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Articles 1 - 16 of 16

Full-Text Articles in Law

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller Dec 2007

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

Michigan Law Review

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact ...


Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola Oct 2007

Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola

Michigan Law Review

Section 202(h) of the Telecommunications Act of 1996, as amended, directs the Federal Communications Commission ("FCC") to review its media ownership rules every four years. But the statute contains an ambiguity regarding the standard of review that the FCC must apply during such proceedings. To retain a particular media ownership regulation, must the FCC merely show that the regulation advances one of the FCC's three public-interest goals for media: competition, diversity, and localism-applying a "public interest" standard? Or must the FCC meet the higher burden of demonstrating that the regulation is also indispensable for maintaining competition, diversity, or ...


Sox And Whistleblowing, Terry Morehead Dworkin Jun 2007

Sox And Whistleblowing, Terry Morehead Dworkin

Michigan Law Review

The language of the Sarbanes-Oxley Act ("SOX") leaves no doubt that Congress intended whistleblowing to be an integral part of its enforcement mechanisms. The Act attempts to encourage and protect whistleblowers in a variety of ways, including providing for anonymous whistleblowing, establishing criminal penalties for retaliation against whistleblowers, and clearly defining whistleblowing channels. Unfortunately, these provisions give the illusion of protection for whistleblowers without effectively providing it. There is increasing evidence that virtually no whistleblower who has suffered retaliation and pursued remedies under SOX has been successful. Additionally, social science research and studies of whistleblowing laws indicate that SOX is ...


The Corporate Monitor: The New Corporate Czar?, Vikramaditya Khanna, Timothy L. Dickinson Jun 2007

The Corporate Monitor: The New Corporate Czar?, Vikramaditya Khanna, Timothy L. Dickinson

Michigan Law Review

Following the recent spate of corporate scandals, government enforcement authorities have increasingly relied upon corporate monitors to help ensure law compliance and reduce the number of future violations. These monitors also permit enforcement authorities, such as the Securities & Exchange Commission and others, to leverage their enforcement resources in overseeing corporate behavior. However there are few descriptive or normative analyses of the role and scope of corporate monitors. This paper provides such an analysis. After sketching out the historical development of corporate monitors, the paper examines the most common features of the current set of monitor appointments supplemented by interviews with ...


A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen May 2007

A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen

Michigan Law Review

Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to "render such decision- making accountable and effective." Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control - those at the White House or the Office of Information and Regulatory Affairs ("OIRA"). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh ("the authors") decided to study presidential ...


Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh May 2007

Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh

Michigan Law Review

This reply addresses the thoughtful comments that former OIRA Administrator Sally Katzen has provided on our Article, Inside the Administrative State: A Critical Look at the Practice of Presidential Control. Our Article is the first to investigate the agency perspective on White House involvement in agency rule-making. We interviewed 30 of the 35 top political officials in the Environmental Protection Agency ("EPA") during the George H.W. Bush ("Bush I") and the William J. Clinton Administrations during 1989-2001. Prior to our study, empirical studies of White House involvement in agency rule-making had focused almost exclusively on the White House side ...


"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies Apr 2007

"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies

Michigan Law Review

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of the ...


Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell Feb 2007

Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell

Michigan Law Review

In 1999, the Supreme Court held that the common law principle that the sovereign cannot be sued in its own courts without its consent was embedded in the Constitution's structure when it was ratified. The Court, however, has not always adhered to this view. In 1793, when a citizen of South Carolina sued the State of Georgia to enforce a debt arising from the sale of Revolutionary War supplies, the Court ordered the State to fulfill its obligation even though the State had not consented to the suit. Alarmed by the sudden opening of their treasuries to federal courts ...


Pharmaceutical Lemons: Innovation And Regulation In The Drug Industry, Ariel Katz Jan 2007

Pharmaceutical Lemons: Innovation And Regulation In The Drug Industry, Ariel Katz

Michigan Telecommunications & Technology Law Review

Before a new drug can be marketed, the Food and Drug Administration must be satisfied that it is safe and effective. According to conventional wisdom, the cost and delay involved in this process diminish the incentives to invest in the development of new drugs. Accordingly, several reforms aimed at restoring such incentives have been implemented or advocated. This Article challenges the central argument that drug regulation and drug innovation are necessarily at odds with one another. Although intuitively appealing, the argument that drug regulation negatively affects the incentives to innovate does not fully capture the role that regulation plays in ...


