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Articles 1 - 30 of 66
Full-Text Articles in Law
Creating Effective Broadband Network Regulation, Daniel L. Brenner
Creating Effective Broadband Network Regulation, Daniel L. Brenner
Daniel L. Brenner
ABSTRACT: The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for “network neutrality” or “nondiscrimination” assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation -- a key assumption of some advocates. The article analyzes three characteristics that hobble the FCC, the likeliest federal agency to provide prescriptive rules. First, the record for the …
Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi
Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi
Kamaal Zaidi
The rule of law is often difficult to establish in developing nations characterized by frequent political changes and unstable events that affect the separation of powers between the three branches of government – the executive, legislature, and judiciary. In particular, the integrity of the judiciary is often damaged by influences from the executive and legislative branches in that core democratic principles are promoted, including civil liberties, the supremacy of law, law and order, and transparency and accountability among government actors. In Pakistan, turbulent political events over the years have irreparably damaged the ability of the Supreme Court of Pakistan to …
Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski
Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski
Adam J. Sulkowski
This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes. The article significantly contributes to the scholarly literature on ultra vires statutes by: (1) examining thoroughly the history of the ultra vires doctrine, especially in early American history, (2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine, (3) reviewing recent …
Lock Down On The Third Screen: How Wireless Carriers Evade Regulation Of Their Video Services, Rob M. Frieden
Lock Down On The Third Screen: How Wireless Carriers Evade Regulation Of Their Video Services, Rob M. Frieden
Rob Frieden
Wireless handsets increasingly offer subscribers a third screen for accessing the Internet and video programming. The converging technologies and markets that make this possible present a major regulatory quandary, because national regulatory authorities seek to maintain mutual exclusivity between regulated telecommunications services and largely unregulated information services. Many existing and emerging services do not easily fit into one or the other regulatory classification, nor can the Federal Communications Commission determine the appropriate classification by extrapolating from the regulatory model applied to existing or discontinued services. By failing to specify what model applies to services appearing on cellphone screens, the FCC …
Altered Meanings: The Department Of The Interior’S Rewriting Of The Native American Graves Protection And Repatriation Act To Regulate Culturally Unidentifiable Human Remains, Ryan M. Seidemann
Ryan M Seidemann
Since 1990, there has been much debate - within the governmental, scientific, Native American, and legal arenas - as to the applicability of the Native American Graves Protection and Repatriation Act (NAGPRA) to culturally unidentifiable human remains. This article concludes that there is no statutory authorization to apply NAGPRA to such remains by analyzing the history of NAGPRA, the Department of the Interior's (DOI) recent attempt to promulgate draft regulations on this topic and the years' worth of consideration of this topic by the NAGPRA Review Committee. These draft regulations, which would, if given effect, mandate the repatriation of virtually …
“The Nation’S Broadband Success Story”: The Secrecy Of Fcc Broadband Infrastructure Statistics, Benjamin W. Cramer
“The Nation’S Broadband Success Story”: The Secrecy Of Fcc Broadband Infrastructure Statistics, Benjamin W. Cramer
Benjamin W. Cramer
The Federal Communications Commission regularly promotes the competitiveness of the American broadband market and the availability of robust services to consumers. Since 2000, the Commission has reported on broadband deployment by zip code, and by late 2006 broadband was supposedly available in 99% of American zip codes, with those zip codes representing 99% of the population. However, the viability of the FCC’s zip code-based measurement methodology has long been a matter of controversy, because broadband is counted as “available” in a zip code even if as few as one household in the area has obtained service. Meanwhile, the FCC continued …
A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson
Chad Emerson
No abstract provided.
The New York City Campaign Finance System: A Model System That Violates State And Federal Law, Daniel A. Katz
The New York City Campaign Finance System: A Model System That Violates State And Federal Law, Daniel A. Katz
Daniel A. Katz
The New York City campaign finance system was amended in 2007 from a voluntary program into a mandatory regulatory scheme that is applicable to all candidates. Because the requirements of the law can no longer be avoided, the law is in conflict with provisions of state law that govern local elections. A United States Supreme Court decision, Davis v. FEC, handed down in June of 2008 has further undermined the validity of the New York City campaign finance system. The decision held that asymmetrical contribution limits applicable to candidates based on the candidate’s use of their own wealth violate the …
Dumping Emtala: Restoring The Fiduciary Ethic, Improving Community Care, And Increasing Efficiency Through The Membership Model, Joseph A. Gonzalez
Dumping Emtala: Restoring The Fiduciary Ethic, Improving Community Care, And Increasing Efficiency Through The Membership Model, Joseph A. Gonzalez
Joseph A Gonzalez
The U.S. healthcare system is breaking. Hospital emergency departments ("EDs") disproportionately bear this burden. EMTALA, the federal law that mandates treatment in an emergency, is responsible. By forcing a hospital to provide medical treatment, despite a patient's inability to pay, EMTALA has altered treatment standards for the worse. In this note, I suggest that repealing EMTALA will allow the market to capture the treatment values that motivated EMTALA's passage. Permitting EDs to base treatment on a patient's pre-existing hospital membership encourages better treatment than EMTALA. A market driven ED will succeed where EMTALA has failed.
Fine Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer
Fine Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer
Benjamin W. Cramer
Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …
Fine-Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer
Fine-Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer
Benjamin W. Cramer
Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …
The Institutional Logic Of Preventive Crime, Mariano-Florentino Cuellar
The Institutional Logic Of Preventive Crime, Mariano-Florentino Cuellar
Mariano-Florentino Cuellar
Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly …
"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939-1953, Mariano-Florentino Cuellar
"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939-1953, Mariano-Florentino Cuellar
Mariano-Florentino Cuellar
American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, …
Whittling Away, J.B. Ruhl, James Salzman
Whittling Away, J.B. Ruhl, James Salzman
J.B. Ruhl
Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, “agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best …
Optimal Federalism Across Institutions: Theory And Applications From Environmental Policies And Health Care, Dale B. Thompson
Optimal Federalism Across Institutions: Theory And Applications From Environmental Policies And Health Care, Dale B. Thompson
Dale Thompson
This article presents a framework to analyze federalism based on enactment, implementation, and enforcement institutions. The framework provides a mechanism to determine whether a particular public policy should be conducted at a state or federal level, by examining economies and diseconomies of scale inherent in each of these institutions. This article then applies the framework in a comparison of environmental policies for wetlands and endangered species, and in an analysis of a health care policy. These applications can then serve as guides to legislators and judges in analyzing federalism concerns.
Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela
Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela
Jed S Ela
Legal scholars have long argued that informal social norms can solve collective action problems, as long as these problems occur in close-knit groups. This “group knittedness hypothesis” may suggest that social norms, by themselves, will not be able to solve the world’s largest collective action problem: anthropogenic climate change. Yet recent scholarship has taken the group knittedness hypothesis too far, suggesting that any attempt to manage social influences in large, loose-knit groups is likely to be relatively ineffective.
In fact, social norms can shape individual behavior even in loose-knit groups, and climate policies that ignore norms may miss important opportunities …
Midnight Regulations And Regulatory Review, Jerry Brito
Midnight Regulations And Regulatory Review, Jerry Brito
Jerry Brito
The term “midnight regulations” describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period—the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new …
Procedural Safeguards For Agency Guidance: A Source Of Legitimacy For The Administrative State, Jessica Mantel
Procedural Safeguards For Agency Guidance: A Source Of Legitimacy For The Administrative State, Jessica Mantel
Jessica Mantel
Administrative agencies increasingly announce important policies through guidance documents. While agency guidance can have a profound impact on individuals’ behavior, generally agencies promulgate guidance with little public input and few procedural safeguards. Through the use of guidance agencies thus can circumvent the procedural protections applicable to other forms of administrative rulemaking that ensure the legal, economic, and political soundness of agencies’ policies. Although a number of commentators have debated the merits of procedural reform for agency guidance, largely overlooked is the potential for procedural safeguards to enhance the legitimacy of the administrative state.
Procedural requirements oblige agencies to adhere to …
Loco Labels And Marketing Madness: Improving How Consumers Interpret Information In The American Food Economy, Margaret Sova Mccabe
Loco Labels And Marketing Madness: Improving How Consumers Interpret Information In The American Food Economy, Margaret Sova Mccabe
Margaret Sova McCabe
America's current food labeling scheme, as illustrated by the example of salt, is flawed when examined from the consumer and public health perspective. While the Food, Drug, and Cosmetic Act has sound scientific standards, those standards as currently applied to labels do not efficiently signal health information to consumers. Without better information on labels, consumers will continue to make poor choices at the grocery store. However, there are promising new ways to label. Both the United Kingdom and the domestic supermarket chain Hannaford’s have implemented simple health labeling on food packaging or grocery shelves to improve the amount and location …
The Emergent Logic Of Health Law, Maxwell Gregg Bloche
The Emergent Logic Of Health Law, Maxwell Gregg Bloche
Maxwell Gregg Bloche
The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …
The Rest Is Silence: Chevron Deference, Agency Jurisdiction, And Statutory Silences, Jonathan H. Adler, Nathan A. Sales
The Rest Is Silence: Chevron Deference, Agency Jurisdiction, And Statutory Silences, Jonathan H. Adler, Nathan A. Sales
Jonathan H Adler
Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of “jurisdictional questions” that may arise in statutory interpretation. The article then surveys how courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court’s Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we …
