Law Commons^™

Agins V. City Of Tiburon: Open Space Zoning Prevails - Failure To Submit Master Plan Prevents A Cognizable Decrease In Property Value, Jermaine Chastain

Pepperdine Law Review

This casenote examines the Supreme Court's struggle to reconcile its focus on the facial validity of a zoning ordinance with the traditional "taking" approach requiring diligent factual inquiry. While the Agins Court reiterates such an approach, the author notes the Court's departure from important constitutional and precedential considerations. The author offers a possible explanation for the departure, concluding that the Agins decision apparently makes plan submission a prerequisite for acknowledging economic loss and strongly implies a requirement of complete loss of all property value before a compensable taking will be recognized.

Ftc Regulation Of Endorsements In Advertising: In The Consumer's Behalf?, Whitney F. Washburn

Pepperdine Law Review

The Federal Trade Commission, as recently as 1980, has issued Guides designed to prevent deception of consumers due to misleading product endorsement advertising by celebrities and others. The new Guides indicate that the FTC intends to continue its recent trend offending advertisers and even endorsers liable for deceptive endorsement practices. However, a critical analysis of the Guides, in light of marketplace realities and consumer needs, raises serious question as to whether they are likely to promote accurate endorsement advertising. This comment will explore pre-1980 regulations and trace the progression of controls through the advent of the FTC Guides. The Guides …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Scholarly Articles

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where …

Ovaries, Testicles, And Uteruses, Oh My! Regulating Reproductive Tissue Transplants, Valarie K. Blake

Scholarly Works

This article will explore key regulatory and ethical challenges presented by reproductive tissue transplants (RTTs) as they are currently developing, recognizing that additional issues may reveal themselves as the technologies progress. Part I of this article will begin with a discussion of the current status of the technology, including the results and status of animal and human experiments for all three types of transplants. Part II will explore the demand for RTTs — who might consider such a transplant and why RTTS might be considered by some patients as more favorable than other reproductive options. Part III will explore the …

Is Anyone Regulating?: The Curious State Of Gmo Governance In The United States, Rebecca Bratspies

Publications and Research

No abstract provided.

The Jurisdiction Of The D.C. Circuit, Matthew J.B. Lawrence, David K. Kessler, Eric M. Fraser, Stephen A. Calhoun

Faculty Scholarly Works

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several …

Who Will Regulate Class Action Lawyers?, Nancy J. Moore

Faculty Scholarship

In 2003, I published an article entitled “Who Should Regulate Class Action Lawyers?”1 In that article, I defended the decision of the American Bar Association’s (“ABA”) Commission on Evaluation of the Model Rules of Professional Conduct (the “Ethics 2000 Commission”), for which I was Chief Reporter, not to propose any substantial amendments to the ABA Model Rules of Professional Conduct (“Model Rules”) concerning the ethical conduct of class action lawyers.

There are many ethical issues that confront class action lawyers. In my 2003 article, I focused on conflicts of interest—an issue that courts and commentators have had difficulty resolving and …

Investing In Cannabis: Inconsistent Government Regulation And Constraints On Capital, Adrian A. Ohmer

Michigan Business & Entrepreneurial Law Review

This note’s focus is on the future of investing in the growing legalized cannabis industry. In Part II, it will provide a brief history of federal and state regulation of cannabis. Part III will discuss the current role of the federal government in regulating the cannabis industry. Part IV will explore the current avenues of access to capital for the cannabis industry. Lastly, Part V will provide suggestions for the federal government and state governments to reduce investment risk that exists in the cannabis industry.

Private Equity & Private Suits: Using 10b-5 Antifraud Suits To Discipline A Transforming Industry, Kenneth J. Black

Michigan Business & Entrepreneurial Law Review

This note demonstrates why private equity will no longer be able to avoid private investor suits as it has (mostly) done in the past and explores the industry’s response to a growing number of investor suits. Notably, the industry has already begun to shift its strategy from regulatory avoidance to regulatory capture, at least in part to avoid investor suits. Given these changes, this note proposes that the best way to maintain discipline in the transforming private equity market is to protect the ability of investors to bring private suits.

