Law Commons^™

Regulating Secrecy, W. Nicholson Price Ii

Articles

Inventors face a stark choice between two intellectual property systems of protecting innovative ideas: patents and trade secrecy. But accounts of this choice underexplore the role of the regulators that dominate some areas of innovation. Regulation interacts with intellectual property exclusivity in socially problematic ways by encouraging secrecy at the expense of innovation, efficiency, and competition. This Article theorizes how regulation empowers intellectual property generally, explains why this strengthening is problematic for trade secrecy but not for patents, and offers the solution of regulator-enforced disclosure. When a regulator defines a product or a process, it becomes much harder to successfully …

The Challenge Of Regulatory Excellence, Cary Coglianese

All Faculty Scholarship

Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts …

Accounting For Rising Corporate Profits: Intangibles Or Regulatory Rents?, James Bessen

Faculty Scholarship

Since 1980, US corporate valuations have risen relative to assets and operating margins have grown. The possibility of sustained economic rents has raised concerns about economic dynamism and inequality. But rising profits could come from political rents or, instead, from returns to investments in intangibles. Using new data on Federal regulation and data on lobbying, campaign spending, R&D, and organizational capital, this paper finds that both intangibles and political factors account for a substantial part of the increase in profits, but since 2000 political factors are more important. A difference-in-differences analysis finds that major expansions of regulation increase profits significantly.

Regulating Patent Assertions, Paul Gugliuzza

Faculty Scholarship

Recent years have seen a proliferation of statutes regulating and lawsuits challenging patent enforcement conduct. The Federal Circuit, however, has held that acts of patent enforcement are illegal only if there is clear and convincing evidence both that the patent holder’s infringement allegations were objectively baseless and that the patent holder knew or should have known its allegations were baseless. This chapter summarizes recent efforts by state governments and the federal government to control patent enforcement behavior, questions the broad immunity the Federal Circuit has conferred on patent holders, and seeks to improve pending federal legislation governing patent enforcement. In …

Body Of Preemption: Health Law Traditions And The Presumption Against Preemption, Elizabeth Mccuskey

Faculty Scholarship

Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress's intent by applying substantive canons of statutory interpretation, including presumptions against preemption.

This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the "tradition presumption." Unlike the general presumption against preemption on federalism grounds, courts base this …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Administrative Law: The U.S. And Beyond, Cary Coglianese

All Faculty Scholarship

Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S. administrative …

The Regulatory State In The Information Age, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for the regulatory state in the era of informational capitalism. A regulatory state optimized for the information economy must develop …

Slides: The Columbia River Basin, Barbara Cosens

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Barbara Cosens, Professor and Associate Dean of Faculty, University of Idaho College of Law, Waters of the West Interdisciplinary Program

16 slides

Slides: The São Francisco Water Basin - Brazil, Vanessa Empinotti

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Vanessa Empinotti, Federal University of ABC – UFABC, Brazil

20 slides

Consumer Financial Protection Bureau Law Enforcement: An Empirical Review, Christopher L. Peterson

Utah Law Faculty Scholarship

In the aftermath of the U.S. financial crisis, Congress created a new federal agency — the Consumer Financial Protection Bureau (CFPB) — with the goal of fashioning a more just and efficient American consumer finance market. The CFPB now serves as the U.S. Government’s primary regulator and civil law enforcement agency governing consumer lending, payment systems, debt collection, and other consumer financial services. In its first four years of enforcing federal consumer protection laws, the CFPB has announced over a hundred different law enforcement cases forcing banks and other financial companies to relinquish over $11 billion in customer refunds, forgiven …

Newsroom: Horwitz On Legalizing Marijuana 04-10-2016, Andrew Horwitz, Peter Kilmartin

Life of the Law School (1993- )

No abstract provided.

Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …

Unilateral Invasions Of Privacy, Roger Allan Ford

Law Faculty Scholarship

Most people seem to agree that individuals have too little privacy, and most proposals to address that problem focus on ways to give those users more information about, and more control over, how information about them is used. Yet in nearly all cases, information subjects are not the parties who make decisions about how information is collected, used, and disseminated; instead, outsiders make unilateral decisions to collect, use, and disseminate information about others. These potential privacy invaders, acting without input from information subjects, are the parties to whom proposals to protect privacy must be directed. This Article develops a theory …

Regulating Employment-Based Anything, Brendan S. Maher

Faculty Scholarship

Benefit regulation has been called “the most consequential subject to which no one pays enough attention.” It exhausts judges, intimidates legislators, and scares off theorists. That need not be so. Reality is less complicated than advertised.

Governments often consider intervention if markets fail to make some socially desirable Good X — such as education, health care, home mortgages, or pensions, for example — sufficiently available. One obvious fix is for the government to provide the good itself. A less obvious intervention is for the government to regulate employment-based (EB) arrangements that provide Good X as a benefit to employees and …

Regulatory Entrepreneurship, Jordan M. Barry, Elizabeth Pollman

Faculty Scholarship

Numerous corporations, ranging from Airbnb to Tesla, and from DraftKings to Uber, have built huge businesses that reside in legal gray areas. Instead of taking the law as a given, these companies have become agents of legal change, focusing major parts of their business plans on changing the law. To achieve their political goals, these companies employ conventional lobbying techniques, but also more innovative tactics. In particular, some attempt to enter markets quickly, then grow too big to ban before regulators can respond. If regulators do take aim at them, they respond by mobilizing their users for political support. This …

