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Full-Text Articles in Law
The Federal Reserve As Last Resort, Colleen Baker
The Federal Reserve As Last Resort, Colleen Baker
University of Michigan Journal of Law Reform
The Federal Reserve, the central bank of the United States, is one of the most important and powerful institutions in the world. Surprisingly, legal scholarship hardly pays any attention to the Federal Reserve or to the law structuring and governing its legal authority. This is especially curious given the amount of legal scholarship focused on administrative agencies that do not have anywhere near as critical a domestic and international role as that of the Federal Reserve. At the core of what the Federal Reserve does and should do is to conduct monetary policy so as to safeguard pricing, including that …
Inside Agency Preemption, Catherine M. Sharkey
Inside Agency Preemption, Catherine M. Sharkey
Michigan Law Review
A subtle shift has taken place in the mechanics of preemption, the doctrine that determines when federal law displaces state law. In the past, Congress was the leading actor, and courts and commentators focused almost exclusively on the precise wording of its statutory directives as a clue to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes-an ascendancy …
The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor
The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor
Michigan Journal of Environmental & Administrative Law
A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and …
The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters
The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters
Michigan Law Review
The Federal Advisory Committee Act's requirement that advisory committees be "fairly balanced in terms of the points of view represented and the functions to be performed" is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts' purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act's most important substantive limitation on institutional pathologies such as committee "capture" or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory …
Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson
Enforcement Without Foundation? Insider Trading And China's Administrative Law Crisis, Nicholas C. Howson
Articles
China's securities regulator enforces insider trading prohibitions pursuant to non-legal and non-regulatory internal "guidance." Reported agency decisions indicate that enforcement against insider trading is often possible only pursuant to this guidance, as the behavior identified is far outside of the scope of insider trading liability provided for in statute or regulation. I argue that the agency guidance is itself unlawful and unenforceable, because: (i) the guidance is not the regulatory norm required by the statutory delegation of power; and (ii) the guidance is ultra vires because (a) it addresses something substantively different from what is authorized under the statutory delegation, …
Off-Label Promotion Reform: A Legislative Proposal Addressing Vulnerable Patient Drug Access And Limiting Inappropriate Pharmaceutical Marketing, Tim Mackey, Bryan A. Liang
Off-Label Promotion Reform: A Legislative Proposal Addressing Vulnerable Patient Drug Access And Limiting Inappropriate Pharmaceutical Marketing, Tim Mackey, Bryan A. Liang
University of Michigan Journal of Law Reform
Off-label promotion occurs when pharmaceutical manufacturers engage in promotion of unapproved or "off-label" uses of their drugs. These off label uses may lack adequate clinical data to substantiate marketing claims, have led to corporate investigations and penalties, and can endanger public health. However there is adequate evidence to suggest that off-label uses are entirely appropriate for some vulnerable patient populations, and that physicians have accepted such uses as standard. Historically, U.S. law has prohibited direct off-label promotion to physicians and patients. However, failed government guidance, industry-based litigation, and the diminished capacity of regulators to police illegal practices have had dire …
Toward Legitimacy Through Collaborative Governance: An Analysis Of The Effect Of South Carolina's Office Of Regulatory Staff On Public Utility Regulation, William H. Ellerbe
Toward Legitimacy Through Collaborative Governance: An Analysis Of The Effect Of South Carolina's Office Of Regulatory Staff On Public Utility Regulation, William H. Ellerbe
Michigan Telecommunications & Technology Law Review
In 2004 the South Carolina General Assembly instituted a major reform to its system of public utility regulation. Previously, the Public Service Commission, the administrative agency in charge of regulating public utilities, both adjudicated utility proceedings and, through its staff,a advocated for the public interest. A scandal concerning revelations of extensive ex parte communications between regulated utilities and members of the Public Service Commission led to the 2004 reform, which created the Office of Regulatory Staff (ORS) as a separate agency to perform the Commission's advocative functions. In my research, I use data on fuel factor proceedings before and after …
The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski
The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski
Michigan Law Review
The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …
Undoing Undue Favors: Providing Competitors With Standing To Challenge Favorable Irs Actions, Sunil Shenoi
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.
Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson
Securities Law And The New Deal Justices, Adam C. Pritchard, Robert B. Thompson
Articles
In this Article, we explore the role of the New Deal Justices in enacting, defending, and interpreting the federal securities laws. Although we canvass most of the Court's securities law decisions from 1935 to 1955, we focus in particular on PUHCA, an act now lost to history for securities practitioners and scholars. At the time of the New Deal, PUHCA was the key point of engagement for defining the judicial view toward New Deal securities legislation. Taming the power of Wall Street required not just the concurrence of the legislative branch, but also the Supreme Court, a body that the …
A Climate Agenda For The New President, Lisa Heinzerling
A Climate Agenda For The New President, Lisa Heinzerling
Michigan Law Review First Impressions
The Bush Administration squandered eight years denying the reality of climate change and delaying action on it. Nevertheless, the president who comes into office in January will face two happy realities. First, whatever the Bush Administration has done (through obstruction or inaction) on climate change can easily be undone due to its legal and scientific flimsiness. And second, statutes now on the books provide plenty of legal authority for swift action on the most important environmental issue of our time.
Fda Approval Of Generic Biologics: Finding A Regulatory Pathway, Kathleen R. Kelleher
Fda Approval Of Generic Biologics: Finding A Regulatory Pathway, Kathleen R. Kelleher
Michigan Telecommunications & Technology Law Review
Biologics are becoming increasingly important for the potential treatment of widespread diseases such as cancer, anemia, and diabetes. As hundreds of biologics are going off-patent, the market has become ripe for the introduction of generic biologics. A regulatory pathway for biogenerics, however, is virtually nonexistent. The purpose of this paper is thus to analyze how a successful legislative pathway for generic biologics might be designed. The current regulatory scheme, economic concerns, health and safety concerns, and the need to provide proper incentives for innovation are analyzed. Finally, recent Congressional bills are outlined and critiqued, through which the structure of a …
Nsf Fees, James J. White
Nsf Fees, James J. White
Articles
Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.
Pathological Patenting: The Pto As Cause Or Cure, Rochelle Dreyfuss
Pathological Patenting: The Pto As Cause Or Cure, Rochelle Dreyfuss
Michigan Law Review
The Patent Act was last revised in 1952. The hydrogen bomb was exploded that year, vividly demonstrating the power of the nucleus; in the ensuing postwar period, the Next Big Thing was clearly the molecule. Novel compounds were synthesized in the hopes of finding new medicines; solid-state devices exploited the special characteristics of germanium and other semiconductors; as investments in polymer chemistry soared, advice to the college graduate soon boiled down to "one word ... just one word[:] ... Plastics." Over the next half-century, things changed dramatically. "Better living through chemistry" has begun to sound dated (if not sinister). Genomics …
The Irrational Auditor And Irrational Liability, Adam C. Pritchard
The Irrational Auditor And Irrational Liability, Adam C. Pritchard
Articles
This Article argues that less liability for auditors in certain areas might encourage more accurate and useful financial statements, or at least equally accurate statements at a lower cost. Audit quality is promoted by three incentives: reputation, regulation, and litigation. When we take reputation and regulation into account, exposing auditors to potentially massive liability may undermine the effectiveness of reputation and regulation, thereby diminishing integrity of audited financial statements. The relation of litigation to the other incentives that promote audit quality has become more important in light of the sea change that occurred in the regulation of the auditing profession …
The Sec At 70: Time For Retirement?, Adam C. Pritchard
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 Sec At 70: Time For Retirement?, Adam C. Pritchard
The Sec At 70: Time For Retirement?, Adam C. Pritchard
Articles
As one grows older, birthdays gradually shift from being celebratory events to more reflective occasions. One's 40th birthday is commemorated rather differently from one's 2lst, which is, in turn, celebrated quite differently from one's first. After a certain point, the individual birthdays become less important and it is the milestone years to whch we pay particular attention. Sadly for entities like the Securities and Exchange Commission, it is only the milestone years (the ones ending in five or zero, for some reason), that draw any attention at all. No one held a conference to celebrate the SEC's 67th anniversary. Clearly …
Self-Regulation And Securities Markets, Adam C. Pritchard
Self-Regulation And Securities Markets, Adam C. Pritchard
Articles
Enron, Arthur Andersen, Tyco, ImClone, WorldCom, Adelphia - as American investors reel from accounting scandals and self-dealing by corporate insiders, the question of trust in the securities markets has taken on a new urgency. Securities markets cannot operate without trust. Markets known for fraud, insider trading, and manipulation risk a downward spiral as investors depart in search of safer investments. Today, many investors are rethinking the wisdom of entrusting their financial futures to the stock market. Absent trust in the integrity of the securities markets, individuals will hoard their money under the proverbial mattress.
