Law Commons^™

Taking Public Access To The Law Seriously: The Problem Of Private Control Over The Availability Of Federal Standards, Nina A. Mendelson

Articles

In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in “separate paper pamphlets.” Finding these binding federal rules was difficult, leading to “chaos” and an “intolerable” situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock …

Prosecutorial Discretion And Environmental Crime, David M. Uhlmann

Articles

In January 1991, just four weeks after joining the Justice Department’sEnvironmental Crimes Section as an entry-level attorney, I traveled to NewOrleans to attend an environmental enforcement conference. The conferencewas attended by hundreds of criminal prosecutors and civil attorneys from theJustice Department, as well as enforcement officials from the EnvironmentalProtection Agency (“EPA”). It was a propitious time for environmental protec-tion efforts in the United States. Less than two months earlier, President GeorgeH. W. Bush had signed the Clean Air Act Amendments of 1990, culminating aremarkable twenty-year period that created the modern environmental law sys-tem in the United States. My new office, …

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 the climate. As the industry …

Capturing The Transplant: U.S. Antitrust Law In The European Union, Silvia Beltrametti

Vanderbilt Journal of Transnational Law

The scholarly literature on the movement of legal norms focuses almost exclusively on transfers from one jurisdiction to another. It largely ignores transfers into new regulatory regimes. Drawing on a case study of the transplantation of U.S. antitrust law into the nascent entity that was to become the European Community, and analyzing its evolution from a public choice perspective, this Article suggests that transfers into new regulatory regimes are more likely to be effective when the lack of established institutions creates opportunities for stakeholders. The endorsement of a new law will enable stakeholders to influence its application and to capture …

Alice Corp. V. Cls Bank Int'l, Jordana Goodman

Faculty Scholarship

Congress has the power "to promote the Progress of Science and useful Arts."' Patent law subject matter eligibility under 35 U.S.C. section 101 creates a balance between incentivizing inventors to publicly disclose their knowledge and protecting the public from monopolies on ideas. Allowing inventors to monopolize the basic tools of scientific and technological work might "tend to impede innovation more than it would tend to promote it."² "Laws of nature, natural phenomena, and abstract ideas" constitute unpatentable subject matter under section 101.³ The section 101 inquiry serves as a threshold test to determine if the subject matter of …

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 …

Digital Metal: Regulating Bitcoin As A Commodity, Mitchell Prentis

Case Western Reserve Law Review

In this Note, I will argue that Bitcoin should be categorized and regulated as a commodity. This treatment would be consistent with the economic behavior of Bitcoin’s users and would provide a clearer regulatory path for Bitcoin’s future. Additionally, categorizing Bitcoin as a commodity would provide increased clarity to existing regulatory efforts. Part I of this Note will briefly discuss the basic technological underpinnings of the Bitcoin system. Part II will quickly survey the current regulatory landscape around Bitcoin. Part III will examine Bitcoin’s identity crisis and explain why Bitcoin should not be categorized as a currency or a security—the …

The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson

Articles

As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …

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 museum …

Through The Looking Glass To A Shared Reflection: The Evolving Relationship Between Administrative Law And Financial Regulation, Gillian E. Metzger

Faculty Scholarship

Administrative law and financial regulation have an uneasy relationship today. It was not always so. Indeed, the two were closely intertwined at the nation's birth. The Treasury Department was a major hub of early federal administration, with Alexander Hamilton crafting the first iterations of federal administrative law in his oversight of revenue generation and customs collection. One hundred and fifty years later, administrative law and financial regulation were conjoined in the New Deal's creation of the modern administrative state. This time it was James Landis, Chair of the newly formed Securities and Exchange Commission (SEC) and author of the leading …

The Organizational Premises Of Administrative Law, William H. Simon

Faculty Scholarship

The core doctrines of administrative law have not taken account of developments in the theory and practice of organization. The contours of these doctrines were set in the mid-twentieth century when the Administrative Procedure Act (APA) was passed. Although these doctrines have evolved since then, administration itself has changed more. Many of the widely perceived deficiencies of the doctrines, including some associated with overregulation and others with underregulation, seem influenced by an anachronistic understanding of organization.

Much administrative law continues to understand public administration as bureaucracy. In particular, doctrine is strongly influenced by three premises. First, the backward-looking conception of …

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

Scholarly Articles in Law Reviews & 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

Scholarly Articles in Law Reviews & 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 discrete …

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

Scholarly Articles in Law Reviews & 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 …

A Technical Barriers To Trade Agreement For Services?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Services are regulated for a variety of reasons. Regulation is typically influenced by political economy forces and may thus at times reflect protectionist motivations. Similar considerations arise for goods, but the potential for protectionist capture may be greater in services as many sectors are self-regulated by domestic industry. There are specific disciplines on regulation of goods (product standards) in the WTO Agreement on Technical Barriers to Trade (TBT). This encourages the use of international standards and requires that norms restrict trade only to the extent necessary to achieve the regulatory objective. WTO disciplines on domestic regulation of services are weaker …

Tmi? Why The Optimal Architecture Of Disclosure Remains Tbd, Ryan Bubb

Michigan Law Review

We are inundated with disclosures in our daily lives. In one of the more evocative passages in their stimulating new book, More Than You Wanted to Know, Omri Ben-Shahar and Carl E. Schneider imagine a day in the life of someone who actually reads all those disclosures (pp. 95–100). During a commercial on the morning news, the protagonist hits pause on the TiVo to catch the fine print that would otherwise fly by. Breakfast is a slog, requiring close reading of the toaster’s ominous label and the disheartening nutrition facts on the butter and jam. More of the same awaits …

Fighting Foreign-Corporate Political Access: Applying Corporate Veil-Piercing Doctrine To Domestic-Subsidiary Contributions, Ryan Rott

