Law Commons^™

Another Role For Securities Regulation: Expanding Opportunity, Jasmin Sethi

Jasmin Sethi

Securities regulation can be justified on a number of grounds, but historically, expanding opportunities for wealth accumulation across sectors of the population has not been a justification given credence. This paper examines the implications of integrating an opportunities based perspective in evaluating securities regulation for policy decisions. I demonstrate how the policy implications of such a perspective are often distinct from those implicated by other approaches, such as a public welfare approach to securities regulation. In this article, I apply this perspective and what we know about human behavior to examine how securities policy could be shaped by an opportunities-based …

Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi

University of Michigan Journal of Law Reform

The Internal Revenue Service occasionally creates rules, notices, or regulations that allow taxpayers to pay less than they would under a strict reading of the law. Sometimes, however, these IRS actions are directly contrary to federal law and have significant economic impact. Challenging favorable IRS actions through litigation will likely be unsuccessful because no plaintiff can satisfy the requirements for standing. To address this situation, this Note proposes a statutory reform to provide competitors with standing to challenge favorable IRS actions in court.

On The Role And Regulation Of Proxy Advisors, Paul Rose

Michigan Law Review First Impressions

In anticipation of proxy season-the springtime ritual where companies prepare and deliver proxy statements in preparation for annual shareholder meetings-U.S. public companies typically reexamine their corporate governance structures and policies. Many corporate governance structures that were acceptable ten years ago are now considered outmoded or even evidence of managerial entrenchment. For example, consider the classified board of directors. In recent years, many companies have shifted from a classified board of directors to an annually elected board. A company might adopt an annually-elected board structure for a number of reasons. A classified board can serve as an entrenchment device, for instance, …

Deliberative Democracy On The Air: Reinvigorate Localism-Resuscitate Radio's Subversive Past, Akilah N. Folami

Federal Communications Law Journal

There has been considerable scholarship exploring the need to breathe deliberative life back into the localism standard by requiring broadcasters to include more meaningful local news and public affairs programming, pursuant to the public interest obligations imposed on radio licensees. There has been little scholarly attention, if any, however given to broadening understandings of localism to include music and popular cultural expression for the purpose of furthering deliberative discourse in particular, rather than solely for entertainment purposes. This Article focuses on a particular moment in radio and America's cultural history that was rife with struggles over constructions of identity, and …

Technology Convergence And Federalism: Who Should Decide The Future Of Telecommunications Regulation?, Daniel A. Lyons

University of Michigan Journal of Law Reform

This Article critically examines the division of regulatory jurisdiction over telecommunications issues between the federal government and the states. Currently, the line between federal and state jurisdiction varies depending on the service at issue. This compartmentalization might have made sense fifteen years ago, but the advent of technology convergence has largely rendered this model obsolete. Yesterday's telephone and cable companies now compete head-to-head to offer consumers the vaunted "triple play" of voice, video, and internet services. But these telecommunications companies are finding it increasingly difficult to fit new operations into arcane, rigid regulatory compartments. Moreover, services that consumers view as …

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 …

Environmental Law, Caleb A. Jaffe, Sean M. Carney

University of Richmond Law Review

No abstract provided.

An Empirical Analysis Of Regulator Mandates On The Pass Through Of Switched Access Fees For In-State Long-Distance Telecommunications In The U.S., Debra J. Aron, David E. Burnstein, Ana Danies, Gerry Keith

Debra J. Aron

In the parlance of regulatory economics, “pass through” refers to the effect of a change in an incremental cost – generally, the effect of a change in a regulated input price – on the retail price of a good or service. In this paper we examine pass through with regard to the switched access fees paid by long distance companies to local exchange carriers in the United States. We estimate the degree to which long distance companies pass through differences in access rates to their customers, and we examine whether mandates imposed by regulators on long distance companies to pass …

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 …

Establishing A "Due Care" Standard Under The Lacey Act Amendments Of 2008, Rachel Saltzman

Michigan Law Review First Impressions

The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife "taken, possessed, transported, or sold" in violation of state and foreign laws. For the past three decades, the amended statute has provided the federal government with a powerful tool for regulating imports of fish and wildlife. In 2008 Congress expanded its reach still further, responding to widespread concern about the effects of illegal logging on local governance, the environment, and American business by extending the Act's …

Worst Seems To Have Passed For Online Game Opetaors, Tao Liang

Tao LIANG

The Rise And Fall Of Managerial Adaptive Responses To Incentive Pay, Sharon Hannes

