Law Commons^™

Caremark's Irrelevance, Mercer E. Bullard

Mercer E Bullard

In re Caremark Int’l Inc. Derivative Litig. is commonly held out as the iconic corporate law case on liability for a failure of legal compliance, but the true source of corporate law as to legal compliance is the higher standard established by other sources of law. The expected cost of liability, both criminal and civil, for violations of federal healthcare regulations, for example, is a far stronger determinant of corporate compliance systems than potential liability under Caremark. Other areas of industry-specific regulation, such as for financial services, telecommunications and energy, similarly play a greater role than state corporate law in …

Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich

Janet Freilich

This article fills a gap in the literature by conducting a comprehensive analysis of patent infringement in the context of follow-on biologics. Patent infringement is an important topic because, like small molecule generic drugs, follow-on biologics are likely to begin their life facing infringement suits. Because it is tremendously expensive to develop a follow-on biologic, it is vital that there be consistency in how they are treated in the courts once the inevitable patent infringement suits arrive. If follow-on biologics companies cannot predict how their product will be received in court, they may decide it is not worth the risk …

Takings And Transmission, Alexandra B. Klass

Alexandra B. Klass

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property to convey it to another private party who promises to develop the property in a way that will increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, …

The Paradox Of Legal Equivalents And Scientific Equivalence: Reconciling Patent Law’S Doctrine Of Equivalents With The Fda’S Bioequivalence Requirement, Janet Freilich

Janet Freilich

Contrary to popular perception, generic drugs often enter the market before the patents covering their brand-name counterparts have expired by making slight changes the drug to avoid the brand-name patent. These generics face a paradox: the FDA requires that the generic “not show a significant difference” from the reference product while patent law requires that the generic have “substantial differences” as compared to the reference product. The generic must be bioequivalent but not legally equivalent to the brand-name drug. This paradox occurs frequently in the courts but has never been discussed in the literature. This article analyzes every case involving …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi

Steven G Calabresi

This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

Epic Fail: An Institutional Analysis Of Financial Distress, Jonathan C. Lipson

Jonathan C. Lipson

This paper presents an institutional analysis of financial distress. “Institutional analysis” compares the effectiveness of large-scale processes, such as markets, courts, and governments, at solving social problems. Although financial distress is one of our most acute problems, there has been virtually no effort to analyze it from an institutional perspective. This paper begins to fill that gap.

Institutional analysis shows that, contrary to conventional wisdom, financial distress is not a problem that courts, such as bankruptcy courts, usually solve by themselves. Instead, it is increasingly a problem that political organs (whether elected or regulatory) both create and purport to resolve. …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

The idea of political control dominates our understanding of both what administrative law does and what it should do. This emphasis on political control, however, downplays the important ways that administrative law facilitates resistance to political control in administrative agencies. In this article, I offer studies of two instances where agencies harnessed the power of seemingly standard administrative law litigation to resist the imposition of policies by political leadership. I classify these kinds of modes of resistance as instances of “litigation-fostered bureaucratic autonomy” and flesh out the mechanisms that drive the process. Acknowledging the role of such modes of resistance …

A Hungry Industry On Rolling Regulations: A Look At Food Truck Regulations In Cities Across The United States, Crystal T. Williams

Crystal Williams

Although street vending has always been a part of the American food economy, in recent years, modern food trucks have become a dining trend that is sweeping the country. With the booming popularity of food trucks, cities across the country are considering ways to regulate the growing number of vendors selling convenient and creative meals to patrons. The purpose of this article is to provide an overview of regulations and ordinances that govern the operation of mobile food units, commonly known as food trucks, in a variety of American cities. Food trucks are regulated by local government agencies, which take …

Where’S The Beef? An Examination Of The ‘Pink Slime’ Controversy And The Implications Of The Real Beef Act On State Truth-In-Menu Laws, Crystal Williams

Crystal Williams

Recent criticism concerning the use of lean finely textured beef (“LFTB”), commonly referred to as “pink slime,” has sparked a national debate about whether LFTB should be included on the label of ground beef products sold to the end consumers. On March 30, 2012, the Requiring Easy and Accurate Labeling Beef Act (the “REAL Beef Act”) was introduced to Congress. If passed, the Act would require that “labels on packages of meat include a statement on whether the meat contains [LFTB].” It is not clear from the express language of the REAL Beef Act and its legislative history whether the …

