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Fragmented Oversight Of Nonprofits In The United States: Does It Work? Can It Work?, Lloyd Hitoshi Mayer Dec 2015

Fragmented Oversight Of Nonprofits In The United States: Does It Work? Can It Work?, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

The United States is well known for its distinctive although not unique division of political authority between the federal government and the various states. This division is particularly evident when it comes to oversight of nonprofit organizations. The historical focus of federal government oversight has been limited primarily to qualification for tax exemption and other tax benefits, with more plenary power resting with state authorities. Over time, however, the federal government’s role has come to overlap significantly with that of the states, and many nonprofits have become subject to regulation by multiple states as their operations and donor bases expand …


Tying And Bundled Discounts: An Equilibrium Analysis Of Antitrust Liability Tests, Melanie S. Williams Sep 2015

Tying And Bundled Discounts: An Equilibrium Analysis Of Antitrust Liability Tests, Melanie S. Williams

Melanie S. Williams

Courts have struggled with determining when bundled discounts constitute unlawfully anticompetitive behavior. The current circuit split reflects an absence of consensus. This lack of legal guidance creates uncertainty in the market, with firms being given inconsistent – and sometimes contradictory - standards on how to avoid antitrust liability.

For the most part, we consider a standard paradigm for analyzing bundled discounts. Suppose that there are two firms. Firm 1 produces a monopoly product, A, and also another product, B, which competes with another version of B produced by Firm 2. The concern is the extent to which the price paid …


Bridgefunding Is Crowdfunding For Startups Across The Private Equity Gap, Seth C. Oranburg Feb 2015

Bridgefunding Is Crowdfunding For Startups Across The Private Equity Gap, Seth C. Oranburg

Seth C Oranburg

Title III of the JOBS Act of 2012, which attempts to encourage entrepreneurship by allowing startups and small business to sell stock to the general public over the Internet through “crowdfunding,” is completely backwards. Its ceiling should be a floor—the $1 million limit should be inverted. By capping startups at raising $1 million from crowdfunding, the JOBS Act does not address the private equity gap, a fundamental problem in startup markets, and exposes unsophisticated investors to risk and fraud. This Article presents a regulatory framework premised on “bridgefunding,” an approach that this article develops to protect new investors by encouraging …


Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson Aug 2014

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

Jonathan C. Lipson

This paper uses “institutional analysis”—the study of the relative capacities of markets, courts, and regulators—to make three claims about financial crises.

First, financial crises are increasingly a problem of “regulatory displacement.” Through the ad hoc rescues of 2008 and the Dodd-Frank reforms of 2010, regulators displace market and judicial processes that ordinarily prevent financial distress from becoming financial crises. Because regulators are vulnerable to capture by large financial services firms, however, they cannot address the pathologies that create crises: market concentration and complexity. Indeed, regulators may inadvertently aggravate these conditions through resolution tactics that consolidate firms, and the volume and …


Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal Aug 2014

Regulatory Institutions Of The Global South: Why Are They Different And What Can Be Done About It?, Yugank Goyal

Yugank Goyal

Developing countries suffer from underperforming regulatory agencies compared to those in the developed world. The paper attempts to theorize general reasons behind such divergence. It argues that the differences lie in developing countries’ (a) higher priorities for redistribution, (b) structurally different institutional endowments, especially at informal level, and (c) limited informational channels. The paper proposes that a multi-stakeholder (with increased emphasis on judiciary and civil society) approach has potential to address the shortcomings. It tests these claims through studying cases of telecom and electricity regulation in India.


Revenue Adequacy: The Good, The Bad And The Ugly, John W. Mayo Aug 2014

Revenue Adequacy: The Good, The Bad And The Ugly, John W. Mayo

John W Mayo

Abstract: The concept of “revenue adequacy” made its way into the legal governance of the rail industry prior to the industry’s substantial deregulation via the Staggers Rail Act in 1980. This seemingly quiet feature of rail legislation has, however, increasingly grown central to the regulatory-deregulatory fault line in the 21st century rail industry. This paper examines the concept of revenue adequacy, a benchmark of United States railroad firms' financial performance calculated annually by regulatory oversight bodies. The paper addresses questions around the origins, measurement, informational provisions, value and policy benefits and costs of revenue adequacy. An examination of the historical …