Sharon Hannes

A commonly-voiced argument ties the current financial crisis to prevailing executive compensation practices. Huge stock-option packages and annual bonuses, the claim goes, caused managers to concentrate on the short-run and overlook the downside of risk-taking. But why did crisis emerge only recently, even though such incentive pay schemes are hardly a new phenomenon? This paper argues that for a long period of time, from the beginning of the 1990s until the beginning of the twenty-first century, managers employed a variety of adaptive tactics in response to option-based compensation and other risk-inducing pay schemes. These practices enabled executives to enrich themselves …

Lessons In Price Stability From The U.S. Real Estate Market Collapse, Andrea J. Boyack

Andrea J Boyack

The U.S. residential housing market collapse illustrates the consequences of ignoring risk while funding mortgage borrowing. Collateral over-valuation was a foundational piece of the crisis. Over the past few decades, secondary markets, securitization, policy and psychology increased the flow of funds into real estate. At the same time, financial market segmentation divorced risk from reward. Increased mortgage capital availability, unmitigated by proper risk allocation, led to real estate price inflation. Social trends and government policies exacerbated both the mortgage capital over-supply and the risk-valuation disconnect.

The Dodd-Frank Act inadequately addresses the underlying asset valuation problem. Federal regulation may support market …

The Not-So-Risky Business Of High-End Escorts And The Internet In The 21st Century, Robert R. Rigg

Robert R. Rigg

The advent of the Internet has changed the advertising and marketing of prostitution. This advertising and marketing has expanded greatly since the days of advertisements in newspaper classifieds, as seen in the movie, Risky Business. Today, Internet websites allow escorts much greater exposure.

This Article focuses on “high-end” escorts—escorts charging more than $500 per act or session. These service providers use the Internet in ways different than their low-end or mid-range counterparts. These high-end escorts have sophisticated websites, geared toward discretion—for both the provider and client.

Criminal law has begun focusing on escorts who use the Internet for advertising and …

The Law And Policy Of Online Privacy: Regulation, Self-Regulation Or Co-Regulation?, Dennis D. Hirsch

Dennis D Hirsch

The Internet poses grave new threats to information privacy. Search engines collect and store our search queries; Web sites track our online activity and then sell this information to others; and Internet Search Providers read the very packets of information through which we interact with the Internet. Yet the debate over how best to address this problem has ground to a halt, stuck between those who call for a vigorous legislative response and those who advocate for market solutions and self-regulation. In 1995, the European Union member states began to build a third approach into their data protection laws, one …

Stock Broker Standards Of Conduct – Principles, Rules And Fiduciary Duties, Thomas Lee Hazen

Thomas Lee Hazen

In recent years there has been concern as to the adequacy of broker-dealer regulation. SEC and self regulatory organization rulemaking addresses specific types of broker-dealer conduct but by and large the regulation has been based on principles and standards rather than voluminous detailed rules specifying prohibited conduct. In particular, a good deal of broker-dealer conduct is addressed under the umbrella of regulating according to fair and just principles of trade. Also, much of the SEC’s rulemaking authority is based on the ability to prohibit fraudulent, manipulative, and deceptive devices. It also has been suggested that broker-dealers should be subject to …

Stock Broker Standards Of Conduct – Principles, Rules And Fiduciary Duties, Thomas Lee Hazen

Thomas Lee Hazen

In recent years there has been concern as to the adequacy of broker-dealer regulation. SEC and self regulatory organization rulemaking addresses specific types of broker-dealer conduct but by and large the regulation has been based on principles and standards rather than voluminous detailed rules specifying prohibited conduct. In particular, a good deal of broker-dealer conduct is addressed under the umbrella of regulating according to fair and just principles of trade. Also, much of the SEC’s rulemaking authority is based on the ability to prohibit fraudulent, manipulative, and deceptive devices. It also has been suggested that broker-dealers should be subject to …

Algunos Apuntes Sobre Las Relaciones Entre El Derecho Administrativo Economico Y El Concepto Anglosajon De La Regulacion, Ramon Huapaya Jr.

Ramon Huapaya Jr.

Se trata de una investigación en la cual se compara el paralelo de las experiencias entre el Derecho Administrativo Económico y el concepto anglosajón de la Regulación, mostrando las coincidencias de los sistemas continentales y anglosajones de intervención administrativa en la economía.

How Regulatory Frameworks Fight Cancer: Two Examples From The United States And The European Union, Louise G. Trubek, Thomas R. Oliver, Chih-Ming Liang, Matt Mokrohisky, Toby Campbell

Louise G Trubek

Integrated networks of doctors, patients, and hospitals are a major technique of cancer governance. They enable stakeholders to pool information and resources and achieve systematic learning. Two groups, the childhood cancer group in the US and the Europe Against Cancer initiative, are examples of network governance. Both demonstrate learning processes, production of new data and dissemination, financial support and engagement of all stakeholders. Why have these integrated networks been successful while so many others have failed? Because both are embedded within regulatory frameworks that ensure that networks work properly. Integrated networks are vulnerable when the frameworks fail to provide 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

Derailed By The D.C. Circuit: Getting Network Management Regulation Back On Track, Edward B. Mulligan V

Federal Communications Law Journal

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with …

Diseño Institucional De Órganos Reguladores En México, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

No Innocents Here: Using Litigation To Fight Against The Costs Of Universal Service In France, Dorit Reiss

Dorit R. Reiss

Liberalization of utility sectors may bring the benefits of competition to customers, but it also creates risks of manipulation of the new system by powerful industrial actors. Litigation is one tool available to undermine or delay effective regulation. In 2001 the European Court of Justice declared the French system of funding universal service in telecommunications untreaty, and ordered France to redesign it. The commission and observers understood the case as a triumph of open market over France’s narrow protection of the "national champion" French Télécom. An alternative interpretation that fits the data better describes the story as successful use of …

Net Neutrality Regulation: The Economic Evidence, Vernon Smith, Jerry Brito, Martin Cave, Robert Crandall, Larry Darby, Jeffrey Eisenbach, Jerry Ellig, Henry Ergas, David Farber, Gerald Faulhaber, Robert Hahn, Alfred Kahn, Wayne Leighton, Robert Litan, Glen Robinson, Hal Singer, William Taylor, Timothy Tardiff, Leonard Waverman, Dennis Weisman

Vernon L. Smith

In the authors' shared opinion, the economic evidence does not support the regulations proposed in the Commission’s Notice of Proposed Rulemaking Regarding Preserving the Open Internet and Broadband Industry Practices (the “NPRM”). To the contrary, the economic evidence provides no support for the existence of market failure sufficient to warrant ex ante regulation of the type proposed by the Commission, and strongly suggests that the regulations, if adopted, would reduce consumer welfare in both the short and long run. To the extent the types of conduct addressed in the NPRM may, in isolated circumstances, have the potential to harm competition …

Against The Stand-Alone-Cost Test In U.S. Freight Rail Regulation, Russell W. Pittman

Russell W. Pittman

The stand-alone-cost test has become an expensive, extensive, and time-consuming part of the regulatory practice of the U.S. Surface Transportation Board in the performance of its statutory duty to protect "captive shippers" from monopoly rail rates. Worse, a close examination of the history of its adoption and application suggests only a very tenuous connection with its claimed intellectual foundations, the classic works of Faulhaber (1975) and Baumol, Panzar, and Willig (1982). It is time to retire this tool and replace it with something simpler and more effective and transparent.

The French Strategic Investment Fund: A Creative Approach To Complement Swf Regulation Or Mere Protectionism?, Jean-Rodolphe W. Fiechter Ll.M.

Jean-Rodolphe W. Fiechter

Sovereign Wealth Funds Regulation and Protectionism: Is the French Fonds Stratégique d’Investissement (FSI) a creative way of complementing the existing review mechanism or is it just another protectionist device? We come to the conclusion that although the FSI is an instrument of economic patriotism, it does not insulate France from the globalized world. It can even be seen as a good instrument to achieve SWF regulation.

Internet Governance And Democratic Legitimacy, Oliver Sylvain

Federal Communications Law Journal

Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The FCC's adjudication of a dispute concerning a major broadband service provider's network management practices is a case in point. There, in the absence of any enforceable legislative or regulatory rule, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization. This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much …

Behavioral Advertisement Regulation: How The Negative Perception Of Deep Packet Inspection Technology May Be Limiting The Online Experience, Andrea N. Person

Federal Communications Law Journal

Privacy concerns associated with information available on the Internet has become a central focus for policymakers in Washington, D.C., and around the world. Specifically, the use of deep packet inspection (DPI) technology to offer behavioral advertising on the Internet has become the focus of policy discussions. While there are legitimate concerns related to improper use of this technology, the benefits of the proper use of DPI should not be overlooked. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer's experience online. To answer this question, this Note first looks at what DPI is, …

Future Imperfect: Googling For Principles In Online Behavioral Advertising, Brian Stallworth

Federal Communications Law Journal

In a remarkably short time, Google, Inc. has grown from two people working in a rented garage to a pervasive Internet force. Much of Google's unprecedented success stems from online advertising sales which employ behavioral advertising techniques-techniques that track consumer behavior--thereby increasing relevance and decreasing the cost of reaching a targeted audience. In the same span that saw Google's inception and explosive online dominance, the Federal Trade Commission has struggled to define not only the privacy issues involved in online behavioral advertising, but also the practice of behavioral advertising itself. Freed from the restraints of comprehensive federal laws and restrictive …