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Articles 1 - 30 of 45
Full-Text Articles in Law
The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres
The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres
Jody M. Endres
Mounting resource scarcity confronts policymakers to make decisions based on predictions of complex system behavior under conditions of great uncertainty. Nowhere is this more evident than in bioenergy policy, which relies heavily on modeling to determine biofuels’ effects on complex climate, food and natural systems. This article provides a primer on models’ inner workings to facilitate engagement by the legal field so critical in building and applying models, and remedying them when they fail. Any conceptual model cannot predict future reality with accuracy absent accounting for regulatory and litigatory scenarios that only the legal discipline can assess fully. Administrative law …
Parliamentary Oversight Of The Executive In India, Anirudh Burman
Parliamentary Oversight Of The Executive In India, Anirudh Burman
Anirudh Burman
The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …
How Statistical Sampling Can Solve The Conundrum Of Compensation Disclosures Under Dodd-Frank, Michael Ohlrogge
How Statistical Sampling Can Solve The Conundrum Of Compensation Disclosures Under Dodd-Frank, Michael Ohlrogge
Michael Ohlrogge
One of the more controversial measures of the Dodd-Frank bill is its requirement that companies report the ratio of their CEO’s compensation to that of their median employee. Critics of this provision have claimed that for large companies with employees and subsidiaries throughout the world, compliance with this measure alone could cost millions of dollars a year, due to the difficulties in identifying the median employee. This paper demonstrates that the Securities and Exchange Commission, which is charged with implementing this provision, has the latitude to direct companies to calculate the figure using a statistical sampling procedure which would greatly …
Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters
Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters
Daniel E Walters
No abstract provided.
A Selection-Corrected Estimate Of Chevron’S Impact On Agency Deference, Griffin S. Edwards
A Selection-Corrected Estimate Of Chevron’S Impact On Agency Deference, Griffin S. Edwards
Griffin S Edwards
The ruling in Chevron v. Natural Resources Defense Council dramatically changed how judges rule in favor of federal administrative agencies. Previous research has found both theoretically and empirically that Chevron favors agencies and their interpretation of statutes, but the magnitude of Chevron’s impact remains unclear due to possible selection issues biasing the post-Chevron world. Accounting for the possibility that incentives change both to the challenger of an agency and the agency itself post-Chevron, I estimate a break in the trend of agency deference on the date Chevron was decided. This allows me to exploit the exogenous cases that were pending …
Evading Emergency: Strengthening Emergency Response Through Integrated Pluralistic Governance, Lance Gable
Evading Emergency: Strengthening Emergency Response Through Integrated Pluralistic Governance, Lance Gable
Lance Gable
This Article examines the significant governance challenges that arise during responses to public health emergencies and proposes a new multifaceted strategy—integrated pluralistic governance—to address these challenges. Emergency preparedness is an inherently complex problem that entails the integration of scientific and medical expertise, good logistical planning, and clear laws and policies. The governance function has particular import for public health emergencies because pandemics, hurricanes, and other disasters can have profoundly divisive social and political consequences. Moreover, recent disasters like Hurricane Katrina and the BP Deepwater Horizon Oil Spill revealed an emergency preparedness and response infrastructure in the United States that was …
Protecting The Innocent With A Premium For Child Safety Regulations, Jacob P. Byl
Protecting The Innocent With A Premium For Child Safety Regulations, Jacob P. Byl
Jacob P. Byl
Federal agencies regulate many products and activities that impact the safety of children. When conducting an economic analysis of a proposed rule, agencies should put a premium on saving the lives of children when analyzing the costs and benefits of regulation. This Article uses original evidence from the infant car seat market to determine that a child-specific benefit measure should be one and a half to two times that of an adult.
Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux
Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux
Paul Boudreaux
The most prominent environmental issue of the 2012 presidential election was the Solyndra debacle, in which the Obama administration lent more than $500 million to a solar energy company that later went bankrupt. Such financial “carrots” have been a centerpiece of President Obama’s environmental policy. This Essay uses the Solyndra story to expose the fatal flaws of a policy of carrots, including their inherent susceptibility to politicization and the government’s inaccuracy in making “bets” in the private market. If the environmental community is serious about difficult legal steps, such as combating global warming, it should eschew the allure of carrots …
Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux
Carrots And Sticks From Obama’S Solyndra And Beyond, Paul Boudreaux
Paul Boudreaux
ABSTRACT The most prominent environmental issue of the 2012 presidential election was the Solyndra debacle, in which the Obama administration lent more than $500 million to a solar energy company that later went bankrupt. Such financial “carrots” have been a centerpiece of President Obama’s environmental policy. This Essay uses the Solyndra story to expose the fatal flaws of a policy of carrots, including their inherent susceptibility to politicization and the government’s inaccuracy in making “bets” in the private market. If the environmental community is serious about difficult legal steps, such as combating global warming, it should eschew the allure of …
Applying Method To The Madness: The Right To Court Appointed Guardians Ad Litem And Counsel For The Mentally Ill In Immigration Proceedings, Amelia Wilson
Amelia Wilson
A unique dilemma facing immigration judges (IJs) and practitioners today is how to address the acute problem of mentally ill respondents appearing pro se in immigration removal proceedings. Mentally ill respondents are more likely to face deportation from a position of indigence and detention, both of which create substantial barriers to obtaining counsel. Even where represented, the mentally ill are less able to contribute to their own defense or understand the proceedings against them. This lack of meaningful participation has cascading deleterious effects on respondents themselves, but also on our already overburdened immigration courts by creating docket delays, prolonged detention, …
Using Building Codes To Rewrite The Tailoring Rule And Mitigate Climate Change, Albert Monroe
Using Building Codes To Rewrite The Tailoring Rule And Mitigate Climate Change, Albert Monroe
Albert Monroe
In 2007, Mass. v. EPA effectively forced the EPA to regulate emissions of carbon dioxide and other greenhouse gases. The plain language of the Clean Air Act gave the EPA an impossible mandate of regulating millions of buildings on a case-by-case basis. The EPA, through the Tailoring Rule, decided to regulate fewer sources. This paper shows that the EPA’s approach is legally suspect. Instead, the EPA should regulate more sources using general permits that avoid the impossibility of case-by-case regulation of millions of sources. The EPA can regulate buildings under the Clean Air Act by mandating stricter building codes for …
Purposeless Construction, David M. Driesen
Purposeless Construction, David M. Driesen
David M Driesen
This Article critiques the Supreme Court’s tendency to embrace “purposeless construction”— statutory construction that ignores legislation’’ underlying goals. It constructs a new democratic theory supporting purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for …
When Can You Teach An Old Law New Tricks?, Philip A. Wallach
When Can You Teach An Old Law New Tricks?, Philip A. Wallach
Philip A Wallach
This article considers the distinctive legal and institutional dynamics involved when agencies interpret existing statutes for novel purposes. It argues that courts take into account policy-specific institutional factors, such as legislative dysfunction, when they consider the propriety of such novel interpretations, rather than employing universal ideas about institutional competencies. Where Congress has shown an inability to legislate in a policy area, courts are more likely to sympathize with changes in interpretation as partial substitutes for new legislation, but relying on old statutory language creates problems of statutory mismatch. The article contends that many arguments over statutory meaning mask disagreements about …
Disaggregating Disasters, Ronnell Andersen Jones
Disaggregating Disasters, Ronnell Andersen Jones
RonNell Andersen Jones
In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of non-war emergency situations. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying …
Caremark's Irrelevance, Mercer E. Bullard
Caremark's Irrelevance, Mercer E. Bullard
Mercer E Bullard
In re Caremark Int’l Inc. Derivative Litig. is commonly held out as the iconic corporate law case on liability for a failure of legal compliance, but the true source of corporate law as to legal compliance is the higher standard established by other sources of law. The expected cost of liability, both criminal and civil, for violations of federal healthcare regulations, for example, is a far stronger determinant of corporate compliance systems than potential liability under Caremark. Other areas of industry-specific regulation, such as for financial services, telecommunications and energy, similarly play a greater role than state corporate law in …
Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich
Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich
Janet Freilich
This article fills a gap in the literature by conducting a comprehensive analysis of patent infringement in the context of follow-on biologics. Patent infringement is an important topic because, like small molecule generic drugs, follow-on biologics are likely to begin their life facing infringement suits. Because it is tremendously expensive to develop a follow-on biologic, it is vital that there be consistency in how they are treated in the courts once the inevitable patent infringement suits arrive. If follow-on biologics companies cannot predict how their product will be received in court, they may decide it is not worth the risk …
The Paradox Of Legal Equivalents And Scientific Equivalence: Reconciling Patent Law’S Doctrine Of Equivalents With The Fda’S Bioequivalence Requirement, Janet Freilich
Janet Freilich