Moving Toward A Clearer Definition Of Insider Trading: Why Adoption Of The Possession Standard Protects Investors, Lacey S. Calhoun
Moving Toward A Clearer Definition Of Insider Trading: Why Adoption Of The Possession Standard Protects Investors, Lacey S. Calhoun
University of Michigan Journal of Law Reform
In recent years, insider trading has become a publicized focus of securities law enforcement. The definition of insider trading has emerged slowly through case law, and the term has been clarified by new theories of liability. The use and possession tests are two standards of liability used to judge the treatment of inside information. The use standard offers a defense to insider trading liability while the possession standard premises liability on mere possession of inside information. This Note argues that courts should adopt the possession standard because this standard better protects investors, a primary goal of the Securities Exchange Act …
Statutory Compliance And Tort Liability: Examining The Strongest Case, Michael D. Green
Statutory Compliance And Tort Liability: Examining The Strongest Case, Michael D. Green
University of Michigan Journal of Law Reform
Professor Green addresses the matter of the proper balance between the tort system and regulation in the context of prescription drugs and the FDA's vigorous oversight of the industry. He articulates several reasons why a regulatory compliance defense, in which tort law would defer to FDA regulation, is quite attractive. Despite the superior expertise of the FDA in assessing the benefits and risks of a drug, a regulatory compliance defense is considerably more problematical than might appear at first glance. Ascertaining compliance with FDA requirements could be a lengthy and complicated inquiry that would either replace or supplement the issues …
Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg
Fda Approved? A Critique Of The Artificial Insemination Industry In The United States, Karen M. Ginsberg
University of Michigan Journal of Law Reform
Artificial insemination by donor is becoming an increasingly popular means to achieving parenthood. While the majority of couples use artificial insemination to overcome fertility problems, many recipients use artificial insemination to avoid passing a genetic disease to their children. However, case studies reveal the inherent dangers of artificial insemination, namely the lack of proper screening methods to avoid passing genetic diseases to children born by artificial insemination. State-by-state regulation, federal guidelines, and private adjudication have all proven to be inadequate methods of regulating the artificial insemination industry. Ginsberg proposes federal regulation as the only means of achieving a safe artificial …
Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas
Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas
University of Michigan Journal of Law Reform
Emsellem and Halas posit that claimants need representation at unemployment compensation proceedings. Evaluating statistical and survey data, the authors find that representation significantly improves a claimant's chance of receiving unemployment compensation. Improved recovery rates, they argue, benefit not only claimants but also society. The authors analyze the factors inducing employer appeals of compensation awards. They also review the systemic issues that accompany the provision of representation to those unable to afford it or to those unfamiliar with the unemployment compensation process. Finally, the authors present models of expanding claimant representation.
Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan
Essay: Torquemada And Unemployment Compensation Appeals, William W. Milligan
University of Michigan Journal of Law Reform
The premise of this Essay is that unemployment compensation appeals hearings take the form of inquests rather than follow the traditional adversarial model. Given this, the hearing officer carries a special burden of ensuring that due process is afforded. State review systems should structure the process so that the difference, along with the unique burden, is made explicit.