The Unintended Consequences Of Safety Regulation, Sherzod Abdukadirov Feb 2014

The Unintended Consequences Of Safety Regulation, Sherzod Abdukadirov

Sherzod Abdukadirov

This study examines how risk trade-offs undermine safety regulations. Safety regulations often come with unintended consequences in that regulations attempting to reduce risk in one area may increase risks elsewhere. The increases in countervailing risks may even exceed the reduction in targeted risks, leading to a policy that does more harm than good. The unintended consequences could be avoided or their impacts minimized through more careful analysis, including formal risk trade-off analysis, consumer testing, and retrospective analysis. Yet agencies face strong incentives against producing better analysis; increased awareness of risk trade-offs would force agencies to make unpalatable and politically sensitive …


Has The Cftc Gone Too Far In Trying To Keep The American Economy Safe From Cross-Border Swaps?, Gabriel Lau Feb 2014

Has The Cftc Gone Too Far In Trying To Keep The American Economy Safe From Cross-Border Swaps?, Gabriel Lau

Gabriel Lau

With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010, the Commodity Futures Trading Commission (“CFTC”) received the daunting task regulating swap markets. Following two iterations of proposed guidance and comment periods, the CFTC released its finalized “Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations” (“Guidance”) on July 26, 2013. In the Guidance, the CFTC gives its interpretation and policy outlook for promulgating rules with respect to the regulation of cross-border swaps. This paper examines both the critiques of the Guidance, including issues of international comity and rule promulgation procedures, and …


Regulating For The Public Health: Perchlorate Regulation Under The Safe Drinking Water Act Exceeds Statutory Authority, Mary Jones Jun 2013

Regulating For The Public Health: Perchlorate Regulation Under The Safe Drinking Water Act Exceeds Statutory Authority, Mary Jones

Mary Jones

This paper recommends rethinking the statutory framework of the Safe Drinking Water Act (SDWA) to provide a more robust rubric, to include a scientific and objective focus, for proper regulation. The SDWA is evaluated through the lens of upcoming perchlorate regulation due in February 2013.

The United States Environmental Protection Agency (EPA) regulates acceptable contaminant levels and decontamination processes for all public water systems, pursuant to statutory authority granted by the SDWA. Where the policy at work is admirable, the execution falls short.

Perchlorate occurs naturally, but also as a by-product to rocket fuel, firework, and other explosive constructions. Scientific …


A Negative Externality By Any Other Name: Using Emissions Caps As Models For Constraining Dead-Weight Costs Of Regulation, Scott A. Shepard Mar 2013

A Negative Externality By Any Other Name: Using Emissions Caps As Models For Constraining Dead-Weight Costs Of Regulation, Scott A. Shepard

Scott A. Shepard

Emissions caps work on a simple and compelling premise. Regulated entities, in the process of creating something desirable, like energy, create and expel some problematic by-product, such as carbon. They do this because they particularly reap a significant set of benefits (e.g., profits, market share, job security) from their efforts, while only diffusely and incidentally, along with the rest of society, suffering the harms caused by their emissions. These emissions, paid for primarily by the rest of society, are called negative externalities. Emissions-cap regimes are designed to make regulated entities more directly accountable for the costs of their emissions and …


Empirical Associative Regulation – Drawing Future Regulatory Tools From The Experience Of The Past, Nachshon Goltz Oct 2012

Empirical Associative Regulation – Drawing Future Regulatory Tools From The Experience Of The Past, Nachshon Goltz

Nachshon Goltz

Traditionally, theories on regulation have suggested choosing the “right” regulatory tool for a given situation of desired behavioral steer, using a broad theoretical approach of understanding the factors involved in the regulatory realm and speculating or deducting from it toward the efficient choice.

In contrast, I am arguing that the process of choosing the “right” regulatory tool should be guided by an opposite process, in which a database of regulatory success and failure case studies will be created. The institute (i.e., governments, regulation agencies, etc.) seeking to steer behavior using regulatory tools (“the regulator”) will search this information body using …


Securing Advantages In Global Markets: The Example Of Stem Cell Technology, Amanda Warren-Jones Dr Oct 2012

Securing Advantages In Global Markets: The Example Of Stem Cell Technology, Amanda Warren-Jones Dr

Amanda Warren-Jones Dr

The potential of innovation to spur economic growth is central to determining how markets in new medical developments, such as stem cell technology, can be maximised within Europe and the USA. Promoting innovation is reliant upon nurturing technological development and at root this necessitates an effective regulatory environment. Existing academic discourse generally fragments the regulatory landscape to consider the effectiveness of discrete aspects of oversight measures and systems. This article argues that working towards a regulatory landscape which effectively shepherds technology to interim- and end-consumers in order to maximise market potential must begin from an understanding of the interrelationship of …


Ncaa Football, Domestic Violence, And The Need For Reform, Hugo Israel Ortega Sep 2012

