College Pricey: The Bootlegger And Baptist Story Of Higher Education Accreditation, Mary Watson Smith, Joshua C. Hall

Economics Faculty Working Papers Series

Since the passage of the Veterans Readjustment Act of 1952, private accrediting agencies have held the purse strings to all federal student aid. Today, six regional accrediting agencies and ten national accrediting agencies act as the gatekeepers of these federal monies. No college or university can access federal funds without receiving the imprimatur of one of these recognized accrediting agencies. Proponents of the current system of accreditation argue that the framework presently in place ultimately benefits both students and the public at large by fulfilling quality assurance and information signaling functions. Applying Yandle’s “Baptists and Bootleggers” model, we examine ...


The Regulatory Accountability Act Loses Steam But The Trump Executive Order On Alj Selection Upturned 71 Years Of Practice, Jeffrey Lubbers Jan 2019

The Regulatory Accountability Act Loses Steam But The Trump Executive Order On Alj Selection Upturned 71 Years Of Practice, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.


The Corporate Purpose Of Social License, Hillary A. Sale Jan 2019

The Corporate Purpose Of Social License, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

This Article deploys the sociological theory of social license, or the acceptance of a business or organization by the relevant communities and stakeholders, in the context of the board of directors and corporate governance. Corporations are generally treated as “private” actors and thus are regulated by “private” corporate law. This construct allows for considerable latitude. Corporate actors are not, however, solely “private.” They are the beneficiaries of economic and political power, and the decisions they make have impacts that extend well beyond the boundaries of the entities they represent.

Using Wells Fargo and Uber as case studies, this Article explores ...


The Ilc And The Reconstruction Of U.S. Banking, Mehrsa Baradaran Jan 2019

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

Faculty Scholarship

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 surrounding ...