Administrative Law Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

The Privacy Dilemma In Digital Arrestee Mug Shots Under The Foia 7(C) And State And Local Policy Recommendations, Ahad Syed

Ahad Syed

This Article examines the purpose and interpretation by courts of Freedom of Information Act’s 7(C) Exemption. Specifically, the Article sets out to unravel the current federal circuit court split over Exemption 7(C) by examining its application to the digital privacy dilemma as applied to arrestee photographs, commonly known as “mug shots.” Automated data-scraping programs continuously scour the internet, reaping, replicating, and reposting photographs of arrestees who may or may not have had charges dismissed in order to shame them into paying website owners for removal. While other commentators have argued for state law penalizing pay-to-remove mug shot websites only, this …

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

At the Internet’s inception, carriers providing the bit switching and transmission function largely embraced expanding connections and users as a primary service goal. These ventures refrained from metering traffic and charging for carriage based on the assumption that traffic volumes roughly matched, or that traffic measurement was not worth the bother in light of external funding from government grants. Most Internet Service Providers (“ISPs”) bartered network access through a process known as peering in lieu of metering traffic and billing for network use. As governments removed subsidies and commercial carriers invested substantial funds to build larger and faster networks, identifying …

Déjà Vu All Over Again: Questions And A Few Suggestions On How The Fcc Can Lawfully Regulate Internet Access, Rob Frieden

Rob Frieden

This paper will examine the FCC’s March, 2015 Open Internet Order with an eye to assessing whether and how the Commission can successfully defend its decision in an appellate court. On two prior occasions, the FCC failed to convince a reviewing court that proposed regulatory safeguards do not unlawfully impose common carrier duties on private carriers. The Commission now has opted to reclassify broadband Internet access as common carriage, a decision sure to trigger a third court appeal. The FCC Open Internet Order offers several, possibly contradictory, justifications for its decision to apply Title II of the Communications Act, subject …

Regulation Of Chemical Risks: Lessons For Tsca Reform From Canada And The European Union, Adam Abelkop, John D. Graham

Adam Abelkop

The United States Congress is considering reform of the Toxic Substances Control Act (TSCA) of 1976. This Article compares recent reforms in Europe and Canada in order to draw lessons for TSCA reform. In 2006, the European Union enacted the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation while Canada used existing authority under the Canadian Environmental Protection Act (CEPA) of 1999 to initiate the 2006 Chemicals Management Plan (CMP). Focusing on the tens of thousands of industrial chemicals now in use in the US, we offer several suggestions for TSCA reform based on the European and Canadian experiences. …

Ex Ante Versus Ex Post Approaches To Network Neutrality: A Cost Benefit Analysis, Rob Frieden

Rob Frieden

Many advocates for less intrusive government oversight of telecommunications support the migration from regulation by an expert agency to the use of adjudication remedies largely guided by antitrust/competition policy principles. They believe that competition authorities, or reviewing courts can resolve disputes after they have occurred in lieu of having expert regulatory agencies available to anticipate and resolve problems before they become acute. Such ex post remedies typically determine whether anticompetitive conduct has occurred and what marketplace harm has resulted. Advocates for retaining so-called ex ante regulation believe that an expert agency remains essential particularly in light of fast changing market …

The Costs And Benefits Of Regulatory Intervention In Internet Service Provider Interconnection Disputes: Lessons From Broadcaster-Cable Retransmission Consent Negotiations, Rob Frieden

Rob Frieden

This paper considers what limited roles the FCC may lawfully assume to ensure timely and fair interconnection and compensation agreements in the Internet ecosystem. The paper examines the FCC’s limited role in broadcaster-cable television retransmission consent negotiations with an eye toward assessing the applicability of this model. The FCC explicitly states that it lacks jurisdiction to prescribe terms, or to mandate binding arbitration. However, it recently interpreted its statutory authority to ensure “good faith” negotiations as allowing it to constrain broadcaster negotiating leverage by prohibiting multiple operators, having the largest market share, from joining in collective negotiations with cable operators. …

Federal And State Authority For Network Neutrality And Broadband Regulation, Tejas N. Narechania

Tejas N. Narechania

For the second time in less than four years, the D.C. Circuit has rebuffed the Federal Communications Commission’s attempt at imposing network neutrality rules on internet traffic. But in so doing, the D.C. Circuit affirmed the FCC’s theory of jurisdiction based on section 706 of the Telecommunications Act of 1996. This ruling has the significant effect of transforming a questionable source of authority into what may become the Commission’s most significant font of regulatory power.