Channel Checking And Insider Trading Liability, Michael Byun

Michigan Business & Entrepreneurial Law Review

This note addresses the potential legality or illegality of channel checking in the context of a private equity buyout. In Part II, this note uses a hypothetical to demonstrate a situation in which a private equity acquirer might engage in a channel check. In Part III, this note analyzes federal judicial and SEC cases that have developed various categories of insider trading liability, and provides a framework for insider trading liability. In Part IV, this note applies the analysis from Part III to the hypothetical described in Part II. Part IV attempts to reach a conclusion about whether the private …

Regulation Of Private Equity In Brazil: Policy Questions Presented And Critique, Shannon Guy

Michigan Business & Entrepreneurial Law Review

In this note, I explore some of the policy questions affecting Brazil’s private equity industry that the country must tackle. In Part II, Section A, I begin by asking the threshold question of whether the Brazilian government should play an active role in encouraging the growth of the private equity industry. I resolve that Brazil should play an active role in encouraging the industry’s growth to encourage several possible benefits to the real economy. Private equity may benefit the economy by providing job growth and job preservation, improved access to credit for firms that would not otherwise have funds, and …

The Kona Coffee Archetype: A Case Study In Domestic Geographic Indication, Jason Foscolo

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Private Regulation Of Insider Trading In The Shadow Of Lax Public Enforcement: Evidence From Canadian Firms, Laura Nyantung Beny, Anita Anand

Articles

Like firms in the United States, many Canadian firms voluntarily restrict trading by corporate insiders beyond the requirements of insider trading laws (i.e., super-compliance). Thus, we aim to understand the determinants of firms’ private insider trading policies (ITPs), which are quasi-contractual devices. Based on the assumption that firms that face greater costs from insider trading (or greater benefits from restricting insider trading) ought to be more inclined than other firms to adopt more stringent ITPs, we develop several testable hypotheses. We test our hypotheses using data from a sample of firms included in the Toronto Stock Exchange/Standard and Poor’s (TSX/S&P) …

Toward A Sustainable Future: An Environmental Agenda For The Second Term Of The Obama Administration, David M. Uhlmann

Other Publications

Much was at stake in the Presidential election of 2012, which was marked by heated debate over the trajectory of the economy, the expiration of the Bush tax cuts, and the fat of the President's health care plan. The candidates disagreed about nearly every issue from foreign policy and the war on terror to a woman's right to choose and same-sex marriage. Lost amid the din and never mentioned in the Presidential debates or most of the campaign speeches was another divisive topic: how our environmental laws and policies should address global climate change and chart a sustainable future for …

Keep Your “Friends” Close And Your Enemies Closer: Walking The Ethical Tightrope In The Use Of Social Media., John G. Browning

St. Mary's Journal on Legal Malpractice & Ethics

This Article will examine the ethical issues posed by lawyers’ use of social media platforms in light of the ABA Ethics Commission 20/20 changes to the Model Rules of Professional Conduct. Social networking has had a transformative effect both on the way society shares information and on the legal profession. Much of the discussion to date focuses on the discovery and use of evidence from social media sites in criminal cases and civil litigation, but attention must also be directed to the ethical quandaries posed by the legal profession’s use of social media. This Article will consider issues such as …

Escaping Entity-Centrism In Financial Services Regulation, Anita K. Krug

Articles

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entity-centric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as …

Conditional Spending After Nfib V. Sebelius: The Example Of Federal Education Law, Eloise Pasachoff

American University Law Review

No abstract provided.

The Dynamics And Global Implications Of Subglobal Carbon-Restricting Regimes, Juscelino F. Colares

Faculty Publications

The European Union and Australia have enacted comprehensive carbon-restricting reforms that will affect both domestic and foreign industries. After describing these reforms in detail, the article develops a microeconomic analytical model that explains the impact these regimes have on the dynamics of inter-firm competition in carbon-restricting nations and how they will also influence technology choices by certain industries in carbon-friendly nations. Specifically, exporters and producers operating in vertically-integrated industries in carbon-friendly nations will increasingly elect carbon-efficient technologies to minimize costs as they adjust to a changing international regulatory environment. The article hypothesizes that this shift in the carbon intensity of …

Does Regulation Chill Democratic Deliberation? The Case Of Gmos, Alison Peck

Law Faculty Scholarship

Breakthroughs in science and technology pose a challenge to the U.S. legal system: either regulate under pre-existing laws using a business-as-usual approach, or pass new laws to deal with new relationships and conflicts created by these breakthroughs. How does the legal process determine when to regulate and when to legislate? Does that process adequately ensure deliberative democratic debate and implementation of democratic consensus? Does it adequately protect urgent interests in the meantime? Currently, this determination is ongoing with regard to new scientific developments such as climate change science, and new technological developments such as hydraulic fracturing of unconventional natural gas …

