Law Commons^™

Fixing Fair Use, Michael W. Carroll

Michael W. Carroll

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …

Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles

Gary Edles

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.” …

Misrepresentation And The Fcc, Brian C. Murchison

Brian C. Murchison

None available.

Protecting States’ Interests In The Brave New World Of Energy Federalism, Daniel Lyons

Daniel Lyons

No abstract provided.

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

Sean Farhang

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff

Lorne Sossin

Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, expecialy for geographicaly remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the impl'cations of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This anaysis hig hghts concerns both with videoconferendng in princp4 and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunals allocation of resources and the suffidengy of its budget are also …

Environmental Protection As A Learning Experience, Daniel A. Farber

Daniel A Farber

No abstract provided.

Partner Capture In Public International Organizations, Christopher G. Bradley

Christopher Bradley

A sharp rise of public-private partnerships is changing the way the United Nations and other public international organizations work. Organizations eagerly embrace wealthy, experienced partners, such as major foundations and corporations, in order to fund ambitious projects. But safeguards against potential problems have not kept pace with partnership activities. Looking to fundamental principles of public choice and political economy well-known in the U.S. administrative law context, this Article develops a multifaceted notion of “partner capture” to describe the dangers of this expansion in partnership activities for the U.N. and similar organizations. The dangers include agenda distortion, intra-organizational rivalries, reputational damage, …

The Problem With Words: Plain Language And Public Participation In Rulemaking, Cynthia R. Farina, Mary J. Newhart, Cheryl Blake

Cynthia R. Farina

This Article, part of the special issue commemorating the fiftieth anniversary of the Administrative Conference of the United States (“ACUS”), situates ACUS’s recommendations for improving public rulemaking participation in the context of the federal “plain language” movement. The connection between broader, better public participation and more comprehensible rulemaking materials seems obvious, and ACUS recommendations have recognized this connection for almost half a century. Remarkably, though, the series of presidential and statutory plain-language directives on this topic have not even mentioned the relationship of comprehensibility to participation until very recently. In 2012, the Office of Information and Regulatory Affairs (“OIRA”) issued …

Chapter 11 And The Francovich Doctrine: Comparing State Liability Under Nafta And Ec Law, Gus Van Harten

Gus Van Harten

No abstract provided.

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag

Sean Rehaag

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD. This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant

Sean Rehaag

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD. This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …

Uncertainty, Complexity, And Regulatory Design, Adam I. Muchmore

Adam I. Muchmore

This Article develops an analytic framework for understanding the role of uncertainty in regulatory design. It begins by differentiating between three types of uncertainty: legal uncertainty, factual uncertainty, and uncertainty about the application of law to fact. This framework highlights the pervasiveness of factual uncertainty and law-fact uncertainty in daily affairs. Viewed through this framework, legal uncertainty is less problematic than it is typically thought to be. The Article then focuses on legal uncertainty, examining it from two perspectives: the relationship between rules and standards, and the relationship between simplicity and complexity. It suggests that there are fundamental limits on …

Algunas Reflexiones Sobre El Régimen De Prevención Del Lavado De Activos Para Las Personas Jurídicas Que Reciben Donaciones O Aportes De Terceros, Tadeo Leandro Fernandez

Tadeo Leandro Fernandez

The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster

Mark Fenster

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …

Embracing The Queen Of Hearts: Deference To Retroactive Tax Rules, James M. Puckett

James Puckett

The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States underscored the importance of a uniform approach to judicial review of administrative action; accordingly, the Court clarified that tax administration is generally subject to the same review as other kinds of administrative action by other federal agencies. Tax guidance from the IRS and Treasury Department serves an important role in clarifying the tax law so that taxpayers may report their tax liability accurately and plan their affairs. Meanwhile, aggressive attempts by a relatively small number of taxpayers to avoid tax liability by exploiting arguable ambiguities …

Agency Activism As A New Way Of Life: Administrative Modification Of The Internal Revenue Code Through Limited Issue Focused Examinations, W Edward Afield

W. Edward "Ted" Afield

In the name of increasing efficiency and better utilizing limited resources, the IRS has begun to adopt audit policies that overly favor taxpayers and greatly hinder the IRS’s ability to perform thorough audits. Highlighting this trend is a relatively new audit technique used by the Large to Mid-Size Business Division (LMSB), known as the Limited Issue Focused Examination (LIFE) Process. Under LIFE, the LMSB has attempted to involve taxpayers in the audit process by sharing responsibility for timely completion of the audit and has attempted to streamline the audit by reducing the scope of issues examined and applying materiality thresholds …

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.

Special Economic Zones In The United States: From Colonial Charters, To Foreign-Trade Zones, Toward Ussezs, Tom W. Bell

Tom W. Bell

Usage-Based Pricing, Zero-Rating, And The Future Of Broadband Innovation, Daniel A. Lyons

Daniel Lyons

No abstract provided.

Title Ii Reclassification Is Rate Regulation, Daniel A. Lyons

Daniel Lyons

No abstract provided.

Executive Opportunism, Jed Stiglitz

Jed Stiglitz

Developments In Administrative Law: The 2014-2015 Term, Gerald Heckman

Gerald Heckman

Innovations In Mobile Broadband Pricing, Daniel Lyons

Daniel Lyons

Copyrights, Privacy, And The Blockchain, Tom W. Bell

Tom W. Bell

Moral Judgments, Expressive Functions, And Bias In Immigration Law, Emily Ryo

Emily Ryo

In a lucid and trenchant style characteristic of Professor Hiroshi Motomura’s writing, Immigration Outside the Law offers rich descriptive and prescriptive analyses of three major themes underlying debates about unauthorized migration: the meaning of unlawful presence, state and local involvement in the regulation of unauthorized migration, and the integration of unauthorized migrants into American society. This review advances several ideas that I argue are important to understanding these key themes. In brief, I suggest that a more comprehensive understanding of public debates about unauthorized migration requires examining lay moral judgments about unlawful presence, the expressive functions of immigration law, and …

Detained: A Study Of Immigration Bond Hearings, Emily Ryo

Emily Ryo

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan