Law Commons^™

Civil Society And Civil Society Organisations' Participation In Global Governance: International And National Legal Systems, Valentina Rustichini

Valentina Rustichini

Social societies are closely related to each other, and their systems of governance should include the following principles of good governance: openness, participation, accountability, effectiveness and coherence. It is essential for a democracy to ensure the involvement of civil society in the decision-making procedures concerning the shaping of public policies that affects people’s lives. The lack of transparency and the unequal division of power and participation in these procedures are issues of increasing concern. This paper examines how a civil law system like Italy’s, a common law system like the United Kingdom’s, and some international organisations such as the International …

The Change In Knowledge Proposal: Repairing Preemption Doctrine In Medical Products Liability, Yite John Lu

Yite J Lu

This Article proposes a new rule that would allow the FDA to achieve the best balance of medical product availability and safety without interference from tort law when the agency has adequately reviewed the safety science. After an analysis of the FDA’s competency to review, and manufacturers’ ability to hide, safety concerns, this Article argues that FDA review is adequate during the initial approval process, but the agency cannot adequately respond to newly acquired safety information that arises post-market. To take advantage of this finding, the change in knowledge proposal would require tort plaintiffs to show a change in the …

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

David A. Wirth

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of precaution as …

Rationales For And Against Regulatory Involvement In Resolving Internet Interconnection Disputes, Rob Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content telecommunications carriers typically a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited choice of ISP …

The Toll Road Not Taken: Could The One Option Less Used Make A Difference?, Carlos C. Sun

Carlos C Sun

There is a growing transportation financing crisis in the United States caused by a rapidly aging transportation infrastructure, a growing demand for transportation, soaring infrastructure costs and a lack of systematic planning to account for these multiple trends. Potholes, deteriorating bridges and cracked pavements are everywhere, regardless of geographical location, climate or population density. Such infrastructure deterioration negatively impacts the environment via pollution, wasted fuel and inefficient travel patterns. Courts in states such as California have responded pragmatically to the crisis by opening the door to road tolling in various forms. This shift in states’ attitudes toward toll roads comes …

Through The Looking Glass Of Eminent Domain: Exploring The “Arbitrary And Capricious” Test And Substantive Rationality Review Of Governmental Decisions, Zygmunt J.B. Plater, William Lund Norine

Zygmunt J.B. Plater

No abstract provided.

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Ryan G. Vacca

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Tax Compliance And The Love Molecule, Susan Morse

Susan Cleary Morse

If oxytocin is the source of human reciprocity, then perhaps storytelling that evokes close human relationships is the key to using reciprocity to further tax compliance.

Milking It: Reconsidering The Fda’S Refusal To Require Labeling Of Dairy Products Produced From Rbst Treated Cows In Light Of International Dairy Foods Association V. Boggs, Laurie J. Beyranevand

Laurie J Beyranevand

The Sixth Circuit Court of Appeals’ recent decision in International Dairy Foods Association v. Boggs, while ultimately resulting in regulation pertaining to milk labeling that is similar to regulations in other states, provides a useful framework for challenging the Food and Drug Administration (FDA)’s contention that it lacks the authority to mandate labeling of milk from cattle that have been treated with the hormone rBST. The court in Boggs found that a compositional difference exists between milk from cows treated with the hormone and those that were not, which could be considered a material fact mandating labeling under the Food, …

Enforcing The Enforcer: Enhancing The Fbi’S Accountability For The Use Of National Security Letters, Joshua C. Mcdaniel

Joshua C. McDaniel

In 2007, the U.S. Justice Department’s Office of the Inspector General issued the first in a series of three reports revealing that on thousands of occasions the FBI had improperly or illegally used its authority to issue national security letters. The national security letter enables the FBI to obtain confidential customer information from banks, ISPs, telephone companies, and other institutions without first obtaining a warrant or a grand jury subpoena and without the customer ever realizing.