Colleges And Universities All Atwitter: Constitutional Implications Of Regulating, Kayleigh R. Mayer

Marquette Sports Law Review

None

Assessing Transnational Private Regulation Of The Otc Derivatives Market: Isda, The Bba, And The Future Of Financial Reform, Gabriel V. Rauterberg, Andrew Verstein

Articles

For the last twenty years, the dominant narrative of the over-the-counter derivatives market has been one of absent regulation, deregulation, and regulatory conflict, predictably resulting in disaster. This Article challenges this narrative, arguing that the global derivatives market has been subject to pervasive and harmonized regulation by what should be recognized as transnational private regulators. Recognizing the reality of widespread transnational private regulation of derivatives has significant implications, which this Article explores. Appreciating the actual regulatory status quo is essential if policymakers are to correctly diagnose problems, avoid past regulatory errors, and plan effective remedies. There are also advantages to …

The President's Enforcement Power, Kate Andrias

Articles

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus …

Jurisdictional Standards (And Rules), Adam I. Muchmore

Faculty Scholarship

This Article uses the jurisprudential dichotomy between two opposing types of legal requirements — “rules” and “standards” — to examine extraterritorial regulation by the United States. It argues that there is natural push toward standards in extraterritorial regulation because numerous institutional actors either see standards as the best option in extraterritorial regulation or accept standards as a second-best option when their first choice (a rule favorable to their interests or their worldview) is not feasible.

The Article explores several reasons for this push toward standards, including: statutory text, statutory interpretation theories, the nonbinary nature of the domestic/foreign characterization, the tendency …

How Insurance Substitutes For Regulation, Omri Ben-Shahar, Kyle D. Logue

Articles

Legal regulation of behavior requires information. Acquiring information about the regulated party's conduct, setting benchmarks by which that conduct is measured, and establishing the correct scale of payoffs for violating or following regulation are costly and require expertise and motivation. Thus, economic theories of rulemaking are often based on the relative information advantages that different regulatory bodies have and how that information can be harnessed to enhance incentives and thereby improve welfare. Government regulators, on average, do not have informational advantages. They are not paid for performance and thus may lack adequate incentives. They are not disciplined by market forces …

Transnational Legal Practice (International) [In 2010-2012], Laurel S. Terry

Faculty Scholarly Works

This article covers three years of Transnational Legal Practice developments outside of the US. (It is the companion piece to 47 Int'l Law. 499 (2013) which discusses US developments.) This article discusses the approval of an Alternative Business Structure licensing system by the UK Solicitors Regulation Authority and its subsequent issuance of ABS licenses. The second section reviews the emergence of the “Troika” as a new regulatory influence in Europe, citing as an example the joint ABA-CCBE letter to the IMF. (The Troika refers to the International Monetary Fund, the European Central Bank, and the European Commission.) The third section …

Trends In Global And Canadian Lawyer Education, Laurel S. Terry

Faculty Scholarly Works

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012), https://works.bepress.com/laurel_terry/95/. Their article concluded …

Reflections On Us Policies Regarding Effective Regulation And Discipline And Foreign Lawyer Mobility: Has The Time Come To Talk About The Elephant In The Room, Laurel S. Terry

Faculty Scholarly Works

The ABA has adopted four model policies that address, in one way or another, the issue of foreign lawyer mobility. These policies are the ABA Model Foreign Legal Consultant Rule, which is commonly known as the FLC rule, the ABA Model Rule for Temporary Practice by Foreign Lawyers, which is commonly known as the FIFO rule, ABA Model Rule of Professional Conduct 5.5, which permits foreign lawyers to serve as in-house counsel, and the ABA Model Rule on Pro Hac Vice Admission. All four of the ABA’s foreign lawyer mobility recommendations include a requirement that the mobile foreign lawyer is …

Animal Mobilegalities: The Regulation Of Animal Movement In The American City, Irus Braverman

Journal Articles

The initial focus of “animobility” scholarship has been on the dynamic physical geographies of animals. This article extends the meaning of animobility to explore the ways in which animals are affected — and, in fact, constituted — by law, as well as the ways in which they affect and constitute law, which I call “mobilegalities.” Specifically, I ask how animobility in contemporary American cities translates into the animals’ legal mobility, and how laws can adapt to animobility and the ensuing mobilegality by setting “traps” that then immobilize the animals. This article demonstrates, finally, that law is not a static narrative …

Persuasion Treaties, Melissa (M.J.) Durkee

Scholarship@WashULaw

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …

Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks

Publications

Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?

Safety in the food …