Law Commons^™

Economic Approaches To Global Regulation: Expanding The International Law And Economics Paradigm, Dan Danielsen

Dan Danielsen

The recent economic crisis has demonstrated with startling clarity the importance of developing a more robust framework for assessing the effects of national rules on global welfare. For more than fifty years, law and economics scholars have examined the effects of domestic legal rules on economic activity and general welfare in the United States. More recently, international law scholars have begun to use economic methods to analyze the international legal order. In this article I survey this evolving body of “international law and economics scholarship” with a view to articulating its principle methodological innovations as well as assessing its contributions …

Cloud Computing Providers And Data Security Law: Building Trust With United States Companies, Jared A. Harshbarger Esq.

Jared A. Harshbarger

Cloud computing and software-as-a-service (SaaS) models are revolutionizing the information technology industry. As these services become more prevalent, data security and privacy concerns will also rise among consumers and the companies who consider using them. Cloud computing providers must establish a sufficient level of trust with their potential customers in order to ease initial fears - and ensure certain compliance obligations will be met - at least to the extent that any such inquiring customer will feel comfortable enough to ultimately take the irreversible step of releasing their sensitive data and personal information into the cloud.

Rescuing Science From Politics: Regulation And The Distortion Of Scientific Research, Wendy Wagner, Rena Steinzor

Rena I. Steinzor

Rescuing Science from Politics debuts chapters by the nation's leading academics in law, science, and philosophy who explore ways that the law can be abused by special interests to intrude on the way scientists conduct research. The high stakes and adversarial features of regulation create the worst possible climate for the honest production and use of science especially by those who will ultimately bear the cost of the resulting regulatory standards. Yet an in-depth exploration of the ways in which dominant interest groups distort the available science to support their positions has received little attention in the academic or popular …

The Truth About Regulation In America, Rena I. Steinzor

Rena I. Steinzor

The special interests leading the accelerating crusade against regulation have re-ignited a potent coalition of industry lobbyists, traditional conservatives, and grassroots Tea Party activists. The politicians speak in generic terms for public consumption: “the nation is broke,” “big government is bad,” “regulation costs trillions.” Behind the scenes, industry lobbyists target for repeal dozens of regulations that are designed to control pollution, ensure drug, product, and food safety, and eliminate workplace hazards. In an effort to bring light and air to an often misleading and always opportunistic national debate, this essay presents five truths about the state of health, safety, and …

Regulated Into Automobile Dependence: How City Hall Mandates Sprawl And What Planners Can Do About It, Michael E. Lewyn

Michael E Lewyn

A brief (about 20-minute) speech explaining why government regulation promotes automobile-dependent development.

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Frank J. Garcia

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy …

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …

The Regulation Of Climate Engineering, Jesse Reynolds

Jesse Reynolds

Regulating Short Selling In Europe After The Crisis, Rodolphe Baptiste Elineau

Rodolphe Baptiste Elineau

Short selling contributes to the efficient functioning of capital markets. While bullish investors tend to hold long positions, bearish investors act on information by shorting stock, therefore fostering the incorporation of good and bad information into stock prices. However short sellers are ill viewed by corporate officers and directors and financial regulators. In the midst of the 2008 global financial crisis, several financial regulators in the European Union issued emergency orders to crack down on short sellers, which resulted in a fragmented approach to short selling and created a case for regulatory action at the European Union level. This article …

Arreglos Institucionales De Los Órganos De Mejora Regulatoria: Una Propuesta De Reforma Para La Cofemer, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

Conflict Of Interest That Led To The Gulf Oil Disaster, Peter J. Honigsberg

Peter J Honigsberg

On April 20, 2010, British Petroleum’s Deepwater Horizon drilling rig in the Gulf of Mexico exploded, killing eleven people and spilling billions of gallons of oil into the gulf. In the days and weeks that followed, the media pointed to the Minerals Management Services (MMS), the regulatory agency responsible for managing offshore drilling, as being complicit with BP. The MMS issued permits for deepwater drilling in violation of its regulations; provided hundreds of exemptions to the regulations; maintained lax monitoring and enforcement procedures; allowed the companies to draft regulations that suited their interests and objectives; and engaged in inappropriate relationships …