Michigan Law Review

Campaign finance regulations limit speech. The laws preclude foreign nationals, including foreign corporations, from participating in U.S. politics via campaign contributions. The unusual characteristics of corporations, however, may allow foreign corporations to exploit a loophole in the regulatory regime. A foreign corporation may contribute to political campaigns by acquiring a domestic subsidiary and dominating it. This Note addresses how these unusual corporate behaviors enable foreign corporations to illegally corrupt the political process. This Note concludes that to close the loophole without violating the free speech rights of domestic subsidiaries, Congress should enact legislation which would apply corporate veil-piercing theory to …

Regulating Angels, Heidi M. Schooner

Georgia Law Review

Since the Financial Crisis, a common narrative casts the largest, too-big-to-fail (TBTF) banks as villains1 and community banks as darlings. On the one hand is the image of the infamous mega banks that brought the economy to its knees and continue to profit while the rest of society sputters, and on the other hand is the angelic community banker (think Jimmy Stewart in It's a Wonderful Life) working tirelessly to provide the last bastion of hope for small, job-creating, businesses and other worthy borrowers. Advocates for these innocent small banks point to the crushing regulatory burden imposed on institutions that …

Paradise Found? Food Transportation Regulation: A Detour Through Regulatory Purgatory, William Nash

Journal of Food Law & Policy

On January 31, 2014, the Food and Drug Administration ("FDA") issued a Notice of Proposed Rulemaking ("NPRM") that would set requirements for shippers, carriers and receivers of food transported in intrastate and interstate commerce. The NPRM marks a potentially important step in a long history of the (non-)regulation of food transportation. In Parts I and II, this paper will provide some context of the history of food transportation, as well as the major incidents that placed the food transportation industry on the regulatory map. In Parts III and IV, the paper will consider the history of food transportation regulation from …

The Risk Of Money Laundering Through Crowdfunding: A Funding Portal's Guide To Compliance And Crime Fighting, Zachary Robock

Michigan Business & Entrepreneurial Law Review

With the recent passage of the Jumpstart Our Business Startups Act (“JOBS Act”) and proposed regulations, equity crowdfunding is poised to play an important role in fundraising for many types of emerging growth companies. A fundamental purpose of crowdfunding is to reduce economic barriers to capital markets for emerging growth companies, in part by relaxing rigorous information disclosure requirements currently mandated by the Securities and Exchange Commission (“SEC”). Relaxed regulation should help reduce the cost of fundraising, but it will also present certain risks. Investor fraud is a common concern, which is addressed at length in the JOBS Act and …

The Fragmented Regulation Of Investment Advice: A Call For Harmonization, Christine Lazaro, Benjamin P. Edwards

Michigan Business & Entrepreneurial Law Review

Decades of short-term thinking and regulatory fixes created the bewilderingly complex statutory and regulatory structures governing the giving of personalized investment advice to retail customers. Although deeply flawed, the current systems remain entrenched because of the difficulties inherent in making radical alterations. Importantly, the current patchwork systems do not seem to serve retail customers particularly well. Retail customers tend to make predictable and costly mistakes in allocating their assets. Some of this occurs because many investors lack basic financial literacy. A recent study released by the staff of the Securities and Exchange Commission (the “Commission”) on financial literacy among investors …

Importing Energy, Exporting Regulation, James W. Coleman

Fordham Law Review

This Article identifies and addresses a growing contradiction at the heart of United States energy policy. States are the traditional energy regulators and energy policy innovators—a role that has only grown more important without a settled federal climate policy. Federal regulators and market pressures, however, increasingly demand integrated national and international energy markets. Deregulation, the rise of renewable energy, the shale revolution, and new sources of motor fuel precursors like crude and ethanol have all increased interstate energy trade.

This Article shows how integrated national energy markets are driving states to regulate imported fuel and electricity based on how it …

County Court, Westchester County, People V. Gant, Albert V. Messina Jr.

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris

Touro Law Review

No abstract provided.

Criminal Court, New York County, People V. James, Nicole Compas

Touro Law Review

No abstract provided.

Appellate Division, First Department, For The People Theatres Of New York, Inc. V. City Of New York, Daphne Vlcek

Touro Law Review

No abstract provided.

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Michigan Law Review First Impressions

The practice of hydraulic fracturing-or fracking-has become a major focus of policymakers in recent years. Federal, state, and local regulations on fracking create a confusing web for industry to navigate, and governmental entities often battle with each other for authority to regulate the practice. The fast and widespread growth of fracking in the United States has therefore exacerbated confusion over who will regulate this booming industry, and courts have so far failed to use sensible principles to resolve inconsistencies among federal, state, and local regulations. When fracking laws conflict, courts traditionally use preemption doctrine-general rules that help judges choose whether …

Administrative Law, John Paul Jones, John R. Mohrmann

University of Richmond Law Review

This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act ("the VAPA"), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.

Public Utilities Law, William T. Reisinger

University of Richmond Law Review

This article explains, at a high level, some of the major changes to electric regulation in Virginia in recent years. It also discusses how the General Assembly's new policies have affected retail electric rates and the development of new generation facilities, including renewable energy resources, in the Commonwealth since 1999.

Reflections On The 'New Wave' Inversions And Notice 2014-52, Reuven S. Avi-Yonah

Articles

On September 22 the Treasury Department issued Notice 2014-52, 2014-42 IRB 1. The notice was intended to fulfill President Obama’s pledge to use executive actions to the extent possible to block the new wave of corporate inversions. To what extent can the notice succeed? This article argues that while the notice is a useful first step, it is unlikely to stem the tide of inversion transactions. To do that, legislative action is needed in the short term. In the longer term, the only solution to inversions is coordination with other OECD countries in the context of the base erosion and …