The Role Of The Fda In Innovation Policy, Rebecca S. Eisenberg Jan 2007

The Role Of The Fda In Innovation Policy, Rebecca S. Eisenberg

Michigan Telecommunications & Technology Law Review

This Article reexamines the role of FDA regulation in motivating investment in biopharmaceutical innovation. I begin by challenging the standard story that it is the patent system that makes drug development profitable, and drug regulation that makes it costly, by showing how patents add to costs and how drug regulation works in tandem with patents to protect profits. I then compare FDA-administered exclusive rights to patents as a means of fortifying drug development incentives, suggesting ways that FDA-administered rights might be preferable both from the perspective of policy makers and from the perspective of firms. In the remainder of the ...


Compulsory Patent Licensing: Is It A Viable Solution In The United States, Carol M. Nielsen, Michael R. Samardzija Jan 2007

Compulsory Patent Licensing: Is It A Viable Solution In The United States, Carol M. Nielsen, Michael R. Samardzija

Michigan Telecommunications & Technology Law Review

As technology continues to advance at a rapid pace, so do the number of patents that cover every aspect of making, using, and selling these innovations. In 1996, to compound the rapid change of technology, the U.S. Supreme Court affirmed that business methods are also patentable. Hence in the current environment, scores of patents, assigned to many different parties, may cover a single electronic device or software--making it increasingly impossible to manufacture an electronic device without receiving a cease and desist letter or other notice from a patentee demanding a large royalty or threatening an injunction. Companies, particularly those ...


The R.F.I.D. Act Of 2006 And E-Pedigrees: Tackling The Problem Of Counterfeit Drugs In The United States Wholesale Industry, Suchira Ghosh Jan 2007

The R.F.I.D. Act Of 2006 And E-Pedigrees: Tackling The Problem Of Counterfeit Drugs In The United States Wholesale Industry, Suchira Ghosh

Michigan Telecommunications & Technology Law Review

Gaps within the drug distribution system make it increasingly vulnerable to bad actors, such as counterfeiters and terrorists. Congress intended the Prescription Drug Marketing Act (PDMA) of 1987 to close these gaps, but the PDMA has not fully succeeded. Important PDMA provisions that require tracking of drugs throughout the distribution chain in the form of "pedigrees" were set to be implemented as of Dec. 1, 2006, although a recent court order has stayed complete implementation. However, these PDMA requirements do not apply uniformly to all drug distributors in the United States. Moreover, since paper pedigrees can be forged, the pedigree ...


The Fcc Complaint Process And Increasing Public Unease: Toward An Apolitical Broadcast Indecency Regime, Kurt Hunt Jan 2007

The Fcc Complaint Process And Increasing Public Unease: Toward An Apolitical Broadcast Indecency Regime, Kurt Hunt

Michigan Telecommunications & Technology Law Review

[...]I propose depoliticizing the broadcast indecency regime by utilizing polling to determine the average broadcast viewer's opinion, divorced from all the pressures inherent in relying on the complaint process as a proxy. In section II, I will discuss the background and development of the broadcast indecency doctrine from the days of the Federal Radio Commission in the 1920s through the present day. I will also explain why the apparent increasing public unease is misleading, and why valid First Amendment concerns are steamrolled by the fiery nature of the debate. In section III, I will explain why the FCC's ...


Fda Approval Of Generic Biologics: Finding A Regulatory Pathway, Kathleen R. Kelleher Jan 2007

Fda Approval Of Generic Biologics: Finding A Regulatory Pathway, Kathleen R. Kelleher

Michigan Telecommunications & Technology Law Review

Biologics are becoming increasingly important for the potential treatment of widespread diseases such as cancer, anemia, and diabetes. As hundreds of biologics are going off-patent, the market has become ripe for the introduction of generic biologics. A regulatory pathway for biogenerics, however, is virtually nonexistent. The purpose of this paper is thus to analyze how a successful legislative pathway for generic biologics might be designed. The current regulatory scheme, economic concerns, health and safety concerns, and the need to provide proper incentives for innovation are analyzed. Finally, recent Congressional bills are outlined and critiqued, through which the structure of a ...


Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson Jan 2007

Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson

Articles

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise ...


Nsf Fees, James J. White Jan 2007

Nsf Fees, James J. White

Articles

Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.