Law Commons^™

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Sailing Toward Safe Harbor Hours: The Constitutionality Of Regulating Television Violence, Eric C. Chaffee

University of Michigan Journal of Law Reform

Because of the recent focus on television violence, it is more a question of "when," rather than "if," Congress will take action on this issue. "Safe harbor" regulation, or restricting violent programming to certain hours of the day, is one form of regulation that is recurrently suggested as a means for dealing with the potential ills created by television violence. The possibility of such regulation implicates numerous constitutional issues. This Article addresses whether "safe harbor" regulation of television violence is feasible without violating the First Amendment and other provisions of the Constitution.

Take Us Back To The Ball Game: The Laws And Policy Of Professional Sports Ticket Prices, Nathan R. Scott

University of Michigan Journal of Law Reform

The prices of professional sports tickets have skyrocketed in recent years, depriving many fans of the time-honored tradition of taking their families out to a ball game. This Article argues that legal reform and political action are appropriate responses to these soaring prices.

First, the Article rebuts the threshold objection that economics alone justify current ticket prices. Professional sports teams reap a windfall from the public through corporate welfare, special-interest legislation, and favorable antitrust and tax laws. This preferential legal treatment undercuts the argument that teams are simply charging, or should charge, what the market will bear. In addition, teams …

Spaceship Sheriffs And Cosmonaut Cops, Lee Seshagiri

Dalhousie Law Journal

This paper examines some of the current legal regimes applicable to criminal law in outer space and offers insights into options for future legal developments in the cosmos. It begins by setting out the context for law enforcement in outer space, emphasizing the commercial nature of future space exploration and the need for laws and law enforcement in that environment. Next, various methods for assigning legal jurisdiction in space are examined, and the underlying justifications for the exercise of such jurisdiction are considered. The paper goes on to explore preventative approaches to space crime, highlighting the usefulness of such approaches …

A Shadow Government: Private Regulation, Free Speech, And Lessons From The Sinclair Blogstorm, Marvin Ammori

Michigan Telecommunications & Technology Law Review

Because of the economics of online information, thousands who do not know each other can band together in hours, without previous organizational coordination or any persistent central coordination, to affect others and conform society to their idea of the social good. This changes the dynamic of political action and the ability of unaffiliated, lone individuals to respond to social acts where government and the market have not. Through ad hoc volunteerism, the Sinclair participants produced regulatory action against a private party with whom they were not transacting--because they believed government failed to do so. Although ad hoc volunteerism has received …

A Government Of Limited Powers, Carl E. Schneider

Articles

Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …

"The Regulatory Grass In Greener": A Comparative Analysis Of The Alien Tort Claims Act And The European Union's Green Paper On Corporate Social Responsibility, Joshua M. Chanin

Indiana Journal of Global Legal Studies

No abstract provided.

Technology Wars: The Failure Of Democratic Discourse, Gregory N. Mandel

Michigan Telecommunications & Technology Law Review

Conflicts over the use and regulation of various technologies pervade public discourse and have dramatic implications for the public interest. Controversies over the regulation of genetically modified products, nuclear power, and nanotechnology, among others, provoke some of the most socially and politically volatile debates of our time. These technology conflicts extract a substantial price from society--they create costly inefficiencies, prevent society from optimally managing new technologies, consume vast resources, and retard technological growth. This Article develops a framework for understanding technology controversies, and consequently proposes new means for resolving or ameliorating a variety of seemingly intractable legal and regulatory standoffs. …

Imposing Self-Interest: Behavioural Law And Economics, The Ultimatum Game, And Value Possibilities, Michael Ilg

Dalhousie Law Journal

With the recent emergence of the behavioural approach to law and economics, there is now a systematic critique of law and economics which remains sympathetic to its overall objectives. Rather than seek to undermine traditional law and economics, the intent of the behavioural approach is generally to augment it, and render its formulations more representative of reality. Drawing upon experimental evidence and well-known examples of anomalies within economic theory, behavioural scholars claim that the law needs to better account for instances of individual irrationality. Having identified the situations when rational maximization does not hold, behavioural scholars are then able to …