Rulemaking Without Rules: An Empirical Study Of Direct Final Rulemaking, Michael Kolber
Rulemaking Without Rules: An Empirical Study Of Direct Final Rulemaking, Michael Kolber
Michael Kolber
In an effort to improve efficiency, several administrative agencies have adopted a procedure known as “direct final rulemaking” (DFR). Some academics have debated whether DFR violates the Administrative Procedure Act, but none have studied how DFR has functioned in practice. This paper, which examines the first decade of DFR at the Food and Drug Administration (FDA), is the first of this kind. The results are surprising, and suggest DFR deserves more study than it has received. Intended for noncontroversial rules that are expected to receive no significant comments in a notice-and-comment rulemaking, FDA has often used direct final rulemaking for …
Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass
Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass
Alexandra B. Klass
This Article considers the broad range of “tort experiments” states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called “federalism revolution” of the 1990s to limit Congressional authority in the name of states’ rights, …
Political Party-Association Restrictions On Officers Of The United States Are Unconstitutional, Rebecca L. Kurowski
Political Party-Association Restrictions On Officers Of The United States Are Unconstitutional, Rebecca L. Kurowski
Rebecca L Kurowski
Many scholars who have analyzed the text of the Appointments Clause have hastily concluded that Congress has no power whatsoever to impose any statutory restrictions on the President’s choice of nominees for any officer of the United States. This result would render unconstitutional numerous existing statutes. This article takes a different, more nuanced and comprehensive, approach. This article looks not only at the Appointments Clause, but also at the source of congressional power to create offices – the Necessary and Proper Clause – to see if restricting the pool of eligible office-holders falls within the scope of office-creation. The result …
Procedural Safeguards For Agency Guidance: A Source Of Legitimacy For The Administrative State, Jessica Mantel
Procedural Safeguards For Agency Guidance: A Source Of Legitimacy For The Administrative State, Jessica Mantel
Jessica Mantel
Administrative agencies increasingly announce important policies through guidance documents. While agency guidance can have a profound impact on individuals’ behavior, generally agencies promulgate guidance with little public input and few procedural safeguards. Through the use of guidance agencies thus can circumvent the procedural protections applicable to other forms of administrative rulemaking that ensure the legal, economic, and political soundness of agencies’ policies. Although a number of commentators have debated the merits of procedural reform for agency guidance, largely overlooked is the potential for procedural safeguards to enhance the legitimacy of the administrative state.
Procedural requirements oblige agencies to adhere to …
The Real Id Act: Is It Really Worth It?, Sheena Eastman
The Real Id Act: Is It Really Worth It?, Sheena Eastman
Sheena Eastman
No abstract provided.
Growing Threat To Land-In-Trust Statute, Matthew L.M. Fletcher
Growing Threat To Land-In-Trust Statute, Matthew L.M. Fletcher
Matthew L.M. Fletcher
No abstract provided.
Dispute Resolution And The Vanishing Trial: Comparing Federal Government Litigation And Adr Outcomes, Lisa Blomgren Bingham, Tina Nabatchi, Jeffrey Senger, Michael Scott Jackman
Dispute Resolution And The Vanishing Trial: Comparing Federal Government Litigation And Adr Outcomes, Lisa Blomgren Bingham, Tina Nabatchi, Jeffrey Senger, Michael Scott Jackman
Lisa Blomgren Bingham
This study compares litigation and alternative dispute resolution (ADR) in civil cases handled by Assistant United States Attorneys (AUSAs) during the period 1995 to 1998. The findings indicate that that use of ADR can be an efficient and effective procedural solution to the problems of time and cost in the justice system without sacrificing the quality of macrojustice. When ADR was used, 65% of cases settled (only 29% of cases settled when it was not used). Significantly more cases settled when ADR was voluntary than when it was mandatory (71% vs. 50%), and tort cases settled with more frequency than …
Oira And Presidential Regulatory Review: A View From Inside The Administrative State, Donald R. Arbuckle
Oira And Presidential Regulatory Review: A View From Inside The Administrative State, Donald R. Arbuckle
Donald R. Arbuckle
Scholarly interest and political controversy have surrounded the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) since its creation on April 1, 1981. OIRA’s role as guardian of presidential regulatory review has stimulated interest from Congress, the Courts, interest groups, the media, and, of course, scholars of the Executive Branch and presidency. In a 2006 study, published in the Michigan Law Review, Professors Bressman and Vandenbergh of Vanderbilt University Law School, took an in-depth look at regulatory review from the agency point of view. They concluded that the practice of OIRA regulatory review does not …
Public Access And Media Rules For Administrative Adjudicators In High Profile Hearings, Chris Mcneil
Public Access And Media Rules For Administrative Adjudicators In High Profile Hearings, Chris Mcneil
Christopher B. McNeil, J.D., Ph.D.
This article offers a brief overview of the legal issues relevant to creating media access policies for administrative agencies. It also provides a model policy for use by executive-branch adjudicators in anticipation of high profile agency evidentiary hearings.