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Full-Text Articles in Law

Brief Of Legal Scholars As Amici Curiae In Support Of Petitioners In Biden V. Nebraska And Department Of Education V. Brown, William Araiza, John R. Brooks, Matthew Bruckner, James J. Brudney, Erwin Chemerinsky, Kurt Eggert, Kate Sablosky Elengold, Kathleen C. Engel, Pamela Foohey, Jonathan Glater, Luke Herrine, Dalié Jiménez, Creola Johnson, Angela K. Littwin, Jeffrey Lubbers, Cathy Lesser Mansfield, Chrystin Ondersma, Christopher L. Peterson, Christopher J. Ryan Jr., Peter M. Shane, Peter Strauss, David C. Vladeck, Alan White, Lauren E. Willis Jan 2023

Brief Of Legal Scholars As Amici Curiae In Support Of Petitioners In Biden V. Nebraska And Department Of Education V. Brown, William Araiza, John R. Brooks, Matthew Bruckner, James J. Brudney, Erwin Chemerinsky, Kurt Eggert, Kate Sablosky Elengold, Kathleen C. Engel, Pamela Foohey, Jonathan Glater, Luke Herrine, Dalié Jiménez, Creola Johnson, Angela K. Littwin, Jeffrey Lubbers, Cathy Lesser Mansfield, Chrystin Ondersma, Christopher L. Peterson, Christopher J. Ryan Jr., Peter M. Shane, Peter Strauss, David C. Vladeck, Alan White, Lauren E. Willis

Briefs

Amici curiae are professors at law schools throughout the United States. Amici’s expertise encompasses student-financial-assistance programs under Title IV of the Higher Education Act of 1965, consumer finance, administrative and constitutional law, modes of statutory interpretation, and the development of the major questions doctrine. Amici have a strong interest in assisting this Court in resolving questions of law that go to the core of their professional expertise and scholarship, namely, the scope of the Department of Education’s authority to provide relief to borrowers and the development of this Court’s statutory interpretation methodology, particularly in the context of its precedent …


On Fires, Floods, And Federalism, Andrew Hammond Jan 2023

On Fires, Floods, And Federalism, Andrew Hammond

UF Law Faculty Publications

In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more …


Aclp - Updated Estimates Of State Bead Allocations - As Of January 2023, New York Law School Jan 2023

Aclp - Updated Estimates Of State Bead Allocations - As Of January 2023, New York Law School

Reports and Resources

No abstract provided.


Interagency Litigation Outside Article Iii, Adam Crews Jan 2023

Interagency Litigation Outside Article Iii, Adam Crews

Connecticut Law Review

For over seventy years, the Supreme Court has said that a justiciable controversy can exist when one agency in the federal executive branch sues another. Although this raises intuitive concerns under both Article II (relating to presidential control) and Article III (relating to standing), scholars and judges have paid scant attention to the constitutional foundation for interagency litigation. Of those who have explored the topic, defenders and opponents alike agree on one thing: the foundation—or lack of one—depends on Article III’s case-or-controversy requirement.

That is mistaken. A better approach to understand interagency litigation is to step outside Article III and …


The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee Dec 2022

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act (CWA) has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This …


Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee Dec 2022

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …


Justice For All: Demanding Accessibility For Underrepresented Communities In The Law: A Roger Williams University Law Review, Roger Williams University School Of Law Nov 2022

Justice For All: Demanding Accessibility For Underrepresented Communities In The Law: A Roger Williams University Law Review, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Merger Enforcement Statistics: 2001-2020, Logan Billman, Steven C. Salop Nov 2022

Merger Enforcement Statistics: 2001-2020, Logan Billman, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article summarizes merger enforcement data for the period between 2001 and 2020, using a database created by the authors. The database lists the identity and outcome of every transaction that received a second request during this 20-year period. The database also lists the identity and outcome of every challenge to an already-consummated merger during the period. To our knowledge, it is the only complete database for the listing and outcomes of all such transactions. The goal of creating the database is to provide further information on merger enforcement, which hopefully can inform policy and spur additional analysis. We describe …


Reflections Of An Unapologetic Safety Regulator, Robert S. Adler Oct 2022

Reflections Of An Unapologetic Safety Regulator, Robert S. Adler

The Regulatory Review in Depth

No abstract provided.


Aclp - Overview Of Bead Program (Updated) - October 2022, New York Law School Oct 2022

Aclp - Overview Of Bead Program (Updated) - October 2022, New York Law School

Reports and Resources

No abstract provided.


Aclp - Broadband Planning Tool Kit - October 2022, New York Law School Oct 2022

Aclp - Broadband Planning Tool Kit - October 2022, New York Law School

Reports and Resources

This Tool Kit provides state and local policymakers with a range of resources and analyses for use during broadband planning. The Tool Kit focuses on the array of grant and other funding opportunities available to states and localities as a result of the Infrastructure Investment & Jobs Act, as well as other pandemic-era stimulus programs. However, the Tool Kit is also useful for broadband planning outside of these specific funding programs. Indeed, the Tool Kit offers foundational planning resources that can be used now and in the future by officials, ISPs, and other stakeholders in the broadband space.


The Administrative Agon: A Democratic Theory For A Conflictual Regulatory State, Daniel E. Walters Oct 2022

The Administrative Agon: A Democratic Theory For A Conflictual Regulatory State, Daniel E. Walters

Faculty Scholarship

A perennial challenge for the administrative state is to answer the “democracy question”: how can the bureaucracy be squared with the idea of self-government of, by, and for a sovereign people with few direct means of holding agencies accountable? Scholars have long argued that this challenge can be met by bringing sophisticated thinking about democracy to bear on the operation of the administrative state. These scholars have invoked various theories of democracy—in particular, pluralist, civic republican, deliberative, and minimalist theories—to explain how allowing agencies to make policy decisions is consistent with core ideas about what democracy is.

There is a …


Supreme Illegitimacy, Eric W. Orts Oct 2022

Supreme Illegitimacy, Eric W. Orts

The Regulatory Review in Depth

No abstract provided.


Solving The Congressional Review Act’S Conundrum, Cary Coglianese Sep 2022

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

Faculty Scholarship at Penn Carey Law

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …


Reining In Repeat Offenders, Rohit Chopra Sep 2022

Reining In Repeat Offenders, Rohit Chopra

The Regulatory Review in Depth

No abstract provided.


Race And Regulation Podcast Episode 10 - Administrative Law's Racial Blind Spot, Daniel E. Ho Aug 2022

Race And Regulation Podcast Episode 10 - Administrative Law's Racial Blind Spot, Daniel E. Ho

Penn Program on Regulation Podcasts

Administrative law has a racial blind spot, argues Daniel E. Ho of Stanford Law School. Judges have long set aside agency actions when government officials have failed to consider the differential impacts of their policy decisions on subgroups of business owners, park visitors, and even animals—but not when they have failed to consider differential impacts based on race or ethnicity. In this episode, Professor Ho traces how civil rights and administrative law have diverged over the past fifty years, as U.S. court decisions have removed issues of racial discrimination from administrative law’s purview. He concludes by discussing reforms that could …


Building Better Compliance, Cary Coglianese Aug 2022

Building Better Compliance, Cary Coglianese

Faculty Scholarship at Penn Carey Law

A response to Dorothy Lund & Natasha Sarin: "Corporate Crime and Punishment: An Empirical Study"


Ownership Concentration: Lessons From Natural Resources, Vanessa Casado-Pérez Aug 2022

Ownership Concentration: Lessons From Natural Resources, Vanessa Casado-Pérez

Faculty Scholarship

Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …


Influence By Intimidation: Business Lobbying In The Regulatory Process, Alex Acs, Cary Coglianese Jul 2022

Influence By Intimidation: Business Lobbying In The Regulatory Process, Alex Acs, Cary Coglianese

Faculty Scholarship at Penn Carey Law

Interest group influence in the policy process is often assumed to occur through a mechanism of exchange, persuasion, or subsidy. Here, we explore how business groups may also exert influence by intimidating policymakers—a form of persuasion, but one based not on the provision of policy information but of political information. We develop a theory where a business firm lobbies a regulator to communicate political information about its capacity to commit to future influence-seeking activities that would sanction the regulator. The regulator assesses the credibility of this message by evaluating the firm’s commitment to lobbying. Guided by our theory, we present …


President Biden's Executive Order On Promoting Competition: An Antitrust Analysis, Herbert J. Hovenkamp Jul 2022

President Biden's Executive Order On Promoting Competition: An Antitrust Analysis, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …


Color Of Creatorship - Author's Response, Anjali Vats Jul 2022

Color Of Creatorship - Author's Response, Anjali Vats

Articles

This essay is the author's response to three reviews of The Color of Creatorship written by notable intellectual property scholars and published in the IP Law Book Review.


