Law Commons^™

Defragmenting The Regulatory Process, Stuart Shapiro

Stuart Shapiro

The regulatory process is often criticized for being cumbersome and slow, much like a computer whose hard drive is fragmented by files no longer used or useful. Like such a computer, the regulatory process contains many requirement of dubious utility. These include the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and numerous executive orders. While other parts of the regulatory process such as notice and comment and cost-benefit analysis have received much more academic attention, these other parts of the process deserve examination as well. This paper argues that such an examination will reveal that …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

Inversión Extranjera En Paquetería, Mensajería Y Transporte De Carga: ¿Resistencia O Estado De Derecho?, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Offshore Windfall: What Approval Of The United States' First Offshore Wind Project Means For The Offshore Wind Energy Industry, Michael P. Giordano

University of Richmond Law Review

This comment explores the Cape Wind project with an emphasis on its role as the first United States offshore wind energy project. Part II of this comment explains the potential energy resource that offshore wind provides and examines some of the economic, technological, and regulatory challenges facing the development of offshore wind projects in United States waters. Part III of this comment introduces the Cape Wind project as a case study by briefly describing the particular political struggles and permitting challenges faced by its developers. Part IV of this comment analyzes how DOI approval and the eventual construction of Cape …

Combating Antimicrobial Resistance: Regulatory Strategies And Institutional Capacity, William M. Sage, David A. Hyman

Faculty Scholarship

Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available--some …

Regulatory Reform In The States: Lessons From New Jersey, Stuart Shapiro

Stuart Shapiro

While numerous examinations of the rulemaking process have occurred at the federal level, there is a dearth of studies about the effects of the proceduralization of the rulemaking process on state regulations. Our examination focuses on regulations promulgated in New Jersey, both prior to and following, major procedural changes enacted in the state in 2001. By choosing distinct leadership periods, one governed by Democrats and one by Republicans, we attempt to control for differences in political preferences for regulation. During the study years, we collected data on 1,707 regulations on a wide array of variables from the type of rulemaking, …

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

Jacqueline D Lipton

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 …

Fairness, Utility, And Market Risk, Jeff Schwartz

Jeff Schwartz

In this Article, I argue that we lack a satisfactory theory about how disclosure, the centerpiece of securities regulation, serves investor interests. To close this gap, I contend that the regulations should be viewed as part of a broader societal framework that protects individuals from stock-market risk. I flesh out this notion in three ways. First, I set out to justify protection from market risk as a valid societal goal. To do so, I appeal to Rawlsian and utilitarian notions of justice. These moral theories contain the principle that a just society helps individuals manage risk. I argue that this …

Regulatory Failures In The Design Of Securities Settlement Infrastructure, David C. Donald

David C. Donald

Nearly all transactions in listed securities on the US capital markets are settled through a securities settlement infrastructure that generates extensive negative externalities for issuers and securityholders. This model is still advocated by regulators and market structure experts; it is an intermediated structure originally designed for depositing paper certificates in the accounts of a depository to allow book entry transfers of claims on the deposited certificates. The structure dates back at least to 1873. It accelerates transfer by short circuiting "endorsement", "delivery" and "cancellation" of certificates, as all securities are and remain registered in the name of a single entity …

The Need For Better Analysis Of High Capacity Services, George S. Ford, Lawrence J. Spiwak

GEORGE S FORD

In 1999, the Federal Communications Commission (“FCC”) began to grant incumbent local exchange carriers (“LECs”) pricing flexibility on special access services in some Metropolitan Statistical Areas (“MSAs”) when specific evidence of competitive alternatives is present. The propriety of that deregulatory move by the FCC has been criticized by the purchasers of such services ever since. Proponents of special access price regulation rely on three central arguments to support a retreat to strict price regulation: (1) the market(s) for special access and similar services is unduly concentrated; (2) rates of return on special access services, computed using FCC ARMIS data, are …

The Economics Of Railroad “Captive Shipper” Legislation, Russell W. Pittman

Russell W. Pittman

Recent rate increases by U.S. freight railroads have refocused attention on regulation, deregulation, and regulatory reforms in the railroad industry. Legislation introduced into Congress would render a variety of railroad behavior newly subject to the jurisdiction of the antitrust statutes, with potential enforcement by the Antitrust Division and the FTC and through lawsuits brought by state attorneys general or private parties. This paper considers the economic issues raised by legislation and the likely impacts on competition and welfare.

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

Articles

This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …

The Tenth Annual A. A. Sommer, Jr. Lecture On Corporate, Securities, & Financial Law, Elisse B. Walter

Fordham Journal of Corporate & Financial Law

No abstract provided.

Can The Law Track Scientific Risk And Technological Innovation?: The Problem Of Regulatory Definitions And Nanotechnology, David A. Dana

Faculty Working Papers

The functioning of a regulatory regime often turns on what is defined to be included in the scope of regulation and what is defined to be outside. In constructing the definitions of what is regulated, two key challenges are to align the defintions with the risks that motivated the establishment of the regulatory regime and to build in dynamism into the defintions so that they adapt to changes in scientific understanding and technology. This Chapter of a forthcoming book from Cambridge University Press (David Dana, ed., The Nanotechnology Challenge), explores these challnegs in the context of nanotechnology.

Promoting Urban Agriculture As An Alternative Land Use For Vacant Properties In The City Of Detroit: Benefits, Problems, And Proposals For A Regulatory Framework For Successful Land Use Integration, John E. Mogk, Sarah Kwiatkowski, Mary J. Weindorf

Law Faculty Research Publications

No abstract provided.

Responding To Nursing Home Abuse-Case Study Of Illinois Department Of Public Health, Department Of Professional Regulation. Us Human Rights Record Worse Than China Record, James T. Struck

James T Struck

Illinois takes away the right to decide and resources of people with disabilities under guardianship. Other nations and states also have guardianship with over 1.6 million people under guardianship, and 1.6 million in nursing homes. Some Illinois nursing homes deny liberties such as phone use, visitation, coming home, fresh air away from second hand smoking, consent, chemicals used, dental services, religious services, knowing where family is, museums, zoos, parks, reunions. This article addresses the regulatory response. When seeking the assistance of the Illinois Department of Public Health, Illinois Human Rights Department, and Illinois Department of Professional Regulation, requests for phone …

Fortalecer A Los Reguladores: Cambiando Las Reglas Del Juego En México (Presentación Libro), Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Fortalecer A Los Reguladores, Cambiando Las Reglas Del Juego En México, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

The Challenge Of Regulating Human Biomedical Research, Tracey E. Chan

Tracey E Chan

No abstract provided.

These Statements Have Not Been Approved By The Fda: Improving The Post-Approval Regulation Of Prescription Drugs, Christopher R. Page

Christopher R. Page

The American public’s confidence in the FDA is waning in the midst of increased reporting of inefficiencies in the agency. The missteps by the FDA in the post-approval regulation of prescription drugs are magnified by the pervasive use of prescription drugs in the market. This article identifies these missteps. It also chronicles the response of the state attorneys general to this void in regulation, from the famous class action suit against the tobacco industry to the Oxycontin litigation to the recent Vioxx settlement.

This response to the public’s lack of confidence is accomplished through lawsuits against pharmaceutical companies under state …

Fannie Mae And Freddie Mac: Creatures Of Regulatory Privilege, David J. Reiss

David J Reiss

This book chapter addresses the appropriate role of Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in the United States housing finance sector. The federal government recently placed Fannie and Freddie in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance …

Regulatory Reform In The States: Lessons From New Jersey, Stuart Shapiro, Deborah Borie-Holtz

Stuart Shapiro

While numerous examinations of the rulemaking process have occurred at the federal level, there is a dearth of studies about the effects of the proceduralization of the rulemaking process on state regulations. Our examination focuses on regulations promulgated in New Jersey, both prior to and following, major procedural changes enacted in the state in 2001. By choosing distinct leadership periods, one governed by Democrats and one by Republicans, we attempt to control for differences in political preferences for regulation. During the study years, we collected data on 1,707 regulations on a wide array of variables from the type of rulemaking, …

Private Regulation And Foreign Conduct, Adam I. Muchmore

Journal Articles

Current U.S. policy on safety regulation for imported food is based largely on ex post measures. Several reform proposals seek to strengthen the ex ante component of this regulatory program. These proposals rely on one or more of three basic strategies: direct extraterritorial regulation; delegation of regulatory authority to private entities; and delegation of regulatory authority to foreign government agencies. This paper explores the ability of each strategy to respond to several principal-agent problems relevant to imported-food safety: the regulatory license problem; interest group capture; and the reality of bribery and threats in many food-exporting countries. Through the lens of …

The Food And Drug Administration And The Pharmacy Profession: Partners To Ensure The Safety And Efficacy Of Pharmacogenomic Therapy, Jennifer E. Spreng

Journal of Health Care Law and Policy

No abstract provided.

Did Trinko Really Kill Antitrust Price Squeeze Claims?, Caroline C. Rudaz

Vanderbilt Journal of Transnational Law

This Article presents a critical analysis of the Linkline case that refuses to recognize price squeeze claims as antitrust claims under § 2 of the Sherman Act. It argues that Linkline gives a distorted reading of Trinko without giving proper attention to the application of § 2 of the Sherman Act. The Linkline decision takes a dogmatic position and thus, while refuting the Alcoa decision, appears to be a missed opportunity to more precisely define price squeezing.

This Article offers a comparison between the U.S. Supreme Court's decision and the recent European decisions delivered in broadband access cases that are …

Coastal State Regulation Of Navigation In Adjacent Waters - The Example Of The Torres Strait And Great Barrier Reef, Sam Bateman

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

Australia has established a compulsory pilotage regime for the Torres Strait and Inner Route of the Great Barrier Reef. The introduction of the regime for the Torres Strait was controversial. It was opposed by other countries on the grounds that compulsory pilotage in the strait was contrary to the UNCLOS regime of transit passage through straits used for international navigation. Australia has now submitted a proposal to the International Maritime Organization (IMO) to extend its mandatory ship reporting system for the Great Barrier Reef to include the southernmost part of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA). These …

Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch

Faculty Publications

This paper reviews regulatory efforts of the U.S. federal govern- ment to promote viewpoint diversity in broadcast media (radio, television, cable, and satellite) in the face of increasing concentration of ownership of such media, and the impact on such efforts of the free- doms of speech and press embodied in the First Amendment to the federal constitution. With respect to this issue, the regulatory work has been done overwhelmingly by the Federal Communications Commis- sion, operating under an act of Congress which has been amended from time to time to push the FCC in particular directions. The anti- trust laws …

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Faculty Scholarly Works

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

Fcc Regulation And Increased Ownership Concentration In The Radio Industry, Peter Dicola

Faculty Working Papers

In 1996, Congress increased the limits on how many radio stations one firm can own within a single "radio market." To enforce these limits, the FCC used an idiosyncratic method of defining radio markets, based on the complex geometry of the signal contour patterns of radio stations' broadcasts. Using a unique geographic data set, this paper provides the first calculations of the pre- and post-1996 limits on local radio ownership as actually implemented by the FCC. The limits are surprisingly permissive and vary considerably from city to city. While the limits were seldom binding on radio firms, I find a …

The Road Not Taken: Rethinking Securities Regulation And The Case For Federal Merit Review, Daniel J. Morrissey

University of Richmond Law Review

No abstract provided.