Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Regulation

2015

Series

Discipline
Institution
Publication

Articles 1 - 30 of 40

Full-Text Articles in Law

Legal Beagle's Blog Archive For December 2015, Roger Williams University School Of Law Dec 2015

Legal Beagle's Blog Archive For December 2015, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue Dec 2015

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 ...


Protecting The State From Itself? Regulatory Interventions In Corporate Governance And The Financing Of China's 'State Capitalism', Nicholas C, Howson Nov 2015

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 ...


The Unintended Effects Of Government-Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue Oct 2015

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 ...


Unintended Consequences Of Cigarette Prohibition, Regulation, And Taxation, Jonathan D. Kulick, James E. Prieger, Mark A. R. Kleiman Jul 2015

Unintended Consequences Of Cigarette Prohibition, Regulation, And Taxation, Jonathan D. Kulick, James E. Prieger, Mark A. R. Kleiman

School of Public Policy Working Papers

Abstract Laws that prohibit, regulate, or tax cigarettes can generate illicit markets for tobacco products. Illicit markets both reduce the efficacy of policies intended to improve public health and create harms of their own. Enforcement can reduce evasion but creates additional harms, including incarceration and violence. There is strong evidence that more enforcement in illicit drug markets can spur violence. The presence of licit substitutes, such as electronic cigarettes, has the potential to greatly reduce the size of illicit markets. We present a model demonstrating why enforcement can increase violence, show that states with higher tobacco taxes have larger illicit ...


Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan Jun 2015

Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan

Articles

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of ...


Slides: Perspectives On Water Management In Arizona, Kathy Jacobs Jun 2015

Slides: Perspectives On Water Management In Arizona, Kathy Jacobs

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Kathy Jacobs, Director, Center for Climate Adaptation Science and Solutions (CCASS), Department of Soil, Water and Environmental Science, University of Arizona

25 slides


Demand Response And Market Power, Bruce R. Huber May 2015

Demand Response And Market Power, Bruce R. Huber

Journal Articles

In her article, Bypassing Federalism and the Administrative Law of Negawatts, Sharon Jacobs educates her readers about the concept of demand response, and then describes its propagation in recent years while making the broader argument that the Federal Energy Regulatory Commission (“FERC”) — the federal government’s principal energy regulator — has engaged in a strategy of “bypassing federalism” that may entail more costs than benefits. Professor Jacobs is right to call attention to demand response and to FERC’s approach to matters of jurisdictional doubt. While I share many of her concerns about boundary lines in a federal system, I argue ...


Transnational Legal Practice, Laurel Terry, Carole Silver Apr 2015

Transnational Legal Practice, Laurel Terry, Carole Silver

Faculty Scholarly Works

This 2015 Year-in-Review article continues the tradition of collecting and publicizing the developments that occurred during the year related to transnational legal practice (TLP). This year’s article builds on the work set forth in the 2014 Year-in-Review.

The 2014 TLP Year-in-Review provided a departure from the Year-in-Review’s typical method of presentation by identifying two categories of what that article called “TLP-Nets.” One group of TLP-Nets is nationally based and the other is inherently transnational. The 2014 article identified examples of TLP-Nets and highlighted the meeting points and relationships that facilitate border-crossing for the variety of actors involved in ...


The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Apr 2015

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.

This paper is an effort to assist courts ...


Helping Buyers Beware: The Need For Supervision Of Big Retail, Rory Van Loo Apr 2015

Helping Buyers Beware: The Need For Supervision Of Big Retail, Rory Van Loo

Faculty Scholarship

Since the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms' internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, huge ...


God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M.A. Dipippa Apr 2015

God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M.A. Dipippa

Faculty Scholarship

This Article demonstrates that the cases raising religious liberty challenges to state regulation of weapons in houses of worship reveal the persistent problems plaguing religious liberty cases. First, these cases illustrate the difficulties non-mainstream religious claims face. Courts may not understand the religious nature of the claim or they may devalue claims that do not seem “normal” or “reasonable.” This is compounded by how few religious liberty claimants, especially non-mainstream religions, win their cases. Second, the cases are part of the larger debate about how easy it should be to get judicially imposed religious exemptions from general and neutral laws ...


At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld Mar 2015

At The Fontier Of The Younger Doctrine: Reflections On Google V. Hood, Gil Seinfeld

Articles

On December 19, 2014, long-simmering tensions between Mississippi Attorney General Jim Hood and the search engine giant Google boiled over into federal court when Google filed suit against the Attorney General to enjoin him from bringing civil or criminal charges against it for alleged violations of the Mississippi Consumer Protection Act. Hood had been investigating and threatening legal action against Google for over a year for its alleged failure to do enough to prevent its search engine, advertisements, and YouTube website from facilitating public access to illegal, dangerous, or copyright protected goods. The case has garnered a great deal of ...


The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele Jan 2015

The Pond Betwixt: Differences In The U.S.-Eu Data Protection/Safe Harbor Negotiation, Richard J. Peltz-Steele

Faculty Publications

This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But ...


Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra Jan 2015

Adopting An International Convention On Surrogacy—A Lesson From Intercountry Adoption, Seema Mohapatra

Faculty Scholarship

No abstract provided.


Insurance And The Law, Shauhin A. Talesh Jan 2015

Insurance And The Law, Shauhin A. Talesh

Faculty Scholarship

Insurance and the law are interconnected. Legislation, court decisions, and regulations impact and influence the meaning of private and social insurance arrangements in society. While the law shapes and influences what insurance means in society, insurance also exerts a regulatory force over its subjects and acts as a form of governance beyond the state. Drawing from sociolegal scholars who study the gap between the law on the books and the law in action, this article explains the basic forms and functions of insurance in society and explores insurance’s intertwined relationship with the law.


Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood Jan 2015

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Transnational Business Governance Interactions Working Papers

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the ...


A Conceptual Framework For The Regulation Of Cryptocurrencies, Omri Y. Marian Jan 2015

A Conceptual Framework For The Regulation Of Cryptocurrencies, Omri Y. Marian

Faculty Scholarship

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 ...


Publicity Rules For Public Trusts, Allison Anna Tait Jan 2015

Publicity Rules For Public Trusts, Allison Anna Tait

Law Faculty Publications

That museums are public trusts is a truism in academic discourse and industry discussion. What various commentators mean when they speak about museums as public trusts, however, is less clear. This Article untangles and analyzes the various meanings of "'public trust" and how these meanings translate into regulatory systems. I propose that two predominant meanings-the public resource and trust law meanings-jointly constitute the definition of a public trust, and that each meaning has a consequent regulatory framework. These definitional and regulatory frameworks coexist without conflict in most contexts. In the context of deaccessioning,however, they collide.

Deaccessioning-the practice of a ...


Sex, Censorship And Media Regulation In Japan: A Historical Overview, Mark Mclelland Jan 2015

Sex, Censorship And Media Regulation In Japan: A Historical Overview, Mark Mclelland

Faculty of Law, Humanities and the Arts - Papers (Archive)

Over the past several decades alarmist reports about the supposed dangers of the sexualised nature of much Japanese popular culture have regularly featured in the English-language press. It has been claimed that Japan is 'awash' in all kinds of pornography, including child pornography (Larimer 1999; Fallows 1986: 38) and that insufficient attempts are made by the authorities to properly regulate the expression of sexual matters. A major concern of such reporting has been the supposed 'dark side' (McGinty 2002) of the manga (comics) which are ubiquitous in Japan and, since the 1980s, have become popular with young people worldwide. International ...


Capitalism, Regulation Theory And Australian Labour Law: Towards A New Theoretical Model, Brett Heino Jan 2015

Capitalism, Regulation Theory And Australian Labour Law: Towards A New Theoretical Model, Brett Heino

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article employs the methodology of the Parisian regulation approach to periodise Australian capitalism into distinct models of development. Within such models, labour law plays a key role in articulating the abstract capitalist need to commodify labour-power with the concrete realities of class struggle. Given the differential ordering of social contradictions and the distinct relationship of social forces within the fabric of each model of development, such formations will crystallise distinct regimes of labour law. This is demonstrated by a study of the two successive models of development that have characterised Australian political economy since the post-Second World War era ...


Data Breach (Regulatory) Effects, David Thaw Jan 2015

Data Breach (Regulatory) Effects, David Thaw

Articles

No abstract provided.


Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood Jan 2015

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Transnational Business Governance Interactions Working Papers

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the ...


Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina S. Warren Jan 2015

Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina S. Warren

Faculty Scholarship

It goes by many names: cannabis, marijuana, pot, chronic, grass, reefer, shwag, Mary Jane. Whatever the name, the trend is clear: the weed is legal but the herb ain’t green. Nearly half of all U.S. states have enacted—or have pending— legislation to legalize, decriminalize, or in some way permit the use and cultivation of marijuana. As a result, marijuana has become a significant topic of conversation in the U.S.— especially in the areas of social policy and criminal law. One conversation yet to reach fruition, however, is the industry’s projected impacts on energy demand and ...


Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Haight Farley, Kavita Devaney Jan 2015

Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Haight Farley, Kavita Devaney

Articles in Law Reviews & Other Academic Journals

Many tobacco company trademarks, such as MARLBORO, are extremely valuable. But valuable trademarks are often vulnerable both to copyists and to parodists. Tobacco trademarks face the additional vulnerability of onerous public health regulations, which can limit their appearance and use. When tobacco companies challenge these health regulations they do so on the grounds that the regulations violate their First Amendment speech rights. The law that is applied in these challenges is well developed, clear and predictable. When tobacco companies challenge unauthorized third-party uses of their marks, the speech rights involved are dealt with in a distinctly different manner. Under trademark ...


Private Ordering Under Threat Of Regulation, Jake Linford Jan 2015

Private Ordering Under Threat Of Regulation, Jake Linford

Scholarly Publications

No abstract provided.


Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Farley Jan 2015

Considering Trademark And Speech Rights Through The Lens Of Regulating Tobacco, Christine Farley

Articles in Law Reviews & Other Academic Journals

Many tobacco company trademarks, such as MARLBORO, are extremely valuable. But valuable trademarks are often vulnerable both to copyists and to parodists. Tobacco trademarks face the additional vulnerability of onerous public health regulations, which can limit their appearance and use. When tobacco companies challenge these health regulations they do so on the grounds that the regulations violate their First Amendment speech rights. The law that is applied in these challenges is well developed, clear and predictable. When tobacco companies challenge unauthorized third-party uses of their marks, the speech rights involved are dealt with in a distinctly different manner. Under trademark ...


Deregulation, Distrust, And Democracy, Lindsay Wiley Jan 2015

Deregulation, Distrust, And Democracy, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

Environmental, public health, alternative food, and food justice advocates are working together to achieve incremental agricultural subsidy and nutrition assistance reforms that increase access to fresh fruits and vegetables. When it comes to targeting food and beverage products for increased regulation and decreased consumption, however, the priorities of various food reform movements diverge. This article argues that foundational legal issues, including preemption of state and local authority to protect the public's health and welfare, increasing First Amendment protection for commercial speech, and eroding judicial deference to legislative policy judgments, present a more promising avenue for collaboration across movements than ...


Financial Market Bottlenecks And The 'Openness' Mandate, Felix B. Chang Jan 2015

Financial Market Bottlenecks And The 'Openness' Mandate, Felix B. Chang

Faculty Articles and Other Publications

Financial market infrastructures (“FMIs”), which facilitate the execution of financial transactions, exhibit such strong economies of scale that they are natural monopolies. In each market, production is controlled by a few dominant players. Federal courts have traditionally checked the abuses of natural monopolies under the Sherman Act. Yet recent Supreme Court decisions have reined in the role of antitrust in regulated industries, where administrative bodies set and enforce standards. To this effect, financial regulations require certain FMIs to grant open, nondiscriminatory access to users.

This Article argues that weak “openness” regulations must be buttressed by their antitrust counterpart — specifically, the ...


Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry Jan 2015

Something's Afoot And It's Time To Pay Attention: Thinking About Lawyer Regulation In A New Way, Laurel Terry

Faculty Scholarly Works

No abstract provided.