Law Commons^™

Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok

ExpressO

In LePage’s v. 3M, the Third Circuit decided the first case at the federal appellate court level that dealt with the subject of bundled discounts by a monopolist under Section 2 of the Sherman Act in the period following the U.S. Supreme Court’s decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation. Prior to the decision in Brooke Group, the Third Circuit had only once before addressed this topic in Smithkline Corp. v. Eli Lilly and Company. Smithkline is only significant because it nearly suggested that any bundled discount, regardless of whether above or below cost, was anti-competitive. …

Researching Georgia Law (2006 Edition), Nancy P. Johnson, Nancy J. Adams, Elizabeth G. Adelman

Georgia State University Law Review

No abstract provided.

Note: The Lesson Of Lopez: The Political Dynamics Of Federalism's Political Safeguards, Daniel Lyons

Daniel Lyons

No abstract provided.

The Indignity Of Federal Wildlife Habitat Law, Jamison E. Colburn

Jamison E. Colburn

In this article, I argue that the agencies charged under federal law with the protection of wildlife populations are, to a fault, too rational, too deliberate, too sequential in operation, and too focused on putting various tracts of federal realty on highly protective pedestals. My overall critique is that our administrative system's commitments to rationality and public participation per se render it an ineffective means to the end of wildlife habitat protection. Conservation biologists have agreed time and again how important continuous adaptation is to success in this field and how necessary it is to keep all high stakes judgments …

Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. …

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

ExpressO

No abstract provided.

The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: The Solution To Inherent Inequalities Exists Outside The Box Of Congress' "Sense" Of Personal Finance Education, Lisa M. Wiltshire

ExpressO

This Note analzyes the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 in relation to discrepancies between minority and white bankruptcy petition filers.

Separation Of Powers And The Criminal Law, Rachel E. Barkow

ExpressO

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including crime. And because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach when it comes to criminal matters. Indeed, the Supreme Court has been even …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Private International Law-Making For The Financial Markets, Caroline Bradley

ExpressO

This article argues that transnational financial transactions create new opportunities for private groups to influence legal and regulatory rules. Whereas the harmonization of financial law that follows from the increasing significance of transnational transactions looks as though it occurs through processes which are public, state-centred and transparent I describe three ways in which private and opaque processes have a significant influence on policy development in the area of financial law. These are private international law-making through private involvement in public rule-making processes, through contracting, and through the actions of private sector regulatory entrepreneurs.

The Law And Economics Of Wardrobe Malfunction, Adam Candeub

ExpressO

ABSTRACT: This article examines the Federal Communication Commission’s indecency regulation for television and radio. In recent years, the FCC has not only pursued high profile enforcements such as Janet Jackson’s well-known Super Bowl half time show, but perhaps more important, has issued fines against broadcasters in record amounts totaling millions of dollars. Critics claim that these enforcements are politicized, arbitrary, and chilling of free speech.

This article proposes a new, market-based mechanism for indecency regulation that avoids the pitfalls of the FCC’s current approach. The proposal focuses on the viewer--advertiser relationship, in distinction to the FCC’s regulations, which concentrate solely …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

A Standards-Based Theory Of Judicial Review And The Rule Of Law, Sidney A. Shapiro

ExpressO

The constitutionality of legislative preclusion of judicial review has received considerable attention from constitutional and administrative law scholars. We join this debate by proposing a new approach: a standards-based theory of judicial review based on two fundamental principles. First, whenever government officials make decisions involving the application of legal standards, the rule of law – and hence the rule of law safeguards of due process and judicial review – attach. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and …

Changes In Administrative Agency And Legal Practice In South Carolina Following State V. Peake, Jared Q. Libet

South Carolina Law Review

No abstract provided.

Privatization, Prisons, Democracy, And Human Rights: The Need To Extend The Province Of Administrative Law, Alfred C. Aman

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

The Judge As A Fly On The Wall: Interpretive Lessons From The Positive Political Theory Of Legislation, Daniel B. Rodriguez, Cheryl Boudreau, Arthur Lupia, Mathew Mccubbins

University of San Diego Public Law and Legal Theory Research Paper Series

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises …

Let's Try Performance-Based Regulation To Attack Our Smoking And Obesity Problems, Stephen D. Sugarman

Stephen D Sugarman

Instead of "command and control" regulation, and instead of litigation, let's try "performance-based regulation" as a way to force enterprises that are responsible for our obesity and smoking problems to solve them.