Contrary to popular perception, generic drugs often enter the market before the patents covering their brand-name counterparts have expired by making slight changes the drug to avoid the brand-name patent. These generics face a paradox: the FDA requires that the generic “not show a significant difference” from the reference product while patent law requires that the generic have “substantial differences” as compared to the reference product. The generic must be bioequivalent but not legally equivalent to the brand-name drug. This paradox occurs frequently in the courts but has never been discussed in the literature. This article analyzes every case involving …
Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi
Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi
Steven G Calabresi
This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …
Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters
Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters
Daniel E Walters
The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances where agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance …
¬Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, Todd Henderson, Fred Tung
¬Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, Todd Henderson, Fred Tung
Todd Henderson
In the years before the Financial Crisis, banks got to pick their regulators, engaging in a form of regulatory arbitrage that we now know was a race to the bottom. We propose to turn the tables on the banks by allowing regulators, specifically, bank examiners, to choose the banks they regulate. We call this “reverse regulatory arbitrage,” and we think it can help improve regulatory outcomes. Building on our prior work that proposes to pay bank examiners for performance—by giving them financial incentives to avoid bank failures—we argue that bank supervisory assignments should be set through an auction among examiners. …
Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King
Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King
Anthony J. King
The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …
Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva
Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva
Philip J. Candreva
Nearly every year Congress fails to pass all of the appropriations acts before the start of the federal fiscal year. This necessitates the passage of a temporary spending measure – a continuing resolution – or there will be at least a partial government shutdown. Both contingencies are costly and disruptive to the efficient and effective operation of government. Over the last 30 years, there have been several legislative proposals to enact an automatic continuing resolution mechanism that would mitigate the costs to public management. Such proposals, however, are costly for political and legal reasons. This article examines the arguments for …
Administrative Silence In Brazilian Law, André Saddy
Administrative Silence In Brazilian Law, André Saddy
André Saddy
No abstract provided.
Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart
Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart
Nicholas C Stewart
Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …
The Department Of Health And Human Services Vs. Attorneys: Will The Federal Courts Tame An Agency Run Amuck, Anne M. Rife
The Department Of Health And Human Services Vs. Attorneys: Will The Federal Courts Tame An Agency Run Amuck, Anne M. Rife
Anne M Rife
The Department of Health and Human Services vs. Attorneys – Can and Will the Federal Courts Tame an Agency Run Amuck? ABSTRACT Medicare has been a system destined for financial trouble arguably since its creation in 1965. For years, Congress and the Department of Health and Human Services (“DHHS”) have passed legislation, regulations, and implemented procedures to try to save it. But, when DHHS decided to protect Medicare by suing attorneys, it took its role too far and placed attorneys in an ethical and procedural maelstrom. In Haro v. Sebelius, the United States District Court of Arizona recently addressed DHHS’s …
Standing As Channeling In The Administrative Age, Dru Stevenson, Sonny Eckhart
Standing As Channeling In The Administrative Age, Dru Stevenson, Sonny Eckhart
Dru Stevenson
For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing. This Article takes the suggestion a step further, and argues that …
The Waters Are Rising! Why Isn’T My Tax Basis Sinking?: Why Coastal Land Should Be A Depreciable Asset In Light Of Global Warming And The Rise In Sea Level, Jason P. Oppenheim
The Waters Are Rising! Why Isn’T My Tax Basis Sinking?: Why Coastal Land Should Be A Depreciable Asset In Light Of Global Warming And The Rise In Sea Level, Jason P. Oppenheim
Jason P Oppenheim
Depreciation deductions are the Internal Revenue Code’s method of allowing taxpayers to take deductions on long-term investments. Unlike normal deductions, depreciation requires the taxpayer to apportion the expense over the life of the asset. While most assets used for the production of income may be depreciated, the Internal Revenue Service and courts have never allowed land to be depreciated. The treatment of land as a non-depreciable asset is deeply rooted in the idea that it does not have a useful life—it lasts forever. However, the rate of global warming has increased rapidly over the past fifty years and is expected …
Where You Stand Depends On Where You Sit: Bureaucratic Incorporation Of Immigrants In Federal Workplace Agencies, Ming H. Chen
Where You Stand Depends On Where You Sit: Bureaucratic Incorporation Of Immigrants In Federal Workplace Agencies, Ming H. Chen
Ming H Chen
Abstract. This article integrates legal scholarship on immigrant workers with social science theory about the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants’ rights can be protected when workplace agencies integrate immigrants into their law enforcement activities, in accordance with their professional ethos and without regard to personal politics. Building on the concept of bureaucratic incorporation, I argue that regulatory agencies will resist contractions of workers’ rights when their staff’s commitments as civil servants and lawyers clash with judicial interpretations of immigrants’ rights. The implication is that strongly pro-immigrant politics are not necessary for …
U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii
U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii
Jack C Dolance II
U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …
U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii
U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii
Jack C Dolance II
U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …