Law Commons^™

Digital Market Perfection, Rory Van Loo

Faculty Scholarship

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap first by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. …

On The Evolution Of The Conditions For The Provision Of Tourist Services From The Perspective Of Consumer Interest, Piotr Cybula

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The aim of the article is to illustrate the evolution of the conditions for the provision of tourist services from the point of view of the interests of consumers of these services. The author distinguishes three trends. First is the general liberalization tendency. The second is the reverse process related to fi nancial security in case of insolvency of tour operators and travel brokers, and, since 1 July 2018, also tour operators and traders facilitating linked travel arrangements. The third trend is the modification of the scope of some other regulations (partial liberalisation, partial regulation) for businesses operating as tour …

Financial Repression In China: Short-Term Growth But Long-Term Crisis, Guangdong Xu, Michael Faure

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman

Washington and Lee Law Review

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue …

The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William W. Bratton

Seattle University Law Review

This essay casts additional light on The Modern Corporation’s corporatist precincts, shifting attention to the book’s junior coauthor, Gardiner C. Means. Means is accurately remembered as the generator of Book I’s statistical showings—the description of deepening corporate concentration and widening separation of ownership and control. He is otherwise more notable for his absence than his presence in today’s discussions of The Modern Corporation. This essay fills this gap, describing the junior coauthor’s central concern—a theory of administered prices set out in a Ph.D. dissertation Means submitted to the Harvard economics department after the book’s publication.

Taxation Of Automation And Artificial Intelligence As A Tool Of Labour Policy, Vincent Ooi, Glendon Goh

Centre for AI & Data Governance (2019-2025)

Rapid developments in automation technology pose a risk of massdisplacement of human labour, resulting in the need to support and retraindisplaced workers (a negative externality). We propose an “automation tax”that would slow the adoption of automation technology in appropriatecircumstances, giving workers and social support systems time to adapt. Thiscould be easily implemented through changes to the existing schedular systemof depreciation/ capital allowances, reducing the uncertainty of its applicationand implementation costs. Such a system would be flexible enough to keepup with rapid technological developments. Two main dimensions may beadjusted to produce intended distortionary effects: 1) accelerated depreciation,and 2) bonus depreciation. While …

Human Rights Violations Consequent To Transshipment Practices In Fisheries, Chelsey F. Marto

Ocean and Coastal Law Journal

Transshipment, the process of transferring catch from a small fishing vessel onto a larger fishing vessel far off shore, has been used to commit a variety of human rights abuses on the sea. Companies can get away with this because there is little to no oversight over the activities. Yet, there has been little to no incentive to change these practices, because companies are generally not penalized for these actions. The author proposes a variety of tactics be implemented in addressing these concerns. These include imposition of sanctions upon countries who allow for nefarious activities, increased video surveillance on board …

Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein

Law School Blogs

No abstract provided.

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Scholarly Articles

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

Has Regulation Affected The High Frequency Trading Market?, Kevin O'Connell

Catholic University Journal of Law and Technology

As technology rapidly advances society, there are a few industries that have not been drastically impacted by disruptive technology. The financial markets are no different. Over the past ten years, algorithmic trading has quickly revolutionized the financial markets and continues to dominate an industry that for many years remained largely uninfluenced by society’s technological advances. Algorithmic trading is “a type of trading done with the use of mathematical formulas” and market data “run by powerful computers” to execute trades. One of the most commonly used platforms of algorithmic trading is high frequency trading. High frequency trading (“HFT”) uses a computerized …

Fracking The Public Trust, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …

Opting Into Device Regulation In The Face Of Uncertain Patentability, Rebecca S. Eisenberg

Marquette Intellectual Property Law Review

This article examines the intersection of patent law, FDA regulation, and Medicare coverage in a particularly promising field of biomedical innovation: genetic diagnostic testing. First, I will discuss current clinical uses of genetic testing and directions for further research, with a focus on cancer, the field in which genetic testing has had the greatest impact to date. Second, I will turn to patent law and address two recent Supreme Court decisions that called into question the patentability of many of the most important advances in genetic testing. Third, I will step outside patent law to take a broader view of …

The Legislative Role In Procedural Rulemaking Through Incremental Reform, Briana L. Rosenbaum

Scholarly Works

Public policy theory generally studies two types of institutional change: major changes at critical moments and incremental change. Using an institutional public policy theoretical lens, this Article explores congressional efforts to incrementally change the substantive law through procedural change and litigation reform. While much attention has been paid to the 115th Congress’s policy-based proposals, scant attention has been paid to the fact that Congress had, at the same time, proposed sweeping changes to court access. From trans-substantive measures affecting procedure in every civil case, to targeted measures changing the procedures in police misconduct cases and medical malpractice lawsuits, the legislature …