Turning Gold Into Epg: Lessons From Low-Tech Democratic Experimentalism For Electronic Rulemaking And Other Ventures In Cyberdemocracy , Peter M. Shane

The Ohio State University Moritz College of Law Working Paper Series

Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a …

Ambiguity And Policy Making: A Cognitive Approach To Reconciling Chevron And Mead, Peter M. Shane

The Ohio State University Moritz College of Law Working Paper Series

When decided, both Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and United States v. Mead, 533 U.S. 218 (2001) were trumpeted, whether by supporters or critics, as marking substantial changes in the law governing judicial review of agency statutory interpretation. This essay argues that what the Court actually decided in each case was entirely consistent with the fabric of the law of judicial review of administrative action as woven during earlier decades. Unfortunately, however, the Court's rhetoric in both opinions is confusing and unhelpful at key points, creating impressions of substantial changes in the law when none …

A Model For Emergency Service Of Voip Through Certification And Labeling, Patrick S. Ryan, Tom Lookabaugh, Douglas Sicker

ExpressO

Voice over Internet Protocol (VoIP) will transform many aspects of traditional telephony service, including the technology, the business models, and the regulatory constructs that govern such service. Perhaps not unexpectedly, this transformation is generating a host of technical, business, social, and policy problems. In attempting to respond to these problems, the Federal Communications Commission (FCC) could mandate obligations or specific solutions to VoIP policy issues; however, it is instead looking first to industry initiatives focused on the key functionality that users have come to expect of telecommunications services. High among this list of desired functionality is user access to emergency …

The Jurisprudential Foundation Of Law, Especially International Law: The Basis For True Progess & Reform, Morse Tan

ExpressO

This essay makes a unique case for the existence of justice, higher law and virtue by drawing on classic thinkers from both East and West. It asserts that no better jurisprudential foundation can be found. The need for this foundation emerges more clearly in the international context, but it applies to all legal systems.

After introducing the topic, explaining the relevance of this jurisprudence, responding to objections, and critiquing competing approaches, this essay presents pertinent sources from the East. Well-regarded in the East but less known to the West, writers such as Mencius, Tao, Hsuntze, and the Neo Confucianists from …

“Oh Lord, Please Don't Let Me Be Misunderstood!”: Rediscovering The Penn Central And Mathews V. Eldridge Frameworks, Gary Lawson, Katharine A. Ferguson, Guillermo Montero

ExpressO

The manuscript re-examines the origins and purposes of two of the most misunderstood constructs in modern legal doctrine: the so-called Penn-Central and Mathews v. Eldridge three-factor tests. We say “so-called,” because neither case actually invented a three-factor test. Penn Central set forth a framework involving two factors that later cases (unwisely, in our view) expanded to three, and the framework in Mathews was initially crafted by litigators in the Solicitor General’s office in order to resolve the specific issue facing the Court in that case. More significantly, neither Penn Central nor Mathews purported to set forth a methodology for deciding …

A Right To No Meaningful Review: The Aftermath Of Shalala V. Illinois Council On Long Term Care, Inc., Ruqaiijah Ayanna Yearby

ExpressO

A RIGHT TO NO MEANINGFUL REVIEW: THE AFTERMATH OF SHALALA v. ILLINOIS COUNCIL ON LONG TERM CARE, INC. Ruqaiijah A. Yearby

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. Federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, …

Public Agencies As Lobbyists, Jody Freeman

ExpressO

No abstract provided.

Dangerous Clients: A Phenomenological Solution To Bureaucratic Oppression, Edward L. Rubin

ExpressO

Modern administrative agencies are often unnecessarily oppressive in their day-to-day contact with people. This article traces such oppression to status differences between agency employees and clients, their relationship as strangers to one another, the institutional pathologies of the agency and the divergent incentives to which the agency employees are subject. The article then considers three solutions to this problem that have been discussed in the academic literature regarding government agencies: the imposition of due process requirements, the shift to client-centered management, and the use of market or quasi-market mechanisms.

After critiquing all three solutions, the article proposes a new approach, …

The Opacity Of Transparency, Mark Fenster

ExpressO

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result …

Review Of Agency Interpretations: The Difference Discovers Itself, Marla E. Mansfield

ExpressO

The Supreme Court regularly reviews agency interpretations of statutes. For many years, the official dogma of the Court was one of deference to reasonable agency interpretations of ambiguous statutes – the so-called “Chevron doctrine.” After Mead and Christensen, the Court was open to other levels of respect for agency interpretations. Recently, cases have so emphasized the particular statutory construction methods of the individual justices that the agency interpretation of a statute is now on the level of legislative history or other aids to interpretation, such as canons, which may or may not be used at a justice’s option. The array …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Complexity Theory, Adaptation, And Administrative Law, Donald Thomas Hornstein

Faculty Publications

No abstract provided.

On The Role Of Cost-Benefit Analysis In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

Legal scholarship on the role of cost-benefit analysis in environmental law is often stimulating, but does not seem to be changing anybody's mind. The entrenchment of a camp of detractors and a camp of advocates of cost-benefit analysis parallels the impasse that has stymied environmental law for over a decade. Professors Lisa Heinzerling and Frank Ackerman have co-authored a book that captures most of the arguments from the detractor side, and have done so skillfully and powerfully. However, this review criticizes the book's contribution to perpetuating this intellectual stalemate. The book does this by focusing on an environmental theory of …