Uncertain Futures In Evolving Financial Markets, Anita Krug

All Faculty Scholarship

Today’s publicly offered investment funds, including mutual funds, have ever more diverse investment strategies, as they increasingly invest in financial instruments that, in earlier years, had been the province of only the most sophisticated investors. Although the new landscape of investment possibilities may substantially benefit retail investors, one financial instrument attracting increasing amounts of retail investors’ assets is acutely troublesome: the commodity futures contract. Futures originated as a means for farmers and other producers of agricultural commodities to ensure that their products could be sold at reasonable prices. Early on, the goals of futures regulation centered on one particular risk …

Memorandum Re: Health Canada's 'Draft Guidance' On Section 21.1(3)(C) Of The Food And Drugs Act, Matthew Herder, Trudo Lemmens

Reports & Public Policy Documents

In 2014 Parliament enacted a number of amendments to the Food and Drugs Act, R.S.C. 1985, c. F-27 [hereinafter the “F&D Act”]. Known as “Vanessa’s Law,” these amendments were intended to enhance the regulation of pharmaceutical drugs and thereby protect Canadians from harm by giving the regulator, Health Canada, new powers to, inter alia, recall drugs, require active post-market surveillance, and improve the transparency of information around pharmaceutical drugs. Vanessa’s Law explicitly recognized that “new measures are required to further protect Canadians from the risks related to drugs and medical devices.” (emphasis added) (Bill C-17, An Act to Amend the …

Discovering The Knowledge Monopoly Of Law Librarianship Under The Dikw Pyramid, Xiaomeng Zhang

Law Librarian Scholarship

Historical debates demonstrated that knowledge monopoly is a key to a profession. This article explores the exclusive knowledge base of the law librarianship profession through the lens of the Data-Information-Knowledge-Wisdom (DIKW) paradigm.

Voluntary Disclosure Fostering Overenforcement And Overcriminalization Of The Fcpa, Karen E. Woody

Scholarly Articles

Professor Peter Reilly’s article, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act, 67 Fla. L. Rev. 1683 (2015), challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC),2 self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability.

This Article takes a broader look at …

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

All Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …

Putting Public Law Into “Private” Sport, Dionne L. Koller

All Faculty Scholarship

Across all levels of sport—professional, Olympic, intercollegiate, interscholastic, and youth recreational—the prevailing view is that the government should not take an active role in regulating athletics. As a result, there are relatively few federal or state statutes directed at regulating sports, and those that are aimed at sports primarily serve to support the professional sports industry. Moreover, courts show great deference to sports leagues and administrators, most often applying law in a way that insulates and empowers them. This creates a climate where leagues and administrators are permitted wide latitude to structure and conduct their respective sports as they see …

Wireless Network Neutrality: Technological Challenges And Policy Implications, Christopher S. Yoo

All Faculty Scholarship

One key aspect of the debate over network neutrality has been whether and how network neutrality should apply to wireless networks. The existing commentary has focused on the economics of wireless network neutrality, but to date a detailed analysis of how the technical aspects of wireless networks affect the implementation of network neutrality has yet to appear in the literature. As an initial matter, bad handoffs, local congestion, and the physics of wave propagation make wireless broadband networks significantly less reliable than fixed broadband networks. These technical differences require the network to manage dropped packets and congestion in a way …

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …

Danger And Dignity: Immigrant Day Laborers And Occupational Risk, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

The plight of immigrant workers in the United States has captured significant scholarly attention in recent years. Despite the prevalence of discourses regarding this population, one set of issues has received relatively little attention: immigrant workers’ exposure to unhealthy and unsafe working conditions, and their corresponding susceptibility to workplace injuries and illnesses. Researchers have consistently found that immigrant workers suffer disproportionately from occupational injuries and fatalities, even when controlling for industry and occupation. Why, then, are foreign-born workers at greater risk for workplace injuries and fatalities, when compared with their native-born counterparts? This Article seeks to develop answers to that …

Pluralizing The 'Sharing' Economy, Erez Aloni

All Faculty Publications

The so-called sharing economy presents one of the most important and controversial regulatory dilemmas of our time — yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible …

Regulating Software When Everything Has Software, Paul Ohm, Blake Reid

Publications

This Article identifies a profound, ongoing shift in the modern administrative state: from the regulation of things to the regulation of code. This shift has and will continue to place previously isolated agencies in an increasing state of overlap, raising the likelihood of inconsistent regulations and putting seemingly disparate policy goals, like privacy, safety, environmental protection, and copyright enforcement, in tension. This Article explores this problem through a series of case studies and articulates a taxonomy of code regulations to help place hardware-turned-code rules in context. The Article considers the likely turf wars, regulatory thickets, and related dynamics that are …

The Neo-Liberal Turn In Environmental Regulation, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Regulation has taken a neoliberal turn, using market-based mechanisms to achieve social benefits, especially in the context of environmental protection, and promoting information dissemination, labeling, and advertising to influence consumer preferences. Although this turn to neoliberal environmental regulation is well under way, there have been few attempts to manage this new reality. Instead, most commentators simply applaud or criticize the turn. If relying on neoliberal environmental reform (i.e., facing this reality regardless of one’s view of this turn), regulation and checks on these reforms are required. This Article argues that in light of the shift from traditional to neoliberal “substantive” …

A Story Of Three Bank-Regulatory Legal Systems: Contract, Financial Management Regulation, And Fiduciary Law, Tamar Frankel

Faculty Scholarship

How should banks be regulated to avoid their failure? Banks must control the risks they take with depositors' money. If depositors lose their trust in their banks, and demand their money, the banks will fail. This article describes three legal bank regulatory systems: Contract with depositors (U.S.); a mix of contract and trust law, but going towards trust (Japan), and a full trust-fiduciary law regulating banks (Israel). The article concludes that bank regulation, which limits the banks' risks and conflicts of interest, helps create trustworthy banks that serve their country best.