Keeping College Pricey: The Bootlegger And Baptist Story Of Higher Education Accreditation, Mary Watson Smith, Joshua C. Hall

Economics Faculty Working Papers Series

Since the passage of the Veterans Readjustment Act of 1952, private accrediting agencies have held the purse strings to all federal student aid. Today, six regional accrediting agencies and ten national accrediting agencies act as the gatekeepers of these federal monies. No college or university can access federal funds without receiving the imprimatur of one of these recognized accrediting agencies. Proponents of the current system of accreditation argue that the framework presently in place ultimately benefits both students and the public at large by fulfilling quality assurance and information signaling functions. Applying Yandle’s “Baptists and Bootleggers” model, we examine whether …

Collaborative Approaches To Blockchain Regulation: The Brooklyn Project Example, Patrick Berarducci

Cleveland State Law Review

Today, I am going to discuss, at a high level, blockchain technology—what it is, what are its unique features that could revolutionize markets and economies, and how it could impact law and regulation. That is a lot to cover—far too much in the time allotted. So I will keep things at a very high level and hopefully pique some interest in everyone to dig deeper on their own.

Smart Contracts In Traditional Contract Law, Or: The Law Of The Vending Machine, Jonathan Rohr

Cleveland State Law Review

Smart contracts are the new norm, yet state legislatures and courts have not developed set rules and answers to legal disputes that these contracts create. Is traditional contract law sufficient? Or should we create an entirely new legislative or common law scheme to deal with these disputes? The common law has proven to be successful in dealing with new technologies and contracts, particularly because of its flexibility. Although a major overhaul may be in the future, there are still solutions that we can find today with the current legal landscape given the state of contract law and its evolution over …

Regulation Of Artificial Intelligence In Selected Jurisdictions, Jenny Gesley, Tariq Ahmad, Edouardo Soares, Ruth Levush, Gustavo Guerra, James Martin, Kelly Buchanan, Laney Zhang, Sayuri Umeda, Astghik Grigoryan, Nicolas Boring, Elin Hofverberg, Clare Feikhert-Ahalt, Graciela Rodriguez-Ferrand, George Sadek, Hanibal Goitom

Copyright, Fair Use, Scholarly Communication, etc.

Comparative Summary

This report examines the emerging regulatory and policy landscape surrounding artificial intelligence (AI) in jurisdictions around the world and in the European Union (EU). In addition, a survey of international organizations describes the approach that United Nations (UN) agencies and regional organizations have taken towards AI. As the regulation of AI is still in its infancy, guidelines, ethics codes, and actions by and statements from governments and their agencies on AI are also addressed. While the country surveys look at various legal issues, including data protection and privacy, transparency, human oversight, surveillance, public administration and services, autonomous vehicles, …

What We Know And Need To Know About Global Lawyer Regulation, Carole Silver

South Carolina Law Review

No abstract provided.

Conceptualizing The Regulation Of Virtual Currencies And Providers: Friction Points In State And Federal Approaches To Regulating Providers Of Payments Execution And Custody Services And Products In The United States, Sarah J. Hughes

Cleveland State Law Review

This essay evaluates the state of regulation by the United States government and State legislatures of participants in emerging virtual-currency businesses. It points to friction points as both the federal government and the States experiment with their own regulatory authority over virtual-currency businesses and provides a taxonomy of differing approaches to regulating such businesses. The essay takes the position that the States need to act in the near term if they wish to maintain their longstanding role as regulators of non-depository providers of financial products and services—or they risk being preempted by Congress or federal regulatory actions. This essay also …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

UF Law Faculty Publications

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose differen limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Pharmaceutical Drugs Of Uncertain Value, Lifecycle Regulation At The Us Food And Drug Administration, And Institutional Incumbency, Matthew Herder

Articles, Book Chapters, & Popular Press

Policy Points

• The US Food and Drug Administration (FDA) has in recent years allowed onto the market several drugs with limited evidence of safety and effectiveness, provided that manufacturers agree to carry out additional studies while the drugs are in clinical use.
• Studies suggest that these postmarketing requirements (PMRs) frequently lack transparency, are subject to delays, and fail to answer the questions of greatest clinical importance. Yet, none of the literature speaks directly to the challenges that the FDA—as a regulatory institution—encounters in enforcing PMRs.
• Through a series of interviews with FDA leadership, this article analyzes and situates those challenges …

