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Full-Text Articles in Law
The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes
The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes
Articles
Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …
Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck
Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck
Articles
A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …
Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray
Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray
Articles
Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …
Regulation Of Emerging Risk, Matthew T. Wansley
Regulation Of Emerging Risk, Matthew T. Wansley
Articles
Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high, initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …
Acus - And Administrative Law - Then And Now, Michael Herz
Acus - And Administrative Law - Then And Now, Michael Herz
Articles
The Administrative Conference of the United States (ACUS) both shapes and reflects the intellectual, policy, and practical concerns of the field of administrative law. Its recommendations are therefore a useful lens through which to view that field. Also, because of an unfortunate hiatus, ACUS has gotten underway not once but twice. Those two beginnings provide a kind of natural experiment, and they make a revealing contrast. This article traces the transformations of American administrative law, as well as the field’s perpetual concerns, by comparing the initial recommendations of ACUS 1.0 (1968 to 1970) with the initial recommendations of ACUS 2.0 …
Cost-Benefit Analysis As A Commitment Device, Matthew Wansley
Cost-Benefit Analysis As A Commitment Device, Matthew Wansley
Articles
Cost-benefit analysis does not age well. As scientific understanding of health, safety, and environmental risks accumulates over time — and as the technology to mitigate those risks becomes more affordable — the assumptions underlying a rule’s cost-benefit analysis obsolesce. Yet because of agency inaction, rulemaking ossification, and inattention to priority setting, outdated rules persist. In order to combat obsolescence, agencies should use cost-benefit analysis as a commitment device. When an agency analyzes a rule, it should precommit to subsequently adopting a more stringent rule than the one it initially promulgates, if and when a private actor credibly demonstrates that the …
Virtuous Capture, Matthew Wansley
Virtuous Capture, Matthew Wansley
Articles
A regulatory agency is captured if, instead of the public interest, it pursues the interests of powerful firms it is intended to regulate. Scholars disagree about which agencies are captured, how they become captured, and what reforms, if any, can prevent capture. There is consensus on one issue: capture is a vice.In this Article, I argue that capture can be a virtue. When powerful interest groups thwart justified regulation, the optimal strategy for pursuing that regulation may be to indirectly empower interest groups that stand to profit from it in the long-run. Legislation creating new interest groups — or altering …
Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Articles
No abstract provided.
Some Thoughts On Judicial Reviewand Collaborative Governance, Michael Herz
Some Thoughts On Judicial Reviewand Collaborative Governance, Michael Herz
Articles
No abstract provided.
Rulemaking, Michael Herz
The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz
The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz
Articles
No abstract provided.
The Asbestos Litigation Crisis: Is There A Need For An Administrative Alternative?, Lester Brickman
The Asbestos Litigation Crisis: Is There A Need For An Administrative Alternative?, Lester Brickman
Articles
No abstract provided.
Deference Running Riot: Separating Interpretation And Lawmaking Under Chevron, Michael Herz
Deference Running Riot: Separating Interpretation And Lawmaking Under Chevron, Michael Herz
Articles
No abstract provided.