Law Commons^™

Too Big And Unable To Fail, Stephen J. Lubben, Arthur E. Wilmarth, Jr.

Florida Law Review

Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this new regime is to enable a SIFI to fail, just like United Airlines or Blockbuster Video, without requiring a government bailout. This Article expresses significant doubts about the new regime’s ability to work as advertised. The “single point of entry” (SPOE) resolution strategy, which focuses all …

The Unwritten Administrative Constitution, Emily S. Bremer

Florida Law Review

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, and executive directives—has accommodated the emergence of this fourth branch of government not contemplated by the Framers. Familiar principles, including the separation of powers, the rule of law, and individual liberties, permeate administrative law. But these principles cannot be expressly located in the U.S. Constitution. …

“Camels Agree With Your Throat” And Other Lies: Why Graphic Warnings Are Necessary To Prevent Consumer Deception, Ellen English

Florida Law Review

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued a regulation, known as the graphic warning requirement, which mandates that a color graphic image accompany each of the nine textual warning statements. The graphic warning requirement now faces challenges from the tobacco industry, and the ambiguities current standards present …

The Paradox Of The Obamacare Decision: How Can The Federal Government Have Limited Unlimited Power?, Robert J. Pushaw Jr.

Florida Law Review

National Federation of Independent Business v. Sebelius, the Supreme Court’s decision upholding the landmark Patient Protection and Affordable Care Act (ACA or “Obamacare”), sets forth the most important judicial examination of constitutional power since the New Deal era. The political and media frenzy over the Obamacare case has obscured its actual legal analysis and larger constitutional implications, which warrant more reflective study. This Article seeks to provide such a scholarly perspective.

My starting point is the ACA, which has three key provisions. First, it requires “guaranteed issue” of health insurance to all applicants and “community rating” to prevent insurance …

Dampening Financial Regulatory Cycles, Brett Mcdonnell

Florida Law Review

Financial regulation should be countercyclical, strengthening during speculative booms to contain excessive leverage and loosening following crises so as to not limit credit extension in hard times. And yet, financial regulation in fact tends to be procyclical, strengthening following crises and loosening during booms. This Article considers competing descriptive and normative analyses of that procyclical tendency. All of the models and arguments considered are rooted in a public choice perspective on financial regulation, i.e., rational choice ideas drawn from economics and applied to politics, but with that perspective modified to take account of behavioralist biases in rationality, particularly the availability …

Seeing Red: The Legal Backlash Against Red-Light Cameras In Florida, Nicole Kuncl

Florida Law Review

This Note will examine Florida’s Mark Wandall Traffic Safety Act, which authorizes the use of traffic infraction detectors (red-light cameras) to enforce traffic laws. Florida, like many other states, currently finds itself in the midst of a heated debate over the use of red-light cameras to issue traffic citations. Strong arguments can be made both for and against this policy, but there are some who absolutely refuse to accept it, for both constitutional and practical reasons. If opponents hope to end all use of red-light cameras in the state, however, they will need to acknowledge that judicial opinion is overwhelmingly …

The Open Road And The Traffic Stop: Narratives And Counter-Narratives Of The American Dream, Nancy Leong

Florida Law Review

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. I examine the cultural texts—books, movies, songs—celebrating the open road and juxtapose them against those documenting the traffic stop. The …