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2010

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Articles 1 - 22 of 22

Full-Text Articles in Law

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp Dec 2010

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp

All Faculty Scholarship

The rule of reason adopted for resale price maintenance in the Supreme Court’s Leegin decision, which upset the century old Dr. Miles rule of per se illegality, requires some reconsideration of a number of issues about antitrust treatment of RPM. Under the old per se rule, bona fide “consignment” agreements were not covered by Section 1 of the Sherman Act at all because there was said to be no qualifying “agreement” between the supplier and the dealer. Rather the dealer was simply said to be acting as an agent of the seller. However, insofar as RPM produces competitive dangers, such …


Crow Water Rights Settlement Act Of 2010, United States 111th Congress Dec 2010

Crow Water Rights Settlement Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Title IV: Crow Tribe Water Rights Settlement - Crow Tribe Water Rights Settlement of 2010 in the Claims Resolution Act of 2010 (PL111-291| 124 Stat 3097). The Act ratifies, authorizes, and confirms the water rights 1999 Compact between the Crow Tribe and MT. The DOI Secretary shall promptly execute the Compact and comply with applicable environmental acts and regulations. The Act provides for: 1) the Tribe to a) rehabilitate and improve the Crow Irrigation Project; and b) Reclamation to construct the municipal, rural, and industrial water system; 2) creates a Project Management Committee made up of the Tribe, …


Yes, I Can: Subjective Legal Empowerment, Martin Gramatikov, Robert B. Porter Oct 2010

Yes, I Can: Subjective Legal Empowerment, Martin Gramatikov, Robert B. Porter

Martin Gramatikov

This paper explores critically the notion of legal empowerment and suggests that the currently employed approaches lead to vague concepts which evade measurement and lend little programmatic guidance. Our thesis is that legal empowerment should be sought not in the process of providing legal solutions but in the subjective self-belief that a person posses and can mobilize the necessary resources, competencies and energies to solve particular problem of legal nature. This model rejects the existence of an overall quantity of legal empowerment. People’s beliefs in their ability to solve legal problems differ by type of problem, distribution of power in …


Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills Aug 2010

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …


Epa’S Attempt To Regulate Greenhouse Gases Under The Clear Air Act: Will Chevron Allow The Tailoring Rule To Withstand Judicial Review? And Why The Answer Doesn’T Matter, James Valvo Apr 2010

Epa’S Attempt To Regulate Greenhouse Gases Under The Clear Air Act: Will Chevron Allow The Tailoring Rule To Withstand Judicial Review? And Why The Answer Doesn’T Matter, James Valvo

James Valvo

The Environmental Protection Agency has issued three new Clean Air Act regulations targeting greenhouse gases, as a response to the Supreme Court’s ruling in Massachusetts v. EPA. One of these proposals, the Tailoring Rule, seeks to adjust the applicability thresholds that trigger the prevention of significant deterioration and title V permit requirements. EPA is attempting to use the Tailoring Rule to soften the blow of new greenhouse gas regulations on both businesses and state permitting agencies. This proposed rule clearly violates the expressed congressional intent in the statute. Legal challenges to EPA’s actions are looming and the standard of review …


Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley Apr 2010

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …


The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson Apr 2010

The Future Of Agency Independence, Lisa S. Bressman, Robert B. Thompson

Vanderbilt Law Review

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …


Recovery Of An Endangered Provision: Untangling And Reviving Critical Habitat Under The Endangered Species Act, Kalyani Robbins Mar 2010

Recovery Of An Endangered Provision: Untangling And Reviving Critical Habitat Under The Endangered Species Act, Kalyani Robbins

Kalyani Robbins

This article addresses the problems plaguing implementation of critical habitat under the Endangered Species Act (ESA). There has been long-term confusion among courts, agencies, developers, and environmental organizations regarding the legal, environmental, and economic impacts of designating critical habitat for species listed as threatened or endangered under the ESA. At the heart of this difficulty has been a need to understand the degree to which the protections for critical habitat can be distinguished from those for listed species generally. Critical habitat is primarily protected via section 7’s requirement that federal agencies consult with the Fish & Wildlife Service and the …


Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen Mar 2010

Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen

Ronald Allen

Two recent Supreme Court cases, Iqbal and Twombly, have caused a storm of criticism from civil proceduralists to the effect that the cases have changed the meaning of FRCP 8 outside of the Rules Enabling Act process; undercut the transsubstantive aspirations of the procedural system; breached the procedure-evidence divide inappropriately; will result in idiosyncratic trial court judgments based on bias and caprice; and have imposed an unworkable if not incomprehensible standard of plausibility on pleadings. The storm of criticism is fueled in no small part because of the awkwardness of the Court’s opinions. These cases look considerably different if viewed …


Offshore Windfall: What Approval Of The United States' First Offshore Wind Project Means For The Offshore Wind Energy Industry, Michael P. Giordano Mar 2010

Offshore Windfall: What Approval Of The United States' First Offshore Wind Project Means For The Offshore Wind Energy Industry, Michael P. Giordano

University of Richmond Law Review

This comment explores the Cape Wind project with an emphasis on its role as the first United States offshore wind energy project. Part II of this comment explains the potential energy resource that offshore wind provides and examines some of the economic, technological, and regulatory challenges facing the development of offshore wind projects in United States waters. Part III of this comment introduces the Cape Wind project as a case study by briefly describing the particular political struggles and permitting challenges faced by its developers. Part IV of this comment analyzes how DOI approval and the eventual construction of Cape …


Corporate Social Responsibility After Citizens United, David G. Yosifon Feb 2010

Corporate Social Responsibility After Citizens United, David G. Yosifon

David G. Yosifon

The Supreme Court recently held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did very little to inform the Court’s thinking in Citizens United, this article argues that the holding in Citizens United requires us to rethink corporate theory. Specifically, this article demonstrates that the shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy, mainstream corporate theorists have long argued, because we can …


Duties Of Sports Agents To Athletes And Statutory Regulation Thereof, Darren A. Heitner Jan 2010

Duties Of Sports Agents To Athletes And Statutory Regulation Thereof, Darren A. Heitner

Darren A Heitner

The Sports Agent Responsibility and Trust Act of 2004 (SPARTA) and the Uniform Athlete Agents Act (UAAA) have helped protect student-athletes and educational institutions against harmful acts by unscrupulous sports agents. Statutory regulations have come up short in enforcing agents’ duties to all athletes; however, and while aspects of agency law, the Racketeer Influenced and Corrupt Organizations (RICO) Act, players’ associations regulations, and various Bar Associations’ rules have helped fill some of the gaps, there continues to be a need for increased oversight over the sports agent profession. This article argues that student-athletes should have a statutory right to enforce …


Financial Regulatory Reformation In South Korea And Experience Of The Consolidated Regulatory System, Jeongdoo Lee Jan 2010

Financial Regulatory Reformation In South Korea And Experience Of The Consolidated Regulatory System, Jeongdoo Lee

Jeongdoo Lee

One significant recommendation for the U.S. financial reformation is the consolidation of regulatory system, which South Korea adopted after the Asian financial crisis. This paper briefly reflects the causes of the Korean financial crisis from the points of financial regulation, and explains the process of reformation and experiences of Korean consolidated system including some modifications after the initial reformation. In addition, this paper evaluates the Korean regulatory system with general standards and needs for changes in the backgrounds of various economic and political surroundings. Although there can be general requisites for desirable regulatory system, the reason for the change itself …


Cross-Country Adoption: A Call To Action, Anthony D'Amato Jan 2010

Cross-Country Adoption: A Call To Action, Anthony D'Amato

Faculty Working Papers

Although a free press is an integral part of democratic governance, intercountry adoption is one case in which the media makes it virtually impossible for governments to send children abroad for adoption. A country (State A) which gives up a child for intercountry adoption should receive a "credit" for that child which will entitle any other family within State A that may want to adopt a child to priority on the list at the Vatican. The second major function for the Intercountry Adoption Agency might be called the "annual report" function. All adoptive parents who take a child from the …


Reconfiguring The Space Of Agency In The Digital Age, Peggy Reynolds Jan 2010

Reconfiguring The Space Of Agency In The Digital Age, Peggy Reynolds

Saint Louis University Law Journal

No abstract provided.


The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow Jan 2010

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Articles in Law Reviews & Other Academic Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …


Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency-Fee Environmental Special Counselor Arrangement, Julie E. Steiner Jan 2010

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency-Fee Environmental Special Counselor Arrangement, Julie E. Steiner

Julie E. Steiner

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with standing to …


Individualism Submerged: Climate Change And The Perils Of An Engineered Environment, Juliet P. Stumpf, Daniel J. Chepaitis, Andrea Panagakis Jan 2010

Individualism Submerged: Climate Change And The Perils Of An Engineered Environment, Juliet P. Stumpf, Daniel J. Chepaitis, Andrea Panagakis

Juliet P Stumpf

Current approaches to addressing the negative impacts of climate change rely on collective capabilities. Welfare economics and contractualism, the two conventional perspectives that dominate the debate, support the pursuit of adaptive strategies such as large-scale geoengineering projects to reduce solar radiation or ameliorate sea-water inundation. In place of returning greenhouse gas emissions to natural levels, these approaches put the global climate system and compensation for losses resulting from climate change under the control of some group of fellow humans. In other words, they privilege mechanisms that increase each individual=s dependence on a collective decisionmaker and decrease the individual=s capacity to …


Obama's Equivocal Defense Of Agency Independence, Kevin M. Stack Jan 2010

Obama's Equivocal Defense Of Agency Independence, Kevin M. Stack

Vanderbilt Law School Faculty Publications

You can't judge a President by his view of Article II. At the very least, only looking to a President's construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted.

President Obama is no exception, as revealed by his defense of the constitutionality of an independent agency from challenge under Article II in Free Enterprise Fund v. Public Company Accounting Oversight Board' (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEC), created to regulate accounting of public companies in the wake of …


The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz Jan 2010

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

Articles

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …


Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan M. Heminway Jan 2010

Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan M. Heminway

Scholarly Works

As a reaction to perceived and actual regulatory failures at the Securities and Exchange Commission (the SEC), from mistakes that contributed to the financial crisis to the Bernard Madoff affair, the SEC has been engaged in an operational transformation process. The growing literature on management and leadership in times of change -- change leadership literature -- offers a number of potentially valuable lenses through which we may assess reform at the SEC.

With the thought that securities regulators and others may learn valuable lessons about the SEC’s restructuring and reorganization from experts in change leadership, this Article explores a selected …


Agency And Partnership Law [2009], Pearlie Koh, Stephen Bull Jan 2010

Agency And Partnership Law [2009], Pearlie Koh, Stephen Bull

Research Collection Yong Pung How School Of Law

The laws relating to the creation of an agency, implied authority, holding out and apparent authority, duties of the agent in relation to Agency law are discussed. The laws relating to partnership law and issues such as relationship of partners to third parties, relationships of partners between themselves and capacity to be a partner are highlighted.