Normalizing Reproductive Genetic Innovation, Myrisha S. Lewis Jul 2022

Normalizing Reproductive Genetic Innovation, Myrisha S. Lewis

Faculty Publications

Many societally accepted techniques were quite controversial at inception and for decades after. For example, historically, dialysis was “unnatural,” vaccination was “the poisoned quill,” and artificial insemination was akin to adultery. Despite social and cultural hurdles, the aforementioned medical techniques have today attained overall public acceptance, permissive legal treatment, and even health insurance coverage in some cases.

Unlike many now-routine treatments like in vitro fertilization (IVF), egg freezing, and organ transplantation, which flourished without significant governmental intervention, today’s controversial medical treatments, especially those involving reproductive genetic innovation, face intense regulatory barriers. Reproductive genetic innovation, which is the combination of IVF …


A Global Comparison Of Judicial Discipline Mechanisms, Zhuozhen Duan Jul 2022

A Global Comparison Of Judicial Discipline Mechanisms, Zhuozhen Duan

Judicature International

No abstract provided.


The Importance Of Looking Under The 'Administrative Hood': A Case Study Of The National Waters Protection Rule, Nicholas S. Bryner, Victor Byers Flatt Jul 2022

The Importance Of Looking Under The 'Administrative Hood': A Case Study Of The National Waters Protection Rule, Nicholas S. Bryner, Victor Byers Flatt

Journal Articles

In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. …


Judges, Judging And Otherwise, Michael Pollack Jul 2022

Judges, Judging And Otherwise, Michael Pollack

Articles

Ask the average person to imagine what a judge does, and the answer will most likely be something right out of a courtroom from Law & Order — or Legally Blonde, Just Mercy, My Cousin Vinny, Kramer vs. Kramer, or any of the myriad law-themed movies and television shows. A judge is faced with a dispute brought by some parties and their lawyers and is charged with resolving it, whether it be a breach of contract, a tort action, a competing claim over property, a disagreement about the meaning of a statute, some accusation that someone …


Race And Regulation Podcast Episode 5 - Racial Equity And Data Privacy, Anita L. Allen Jun 2022

Race And Regulation Podcast Episode 5 - Racial Equity And Data Privacy, Anita L. Allen

Penn Program on Regulation Podcasts

In this episode, Anita Allen, an internationally renowned expert on the philosophical dimensions of privacy and data protection law, reveals how race-neutral privacy laws in the U.S. have failed to address the unequal burdens faced online by Black Americans, whose personal data are used in racially discriminatory ways. Professor Allen articulates what she terms an African American Online Equity Agenda to guide the development of race-conscious privacy regulations that can better promote racial justice in the modern digital economy.


Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese Jun 2022

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

Faculty Scholarship at Penn Carey Law

Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city officials …


A Guide To Federal Broadband Funding Programs - Overview Of Bead (Updated) - June 2022, New York Law School Jun 2022

A Guide To Federal Broadband Funding Programs - Overview Of Bead (Updated) - June 2022, New York Law School

Reports and Resources

No abstract provided.


Aclp - Overview Of Bead Nofo - June 2022, New York Law School Jun 2022

Aclp - Overview Of Bead Nofo - June 2022, New York Law School

Reports and Resources

No abstract provided.


Race And Regulation Podcast Episode 3 - Redlined Forever?, Jessica Trounstine May 2022

Race And Regulation Podcast Episode 3 - Redlined Forever?, Jessica Trounstine

Penn Program on Regulation Podcasts

Racial segregation in American cities is no accident. Building on research from her award-winning book, Segregation by Design, political scientist Jessica Trounstine of UC Merced examines how local land use regulations aimed at protecting the property values of white homeowners have generated segregation across racial and class lines that persists today—and how that segregation brings serious inequities in access to quality schools and public amenities. But just as segregation resulted from policy choices, Trounstine shows how desegregation can be a purposeful choice, too, with the right regulatory decisions.