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

The False Promise Of De-Regulation In Banking, Jonathan R. Macey

ExpressO

Jonathan R. Macey

The False Promise of De-Regulation in Banking

Abstract

This Article presents new approach to the concept of "deregulation" in financial services and particularly banking. Generally regulatory policy is thought to involve more or less straightforward choices between regulation and deregulation. Those most concerned with market failure and equality of outcomes favoring regulation and those with faith in markets and concerns about efficient outcomes favoring deregulation.

This Article shows that government regulation, sometimes in heavy doses, is necessary in order for private markets to function effectively. Consequently, government has in important role to play in fostering markets. The …

Universal Service: Problems, Solutions, And Responsive Policies, Allen S. Hammond Iv

Federal Communications Law Journal

No abstract provided.

The Broadcast Flag: It's Not Just Tv, Wendy Seltzer

Federal Communications Law Journal

No abstract provided.

Time For Change On Media Cross-Ownership Regulation, John F. Sturm

Federal Communications Law Journal

No abstract provided.

Patent Fences And Constitutional Fence Posts: Property Barriers To Pharmaceutical Importation, Daniel R. Cahoy

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Patent Fences And Constitutional Fence Posts: Property Barriers To Pharmaceutical Importation, Daniel R. Cahoy

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?: Why Chevron Deference Survives Sandoval And Gonzaga, Bradford Mank

Faculty Articles and Other Publications

There is a split in the circuits regarding whether and when agency regulations may establish rights enforceable through 42 U.S.C. Section 1983. In 1987, in Wright v. City of Roanoke, the Supreme Court held that a statute and regulations interpreting the statute could create enforceable rights under Section 1983, but left unclear to what extent it had relied on the regulations alone to reach this conclusion. The District of Columbia Circuit and Sixth Circuit have held that at least some valid federal regulations may create rights enforceable through Section 1983. Concluding that only Congress by enacting a statute may create …

Sarbanes-Oxley And Regulation Of Lawyers’ Conduct: Pushing The Boundaries Of The Duty Of Confidentiality, Christin M. Stephens

Saint Louis University Public Law Review

No abstract provided.

Complying With Mexico's National Registry Of Foreign Investment, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

A Legal Framework For Preventing Cardiovascular Diseases, Wendy Collins Perdue

Law Faculty Publications

Cardiovascular diseases are major contributors to death, disability, disparities, and reduced quality of life in the United States. Successful prevention and control of these diseases requires a comprehensive approach applied across multiple public health settings and in all life stages. Individual lifestyle and behavior change, as well as the broader social, environmental, and policy changes that enable healthy lifestyles, are necessary. Legal strategies can be powerful tools in this endeavor. This review presents seven such strategies applicable at the federal, state, and local levels that can be employed by healthcare providers, public health practitioners, legislators, and other policymakers. They include …

Rethinking Multinational Corporate Governance In Extractive Industries, Matthew Nick

Vanderbilt Journal of Transnational Law

The oil and natural gas reserves under the Caspian Sea have sparked the interest of international investors and oil firms. The political, economic, and social turmoil in the five countries bordering the Caspian Sea, however, pose significant challenges for effective regulation of multinational interaction with the five Caspian states. A joint-effort approach to regulation involving the World Bank, multinational enterprises, and the individual Caspian states' governments poses the most functional and efficient means of instituting international oversight. Such a tripartite structure connects the fortunes of all the parties and provides safeguards against default by any single entity. A mutually beneficial …

Adoption Of The Disclosure-Based Regulation For Investor Protection In The Primary Share Market In Bangladesh: Putting The Cart Before The Horse?, S M. Solaiman

Faculty of Law - Papers (Archive)