Ncaa Football, Domestic Violence, And The Need For Reform, Hugo Israel Ortega

Hugo I Ortega

Because a disproportionate number of student-athletes abuse partners, the National Collegiate Athletic Association (NCAA) should adopt a new policy to adequately address the problem. The NCAA does not currently have a policy in place to deal with student athletes who commit domestic violence. Universities have failed to take the initiative or demonstrate leadership in handling these cases without any guidance or uniformity, which has led to significant problems. Several obstacles remain in the way of adopting a new policy. First, NCAA Football is a billion dollar business. Taking star athletes off the field for conduct relating to domestic violence could …


Verify, Then Trust: How To Legalize Off-Label Drug Marketing, Fazal Khan, Justin Holloway Mar 2012

Verify, Then Trust: How To Legalize Off-Label Drug Marketing, Fazal Khan, Justin Holloway

Fazal Khan

This article proposes a novel framework for more broadly securing the benefits of “off-label” drug usage while mitigating the harms inherent to this practice. Once the FDA approves a drug, doctors can prescribe for it any indication they think is reasonable, even uses that have not been thoroughly tested. The FDA bans the marketing or promotion for off-label uses by drug companies precisely because such uses have not been validated to be safe or effective through the regulatory process. Further, there are serious concerns with validity of industry-sponsored off-label research related to practices such as ghostwriting, gag-clauses on researchers, and …


Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell Mar 2012

Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell

Ray W Campbell

For decades, academics have argued that the US system for regulating the practice of law inhibits innovation. Despite that academic consensus, we live in an age of unparalleled innovation in the way legal services are provided to clients in the United States. What gives? How can we live in a regulatory environment that prevents innovation, and have such an abundance of it? Where is this innovation coming from, and from whence might more innovation come? The answers are neither simple nor obvious. Understanding this changing landscape requires a close look both at how innovations take root and at the US …


Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell Mar 2012

Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell

Ray W Campbell

For decades, academics have argued that the US system for regulating the practice of law inhibits innovation. Despite that academic consensus, we live in an age of unparalleled innovation in the way legal services are provided to clients in the United States. What gives? How can we live in a regulatory environment that prevents innovation, and have such an abundance of it? Where is this innovation coming from, and from whence might more innovation come? The answers are neither simple nor obvious. Understanding this changing landscape requires a close look both at how innovations take root and at the US …


“Technopanics, Threat Inflation, And The Danger Of An Information Technology Precautionary Principle”, Adam Thierer Mar 2012

“Technopanics, Threat Inflation, And The Danger Of An Information Technology Precautionary Principle”, Adam Thierer

Adam Thierer

Fear is an extremely powerful motivational force. In public policy debates, appeals to fear are often used in an attempt to sway opinion or bolster the case for action. Such appeals are used to convince citizens that threats to individual or social wellbeing may be avoided only if specific steps are taken. Often these steps take the form of anticipatory regulation based on the precautionary principle.

Such “fear appeal arguments” are frequently on display in the Internet policy arena and often take the form of a full-blown “moral panic” or “technopanic.” These panics are intense public, political, and academic responses …


Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan Aug 2011

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …


The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo Jul 2011

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …


The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo Mar 2011

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …


Revisiting The Original "Tea Party": The History Of Regulating Food Consumption In America, Alison Peck Mar 2011

Revisiting The Original "Tea Party": The History Of Regulating Food Consumption In America, Alison Peck

Alison Peck

In response to concerns over rising obesity rates, state and federal policymakers have introduced laws that seek to internalize the public health costs of consuming unhealthy foods. These laws range from taxes on sugared beverages to mandatory nutritional information disclosures and beyond. Vocal opponents to such laws, including many Tea Party members, characterize such laws as government overreaching into the private sphere. That opposition often evokes Revolutionary images and ideology, with references to the Boston Tea Party, the Founding Fathers, and the framing of the Constitution. This article challenges the symbolism used by these opponents by examining the pre-Revolutionary non-importation …


The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel Mar 2011

The Clean Water Act’S Final Frontier: Taking On Nonpoint Source Pollution Using Mandatory Tmdl Rules, Jason M. Stoffel

Jason M Stoffel

While the Clean Water Act, as it is currently structured, has few provisions that directly regulate nonpoint source pollution, the Ninth Circuit Court of Appeals, in the case Friends of Pinto Creek v. United States EPA, 504 F.3d 1007 (9th Cir. 2007), has recognized the Total Maximum Daily Load (TMDL) program as a tool that can be used by the EPA to indirectly compel states to regulate nonpoint source pollution in the nation’s impaired waters. In the context of the Ninth Circuit’s ruling, in 2010, the EPA made national headlines by pushing states to regulate nonpoint source pollution in the …


Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch Mar 2011

Derivatives: A Twenty-First Century Understanding, Timothy E. Lynch

Timothy E. Lynch

Derivatives are commonly defined as some variation of the following: a financial instrument whose value is derived from the performance of a secondary source such as an underlying bond, commodity or index. But this definition is both over-inclusive and under-inclusive. Thus, not surprisingly, derivatives are largely misunderstood, including by many policy makers, regulators and legal analysts. It is important for interested parties such as policy makers to understand derivatives, because the types and uses of derivatives have exploded in the last few decades, and because these financial instruments can provide both social benefits and cause social harms. This Article presents …


Gambling By Another Name? The Challenge Of Purely Speculative Derivatives, Timothy E. Lynch Mar 2011

Gambling By Another Name? The Challenge Of Purely Speculative Derivatives, Timothy E. Lynch

Timothy E. Lynch

Derivatives contracts can be used to hedge pre-existing risks, but they can also be used to speculate. This Article focuses on derivatives contracts in which both counterparties are speculators. These “purely speculative derivatives (PSD) contracts” have become increasingly common over the last several years and have notably resulted in the transfer of many tens of billions of dollars from institutions that had invested in the US subprime housing market to a handful of speculators who foresaw the market’s collapse, as well as many billions of dollars in fees to PSD brokers. PSD contracts are problematic. PSD contracts are less-than-zero-sum transactions …


Secondary Liability For Securities Fraud: Gatekeepers In State Court, Jennifer J. Johnson Feb 2011

Secondary Liability For Securities Fraud: Gatekeepers In State Court, Jennifer J. Johnson

Jennifer J Johnson

This paper discusses gatekeeper liability under state securities laws for professionals and other secondary participants in securities transactions. The recent economic meltdown exposed numerous Ponzi schemes from Madoff to Medical Capital that were no longer able to masquerade as profitable enterprises. When promoters of fraudulent ventures are unable to provide restitution to their victims, plaintiffs seek out other sources of repayment including professionals and other secondary participants in the transactions that precipitated their losses. Although most scholars agree that professionals can perform an important role in deterring securities fraud, scholarly opinions vary widely on the appropriate liability regime, if any, …


Another Role For Securities Regulation: Expanding Opportunity, Jasmin Sethi Dec 2010

Another Role For Securities Regulation: Expanding Opportunity, Jasmin Sethi

Jasmin Sethi

Securities regulation can be justified on a number of grounds, but historically, expanding opportunities for wealth accumulation across sectors of the population has not been a justification given credence. This paper examines the implications of integrating an opportunities based perspective in evaluating securities regulation for policy decisions. I demonstrate how the policy implications of such a perspective are often distinct from those implicated by other approaches, such as a public welfare approach to securities regulation. In this article, I apply this perspective and what we know about human behavior to examine how securities policy could be shaped by an opportunities-based …


Credit Derivatives: Industry Initiative Supplants Need For Direct Regulatory Intervention. A Model For The Future Of U.S. Regulation?, John T. Lynch Mar 2007

Credit Derivatives: Industry Initiative Supplants Need For Direct Regulatory Intervention. A Model For The Future Of U.S. Regulation?, John T. Lynch

John T Lynch

A brief introduction to credit derivatives and the current state of the market is given as a means of orienting the reader to the complexity and evolving importance of these financial instruments. This comment then offers a detailed survey of the recent developments in the credit derivatives market from 2005-2006, focusing on the initiative by the market participants that were called to action by the Federal Reserve Bank of New York. This model of shifting market control to the private sector is then explored as a central tenet of a revised U.S. financial regulatory structure, proposed in this comment as …


New Governance, Compliance, And Principles-Based Securities Regulation, Cristie L. Ford Mar 2007

New Governance, Compliance, And Principles-Based Securities Regulation, Cristie L. Ford

Cristie L. Ford

The UK securities regulator, the Financial Services Authority, claims that its "principles-based" approach to securities regulation is simply "better" than what it characterizes as the prescriptive, rules-based American approach. The striking shift in financial sector business from New York to London over the last two years has brought the question of the wisdom of principles-based regulation into sharp relief. In fact, an FSA-style regulatory approach may also be taking hold in Canada, through the agency of the province of British Columbia. This paper examines BC's innovative proposals for a principles-based securities regime through the lens of New Governance theory. I …