This Comment argues that the abuses of NSL authority revealed in the Inspector General’s reports result significantly from the FBI’s lack of horizontal accountability …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Chevron As A Doctrine Of Hard Cases, Frederick Liu

Frederick Liu

The conventional wisdom holds that the Chevron doctrine rests on a presumption about congressional intent—a presumption that when a statute is ambiguous, Congress intended the gap to be filled by the agency charged with administering the statute. But the presumption is a mere fiction; Congress generally has no view on whether ambiguities in a statute should be resolved by the agency or the court. This Article proposes a new theory of Chevron, one that rests on a simple reality: No matter how determinate the law may seem, there will inevitably be hard cases—cases in which the law runs out before …

Who Are Refugees?, Matthew Lister

Matthew J. Lister

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the …

Delegating Supremacy?, David S. Rubenstein

David S Rubenstein

The Court has held that federal agencies may preempt state law in much the same way as Congress. While the Supremacy Clause clearly empowers Congress to displace state law, administrative preemption rests on the undertheorized assumption that Congress may “delegate supremacy” to agencies. This Article challenges the constitutionality of that premise and imagines an unfolding system where agencies are stripped of the power to create supreme federal law. My proposal will no doubt be controversial because of the significant implications it holds for federalism and the operation of modern government. Some of the more serious implications include the substantive displacement …

Meet The New Scarcity: A First Amendment Framework For Regulating Access To Digital Media Platforms, John Blevins

John F. Blevins

Digital media platforms such as broadband networks and search engines are increasingly viewed as “gatekeepers” that enjoy disproportionate influence over modern speech. Policymakers have responded by adopting regulations to ensure nondiscriminatory access to these platforms. This article examines the intersection of these new access regulations with the First Amendment. The literature continues to analyze these questions through the lens of traditional media technologies such as newspapers and broadcast television. Digital networks, however, differ from these prior technologies in critical, qualitative ways. First Amendment analysis of access regulations must therefore be updated to reflect these technological differences. Specifically, it must recognize …

The Benefits Of Capture, Dorit Reiss

Dorit R. Reiss

Observers of the administrative state warn against “capture” of administrative agencies and lament its disastrous effects. This article suggests that capture has another side: important benefits that should not be underestimated. Capture is a situation in which a regulated industry exerts a substantial amount of influence over the agency in question, leading to industry involvement in creation and enforcement of regulation. Scholars documenting the phenomenon have highlighted a number of negative results – lax enforcement of regulation; weak regulations; illicit benefits going to industry. However, not only is this picture incomplete, it is in substantial tension with another current strand …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Overcoming Cfius Jitters: A Practical Guide For Understanding The Committee On Foreign Investment In The United States, Margaret L. Merrill

Margaret L Merrill

The U.S. has long been an attractive place for foreign investment. Its reputable government and professional enforcement agencies, strong tradition of protecting private property and vibrant middle-class consumer base makes it a prudent investment choice for many foreign investment entities – both private and public. While the U.S. has long championed a free market ethos, it is not devoid of protectionist bias. Starting in 1988, the Committee on Foreign Investment in the United States (CFIUS) has been charged with monitoring foreign direct investment (FDI) and when necessary recommending that the President block or prohibit FDI transactions that may threaten U.S. …

Epa's Iris Program: Evaluating The Science And Process Behind Chemical Risk Assessment, Rena I. Steinzor

Rena I. Steinzor

No abstract provided.

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

Rationales For And Against Fcc Involvement In Resolving Internet Service Provider Interconnection Disputes, Rob M. Frieden

Rob Frieden

Internet Service Providers (“ISPs”) provide end users with access to and from the Internet cloud. In addition to providing the first and last mile carriage of traffic, ISPs secure upstream access to sources of content via other ISPs typically on a paid (transit), or barter (peering) basis. Because a single ISP operates in two separate segments of traffic routing, both the terms and conditions of network interconnection and the degree of marketplace competition can vary greatly. In this double-sided market, ISPs typically have many transit and peering opportunities upstream to content providers, but downstream end users may have a limited …

From Bad To Worst: Assessing The Long Term Consequences Of Four Controversial Fcc Decisions, Rob Frieden

Rob Frieden

Far too many major decisions of the Federal Communications Commission (“FCC”) rely on flawed assumptions about the current and future telecommunications marketplace. If the FCC incorrectly overstates the current state of competition, it risks exacerbating its mistake going forward if actual competition proves unsustainable, or lackluster. In many key decisions the FCC cited robust competition in current and future markets as the basis for decisions that relax restrictions on incumbents, abandon strategies for promoting competition, or apply statutory definitions of services that trigger limited government oversight. The Commission ignores the secondary and tertiary consequences of decisions that deprive it of …

Integrating Community Knowledge Into Environmental And Natural Resource Decision-Making: Notes From Alaska And Around The World, Elizabeth Barrett Ristroph

Elizabeth Barrett Ristroph

Community knowledge (including traditional, local, and indigenous knowledge) has a role to play in government agency decisions regarding the environment and natural resources. This article considers the benefits of using community knowledge, as well as obstacles to collecting this knowledge and integrating it with Western science. The article further discusses how federal agencies in Alaska use community knowledge, and laws that potentially affect this use (including the Data Quality Act). Finally, the article provides recommendations for agencies to consider in collecting and using community knowledge.

A Brief History Of Fruit And Vegetable Juice Regulation In The United States, Ryan A. Ward

Ryan A Ward

This Paper chronicles the interesting history behind fruit and vegetable juice regulation in the United States. Part I discusses the use of tariffs and standards of identity to regulate juice from the early 1900s until the 1970s. Part II traces the history of labeling regulations for both 100 percent juices and diluted juice beverages — focusing on the 1974 diluted-juice proposal that was stalled for nearly fifteen years. Part III briefly describes the current label-focused approach adopted by the Federal Food, Drug, and Cosmetic Act. Part IV concludes.

Comparative Effectiveness Research Under The Patient Protection And Affordable Care Act: Can New Bottles Accommodate Old Wine?, Eleaonr D. Kinney

Eleaonr D. Kinney

The Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010, initiated comprehensive health reform for the health care sector of the United States. PPACA has some strategies for the American health care sector to make health care more efficient and effective. PPACA’s comparative effectiveness initiative and the establishment of the Patient-Centered Outcomes Research Institute are major strategies in this regard. This initiative is one of a long line of federal initiatives to address the rising costs of health care as well as obtain better value for health care expenditures. The …

Making Regulatory Innovation Keep Pace With Technological Innovation, Jay P. Kesan, Timothy A. Slating

Jay P. Kesan

Recent world events are forcing us to reconsider the ways in which the energy needs of the U.S. can and should be met. In regards to renewable energy options in general, the public response to the nuclear crisis at Japan’s Fukushima Daiichi power plant will likely stymie President Obama’s call for an increase in our reliance on nuclear energy. Additionally, the increasing political unrest in the Middle East and North Africa is once again reminding us that solutions must be found to mitigate our heavy dependence on foreign-produced oil. Newly emerging liquid biofuels not only hold the promise of enhancing …

False Security: How Securitization Failed To Protect Arrangers And Investors From Borrower Claims, Kathleen C. Engel, Thomans J. Fitzpatrick

kathleen c engel

False Security: How Securitization Failed to Protect Arrangers and Investors from Borrower Claims

by Kathleen C. Engel and Thomas J. Fitzpatrick IV

The future of housing finance is in a state of flux. Fannie Mae and Freddie Mac, the two largest loan arrangers in the United States, are in conservatorship. Private sector securitization of mortgages has almost completely stopped. As a result, Fannie, Freddie and Ginnie Mae now own or guarantee almost all new residential mortgage loans. In February 2011, the Obama Administration released a proposal outlining three plans for the future of housing finance. In all three plans, Freddie …

The Implications Of Citizens United V. Federal Election Commission On Texas Corporate Election Laws, Lynette M. Boggs

Lynette M. Boggs

This Comment provides an historical overview of key federal election laws, culminating in the holding of Citizens United v. Federal Election Commission, to establish the context and framework that may now conflict with current Texas election laws governing the roles of corporations and labor unions in state elections. It provides an analysis of the specific Texas statutes that are likely unconstitutional based on Citizens United and suggests legislative remedies the Texas Legislature, as well as the legislatures of other states, may consider in revising election laws to withstand future First Amendment challenges in light of the Citizens United holding.

“Offsetting” Crisis? – Climate Change Cap And Trade Need Not Contribute To Another Financial Meltdown, Victor B. Flatt

Victor B Flatt

Much of the fear of a cap and trade system to control greenhouse gases concerns the financial instruments that will be created in such a system and the concern that they will lead to another financial crisis. This belief may have been a major contributor to the defeat of cap and trade in the U.S. Senate. However, greenhouse gas cap and trade systems can be structured to avoid the problem of toxic assets that led to the financial crisis while still retaining real greenhouse gas control with an efficient market. Given that cap and trade still exists in many greenhouse …

Toward Adequacy: Sense And Statutory Construction In The Judicial Review Provisions Of The Apa, Sarah L. Olson

Sarah L Olson

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …