Law Commons^™

Why Pushback To California’S Advanced Clean Cars Ii Policy Won’T Stop The Electric Car Revolution, Lily M. Pickett

Connecticut Law Review

In a move some have called the beginning of the end for the internal combustion engine, the California Air Resources Board has created regulations, Advanced Clean Cars II, to target California’s carbon pollution, banning the sale of new gas-powered cars and light trucks in the state by 2035. These regulations come from a special privilege held only by the state of California through a preemption waiver from the emissions regulations set by the Clean Air Act. Other states can sign on to California’s waiver, taking it from a special privilege to a second set of emissions regulations, almost equal in …

The Public Trust: Administrative Legitimacy And Democratic Lawmaking, Katharine Jackson

Connecticut Law Review

This Article argues that recent United States Supreme Court decisions invalidating agency policymaking rely on a normatively unattractive and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their …

Connecticut’S Crumbling Foundations: Legal Remedies And Legislative Responses, Jacqueline T. Bashaw

Connecticut Law Review

Latent harms pose unique challenges for the legal system. Such issues are often referred to as long-tail issues, wherein the actual harmful chain of events is set in motion years before it is discovered and wreaks havoc. Asbestos is one example. Pyrrhotite is another.

A seemingly innocuous mineral, pyrrhotite has infiltrated Connecticut homes. Somewhere between 3,000 to 35,000 concrete foundations were poured in the state from 1983 to 2016, with varying amounts of pyrrhotite trapped within. These foundations have begun to deteriorate, costing homeowners thousands of dollars as their investments quite literally crumble beneath their feet. While the problem was …

Interagency Litigation Outside Article Iii, Adam Crews

Connecticut Law Review

For over seventy years, the Supreme Court has said that a justiciable controversy can exist when one agency in the federal executive branch sues another. Although this raises intuitive concerns under both Article II (relating to presidential control) and Article III (relating to standing), scholars and judges have paid scant attention to the constitutional foundation for interagency litigation. Of those who have explored the topic, defenders and opponents alike agree on one thing: the foundation—or lack of one—depends on Article III’s case-or-controversy requirement.

That is mistaken. A better approach to understand interagency litigation is to step outside Article III and …

Overseeing Oversight, Michael Karanicolas, Margaret B. Kwoka

Connecticut Law Review

Accountability is at the core of democratic governance. In the United States, the administrative state is formally situated within the executive branch, but the unelected nature of agency officials, combined with the vast power they wield, has long been cause for concern. A crucial tool for establishing accountability within this so-called “Fourth Branch” is the Freedom of Information Act (FOIA), which provides ordinary members of the public with a mechanism for direct oversight of how administrative agencies function. Similar right-to-information laws have been implemented in over one hundred countries. However, in contrast to most of its international counterparts, the FOIA …

Ovarian Tissue Cryopreservation: A Window Into The Reproductive Justice Concerns Underlying Assisted Reproductive Technologies, Caitlyn Pesavento

Connecticut Law Review

More regulatory framework is needed for assisted reproductive technologies. Taken together, the high costs of fertility treatment, lack of widespread insurance coverage, and social perceptions of motherhood make it nearly impossible for women from traditionally marginalized backgrounds to collectively overcome barriers of access to fertility treatments. Viewing the ovarian tissue cryopreservation procedure through a reproductive justice framework illustrates an inherent dichotomy between increasing availability and increasing access to assisted reproductive technologies. This Comment explores the current regulation—or lack thereof—of assisted reproductive technologies; advocates for the regulation of ovarian tissue cryopreservation by the U.S. Food and Drug Administration; scrutinizes the failings …

Time To Bite The Bullet? How An Emboldened Fda Could Take Aim At The Firearms Industry, Lars Noah

Connecticut Law Review

Firearms continue to cause tremendous losses in the United States, prompting increasingly frustrated calls for a public health response to this endemic problem. Although Congress has legislated repeatedly on the issue over the last century, it has not managed to do anything remotely comprehensive in the aggregate. This Article offers a radical new approach that has gone entirely unnoticed. Much as it tried to do a quarter of a century ago in asserting jurisdiction over tobacco products, the U.S. Food and Drug Administration (FDA) could try to use its “device” authority to rein in companies that manufacture firearms and accessories …

Why America's Response To The Covid-19 Pandemic Failed: Lessons From New Zealand's Success, Richard Parker

Faculty Articles and Papers

Polls show that 48 percent of Americans think the United States has fared no worse in dealing with COVID-19 than most other countries and that COVID-19 posed an essentially impossible test. This article refutes that remarkable misperception. It shows that the U.S. COVID-19 mortality rate for 2020, adjusted for population, was more than twice as high as Canada’s and Germany’s; ten times higher than India’s; 29 times higher than Australia’s; 40 times higher than Japan’s; 59 times higher than South Korea’s, and 207 times higher than New Zealand’s mortality rate. In fact, U.S. performance at the level of South Korea, …

Punishing The Innocent, Richard Parker

Faculty Articles and Papers

No abstract provided.

The Other Half Of Regulatory Theory, Hanoch Dagan, Roy Kreitner

Connecticut Law Review

Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory agencies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this aggregative mold, but not all. A significant subset of the regulatory practice—the second half of the universe of regulation—deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people, both private individuals and firms. This Article focuses on these relational regulators, which regulatory theory marginalizes …

Statement, Hearing On Federally Incurred Cost Of Regulatory Changes And How Such Changes Are Made, Richard Parker

Faculty Articles and Papers

Prepared Statement, Hearing on Federally Incurred Cost of Regulatory Changes and How Such Changes are Made: Hearing Before United States Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Federal Spending Oversight and Emergency Management, 116th Cong. (2019).

The Faux Scholarship Foundations Of The Regulatory Rollback Movement, Richard Parker

Faculty Articles and Papers

With the full participation and consent of Congress, President Trump has embarked upon a radical project to freeze and roll back federal regulations that protect public health, safety, the environment, and the economy. The principal justification for this project, publicly announced by both Congress and President Trump, is the claim that regulations are costing the American economy $2 trillion per year, thereby destroying jobs. This claim derives from two studies that have received wide and credulous circulation in the media, on Capitol Hill, and in the White House. This Article accordingly undertakes a comprehensive evaluation of these two studies. It …

Incentives And Ideology, James Kwak

Faculty Articles and Papers

This is a response to Adam Levitin's article, The Politics of Financial Regulation and the Regulation of Financial Politics: A Review Essay, 127 Harv. L. Rev. 1991 (2014). Levitin discusses various reasons for regulatory capture and highlights several potential solutions that aim to change the political governance of financial regulation. In this response, I highlight the importance of ideology (in this case, the ideology of free financial markets) in producing regulatory outcomes that are good for industry, and therefore the need for solutions that mitigate ideological capture.

An Introduction To Climate Change Liability Litigation And A View To The Future, Joseph Macdougald

Faculty Articles and Papers

No abstract provided.

Understanding And Regulating The Sport Of Mixed Martial Arts, Brendan Maher

Faculty Articles and Papers

The past fifteen years have seen the emergence of a new sport in America and around the world: mixed martial arts (“MMA”). MMA is an interdisciplinary combat sport whose participants engage in and combine a variety of fighting disciplines (e.g., kickboxing, wrestling, karate, jiu-jitsu, and so on) within one match. In this Article, I examine and analyze the sport’s evolution, articulate a theory of sporting legitimacy, supply a conceptual taxonomy of regulation, and highlight potential reform. More specifically, my foundational treatment proceeds as follows. I first explain the modern history and development of MMA, tracing it from its shaggy, brutish …

Guideline Institutionalization: The Role Of Merger Guidelines In Antitrust Discourse, Hillary Greene

