Law Commons^™

Local And State Governments Are Taking The Stage When It Is Fda's Curtain Call - Are Local And State Governments' Safety Warnings Preempted By Federal Law?, Melissa M. Card

Journal of Food Law & Policy

Eliminated from fad diets, sworn off by celebrities, and frantically reformulated out of processed foods, added sugars have been deemed the new nutritional scoundrel. Recent studies from the American Heart Association, the World Health Organization, and the American Cancer Association demonstrate that the consumption of added sugar leads to increased risks of obesity, diabetes, heart disease, and gout. While all foods containing added sugar are deemed unhealthy, Sugary-Sweetened Beverages ("SSBs") are said to be especially toxic by the American health community, by virtue of these beverages' being excessively high in added sugar content, low in satiety, and incomplete in compensation …

The Limits Of Regulation: A Case Study Of Virtual And Intangible Harm, Nachshon Goltz

PhD Dissertations

This dissertation deals with the limits of regulation through the analysis of virtual and intangible harm and the capacity of regulation to prevent or at least reduce such harm. The case study at hand is the potential harm to childrens imaginative development in virtual worlds. A comparison is drawn from the regulation of online advertising to children in Canada and the US. Based on a review of the literature in chapter 1, it is suggested that there are serious and long-term consequences to an underdeveloped imagination, including pathological phenomenon and lack of imaginative ability. As with other harms to children, …

Accounting For Rising Corporate Profits: Intangibles Or Regulatory Rents?, James Bessen

Faculty Scholarship

Since 1980, US corporate valuations have risen relative to assets and operating margins have grown. The possibility of sustained economic rents has raised concerns about economic dynamism and inequality. But rising profits could come from political rents or, instead, from returns to investments in intangibles. Using new data on Federal regulation and data on lobbying, campaign spending, R&D, and organizational capital, this paper finds that both intangibles and political factors account for a substantial part of the increase in profits, but since 2000 political factors are more important. A difference-in-differences analysis finds that major expansions of regulation increase profits significantly.

Zero-Rating In Internet Access Services And Specialised Services, Andrzej Nałęcz

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

Zero-rating is the practice of offering unlimited access to certain internet content to data plan subscribers in mobile communication networks. It is pertinent to the concept of network neutrality. The article explains the various types of zero-rating and presents their positive and negative consequences. The positives relate most of all to a beneficial influence on the competition between providers of internet access services. The negatives consist in a detrimental influence on the development of innovative internet content. Zero-rating is considered a threat to network neutrality even in developing countries, even though it is there that social development might benefit the …

Change In Regulation Is Necessary For Genetically Engineered Mosquitoes, Insung Hwang

Michigan Journal of Environmental & Administrative Law

Millions of genetically engineered (GE) mosquitoes could soon be released in Key West, Florida as an effort to eradicate wild mosquitoes that are transmitters of diseases such as malaria, dengue, and chikungunya. Both international and domestic regulations fail to provide effective regulatory schemes that can facilitate the application of this technology while ensuring all safety and environmental aspects are properly addressed. The Food and Drug Administration’s assertion of jurisdiction is based on its assessment that the GE mosquitoes are “animal drugs” under the Federal Food, Drug, and Cosmetic Act. This is especially troublesome because the end goal of using these …

Body Of Preemption: Health Law Traditions And The Presumption Against Preemption, Elizabeth Mccuskey

Faculty Scholarship

Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress's intent by applying substantive canons of statutory interpretation, including presumptions against preemption.

This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the "tradition presumption." Unlike the general presumption against preemption on federalism grounds, courts base this …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

A Consumer Protection Perspective On Regulation For Healthier Eating, Barbara Von Tigerstrom

Dalhousie Law Journal

This article explores the potential for a consumer protection perspective to complement public health approaches in designing and justifying laws that aim to promote healthier eating, such as food labelling regulations or restrictions on marketing and advertising. Consumer protection and public health are distinct perspectives, but they share the goal of protecting health and both accept the need for regulation to protect important interests. Consumer protection objectives could be used to defend public health measures that are challenged as infringing rights or restricting trade. Insights from consumer law and scholarship could also contribute to discussions about when regulatory intervention to …

Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy

West Virginia Law Review

No abstract provided.

Evaluating The Prevalence And Effectiveness Of Breed-Specific Legislation, Felicia E. Trembath

Open Access Dissertations

Dog bites pose a persistent public health problem, which some jurisdictions pass breed-specific legislation (BSL) to address. However, very little non-anecdotal evidence regarding the efficacy of BSL has been presented. Currently, BSL research is hampered by the absence of standard terminology, an established prevalence, or a scientific consensus on its effectiveness. The purpose of this study is to propose standardized terminology for BSL, establish the prevalence of each type of BSL in the USA, and conduct a systematic review of the effectiveness of BSL.

After review of terminology currently in use, as well as review of the regulatory actions of …

Entry Restriction, Shadow Banking, And The Structure Of Monetary Institutions, Morgan Ricks

Vanderbilt Law School Faculty Publications

Entry restriction has a noble pedigree in banking law. Soon after the founding of the Bank of England in 1694, Parliament forbade all other business entities apart from small partnerships from issuing bank notes and their equivalents. Subsequent acts of Parliament confirmed that the object of the prohibition was to give the Bank of England the ‘privilege or power’ of ‘exclusive banking’. In the USA, similar prohibitions, called ‘restraining acts’, were established at the state level in the early nineteenth century. Later, when Congress established the national banking system in the early 1860s, it prohibited (through the device of punitive …

A Model Of Human Harm From A Falling Unmanned Aircraft: Implications For Uas Regulation, Andrew V. Shelley

International Journal of Aviation, Aeronautics, and Aerospace

This paper quantifies the human harm, in the form of fatalities and skull fractures, which could occur as a result of an unmanned aircraft falling from a height. The analysis is used to establish the maximum height at which an unmanned aircraft can be flown over people to achieve a level of safety consistent with the rate of ground fatalities from General Aviation. The maximum height is dependent on the aircraft mass and the population density of people on the ground below.

The results are used to inform a critical evaluation of recent recommendations from the FAA-chartered “Unmanned Aircraft Systems …

The Regulatory State In The Information Age, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for the regulatory state in the era of informational capitalism. A regulatory state optimized for the information economy must develop …

Slides: The São Francisco Water Basin - Brazil, Vanessa Empinotti

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Vanessa Empinotti, Federal University of ABC – UFABC, Brazil

20 slides

Slides: The Columbia River Basin, Barbara Cosens

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Barbara Cosens, Professor and Associate Dean of Faculty, University of Idaho College of Law, Waters of the West Interdisciplinary Program

16 slides

Putting Public Law Into "Private" Sport, Dionne L. Koller

Pepperdine Law Review

Across all levels of sport — professional, Olympic, intercollegiate, interscholastic, and youth recreational — the prevailing view is that the government should not take an active role in regulating athletics. As a result, there are relatively few federal or state statutes directed at regulating sports, and those that are aimed at sports primarily serve to support the professional sports industry. Moreover, courts show great deference to sports leagues and administrators, most often applying law in a way that insulates and empowers them. This creates a climate where leagues and administrators are permitted wide latitude to structure and conduct their respective …

Consumer Financial Protection Bureau Law Enforcement: An Empirical Review, Christopher L. Peterson

Utah Law Faculty Scholarship

In the aftermath of the U.S. financial crisis, Congress created a new federal agency — the Consumer Financial Protection Bureau (CFPB) — with the goal of fashioning a more just and efficient American consumer finance market. The CFPB now serves as the U.S. Government’s primary regulator and civil law enforcement agency governing consumer lending, payment systems, debt collection, and other consumer financial services. In its first four years of enforcing federal consumer protection laws, the CFPB has announced over a hundred different law enforcement cases forcing banks and other financial companies to relinquish over $11 billion in customer refunds, forgiven …

Paternalism, Self-Governance, And Public Health: The Case Of E-Cigarettes, Wendy E. Parmet

University of Miami Law Review

This article develops a normative framework for assessing public health laws, using the regulation of e-cigarettes as a case study. Although e-cigarettes are likely far less dangerous to individual users than traditional cigarettes, it remains uncertain whether their proliferation will lead to a reduction of smoking-related disease and deaths or to increased morbidity and mortality. This scientific uncertainty, whether and how to regulate e-cigarettes. This article presents a normative framework for analyzing such questions by offering three justifications for public health laws: impaired agency, harm to others, and self-governance. Each justification responds to the common charge that public health laws …

Equity And Feasibility Regulation, Dov Waisman

University of Richmond Law Review

No abstract provided.

Professional Discretion And The Law: Impact Of Actuaries On The Underfunding And Decline Of Private Sector Single Employer Defined Benefit Pensions In Canada: How Many "Post Nortel" Pension Fiascos Are Brewing In Canada?, Paul Charles Walker

LLM Theses

Considering that private sector single employer defined benefit pension plans must be fully funded by law, the legal issue emanating from their systemic underfunding is whether or not actuaries have been using their discretion in a manner which is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law. This thesis discusses the merits of potential legal remedies to arrest the underfunding and decline in the number of private sector single employer defined benefit pensions in Canada, including the introduction of single employer target benefit plans, increasing …

Newsroom: Horwitz On Legalizing Marijuana 04-10-2016, Andrew Horwitz, Peter Kilmartin

Life of the Law School (1993- )

No abstract provided.

Embracing Third-Party Litigation Finance, David R. Glickman

Florida State University Law Review

No abstract provided.

Unilateral Invasions Of Privacy, Roger Allan Ford

Law Faculty Scholarship

Most people seem to agree that individuals have too little privacy, and most proposals to address that problem focus on ways to give those users more information about, and more control over, how information about them is used. Yet in nearly all cases, information subjects are not the parties who make decisions about how information is collected, used, and disseminated; instead, outsiders make unilateral decisions to collect, use, and disseminate information about others. These potential privacy invaders, acting without input from information subjects, are the parties to whom proposals to protect privacy must be directed. This Article develops a theory …

Recalling The Lawyers: The Nhtsa, Gm, And The Chevrolet Cobalt, Bernard W. Bell

Fordham Law Review

This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.

If Your Heart Skips A Beat, It May Have Been Hacked: Cybersecurity Concerns With Implanted Medical Devices, John G. Browning, Shawn Tuma

South Carolina Law Review

No abstract provided.

The Laws Of Agency Lawyering, George M. Cohen

Fordham Law Review

The great variety of agency rules governing lawyers raises interesting questions that are worth exploring. This Article begins that exploration. Part I lays the groundwork by briefly examining how the ABA Model Rules treat regulatory lawyering to raise the question of what regulatory gaps the agency rules might be expected to fill. Part II sets forth several possible theories of agency rule variation. Part III compares agency rules along a number of dimensions, examines some similarities and differences across agencies as well as between the agency rules and the Model Rules, and offers speculations about what may be driving the …

Regulating Employment-Based Anything, Brendan S. Maher

Faculty Scholarship

Benefit regulation has been called “the most consequential subject to which no one pays enough attention.” It exhausts judges, intimidates legislators, and scares off theorists. That need not be so. Reality is less complicated than advertised.

Governments often consider intervention if markets fail to make some socially desirable Good X — such as education, health care, home mortgages, or pensions, for example — sufficiently available. One obvious fix is for the government to provide the good itself. A less obvious intervention is for the government to regulate employment-based (EB) arrangements that provide Good X as a benefit to employees and …

Regulatory Entrepreneurship, Jordan M. Barry, Elizabeth Pollman

Faculty Scholarship

Numerous corporations, ranging from Airbnb to Tesla, and from DraftKings to Uber, have built huge businesses that reside in legal gray areas. Instead of taking the law as a given, these companies have become agents of legal change, focusing major parts of their business plans on changing the law. To achieve their political goals, these companies employ conventional lobbying techniques, but also more innovative tactics. In particular, some attempt to enter markets quickly, then grow too big to ban before regulators can respond. If regulators do take aim at them, they respond by mobilizing their users for political support. This …

Regulation Of Emerging Risks, Matthew T. Wansley

Vanderbilt Law Review

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly …

Bitcoin: Información Sobre Su Reglamento En Las Américas Y Futuro Crecimiento, Belkenia Candelario

University of Miami Inter-American Law Review

Esta nota se tratará el tema de Bitcoin, la criptomoneda líder que surge en el año 2009 como una alternativa a la moneda fiduciaria. Bitcoin ha crecido considerablemente, tanto en términos de valor como en la conciencia colectiva internacional; sin embargo, los anuncios y regulaciones exploradas afectarían a todas las monedas digitales en general. Primero, esta nota explica el concepto tecnológico y funcional detrás de Bitcoin en términos de fácil acceso para el usuario y proporciona una breve discusión teórica sobre la historia de la aparición del dinero en el comercio. Segundo, analiza algunos de los efectos que tendría la …