Due Process Implications Of Telephone Hearings: The Case For An Individualized Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer
Due Process Implications Of Telephone Hearings: The Case For An Individualized Approach To Scheduling Telephone Hearings, Allan A. Toubman, Tim Mcardle, Linda Rogers-Tomer
University of Michigan Journal of Law Reform
As the executive branch shrinks and reduces expenditures, its adjudicative functions adjust to the new fiscal reality. Telephone hearings are, therefore, increasingly being used in order to control costs. This Article examines the impact of telephone hearings on the due process elements of unemployment compensation 'fair" hearings. The Authors review the applicable federal and state law and find that there is no absolute bar to using the telephone to conduct administrative hearings. They test the empirical effect of the telephone on hearings in California and Maine. Their analysis of hundreds of hearings indicates that parties to telephone hearings are less …
A Proposal To Abolish The Office Of United States Trustee, Peter C. Alexander
A Proposal To Abolish The Office Of United States Trustee, Peter C. Alexander
University of Michigan Journal of Law Reform
In this Article, Professor Alexander reviews the creation and development of the Office of U.S. Trustee, an agency within the executive branch of the federal government, authorized to oversee the administration of all bankruptcy estates. Alexander asserts that the agency has expanded its scope beyond its original mission, becoming a huge bureaucracy that is widely criticized. By contrast, Alexander also discusses the Bankruptcy Administrator Program, a bankruptcy oversight system that exists within the federal districts in Alabama and North Carolina. He presents the positive and negative comments about that program and concludes that it is a more efficient system than …
Decreasing The Costs Of Jurisdictional Gridlock: Merger Of The Securities And Exchange Commission And The Commodity Futures Trading Commission, Mark Frederick Hoffman
Decreasing The Costs Of Jurisdictional Gridlock: Merger Of The Securities And Exchange Commission And The Commodity Futures Trading Commission, Mark Frederick Hoffman
University of Michigan Journal of Law Reform
Jurisdictional conflict exists between the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC), primarily due to the language of the 1974 CFTC Act. This Act grants the CFTC exclusive jurisdiction to regulate certain financial instruments which, given the increasing complexity and "hybrid" nature of such instruments, might simultaneously be subject to SEC regulation. This Note first explores the history of the two agencies and the statutory language giving rise to the jurisdictional conflict. This Note then examines several instances of jurisdictional conflict that resulted in extensive costs for the respective agencies and the United States' financial …
Disentitling The Poor: Waivers And Welfare "Reform", Susan Bennett, Kathleen A. Sullivan
Disentitling The Poor: Waivers And Welfare "Reform", Susan Bennett, Kathleen A. Sullivan
University of Michigan Journal of Law Reform
This Article examines the purposes underlying the statutory grant of authority to Health and Human Services (HHS) to exempt states from the requirements of the statute, the important role that the Social Security Act has played as a source of rights for welfare recipients, the current wave of exemptions granted by HHS, and the lack of standards for review of state waiver proposals. Finally, this Article recommends the development of procedures and standards for review by HHS and urges that adherence to the core values of the Aid to Families with Dependent Children (AFDC) program is essential in evaluating the …
Revitalizing Regulation, Daniel A. Farber
Revitalizing Regulation, Daniel A. Farber
Michigan Law Review
A Review of Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector by David Osborne and Rethinking the Progressive Agenda: The Reform of the American Regulatory State by Susan Rose-Ackerman
Sound Governance And Sound Law, Colin S. Diver
Sound Governance And Sound Law, Colin S. Diver
Michigan Law Review
A Review of Administrative Law: Rethinking Judicial Control of Bureaucracy by Christopher F. Edley, Jr.
Federal Chartering Revisited, Donald E. Schwartz
Federal Chartering Revisited, Donald E. Schwartz
University of Michigan Journal of Law Reform
The protections that corporation law provided to shareholders and to our economic community against the excesses and complacency of corporate directors and managers have undergone a general weakening. Although it is uncertain whether the ALI can accomplish effective and meaningful reforms, this effort may be the most important attempt by the corporate community to reform itself.