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Articles 1 - 30 of 110
Full-Text Articles in Law
Innovation, Investment, And Unbundling, Thomas Jorde, J. Sidak, David Teece
Innovation, Investment, And Unbundling, Thomas Jorde, J. Sidak, David Teece
Thomas Jorde
Examines the tradeoff between innovation and mandatory unbundling of telecommunications networks in the United States. Release of the Second Further Notice of Proposed Rulemaking by the Federal Communications Commission; Subjection of telecommunication networks to compulsory sharing among competitors at regulated cost-based rates; Effect of the mandatory unbundling on the incumbent local exchange carrier.
Market-Oriented Regulation Of Environmental Problems In The Netherlands, Gjalt Huppes, Robert Kagan
Market-Oriented Regulation Of Environmental Problems In The Netherlands, Gjalt Huppes, Robert Kagan
Robert Kagan
No abstract provided.
Legal Beagle's Blog Archive For December 2015, Roger Williams University School Of Law
Legal Beagle's Blog Archive For December 2015, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts
Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts
Michigan Journal of Environmental & Administrative Law
Private actors, including business firms and non-governmental organizations, play an essential role in addressing today’s most serious environmental challenges. Yet scholars have not fully recognized the parallels between public environmental law and the standard-setting and enforcement functions of private environmental governance. “Instrument choice” in environmental law scholarship is generally understood to refer to government actors choosing among options from the public law “toolkit,” which includes prescriptive rules, the creation of property rights, the leveraging of markets, and informational regulation. Each of these major public law tools, however, has a parallel in private environmental governance. This Article first provides a descriptive …
Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue
Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue
Articles
Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to discounting premium rates for insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law …
The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus
The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus
University of Michigan Journal of Law Reform
This Article argues for a paradigm shift in modern antitrust policy. Rather than being concerned exclusively with consumer welfare, antitrust law should also be concerned with consolidated corporate power. Regulators and courts should consider the social and political, as well as the economic, consequences of corporate mergers. The vision that antitrust must be a key tool for limiting consolidated corporate power has a venerable legacy, extending back to the origins of antitrust law in early seventeenth century England, running throughout American history, and influencing the enactment of U.S. antitrust laws. However, the Chicago School’s view that antitrust law should be …
Personal Responsibility For Systemic Inequality, Martha T. Mccluskey
Personal Responsibility For Systemic Inequality, Martha T. Mccluskey
Contributions to Books
Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.
Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in …
Inside Regulatory Interpretation: A Research Note, Christopher J. Walker
Inside Regulatory Interpretation: A Research Note, Christopher J. Walker
Michigan Law Review First Impressions
We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and …
A Laboratory Of Regulation: The Untapped Potential Of The Hhs Advisory Opinion Power, Christopher J. Climo
A Laboratory Of Regulation: The Untapped Potential Of The Hhs Advisory Opinion Power, Christopher J. Climo
Vanderbilt Law Review
Of late, the federal government's approach to regulation of hospitals and other healthcare providers asks them to do more with less. Both the government and private insurers have increasingly assigned hospitals and other providers with financial responsibility for the quality of the care they provide to federal beneficiaries.' At the same time, experts predict that reimbursement rates by both the government and private insurers will fall as a result of the Affordable Care Act's recent efforts to increase access to healthcare. Facing a widening gap between expectations of quality and availability of financial resources, healthcare providers will need to pursue …
Protecting The State From Itself? Regulatory Interventions In Corporate Governance And The Financing Of China's 'State Capitalism', Nicholas C, Howson
Protecting The State From Itself? Regulatory Interventions In Corporate Governance And The Financing Of China's 'State Capitalism', Nicholas C, Howson
Book Chapters
From the start of China’s “corporatization without privatization” process in the late 1980s, a Chinese corporate governance regime, apparently shareholder-empowering and determined by enabling legal norms, has been altered by mandatory governance mechanisms imposed by a state administrative agency, the China Securities Regulatory Commission (CSRC). This has been done to protect minority shareholders against exploitation by the Party-state controlling shareholders, the power behind China’s “state capitalism.” This chapter reviews the path of this benign intervention by the CSRC and the structural reasons for it, and then speculates on why this novel example of the China’s “fragmented authoritarianism” continues to be …
Mariguana Para Fines Lúdicos, Alejandro Faya Rodriguez
Mariguana Para Fines Lúdicos, Alejandro Faya Rodriguez
Alejandro Faya Rodriguez
No abstract provided.
Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead
Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead
O. Carter Snead
The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, …
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Delegating Tax, James R. Hines Jr., Kyle D. Logue
Michigan Law Review
Congress delegates extensive and growing lawmaking authority to federal administrative agencies in areas other than taxation, but tightly limits the scope of Internal Revenue Service (IRS) and Treasury regulatory discretion in the tax area, specifically not permitting these agencies to select or adjust tax rates. This Article questions why tax policy does and should differ from other policy areas in this respect, noting some of the potential policy benefits of delegation. Greater delegation of tax lawmaking authority would allow administrative agencies to apply their expertise to fiscal policy and afford timely adjustment to changing economic circumstances. Furthermore, delegation of the …
Dialogic Labor Regulation In The Global Supply Chain, Kevin Kolben
Dialogic Labor Regulation In The Global Supply Chain, Kevin Kolben
Michigan Journal of International Law
In May 2006, the government of Jordan was facing a crisis. A small U.S. labor-rights activist group had just released a damning report documenting extensive labor abuses in Jordan’s fledgling garment industry. Adding fuel to the fire, the New York Times published a front-page story about the report with its own field work that corroborated some of the allegations, such as long and abusive working hours, the confiscation of passports of foreign workers, horrendous living conditions, and sexual harassment. Although garment manufacturing was new to Jordan, after just several years of existence it already constituted an important part of Jordan’s …
Uncertainty, Precaution, And Adaptive Management In Wildlife Trade, Annecoos Wiersema
Uncertainty, Precaution, And Adaptive Management In Wildlife Trade, Annecoos Wiersema
Michigan Journal of International Law
Wildlife trade is big business. Legal international trade in just some of the wild animals and plants traded worldwide is estimated at $350 to $530 million per year. The United States is the primary importer of virtually every major taxon of these species, including mammals, reptiles, fish, and plants. When it comes to illegal trade, estimates of its value range from $7 to $23 billion annually, covering wild animals, fish, and timber. This illegal trade fuels organized crime and militia and terrorist groups. In the face of all this pressure, some wild species appear to be traded in sustainable amounts. …
Dodging The Taxman: Why The Treasury’S Anti-Abuse Regulation Is Unconstitutional, Linda D. Jellum
Dodging The Taxman: Why The Treasury’S Anti-Abuse Regulation Is Unconstitutional, Linda D. Jellum
University of Miami Law Review
To combat abusive tax shelters, the Department of the Treasury promulgated a general anti-abuse regulation applicable to all of subchapter K of the Internal Revenue Code of 1986. The Treasury targeted subchapter K because unique aspects of the partnership tax laws—including its aggregate-entity dichotomy—foster creative tax manipulation. In the anti-abuse regulation, the Treasury attempted to “codify” existing judicially-created anti-abuse doctrines, such as the business-purpose and economic-substance doctrines. Also, and more surprisingly, the Treasury directed those applying subchapter K to use a purposivist approach to interpretation and to reject textualism.
In this article, I demonstrate that the Treasury exceeded both its …
Death By A Thousand Cuts: How The Supreme Court Has Effectively Killed Campaign Finance Regulation By Its Limited Recognition Of Compelling State Interests, Kevin R. Huguelet
Death By A Thousand Cuts: How The Supreme Court Has Effectively Killed Campaign Finance Regulation By Its Limited Recognition Of Compelling State Interests, Kevin R. Huguelet
University of Miami Law Review
This Article examines the current campaign finance jurisprudence in the United States, with a particular emphasis on the Court’s recognition of compelling state interests. Given the limited recognition of compelling state interests, this Article seeks to question the seemingly arbitrary rationale behind recognition and explore the implications of minimal acceptance of compelling state interests. Because the evolution of compelling state interest recognition has varied greatly, the Court’s recent insistence — that the state has merely one compelling interest — is troublesome. This Article provides a comprehensive review of the campaign finance jurisprudence, then reviews the decisions that created or argued …
The Unintended Effects Of Government-Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue
The Unintended Effects Of Government-Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue
Articles
Catastrophes from severe weather are perhaps the costliest accidents humanity faces. While we are still a long way from technologies that would abate the destructive force of storms, there is much we can do to reduce their effect. True, we cannot regulate the weather, but through smart governance and correct incentives we can influence human exposure to the risk of bad weather. We may not be able to control wind or storm surge, but we can prompt people to build sturdier homes with stronger roofs far from floodplains. We call these catastrophes "natural disasters," but they are the result of …
Medicine As A Public Calling, Nicholas Bagley
Medicine As A Public Calling, Nicholas Bagley
Michigan Law Review
The debate over how to tame private medical spending tends to pit advocates of government-provided insurance—a single-payer scheme—against those who would prefer to harness market forces to hold down costs. When it is mentioned at all, the possibility of regulating the medical industry as a public utility is brusquely dismissed as anathema to the American regulatory tradition. This dismissiveness, however, rests on a failure to appreciate just how deeply the public utility model shaped health law in the twentieth century— and how it continues to shape health law today. Closer economic regulation of the medical industry may or may not …
In Defense Of Sports Antitrust Law: A Response To Law Review Articles Calling For The Administrative Regulation Of Commercial Sports, Marc Edelman
Washington and Lee Law Review Online
In recent years, two law review articles have proposed that the United States regulate commercial sports through a direct federal commission, rather than through traditional antitrust remedies. Nevertheless, the practical realities of commercial sports’ power to influence government policy offset the many theoretical advantages to creating a specialized regulatory body to oversee commercial sports. The commercial sports industry already possesses an extraordinarily strong lobbying arm that has successfully lobbied for special legislation, such as the Sports Broadcasting Act of 1961 and the Professional and Amateur Sports Protection Act of 1992. If commercial sports ever were to become administratively regulated, sports …
Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina Warren
Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina Warren
Gina Warren
No abstract provided.