The Bangladesh securities market, despite ifs operation of half of a century, remains in embryonic form. The market has been suffering from a chronic lack of investor confidence since 1997 following an unprecedented share scam. Ever since, the government has been striving in vain to promote investment by progressively offering incentives to investors and corporations. The government watchdog unexpectedly introduced the Disclosure-Based Regulation (DBR) in January 1999 to protect investors from the misfeasance of other players in the market for Initial Public Offerings. Recent studies have identified some problems in the market, which are unfavourable for the new regime. In …

The Nirvana Fallacy In Law Firm Regulation Debate, Elizabeth Chambliss

Faculty Publications

Most commentators would agree that large law firms have outgrown collegial management and self-regulation. Yet lawyers generally have been slow to recognize the benefits of bureaucratic management, and traditionally have resisted and lamented the move toward more bureaucratic forms. Many lawyers view the infrastructure of bureaucratic management - that is, formal policies and procedures and specialized managerial personnel - as necessarily undermining professional ethics and individual accountability within firms.

This article questions the empirical basis for such concerns. I argue that the fear that centralized management controls will undermine individual accountability rests on an implicit comparison to a nostalgic, collegial …

Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Blackout Of 2003: What Is Next?, Joel B. Eisen

University of Richmond Law Review

No abstract provided.

The Sec At 70: Time For Retirement?, Adam C. Pritchard

Articles

The Article proceeds as follows. Part I explains the pathologies of the SEC and explores the relation between those pathologies and the SEC's status as an independent agency. Part II then outlines an alternative regulatory structure primarily situated within the executive branch. I also argue that such a relocation of authority would enhance regulatory effectiveness while simultaneously reducing the cost of excessive regulation. The Article concludes with some thoughts about the viability of my proposal.

The Needle And The Damage Done: The Pervasive Presence Of Obsolete Mass Media Audience Models In First Amendment Doctrine, Mehmet Konar-Steenberg

Vanderbilt Journal of Entertainment & Technology Law

Do audiences need the government's protection from mass media? Or are they capable of choosing media and protecting themselves? For decades, judicial opinion on this issue developed in the form of judicial notice, speculation, and assumption. Yet during that time, a rich social science discipline was emerging that could have helped to address these issues based on empirical research about mass media effects and audiences. Given the renewed importance of this issue, it is time to bridge the gap between the law of mass media content regulation and the social science research into mass media consumption.

To that end, this …

Transmission Siting In Deregulated Wholesale Power Markets: Re-Imagining The Role Of Courts In Resolving Federal-State Siting Impasses, Jim Rossi

Vanderbilt Law School Faculty Publications

During most of the twentieth century, state and local regulatory bodies coordinated the siting or power plants and transmission lines. These bodies focused on two important issues: 1) the determination of need, so as to avoid unnecessary economic duplication of costly infrastructure; and 2) environmental protection, so as to provide local land use and other environmental concerns input on the placement of necessary generation and transmission facilities. With the rise of a deregulated wholesale power market, the issue of need is increasingly determined by the market, not regulators. Environmental concerns with siting, however, frequently remain contested - especially locally - …

Applying Restraints To Private Police, Heidi Boghosian

Missouri Law Review

Private security needs better public oversight. This Article argues that equitable remedies in the form of improved training and oversight should be requested as part of relief in all Section 1983 claims involving private police. Improved training would greatly benefit society by reducing the number of violent encounters between private security officers and the public.

The Problem Of New Uses, Rebecca S. Eisenberg

Articles

Discovering new uses for drugs that are already on the market seems like it ought to be the low-lying fruit of biopharmaceutical research and development (R&D). Firms have already made significant investments in developing these drugs and bringing them to market, including testing them in clinical trials, shepherding them through the FDA regulatory approval process, building production facilities, and training sales staff to market them to physicians. By this point, the drugs have begun to enjoy goodwill among patients and physicians and casual observations in the course of clinical experience may point to potential new uses. One might expect that …