Where’S The Beef? An Examination Of The ‘Pink Slime’ Controversy And The Implications Of The Real Beef Act On State Truth-In-Menu Laws, Crystal T. Williams

Crystal Williams

Recent criticism concerning the use of lean finely textured beef (“LFTB”), commonly referred to as “pink slime,” has sparked a national debate about whether LFTB should be included on the label of ground beef products sold to the end consumers. On March 30, 2012, the Requiring Easy and Accurate Labeling Beef Act (the “REAL Beef Act”) was introduced to Congress. If passed, the Act would require that “labels on packages of meat include a statement on whether the meat contains [LFTB].” It is not clear from the express language of the REAL Beef Act and its legislative history whether the …

A New Philosophy For Financial Stability Regulation, Hilary J. Allen

Hilary J. Allen

The financial crisis of 2007-2008 showed up many inadequacies in the pre-crisis approach to financial stability regulation. The response from legislators and regulators has been to implement a broad new range of regulatory tools – individual solutions to individual regulatory failings highlighted by the crisis. But the prevailing cost-benefit philosophy that informed financial stability regulation in the United States prior to the crisis persists today - there has been no real effort to rethink the overarching philosophy behind financial stability regulation. Because a cost-benefit approach gives too much primacy to the short-term interests of the financial industry, this Article rejects …

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas

Michael Pappas

This article examines the deference standards that the various states apply to agency statutory interpretation and analyzes the implications for the federal Chevron doctrine. First, the article surveys state standards for reviewing agencies' statutory interpretation, finding that none of the state standards exactly follows the federal Chevron test but that state standards fall into one of four categories ranging from "strong deference" to "de novo with deference discouraged." The article then examines four particular state standards in depth, discovering that states tend to use the same methods, tools, and processes for statutory interpretation despite the different announced degrees of deference. …

Caremark's Irrelevance, Mercer E. Bullard

Mercer E Bullard

In re Caremark Int’l Inc. Derivative Litig. is commonly held out as the iconic corporate law case on liability for a failure of legal compliance, but the true source of corporate law as to legal compliance is the higher standard established by other sources of law. The expected cost of liability, both criminal and civil, for violations of federal healthcare regulations, for example, is a far stronger determinant of corporate compliance systems than potential liability under Caremark. Other areas of industry-specific regulation, such as for financial services, telecommunications and energy, similarly play a greater role than state corporate law in …

¬Reverse Regulatory Arbitrage: An Auction Approach To Regulatory Assignments, Todd Henderson, Fred Tung

Todd Henderson

In the years before the Financial Crisis, banks got to pick their regulators, engaging in a form of regulatory arbitrage that we now know was a race to the bottom. We propose to turn the tables on the banks by allowing regulators, specifically, bank examiners, to choose the banks they regulate. We call this “reverse regulatory arbitrage,” and we think it can help improve regulatory outcomes. Building on our prior work that proposes to pay bank examiners for performance—by giving them financial incentives to avoid bank failures—we argue that bank supervisory assignments should be set through an auction among examiners. …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

César F. Rosado Marzán

Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva

Philip J. Candreva

Nearly every year Congress fails to pass all of the appropriations acts before the start of the federal fiscal year. This necessitates the passage of a temporary spending measure – a continuing resolution – or there will be at least a partial government shutdown. Both contingencies are costly and disruptive to the efficient and effective operation of government. Over the last 30 years, there have been several legislative proposals to enact an automatic continuing resolution mechanism that would mitigate the costs to public management. Such proposals, however, are costly for political and legal reasons. This article examines the arguments for …

Purposeless Construction, David M. Driesen

David M Driesen

This Article critiques the Supreme Court’s tendency to embrace “purposeless construction”— statutory construction that ignores legislation’’ underlying goals. It constructs a new democratic theory supporting purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for …

Purposeless Construction, David M. Driesen

David M Driesen

This Article critiques the Supreme Court’s tendency to embrace “purposeless construction”— statutory construction that ignores legislation’’ underlying goals. It constructs a new democratic theory supporting purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for …

Barriers To Market Discipline: A Comparative Study Of Regulatory Reforms, Vincent Di Lorenzo