Dual Regulation Of Insurance, Christopher French

Faculty Scholarship

Since this country was created, the insurance industry has been principally regulated by the states with infrequent Congressional interventions. As the insurance industry has evolved in recent decades, however, individual states have become unable to adequately regulate some insurers, such as multinational insurers and foreign insurers, because they lack jurisdiction over such entities. Simply having the federal government assume responsibility for regulating insurers will not solve the current regulatory problems, however, because Congress’ past forays into regulating certain areas of insurance generally have yielded poor results. Consequently, this Article makes the novel proposal and argument that, with the creation of …

The Regulatory Accountability Act Loses Steam But The Trump Executive Order On Alj Selection Upturned 71 Years Of Practice, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Digital Labour Platforms: A Need For International Regulation?, Janine Berg, Miriam A. Cherry, Uma Rani

Faculty Publications

Web-based, digital labour platforms permit the real-time hiring of labour for a myriad of tasks from IT programming to graphic design to routine clerical tasks. The ease, flexibility and low-cost of outsourcing work to digital labour platforms has resulted in their growth, and this growth is likely to continue in the future. Yet these online activities pose important regulatory challenges that cannot effectively be addressed solely through national responses. Recognizing these difficulties, the ILO’s Global Commission on the Future of Work called for an international governance system for digital labour platforms that could set and require platforms, and their clients, …

Can Soft Regulation Prevent Financial Crises?: The Dutch Central Bank's Supervision Of Behavior And Culture, John M. Conley, Cynthia A. Williams, Lodewijk Smeehuijzen, Deborah E. Rupp

Articles & Book Chapters

Financial regulation has traditionally been “hard”: national legislatures and regulators (and sometimes international bodies) require certain kinds of behavior and forbid others, on pain of business sanctions, fines, or even criminal penalties. When a financial crisis happens, the usual after-the-fact response is more hard regulation. That pattern goes back at least to the 1929 market crash that precipitated the Great Depression.

But financial crises still occur, leading many observers to wonder if what the financial world needs is a way to identify those pathological risk-takers in advance and, perhaps more importantly, to make sure that the financial institutions that employ …

Compensation At The Crossroads: Autonomous Vehicles & Alternative Victim Compensation Schemes, Tracy Hresko Pearl

Faculty Articles

Fully autonomous vehicles will become available to consumers within the next five to seven years. Experts predict that these vehicles will be drastically safer than their human-driven counterparts and will save thousands of lives each year in the United States alone. However, crashes will still occur, and when they do, they will raise unique and troubling issues about liability and fault that both negligence and products liability jurisprudence are not yet well-suited to handle. Whether the civil justice system can adjudicate autonomous vehicle crash cases fairly and efficiently, in turn, impacts (a) whether manufacturers can afford to produce these vehicles …

Bitcoin, Virtual Currencies, And The Struggle Of Law And Regulation To Keep Pace

Marquette Law Review

At less than a decade old, Bitcoin and other virtual currencies have had a major societal impact, and proven to be a unique payment systems challenge for law enforcement, financial regulatory authorities worldwide, and the investment community. Rapid introduction and diffusion of technological changes throughout society, such as the blockchain that serves as Bitcoin’s crypto-foundation, continue to exceed the ability of law and regulation to keep pace. During 2017 alone, the market price of Bitcoin rose 1,735%, from about $970 to $14,292, causing an investor feeding frenzy. As of September 11, 2018, a total of 1,935 cryptocurrencies are reported, having …

Forget Me, Forget Me Not: Elements Of Erasure To Determine The Sufficiency Of A Gdpr Article 17 Request, Haya Yaish

Journal of Law, Technology, & the Internet

The data subject’s (or the individual to whom the data relates) right to erasure under the new EU’s data protection law is likely to cause tensions with the right to freedom of expression. Using Article 17(1)(d)-(e) of the General Data Protection Regulation as a nexus to trigger and apply the right to privacy in EU law to the right to erasure, this Note presents a balancing test of four factors that can be used to consistently determine whether individual cases that request a right to erasure for published material are entitled to privacy protections. The proposed balancing test “Elements of …

Measuring Regulatory And Noncompliance Prevalence Among Maryland Commercial Blue Crab Fishers, Jacquelyn Lee Rachor Hornsby

Walden Dissertations and Doctoral Studies

Few empirical studies exist that compare regulation (R) and fishing crime (VL). The lack of information about R and VL effects stakeholder decision-making. Crime weakens conservation efforts and creates false baseline data. This furthers R and the cycle repeats. The purpose of this correlational study was to determine the statistical association between the number and type of annual commercial blue crab R and VL of the same. The Pearson's R correlation was used to analyze the data because it demonstrated the strength of each relationship. This quantitative study was grounded in enforcement theory. The data was public record and consisted …