Faculty Articles and Papers

With the growth of the administrative state, agency-promulgated enforcement policy statements, typically referred to as guidelines, have become ubiquitous in the U.S. federal system. Yet, the actual usage and impact of such guidelines is poorly understood. Often the issuing agencies declare the guidelines to be nonbinding, even for themselves. Notwithstanding this disclaimer, the government, private parties, and even the courts frequently rely on the guidelines in a precedent-like manner. In this Article, Professor Greene examines the evolution of one system of enforcement policy guidelines - the U.S. federal antitrust merger guidelines - and finds that these guidelines have acted as …

Is There A Steroids Problem - The Problematic Character Of The Case For Regulation, Lewis Kurlantzick

Faculty Articles and Papers

No abstract provided.

The Empirical Roots Of The 'Regulatory Reform' Movement: A Critical Appraisal, Richard Parker

Faculty Articles and Papers

Over the past few years the debate over the economic rationality of health, safety and environmental regulation has morphed into a sustained controversy over the tests and methods by which that rationality is judged. Critics have argued that the main regulatory scorecards which comprise much of the empirical foundation for the regulatory reform movement are fundamentally flawed because they: alter agency estimates of future costs and benefits; disregard most uncertainties; and misrepresent ex ante guesses as the costs and benefits of regulation. They also zero out whole categories of benefits that cannot be quantified and/or monetized even when the benefits …

Agency Character And Character Of Agency Guidelines: An Historical And Institutional Perspective, Hillary Greene

Faculty Articles and Papers

Though antitrust guidelines have become commonplace, their approach was novel when first introduced. In a 1964 front-page article entitled, Industries Will Get Merger Guidelines, The New York Times observed, 'An entirely new approach to the enforcement of the antitrust laws is about to be attempted by the Federal Trade Commission.' Similarly, the American Bar Association's 1968 Antitrust Developments treatise described these first antitrust agency guidelines as a new method to advise businessmen about how the FTC would gauge the competitiveness of mergers. In the nearly forty years since the introduction of the first merger guidelines, the federal antitrust agencies have …

Competition Perspectives On Patent Law Substance And Procedure: An Overview Of The Ftc/Doj Hearings And The Ftc Report, Hillary Greene

Faculty Articles and Papers

No abstract provided.

Grading The Government, Richard Parker

Faculty Articles and Papers

For over a decade, scathing critiques of government have been fueled by a group of studies called regulatory scorecards, which purport to show that the costs of many government regulations vastly outweigh their benefits. One widely-cited study by John Morrall, an OMB economist, claims that government regulations cost up to $72 billion per life saved. Another study, co-authored by Bush's regulatory czar, John Graham, claims that over 60,000 people lose their lives each year due to irrational government regulation. A third group of scorecards - compiled by Robert Hahn of the AEI-Brookings Joint Center for Regulatory Studies - claims that …

., Administrative Channeling Under The Medicare Act Clarified: Illinois Council, Section 45(H), And The Application Of Congressional Intent, John Aloysius Cogan, Jr., Rodney A. Johnson

Faculty Articles and Papers

In non-legal terms, subject matter jurisdiction is much like your American Express card. You cannot "leave home without it." This is especially true if you represent a Medicare provider or supplier and intend to sue on a Medicare claim. To be sure, your well-pleaded complaint alleges several bases for the federal district court's subject matter jurisdiction, including, but not limited to, 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (federal defendant jurisdiction), 28 U.S.C. § 1361 (mandamus), and 5 U.S.C. § 702 (the Administrative Procedures Act). Perhaps, your complaint is brought in the context of an adversary …

Comments On "The Telecommunications Act Of 1966," By Thomas G. Krattenmaker, Loftus Becker

Faculty Articles and Papers

No abstract provided.

Self, Others, And Section 7: Mutualism And Protected Protest Activities Under The National Labor Relations Act, Michael Fischl

Faculty Articles and Papers

No abstract provided.