Law Commons^™

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Akron Law Faculty Publications

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention …

“We, The Paparazzi”: Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton

Akron Law Faculty Publications

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

Law Of The Intermediated Information Exchange, Jacqueline D. Lipton

Akron Law Faculty Publications

When Wikipedia, Google and other online service providers staged a ‘blackout protest’ against the Stop Online Piracy Act in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could – and should – be reconceputalized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries – the …

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Akron Law Faculty Publications

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline D. Lipton

Akron Law Faculty Publications

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Faculty Publications

Our lives are being transformed by large mobile “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to …

Testimony Before The Committee On Energy And Commerce, Subcommittee On Environment And Economics, U.S. House Of Representatives, Hearing On Constitutional Considerations: States Vs. Federal Environmental Policy Implementation July 11, 2014, Rena I. Steinzor

Congressional Testimony

No abstract provided.

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

United States Negotiates Prisoner Exchange to Secure Release of U.S. Soldier Held in Afghanistan • United States Refuses to Grant Visa to Iranian UN Envoy • Multilateral Naval Code of Conduct Aims to Prevent Unintended Conflict in Contested Areas of East and South China Seas • Senate Approves Treaties to Regulate Fishing • United States Indicts Chinese Military Officials for Economic Espionage • U.S. Supreme Court Declines to Terminate Long-Running Efforts to Force Argentina to Pay Defaulted Sovereign Debt • United States Condemns Uganda’s Antigay Law as Violating Human Rights • President Barack Obama Certifies That U.S. Peacekeepers in Mali …

Investor And Market Protection In The Crowdfunding Era: Disclosing To And For The 'Crowd', Joan Macleod Heminway

Scholarly Works

This article focuses on disclosure regulation in a specific context: securities crowdfunding (also known as crowdfund investing or investment crowdfunding). The intended primary audience for disclosures made in the crowdfund investing setting is the “crowd,” an ill-defined group of potential and actual investors in securities offered and sold through crowdfunding. Securities crowdfunding, for purposes of this article, refers to an offering of securities made over the Internet to a broad-based, unstructured group of investors who are not qualified by geography, financial wherewithal, access to information, investment experience or acumen, or any other criterion.

To assess disclosure to and for the …

Slides: Details Of The Regulatory Framework: Air Quality Regulation Of Oil And Gas Development, Olivia D. Lucas

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Olivia D. Lucas, Esq., Counsel, Faegre Baker Daniels

22 slides

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Slides: Thoughts On Regulatory Mechanisms For Natural Resource Development: Alternatives To Command And Control, Including A Look At Open Source Approaches, Stanley Dempsey

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: Stanley Dempsey, Chairman, Royal Gold

17 slides

Proposed Crowdfunding Regulations Under The Jobs Act: Please, Sec, Revise Your Proposed Regulations In Order To Promote Small Business Capital Formation, Rutheford B. Campbell Jr.

Law Faculty Advocacy

The Jobs Act was enacted to promote efficient access to external capital by small businesses. Title III of the Jobs Act offers small businesses the chance of efficient financial intermediation through crowdfunding. The crowdfunding exemption is not self-executing but, instead, requires regulatory implementation by the SEC.

The Commission’s first iteration of its crowdfunding rules fails to offer small businesses efficient access to external capital. Principally, this is because the proposed crowdfunding rules: (1) require excessive disclosures, especially regarding smaller crowdfunding offerings; (2) fail to offer small businesses relying on the crowdfunding exemption two-way safe harbor integration protection; and (3) fail …

The Drug Quality And Security Act - Mind The Gaps, Kevin Outterson

Faculty Scholarship

After the compounding pharmacy disaster at New England Compounding Center, Congress had an opportunity to assure that all compounded medicines were safe and effective. The Drug Quality and Safety Act, despite its name, fell short of that mark.

Traditionally-Structured Electric Utilities In A Distributed Generation World, Joseph P. Tomain

Faculty Articles and Other Publications

This article argues that the twenty-first century challenge to the electric industry is different in kind from previous challenges. Further, past responses to past challenges are inadequate to meet the convergence of demands posed on investor owned electric utilities by new technologies, new markets, and new regulations. Instead, the twenty-first century challenge requires a dramatic new response as electric utilities face a new economic order and as they seek revenue protection and assurances of financial stability from their regulators.

This article will first explore current industry characteristics and challenges in Part II. Part III will then discuss the current situation …

Standing In The Shadow Of Tax Exceptionalism: Expanding Access To Judicial Review Of Federal Agency Rules, Lynn D. Lu

Publications and Research

No abstract provided.

Risk, Uncertainty And Precaution: Lessons From The History Of Us Environmental Law, Robert V. Percival

Faculty Scholarship

Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the …

Grade Incomplete: Examining The Securities And Exchange Commission's Attempt To Implement Credit Rating And Certain Corporate Governance Reforms Of Dodd-Frank, Tod Perry, Randle B. Pollard

Scholarly Articles

Following the financial crisis of 2007-2009, Congress passed the Dodd-Frank Act with stated goals, among others, of creating a sound economic foundation and protecting consumers. The Dodd-Frank Act creates several new agencies and restructures the financial regulatory system, yet controversies remain on the promulgation of new rules and the overall effectiveness in accomplishing the stated goals of the Act.

This Article briefly discusses the status of rulemaking by newly created agencies and the restructured financial regulatory system mandated by the Dodd- Frank Act three years after its passage. Next, we focus on certain aspects of the SEC and its charge …

Regulation Theory And Australian Labour Law: From Antipodean Fordism To Liberal-Productivism, Brett Heino

Faculty of Law, Humanities and the Arts - Papers (Archive)

This paper employs the methodology of the Parisian Regulation Approach to periodise Australian political economy into distinct models of development. Within such models, labour law plays a key role in articulating the abstract capitalist need to commodify labour-power with the concrete realities of class struggle. Given the differential ordering of social contradictions and the distinct relationship of social forces within the fabric of each model of development, such formations will crystallise distinct regimes of labour law. This is demonstrated by a study of the two successive models of development which characterised Australian political economy since the post-World War II era; …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

Prosecutorial discretion exists throughout the criminal justice system but plays a particularly significant role for environmental crime. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. As a result, there has been uncertainty about which environmental violations will result in criminal enforcement and persistent claims about the overcriminalization of environmental violations. To address these concerns — and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme — I have proposed that prosecutors should reserve criminal enforcement for violations that involve one or more of the following …

Private Control Over Access To Public Law: The Perplexing Federal Regulatory Use Of Private Standards, Nina A. Mendelson

Articles

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations — but only by “reference.” These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization, or else she must travel to Washington, D.C., to the Office of the Federal Register’s reading room. This law, under …

Nudging The Fda, W. Nicholson Price Ii, I. Glenn Cohen

Law Faculty Scholarship

[Excerpt] "The FDA’s regulation of drugs is frequently the subject of policy debate, with arguments falling into two camps. On the one hand, a libertarian view of patients and the health care system holds high the value of consumer choice. Patients should get all the information and the drugs they want; the FDA should do what it can to enforce some basic standards but should otherwise get out of the way. On the other hand, a paternalist view values the FDA’s role as an expert agency standing between patients and a set of potentially dangerous drugs and potentially unscrupulous or …

Code, Nudge, Or Notice?, Ryan Calo

Articles

Regulators are increasingly turning to means other than law to influence citizen behavior. This Essay compares three methods that have particularly captured the imagination of scholars and officials in recent years. Much has been written about each method in isolation. This Essay considers them together for the first time in order to generate a novel normative insight about the nature of regulatory choice.

The first alternative method, known colloquially as architecture or “code,” occurs when regulators change a physical or digital environment to make undesirable conduct difficult. Speed bumps provide a classic example. The second method, libertarian paternalism or “nudging,” …

The Presumption Against Expensive Health Care Consumption, Christopher Robertson

Faculty Scholarship

This essay, as part of a symposium in honor of Professor Einer Elhauge, starts with his recognition that, for both epistemic and normative reasons, it remains profoundly difficult to regulate particular uses of medical technologies on the basis of their cost-benefit ratios. Nonetheless, this essay argues in favor of a general regulatory presumption against consumption for the most expensive medical technology usages, which drive most of aggregate healthcare spending. This essay synthesizes twelve facts about the ways in which medical technologies are produced, regulated, studied, and consumed to suggest that it is quite unlikely that the most expensive usages of …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

Articles

Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …

A New Regulatory Framework For Low-Impact/High-Value Aquaculture In Nova Scotia, Meinhard Doelle, William Lahey

Reports & Public Policy Documents

The report is the result of a detailed assessment of aquaculture regulations in Nova Scotia. It proposes a new regulatory framework for the Nova Scotia aquaculture industry based on the principles of effectiveness, openness, transparency, accountability, proportionality, integration, and precaution. The report is based on a 18 months independent review of the industry and how it is regulated, as well as various forms of engagement with the public and key stakeholders. The report draws on regulatory practice in key jurisdictions around the world, including Scotland, Chile, the US, and other provinces in Canada.

Procedural Architecture Matters: Innovation Policy At The Federal Communications Commission, J. Brad Bernthal

Publications

This Article examines the puzzle of whether today's Federal Communications Commission ("FCC" or the "Agency") is institutionally suited to craft telecommunications innovation policy and, if not, what changes are needed to better equip the Agency to respond to twenty-first century realities. Evaluation of FCC innovation policy performance is stubbornly difficult. Some criticize the FCC as a brake on innovation yet, under the FCC's oversight, the United States' communications industry has become an innovative engine propelling the overall economy more than ever before. It is difficult to untangle whether the FCC deserves credit for helping usher in today's communications age, whether …

The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin

Scholarly Works

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in …

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

All Faculty Scholarship

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, 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 …