Law Commons^™

Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge

Terri L. Helge

Recently, public confidence in the charitable sector has eroded due to a barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and state attorneys general, are saddled with bureaucratic constraints that make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector.

Some advocate expanding private regulation of the charitable sector to improve enforcement of the fiduciary responsibilities of charitable managers. …

Revitalizing Regulation, Daniel A. Farber

Daniel A Farber

A Review of Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector by David Osborne and Rethinking the Progressive Agenda: The Reform of the American Regulatory State by Susan Rose-Ackerman

Constraining Monitors, Veronica Root

Veronica Root

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.

The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …

Leidos And The Roberts Court's Improvident Securities Law Docket, Matthew C. Turk, Karen E. Woody

Karen Woody

For its October 2017 term, the U.S. Supreme Court took up a noteworthy securities law case, Leidos, Inc. v. Indiana Public Retirement System. The legal question presented in Leidos was whether a failure to comply with a regulation issued by the Securities and Exchange Commission (SEC), Item 303 of Regulation S-K (Item 303), can be grounds for a securities fraud claim pursuant to Rule 10b-5 and the related Section 10(b) of the 1934 Securities Exchange Act. Leidos teed up a significant set of issues because Item 303 concerns one of the more controversial corporate disclosures mandated by the SEC—an …

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Karen Woody

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look at …

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Karen Woody

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

A Framework On Mandating Versus Incentivizing Corporate Social Responsibility, Margaret Ryznar, Karen E. Woody

Karen Woody

There are two primary but different methods of controlling behavior, whether it is the behavior of individuals or corporations: to incentivize it or to regulate it. Governments are in a unique position to employ either or both options because of their ability to pass regulatory schemes and to extend tax incentives. This Article analyzes the two methods of shaping corporate behavior, examining the regulation issue through the case of the conflict minerals provision of the Dodd–Frank Act and examining the taxation issue through several examples of corporate tax incentives.

Regulating Social Media Use In The Workplace, Yemisi Dina

Yemisi Dina

The advent of social networking sites (SNS) has become a reality of the digital age. These sites are highly interactive, creative and addictive for individuals to exchange personal, professional and social ideas but its use has also been the subject of litigation in the courts lately just like any man made invention. People using these sites have sparked a number of legal challenges that have dramatically changed the world. This raises a number of questions as to whether there are clear guidelines on the use of these tools by employers and employees.

This paper is a case commentary of one …

How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller

Spencer Weber Waller

No abstract provided.

Deference To Agency Interpretations Of Regulations: A Post-Chevron Assessment, Thomas A. Schweitzer, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Ganesh Sitaraman

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Regulating Short-Term Accommodation Within Condominium, Douglas C. Harris

Douglas C Harris

Owning land within condominium, or strata property as it is known in British Columbia, includes holding an individual strata lot, a share of the common property, and the right to participate in governing the uses of the private and common property. Owners participate in governing through membership and voting rights in a strata corporation which has the responsibility to maintain the common property and the authority to establish bylaws that restrict the use of the common and private property. The corollary of membership and a voice in the affairs of the strata corporation is a duty to accept its governing …

Dual Regulation Of Insurance, Christopher French

Christopher C. French

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Michael Vandenbergh

No abstract provided.

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Michael Vandenbergh

A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that …

Rethinking The Secular: Religion, Ethics And Science In Food Regulation, Richard Mohr

Richard Mohr

This paper explores some issues at the intersection of regulation and religion, as they apply to food. It reports on a work in progress examining the regulations and values that affect choices at food and drink outlets in an inner suburban street in Sydney.

It is part of a larger projected study of food as a central social, material and religious concern. In it we are exploring questions around community relations in a culturally and religiously diverse society. Here I focus on the ways religious, ethical and scientific considerations interact with regulatory regimes, whether those of government, industry, or religious …

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Robert B. Ahdieh

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

Law's Signal: A Cueing Theory Of Law In Market Transition, Robert B. Ahdieh

Robert B. Ahdieh

Securities markets are commonly assumed to spring forth at the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, however, seemingly failed market transitions - the failure of new markets to emerge and of existing markets to evolve - have called this assumption into question. From the developed economies of Germany and Japan to the developing countries of central and eastern Europe, securities markets have exhibited some inability to take root. The failure of U.S. securities markets, and particularly the New York Stock Exchange, to make greater use of computerized trading, communications, and …

Dialectical Regulation, Robert B. Ahdieh

Robert B. Ahdieh

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

Requirements For A Renewables Revolution, Felix Mormann

Felix Mormann

This Article identifies and analyzes the obstacles presently barring the rise of renewables, evaluates the role of the current policy favorite emission pricing, and offers design recommendations for a comprehensive U.S. renewables policy.

Successful climate change mitigation requires a timely shift to renewable sources of energy, such as sunlight, wind or tides, to decarbonize today’s high-carbon electricity sector. But market pull alone is not strong enough. This Article discusses the most widely cited economic barriers and identifies and evaluates additional obstacles related to the electricity sector’s regulatory framework.

Emission pricing is largely considered the most efficient policy to drive the …

Mobilizing Public Markets To Finance Renewable Energy Projects: Insights From Expert Stakeholders, Paul Schwabe, Michael Mendelsohn, Felix Mormann, Douglas J. Arent

Felix Mormann

Financing renewable energy projects in the United States can be a complex, time consuming, and expensive process. Currently, most equity investment in new renewable power production facilities is supported by tax credits and accelerated depreciation benefits, and is constrained by the pool of potential investors that can fully use these tax benefits and are willing to engage in complex financial structures. For debt financing, non-government lending to renewables has largely been provided by foreign banks that may be under future lending constraints due to economic and regulatory conditions.

To discuss these and other renewable energy financing challenges and to identify …

Enhancing The Investor Appeal Of Renewable Energy, Felix Mormann

Felix Mormann

This article introduces an investor-oriented framework for the evaluation of renewable energy policy, applies these newly developed criteria to a qualitative comparison of the primary policy instruments, and offers recommendations to enhance the investor appeal of renewable energy in the United States.

The multi-trillion dollar task of scaling renewable energy technologies to mitigate climate change, ensure energy security, and create green jobs is one of the most daunting challenges of the twenty-first century. It is, in fact, too great a challenge for either the public or private sector to shoulder alone. Rather, public policy must catalyze private investment in renewable …

Best Practices For Mediation Training And Regulation: Preliminary Findings, Susan S. Raines, Tim Hedeen, Ansley B. Barton

Susan Raines

This article makes recommendations as to “Best Practices” for the training of mediators in court-connected settings. The authors’ findings cover issues including the design of training programs, the importance of experiential learning through role-plays, teaching methods for adult learners, class size and length, training ethical mediators, suggested trainer qualifications, and recommended regulatory practices for administrators. Data comes primarily from an assessment of mediation training and regulation in Florida, but the findings hold insights for court-connected mediation programs throughout the United States. Additionally, the authors highlight the benefits of a collaborative assessment approach involving all stakeholder groups and facilitating smooth implementation …

Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa

Ryan B. Stoa

Marijuana legalization is sweeping the nation. Recreational marijuana use is legal in eight states. Medical marijuana use is legal in thirteen states. Only three states maintain an absolute criminal prohibition on marijuana use. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of the "Regulate Marijuana Like Alcohol Act." For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more …

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Ryan B. Stoa

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating …

Comparative Cannabis: Approaches To Marijuana Agriculture Regulation In The United States And Canada, Ryan Stoa

Ryan B. Stoa

The United States and Canada may be friends and allies, but the two countries' approaches to the regulation of marijuana agriculture have not evolved in tandem. On the contrary, their respective paths toward legalization and regulation of marijuana agriculture are remarkably divergent. In the United States, where marijuana remains a federally prohibited and tightly-controlled substance, legalization and regulation have remained the province of state legislatures and their administrative agencies for decades. In Canada, a succession of court cases paving the way toward medicinal marijuana use has prompted the federal government to develop a national framework committed to "legalize, regulate, and …

Marijuana Appellations: The Case For Cannabicultural Designations Of Origin, Ryan Stoa

Ryan B. Stoa

An appellation is a certified designation of origin that may also require that certain quality or stylistic standards be met. Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product for which the geographic origin carries importance. The MMRSA [California Medical Marijuana Regulation and Safety Act] … may have far-ranging effects on the marijuana industry in the United States. [A provision of the act permits the state Bureau of Medical Marijuana Regulation to ‘establish appellations of origin for marijuana grown in California.’] As the most populous state in the Union and the …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel

Katharine Van Tassel

This Article discusses the public health, regulatory, legal, and ethical issues raised by the developing appreciation of the negative physical effects and potential health risks associated with nanotech products, and is arranged as follows. After this Introduction, this Article describes the present scientific understanding of the health risks associated with the consumption of nanoparticles. Next, a summary of the existing FDA regulatory structure that governs food, dietary supplements, cosmetics, and sunscreens is provided along with an explanation of why these regulations fail to protect public health when applied to regulate the nanotech versions of these products. The Article goes on …

Genetically Modified Plants Used For Food, Risk Assessment And Uncertainty Principles: Does The Transition From Ignorance To Indeterminacy Trigger The Need For Post-Market Surveillance?, Katharine Van Tassel

Katharine Van Tassel

In the context of GM foods, a genetic modification changes the biochemical cross-talk between genes, creating genetic material that has never existed before in nature. This novel genetic material can create unintended health risks, as seen with the case of the GM peas that contained a novel and unexpected allergenic protein and primed test mice to react to other allergens.6 The bottom line is that the scientific acceptance of the existence of the networked gene establishes that the FDA’s presumption that GM plant food is bioequivalent to traditional plant food is no longer scientifically supportable and that a new system …