Vincent Di Lorenzo

This article explores regulatory reforms in the U.S. and U.K. in response to the recent mortgage market crisis. First, the article explores the extent to which regulatory bodies have recognized behavioral barriers to market discipline on the part of both consumers and industry actors. The academic literature has long identified such barriers, but recognition by government regulators has lagged. Without such recognition legal requirements and regulatory policies evolve without consideration of a major influence on human decision making. Second the article examines the varied response in the U.S. and U.K. to both market limitations and behavioral limitations to self-protection and …

Acceso Garantizado: El Procedimiento Administrativo Y El Acto Administrativo En El Acceso A La Información Pública, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

Foreign Administrative Law And International Taxation: A Case Study Of Tax Treaty Implementation In China, Wei Cui

Wei Cui

U.S. taxpayers and the IRS increasingly have to take into account the interactions between U.S. and foreign laws, but they have paid little attention to the administrative law backgrounds of foreign tax laws. In a growing range of cases, the need for such attention has become urgent. This Article describes a novel class of cases encountered by U.S. taxpayers that emanate from tax treaty implementation in China. In these cases, U.S. (and other foreign) investors face certain rules that conflict with common treaty interpretations, and that, at the same time, are not legally binding under Chinese domestic law. The question …

Pluralism And The Environment Revisted: The Role Of Comment Agencies In Nepa Litigation, Michael Blumm

Michael Blumm

The National Environmental Policy Act suffers from a declining reputation due to high expectations and misunderstood implementation. The U.S. Supreme Court has disappointed environmental advocates by repeatedly ruling that NEPA does not impose substantive obligations to protect the environment that are judicially enforceable. As a result, some critics have characterized NEPA as a mere paperwork statute, imposing only bureaucratic red tape. Nevertheless, some courts have read NEPA to require close judicial scrutiny of federal agency actions with significant environmental consequences and have enjoined agency proposals that do not publicly disclose those consequences. The problem is that the level of judicial …

Can Super-Committees Cure Congressional Gridlock?, Sean J. Wright

Sean J Wright

No abstract provided.

Administrative Silence In Brazilian Law, André Saddy

André Saddy

No abstract provided.

Go To Our Website For More (Of The Same): Reassessing Federal Policy Towards Newspapers Mergers And Cross Media Ownership And The Harm To Localism, Diversity And The Public Interest, Jason Zenor

Jason Zenor

Newspapers are workhorse of local news industry and this information is important in order to have an informed citizenry. But, the conventional wisdom is that newspapers are an endangered species and that something drastic needs to be done if this form of media is going to survive. Many proactive solutions have been forwarded such as charging for online content, using tablet and smartphone technology to publish newspapers and making newspapers more assessable to younger and more diverse generations. Another more conceding solution is to allow for greater relaxation on newspapers mergers and cross media ownership rules. But, this solution would …

A Costly Illusion? An Empirical Study Of Taiwan’S Use Of Isolation To Control Tuberculosis Transmission And Its Implications For Public Health Law And Policymaking, Shinrou Lin

Shinrou Lin

The resurgence of tuberculosis (TB) and the emergence of multidrug-resistant TB have resulted in the detention of patients in a number of international jurisdictions since the 1990s, including in Taiwan. The Taiwanese government adopted isolation as an official policy to control TB’s spread in its 2006 Ten-Year Mobilization Plan, whose goal is to halve TB incidence from 66.7 per 100,000 persons to 34 per 100,000 persons. The isolation program allows treating physicians to nominate patients for isolation while public health officials may also isolate patients if necessary. Hospitals providing care to isolated patients would be reimbursed from the budget of …

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

The Department Of Health And Human Services Vs. Attorneys: Will The Federal Courts Tame An Agency Run Amuck, Anne M. Rife

Anne M Rife

The Department of Health and Human Services vs. Attorneys – Can and Will the Federal Courts Tame an Agency Run Amuck? ABSTRACT Medicare has been a system destined for financial trouble arguably since its creation in 1965. For years, Congress and the Department of Health and Human Services (“DHHS”) have passed legislation, regulations, and implemented procedures to try to save it. But, when DHHS decided to protect Medicare by suing attorneys, it took its role too far and placed attorneys in an ethical and procedural maelstrom. In Haro v. Sebelius, the United States District Court of Arizona recently addressed DHHS’s …