Offshore Petroleum Resource Access And Regulation In Canada, Kylie Fletcher
Offshore Petroleum Resource Access And Regulation In Canada, Kylie Fletcher
Kylie Fletcher
Extract: Canada is one of the world’s leading petroleum producers. It claims significant proven reserves of oil and natural gas. Canada’s reserves are estimated to be in the order of 173 billion barrels of oil and 70 trillion cubic feet of natural gas. Canada’s provinces, listed in order of entry into confederation, are Ontario (1867), Quebec (1867), Nova Scotia (1867), New Brunswick (1867), Manitoba (1870), British Columbia (1871), Prince Edward Island (1873), Saskatchewan (1905), Alberta (1905) and Newfoundland and Labrador (1949). Its territories are the Northwest Territories, Yukon and Nunavut. Canada has an extensive coastline, and lays claim to significant …
Private Equity Investments In Microfinance In India, Hugh Manahan
Private Equity Investments In Microfinance In India, Hugh Manahan
Michigan Business & Entrepreneurial Law Review
A trail connects a skyscraper in Manhattan’s Financial District to a tiny food stand in a village in the southeast Indian state of Tamil Nadu. Initially wild and overgrown, the trail now resembles a well-developed road, cleared and shaped. The trail does not connect customers to call centers or raw materials to laborers; the path connects lenders seeking abnormal returns on their investments to borrowers living in poverty. This is the path of private equity investments in microfinance. Microfinance is a powerful financial innovation that has changed personal finance in many parts of the world. While microfinance began as non-profit …
Tying And Bundled Discounts: An Equilibrium Analysis Of Antitrust Liability Tests, Melanie S. Williams
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 …
A Conceptual Framework For The Regulation Of Cryptocurrencies, Omri Y. Marian
A Conceptual Framework For The Regulation Of Cryptocurrencies, Omri Y. Marian
Omri Y Marian
This Essay proposes a conceptual framework for the regulation of transactions involving cryptocurrencies. Cryptocurrencies offer tremendous opportunities for innovation and development but are also uniquely suited to facilitate illicit behavior. The regulatory framework suggested herein is intended to support (or at least not impair) cryptocurrencies’ innovative potential. At the same time, it aims to disrupt cryptocurrencies’ criminal utility. To achieve these purposes, this Essay proposes a regulatory framework that imposes costs on the characteristics of cryptocurrencies that make them especially useful for criminal behavior (in particular, anonymity) but does not impose costs on characteristics that are at the core of …
The Greening Of Canadian Cyber Laws: What Environmental Law Can Teach And Cyber Law Can Learn, Sara Smyth
The Greening Of Canadian Cyber Laws: What Environmental Law Can Teach And Cyber Law Can Learn, Sara Smyth
Sara Smyth
This article examines whether Canadian environmental law and policy could serve as a model for cyber crime regulation. A wide variety of offences are now committed through digital technologies, including thievery, identity theft, fraud, the misdirection of communications, intellectual property theft, espionage, system disruption, the destruction of data, money laundering, hacktivism, and terrorism, among others. The focus of this Article is on the problem of data security breaches, which target businesses and consumers. Following the Introduction, Part I provides an overview of the parallels that can be drawn between threats in the natural environment and on the Internet. Both disciplines …
Underground Environmental Regulations: Regulations Imposed As Mitigation Measures Under Ceqa Violate The California Administrative Procedure Act, Jonathan Wood
Jonathan Wood
What happens when an agency adopts a regulation under the California Environmental Quality Act as mitigation for a program’s environmental impact, without complying with the procedural requirements of the California Administrative Procedure Act? According to a recent California Court of Appeal decision – Center for Biological Diversity v. Department of Fish and Wildlife – these mitigation measures, which this article refers to as underground environmental regulations, are invalid. This article defends that interpretation and addresses its consequences for agencies and the regulated public. Although these additional procedural protections benefit regulated parties in a variety of ways, they can also burden …
Jurisdictional Standards (And Rules), Adam I. Muchmore
Jurisdictional Standards (And Rules), Adam I. Muchmore
Adam I. Muchmore
This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible. The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …
Private Regulation And Foreign Conduct, Adam I. Muchmore
Private Regulation And Foreign Conduct, Adam I. Muchmore
Adam I. Muchmore
Current U.S. policy on safety regulation for imported food is based largely on ex post measures. Several reform proposals seek to strengthen the ex ante component of this regulatory program. These proposals rely on one or more of three basic strategies: direct extraterritorial regulation; delegation of regulatory authority to private entities; and delegation of regulatory authority to foreign government agencies. This paper explores the ability of each strategy to respond to several principal-agent problems relevant to imported-food safety: the regulatory license problem; interest group capture; and the reality of bribery and threats in many food-exporting countries. Through the lens of …
Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood
Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood
Jonathan Wood
The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …