Law Commons^™

What’S In A Name?, Jonathan Zittrain

Federal Communications Law Journal

Book Review: Ruling the Root, Milton L. Mueller, Cambridge, Mass.: MIT Press, 2002, 301 pages.

A review of Milton L. Mueller's Ruling the Root, The MIT Press, 2002. In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order-a blandishment, really, expressed as an awkward "statement of policy" by the Department of Commerce, carrying no direct force of law-came about because the management of obscure but critical centralized Internet functions was at a political crossroads. In Ruling the Root, Mueller thoroughly documents the colorful history both before and after this moment of inflection, and gives …

Market Failures And The Evolution Of State Regulation Of Managed Care, Frank A. Sloan, Mark A. Hall

Law and Contemporary Problems

Sloan and Hall reflect on whether the market defects identified explain why the managed care revolution has stalled and whether patient protection laws can help put managed care back on track. From a perspective of reliance on market forces to achieve socially desirable outcomes, the fundamental failure of managed care is the failure to produce competing systems of health care delivery that force competitive processes and consumer choice to focus on trade-offs between the cost and quality of care.

Global Trecs: The Regulation Of International Trade In Cyberspace, J. Steele

Canadian Journal of Law and Technology

This paper provides an overview of trade-related aspects of electronic commerce, and examines three approaches for regulating international trade in cyber- space. A model which integrates these approaches is then proposed, emphasizing private standards of self-regula- tion within a broader public framework of minimal background standards. A summary of potential areas of conflict between competing regulatory approaches fol- lows, and the paper concludes that both the WTO and the OECD have important roles to play in the develop- ment of international consensus towards a harmonized framework for the regulation of global TRECs.

Administrative-Law-Like Obligations On Private[Ized] Entities, Jack M. Beermann

Faculty Scholarship

Privatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information …

Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter

Journal of Dispute Resolution

There are many types of mediation. This article focuses exclusively on mediations within Professor Lande's "liti-mediation culture" - those dealing with disputes that are or may become the subject of litigation. I address both court-connected and private mediations as I believe that the potential for bad faith exists in both. Following this Introduction, in Part II, I examine definitions of "good faith" in mediation, I then review commentary and case law on good faith requirements. In Part III, I argue that certain objectively determinable behavior ought to be proscribed. By contrast, some good faith standards adopted by courts or advocated …

Mdps, Spinning, And Wouters V. Nova, Laurel S. Terry

Faculty Scholarly Works

This article is one of a series of articles by Professor Laurel Terry regarding the topic of MDPs of multidisciplinary partnerships. In February 2002, the European Court of Justice issued its opinion in Wouters v. NOVA (Case C-309/99), which addressed a Netherlands Bar rule that prohibited multidisciplinary partnerships (MDPs) between lawyers and accountants. Wouters decided: 1) that the bar was an “undertaking” that was subject to the competition (antitrust) provision in the EU Treaty; 2) that the Dutch MDP ban restricted competition and that this restriction on competition was appreciable and affected intra-community trade; 3) that the Dutch MDP ban …

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

Equitable Management And Allocation Of Trans-Boundary Waters In India [Abstract], Mohan V. Katarki

Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14)

1 page.

Carte Blanche For Cruelty: The Non-Enforcement Of The Animal Welfare Act, Katharine M. Swanson

University of Michigan Journal of Law Reform

This Note explores both the judicial and administrative underenforcement of the Animal Welfare Act in protecting the welfare of laboratory animals used for purposes of experimentation. Specifically, the Note suggests that judicial underenforcement is borne as a result of the difficulties of lodging a private cause of action under the Act or gaining standing under the alternative statutory scheme of the Administrative Procedure Act. It further suggests administrative underenforcement in describing the promulgated regulations of the Act as inadequate and the lack of self-policing mechanisms. Finally, the Note suggests some ways that enforcement can be made more effective in these …

Reevaluating Amateurism Standards In Men's College Basketball, Marc Edelman

University of Michigan Journal of Law Reform

This Note argues that courts should interpret NCAA conduct under the Principle of Amateurism as a violation of§ 1 of the Sherman Antitrust Act and that courts should order NCAA deregulation of student-athletes' indirect financial activities. Part I of this Note discusses the history of NCAA regulation, specifically its Principle of Amateurism. Part II discusses the current impact of antitrust laws on the NCAA. Part III argues that the NCAA violates antitrust laws because the Principle of Amateurism's overall effect is anticompetitive. Part IV argues the NCAA could institute an amateurism standard with a net pro-competitive effect by allowing student-athletes …

Interpretation Or Regulation? Gaunt V. John Hancock Mutual Life Insurance Company, Kenneth S. Abraham

Nevada Law Journal

No abstract provided.

Seeds Of Distrust: Federal Regulation Of Genetically Modified Foods, Thomas O. Mcgarity

University of Michigan Journal of Law Reform

This Article describes and evaluates the existing federal regulatory regime for protecting public health from risks posed by foods derived from GM plants. Part I briefly describes the technology involved in genetically modifying plants and relates the ongoing debates over the risks and benefits of GM food plants. Part II examines in detail the regulatory regime that has evolved in the United States to regulate the safety of GM foods, focusing in particular upon the pervasive role that the substantial equivalence doctrine has played in that regime. Finally, Part III suggests a more precautionary approach toward regulating GM foods that …

The Nonprofit Sector And The New State Activism, Mark Sidel

Michigan Law Review

The burgeoning field of nonprofit and philanthropic law has a new and superb history in Norman Silber's pathbreaking A Corporate Form of Freedom: The Emergence of the Nonprofit Sector. In confronting "the history of efforts to control the creation and permissible purposes for nonprofit corporations by states, and ... the relocation of these efforts to the Internal Revenue Service" (p. 5), Professor Silber effectively deliniates the rich history of our ambiguous, often conflicted attempts to regulate the American nonprofit sector, and points clearly to the ways in which history influences the current complexities of state regulation. From a discredited …

The Past And Future Of Electricity Regulation, Joseph P. Tomain

Faculty Articles and Other Publications

Electric industry restructuring has been an activity not free from difficulties. The California energy crisis of the summer of 2000, the world crisis after September 11, as well as the implosion of Enron have raised questions about the future of electricity restructuring. As a policy matter, the move to reduce command-and-control regulation of the electric industry and to promote competition enjoys widespread support. The industry, however, is not one that can be totally deregulated. This Article argues that the California and Enron crises may slow restructuring, but restructuring should continue as a matter of sound industrial policy. In addition, the …

2002 Philip C. Jessup International Moot Court Competition, Chris Curran, Hamish Forsyth, Philippa Jones, Alexandra Smithyman, Reuven Young

ILSA Journal of International & Comparative Law

The Republic of Turingia and the Republic of Babbage have brought their case before this Court by notification of the Special Agreement as provided for by Article 40(1) of the Statute of the International Court of Justice.

2002 Philip C. Jessup International Moot Court Competition, William Burker-White, David Mascari, Jin-Long Pao, Natalie Reid

ILSA Journal of International & Comparative Law

The Republic of Turingia and the Republic of Babbage have brought their case before this Court by notification of the Special Agreement as provided for by Article 40(1) of the Statute of the International Court of Justice. The Court has jurisdiction over the case pursuant to Article 36(2) of the said Statute.

Toward A Jurisprudence Of Cost-Benefit Analysis, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In his book, The Cost-Benefit State, democratic theorist Cass Sunstein urges regulatory agencies to make decisions based on numerical assessments of regulatory consequences, factoring in variables ranging from effects on consumer prices to lives saved. In this Review, I seek to illustrate Sunstein's conception of cost-benefit analysis and critique this conception by suggesting that cost-benefit analysis could serve a more important role than Sunstein would allow. I also argue for a more active judicial role in scrutinizing agency actions than Sunstein would recommend, though not necessarily a less deferential one. In Part I of this review, I outline Sunstein's defense …

On The Hijacking Of Agencies (And Airplanes): The Federal Aviation Administration, Agency Capture, And Airline Security, Mark Niles

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Who Determines The Optimal Trade-Off Between Quality And Price?, Barbara Ann White

All Faculty Scholarship

The question of the optimal trade-off between quality and price has become increasingly important as well as complex in recent times, as the advances of modern technology permit a far more refined range of choices. These subtleties among choices allow an individual, a group, or a society to titrate more precisely degrees of quality with almost any product or service, coupled, of course, with counterbalancing price consequences.

In 2002, as Program Chair of the Antitrust Section of the Association of American Law Schools, I organized a panel entitled “Guilds at the Millennium: Antitrust and the Professions” and served as one …

Grieving Criminal Defense Lawyers, Dennis E. Curtis, Judith Resnik

Fordham Law Review

No abstract provided.

Regulation And Responsibility For Lawyers In The Twenty-First Century, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Information Based Regulation And International Trade In Genetically Modified Agricultural Products: An Evaluation Of The Cartagena Protocol On Biosafety, Michael P. Healy

Law Faculty Scholarly Articles

This Article considers the regulation of international trade in genetically modified agricultural products. Specifically, it addresses both products released into the environment as seeds and products intended for consumption as food. The first part of the Article describes the significance of genetically modified organisms (GMOs) in modem agriculture, especially agriculture in the United States. This discussion summarizes the risks and potential benefits associated with the use of agricultural GMOs, especially the risks and benefits related to biodiversity. The Article then briefly describes the approaches to the regulation of these products adopted in the

Cartagena Protocol to the Convention on Biological …

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member's legislature and …

On The Hijacking Of Airplanes (And Agencies): The Faa, "Agency Capture," And Airline Security, Mark C. Niles

Faculty Publications

(Excerpt)

On September 11, 2001, millions of Americans watched in awe and horror as over a period of less than two hours, a succession of commercial airliners crashed first into the two World Trade Center towers in New York City, and then into the Pentagon in suburban Virginia. As government officials and news organizations scrambled in the first hours after the events to gather information, possible explanations for the crashes were offered. One theory was the obvious assumption that the planes had all been hijacked by "terrorists" using some kind of weapons (guns, bombs) that had presumably been smuggled onto …

Euclid Lives: The Survival Of Progressive Jurisprudence, Michael Allan Wolf, Charles M. Haar

Law Faculty Publications

The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach - Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co. This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value …

Reach Out And Touch Someone: Cellular Phones Health, Safety And Reasonable Regulation, Lana Mobydeen

Journal of Law and Health

In a nine-part discussion, this note addresses issues concerning the health and safety risks associated with the use of cellular phones, which will also include a section that focuses on the advantages of using cellular phones. It is essential to maintain cellular phones and their utility in our lifestyle for personal safety and security. Health and safety problems with cellular phones must be addressed by the least restrictive regulation possible in order to ensure the continued use and the many benefits that the cellular phone industry presents to our society.

International Bounty Hunter Ride-Along, Ryan M. Porcello

Vanderbilt Journal of Transnational Law

This Note explores the international implications of a plan proposed by two bounty hunters in the Tacoma, Washington area to charge U.K. thrill seekers to accompany them on manhunts in the United States. Part H explains the differences in Colonial American society that resulted in the early development of a commercial bail bond system to replace the English personal surety system. Part III examines the contractual relationship between a bail bondsman and a defendant, as well as the agency relationship between a bail bondsman and a bounty hunter, to show why bounty hunters have such unbridled power to arrest fugitives. …

Toward A Jurisprudence Of Cost-Benefit Analysis, Michael Abramowicz

Michigan Law Review

In 1989, Cass Sunstein published an article entitled On the Costs and Benefits of Aggressive Judicial Review of Agency Action. Sunstein apparently meant the words "costs" and "benefits" in an informal sense, as the article considered the advantages and disadvantages of aggressive judicial review without pretense of explicit quantification. That article was several generations ago in Sunstein scholarship, almost 100 articles and over a dozen books. The central concerns of that article, however, are relevant to an assessment of Sunstein's latest book, whose title, The Cost-Benefit State, uses the words "costs" and "benefits" as labels for quantitative assessments of the …

Super Regulator: A Comparative Analysis Of Securities And Derivatives Regulation In The United States, The United Kingdom, And Japan, Jerry W. Markham

Faculty Publications

This article describes the development of the competing regulatory bodies for banking, insurance, securities and derivatives. It then focuses on the regulatory roles of the Securities and Exchange Commission ("SEC") and the Commodity Futures Trading Commission ("CFTC"). The competition between those two agencies and its effects are described. After that review, the article examines the roles of the FSA-GB and FSA-Japan. Finally, the article discusses the arguments favoring and disfavoring competitive regulation and tries to discern whether a unified regulatory structure such as that in Japan and England is preferable to the competitive approach of the SEC and CFTC. The …

Corporate Governance And The Global Social Void, Lee A. Tavis

Vanderbilt Journal of Transnational Law

This Article argues that the components of globalization--economic integration, democratization, and global governance networks--are changing the nature of corporate governance and the prospects for peace. Multinational enterprises are the instruments of economic integration. As such, multinationals as a group deserve credit for the positive productivity-related wealth effects of the process. As the implementing institutions, these enterprises are also inextricably related to the inequality--the social void--resulting from globalization that threatens peace.

Hyper competition in the global product markets and the demands of the financial markets determine, to a large extent, the activities of the multinational. Alternatively, there is an evolving opportunity …