State And Local Regulation Of Particular Types Of Affordable Housing, Tim Iglesias

Tim Iglesias

This chapter will consider state and local regulation affecting the development of several types of affordable housing which are neither traditional single family nor multi-family. Specifically, the chapter discusses statutes, ordinances, regulations and leading case law concerning the siting of manufactured housing, farmworker housing, accessory or secondary units, single room occupancy hotels (SROs), condominium conversion regulation, and emergency shelters and transitional housing, including domestic violence shelters.

Iniciativa Anticorrupción, ¿Paso Firme?, Alejandro Faya Rodriguez

Alejandro Faya Rodriguez

No abstract provided.

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

Thomas A. Schweitzer

No abstract provided.

Making Regulatory Innovation Keep Pace With Technological Innovation, Jay P. Kesan, Timothy A. Slating

Jay P. Kesan

Recent world events are forcing us to reconsider the ways in which the energy needs of the U.S. can and should be met. In regards to renewable energy options in general, the public response to the nuclear crisis at Japan’s Fukushima Daiichi power plant will likely stymie President Obama’s call for an increase in our reliance on nuclear energy. Additionally, the increasing political unrest in the Middle East and North Africa is once again reminding us that solutions must be found to mitigate our heavy dependence on foreign-produced oil. Newly emerging liquid biofuels not only hold the promise of enhancing …

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …

The Federal Reserve We Need: It’S The Fed We Once Had, Timothy A. Canova

Timothy A. Canova

This article considers the empirical record of the 1942-1951 period of Federal Reserve history when the Fed was more politically accountable and more independent of private financial interests. During the 1940s, federal spending was nearly twice as high as today, and federal borrowing was more than three times higher. Yet, from 1942 to 1951, the Federal Reserve was directed by the White House and Treasury to peg interest rates at 3/8 of one percent on short-term Treasury borrowing and 2.0 to 2.5 percent on long-term borrowing. The U.S. economy grew at a real annual rate of 15 to 20 percent …

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

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested substances as a result of their contact with consumer products containing nanoparticles. Hundreds of consumer products are being marketed for human consumption, including food, dietary supplements, cosmetics and sunscreens. This expanding market ignores the growing scientific understanding that nanoparticles can create unintended human health and environmental risks. This Article discusses the public health, regulatory, legal and ethical issues raised by the developing appreciation of the health risks associated with nanotech products and is arranged as follows. After this Introduction, this Article describes the present …

Revisiting The Original "Tea Party": The History Of Regulating Food Consumption In America, Alison Peck

Alison Peck

In response to concerns over rising obesity rates, state and federal policymakers have introduced laws that seek to internalize the public health costs of consuming unhealthy foods. These laws range from taxes on sugared beverages to mandatory nutritional information disclosures and beyond. Vocal opponents to such laws, including many Tea Party members, characterize such laws as government overreaching into the private sphere. That opposition often evokes Revolutionary images and ideology, with references to the Boston Tea Party, the Founding Fathers, and the framing of the Constitution. This article challenges the symbolism used by these opponents by examining the pre-Revolutionary non-importation …

The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel

Jason M Stoffel

While the Clean Water Act, as it is currently structured, has few provisions that directly regulate nonpoint source pollution, the Ninth Circuit Court of Appeals, in the case Friends of Pinto Creek v. United States EPA, 504 F.3d 1007 (9th Cir. 2007), has recognized the Total Maximum Daily Load (TMDL) program as a tool that can be used by the EPA to indirectly compel states to regulate nonpoint source pollution in the nation’s impaired waters. In the context of the Ninth Circuit’s ruling, in 2010, the EPA made national headlines by pushing states to regulate nonpoint source pollution in the …

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

Timothy E. Lynch

Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …

Gambling By Another Name? The Challenge Of Purely Speculative Derivatives, Timothy E. Lynch