Surprisingly, section 706 seems to give the Commission the power to implement a slightly revised set of network neutrality rules. By narrowing the scope of …

C(R)Ap And Trade: The Brave New World Of Non-Point Source Nutrient Trading And Using Lessons From Greenhouse Gas Markets To Make It Work, Victor B. Flatt

Victor B Flatt

After several decades of improvement, water quality in the United States is getting worse, and the problem is primarily caused by run-off from non-point sources, such as farms and urban development. These non-point sources have never had regulatory mandates in the Clean Water Act, and have proven very difficult to control. With little likelihood of comprehensive statutory changes, the EPA and the states that administer the Clean Water Act have looked to other regulatory means to address this problem. One of the most prominent has been the use of markets in pollution (particularly for nutrient pollution from run-off) to provide …

Will More, Better, Cheaper, And Faster Monitoring Improve Environmental Management?, Ryan P. Kelly

Ryan P Kelly

Two critical problems in environmental management are a lack of primary data and the difficulty of assessing the environmental impacts of human activities. Producing the information necessary to address these twin challenges is often difficult and expensive, which impedes decisionmaking in environmental management. I focus here on the possibility of making data collection more powerful and more cost-effective with a suite of analyses made tractable by emerging technology for genetic analysis. More, better, cheaper, and faster information about the planet’s living resources promises to influence a wide range of legal and policy processes—from Clean Water Act compliance and related public …

U.S. Government Counterterrorism Asset Freezes: Regulatory Seizures In A Digital Age Of Terrorism, Adam S. Wallwork

Adam S Wallwork

This Article addresses the question of when, if ever, the Department of the Treasury’s counterterrorism asset freezes against US persons (US citizens, resident aliens, and US-based organizations) violate the Fourth Amendment. It addresses two questions that currently divide the federal courts: (1) whether OFAC blocking orders are seizures subject to the Fourth Amendment and (2) whether the Fourth Amendment’s warrant and probable-cause requirements apply to OFAC counterterrorism blocking orders if these orders are in fact seizures.

My Originalist analysis of OFAC counterterrorism blocking orders draws on evidence of the Framers’ original understanding of “unreasonable . . . seizures,” including the …

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

From Bad To Worst: Assessing The Long Term Consequences Of Four Very Bad Fcc Decisions, Rob M. Frieden

Rob Frieden

Far too many major decisions of the Federal Communications Commission (“FCC”) rely on flawed assumptions about the current and future telecommunications marketplace. If the FCC incorrectly overstates the current state of competition, it risks exacerbating its mistake going forward if actual competition proves unsustainable, or lackluster. In many key decisions the FCC cited robust competition in current and future markets as the basis for decisions that relax restrictions on incumbents, abandon strategies for promoting competition, or apply statutory definitions of services that trigger limited government oversight. The Commission ignores the secondary and tertiary consequences of decisions that deprive it of …

Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden

Rob Frieden

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the …

Regulatory Supervision Of Emerging Technologies: A Case For Nanotechnology In India, Nupur Chowdhury

Nupur Chowdhury

Regulatory supervision of emerging technologies is seen as unfriendly to business ventures entering uncharted areas. However, technologies like nanotechnology should be supervised as they pose potential environmental risks and health hazards. The initial investments into research in such technologies are public-funded and, hence, it is important to consider questions of efficiency in resource allocation, the need for transparency and public involvement in decision-making.