Timothy E. Lynch

Derivatives contracts can be used to hedge pre-existing risks, but they can also be used to speculate. This Article focuses on derivatives contracts in which both counterparties are speculators. These “purely speculative derivatives (PSD) contracts” have become increasingly common over the last several years and have notably resulted in the transfer of many tens of billions of dollars from institutions that had invested in the US subprime housing market to a handful of speculators who foresaw the market’s collapse, as well as many billions of dollars in fees to PSD brokers. PSD contracts are problematic. PSD contracts are less-than-zero-sum transactions …

The Taxpayer’S Burden From Product-Related Harm, W. Jonathan Cardi, Ruth Ruttenberg, Estye Ross

W. Jonathan Cardi

Hundreds of billions of dollars are spent every year in the public sector as a result of death, injury, and illness associated with products. The taxpayer takes on this burden, a reality that ought to be considered by courts and policy makers when setting the standards for liability and levels of regulation governing products. Yet, to date, the government has made no attempt to trace specific government expenditures to product-related injuries. Indeed, due to the dearth of government data on the subject, no one to the authors’ knowledge has even constructed an estimate of product-related public expenditures. This article attempts …

Interactive Regulation, Robert C. Bird

Robert C Bird

Small businesses shoulder significant costs in order to comply with the maze of government regulation that impacts commerce. The Regulatory Flexibility Act (RFA) was designed to alleviate that burden by making regulators more accountable in their enforcement of agency mandates. The RFA just celebrated its thirtieth birthday, and one of the most important pieces of business legislation developed during the 1970s has yet to fulfill its promise. This article examines not just the calls for statutory reform but also the motivations and perceptions of the individuals most impacted by business regulation. We propose that while legal reform can be helpful, …

Trust, Expert Advice, And Realtor Responsibility, Brent T. White

Brent T. White

The general legal rule that a homebuyer may not reasonably rely upon his real estate agent’s opinion as to a property’s value or investment potential is at odds with psychological propensity of individuals to trust perceived experts. This discrepancy creates a genuine moral hazard in which real estate agents benefit from the trust associated with portraying themselves as real estate experts, yet avoid responsibility for the advice that they give. This moral hazard fueled the housing market bubble and contributed to the suffering of homeowners whose real estate agents encouraged them buy as the market began to burst. In response …

Secondary Liability For Securities Fraud: Gatekeepers In State Court, Jennifer J. Johnson

Jennifer J Johnson

This paper discusses gatekeeper liability under state securities laws for professionals and other secondary participants in securities transactions. The recent economic meltdown exposed numerous Ponzi schemes from Madoff to Medical Capital that were no longer able to masquerade as profitable enterprises. When promoters of fraudulent ventures are unable to provide restitution to their victims, plaintiffs seek out other sources of repayment including professionals and other secondary participants in the transactions that precipitated their losses. Although most scholars agree that professionals can perform an important role in deterring securities fraud, scholarly opinions vary widely on the appropriate liability regime, if any, …

Lessons From The North Sea: Should "Safety Cases" Come To America?, Rena I. Steinzor

Rena I. Steinzor

The catastrophic oil spill in the Gulf of Mexico last spring and summer has triggered an intense search for more effective regulatory methods that would prevent such disasters. The new Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is under pressure to adopt the British “safety case” system, which requires the preparation of a facility-specific plan that is typically several hundred pages long. This system is supposed to inculcate a “safety culture” within companies that operate offshore in the British portion of the North Sea because it overcomes a “box-ticking” mentality and constitutes “bottom up” implementation of safety measures. …

Making Regulatory Innovation Keep Pace With Technological Innovation, Jay P. Kesan, Timothy A. Slating

Jay P. Kesan

Recent world events are forcing us to reconsider the ways in which the energy needs of the U.S. can and should be met. In regards to renewable energy options in general, the public response to the nuclear crisis at Japan’s Fukushima Daiichi power plant will likely stymie President Obama’s call for an increase in our reliance on nuclear energy. Additionally, the increasing political unrest in the Middle East and North Africa is once again reminding us that solutions must be found to mitigate our heavy dependence on foreign-produced oil. Newly emerging liquid biofuels not only hold the promise of enhancing …