Agency Commons^™

Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery

Journal of Law and Policy

The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.

Interagency Conflict: A Model For Analysis, Betsy C. Cox, Gary Shmerling

Georgia Journal of International & Comparative Law

No abstract provided.

High Country Conservation Advocates V. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014), Kathryn S. Ore

Public Land & Resources Law Review

High Country Conservation Advocates v. United States Forest Service concerns the United States Forest Service’s and the Bureau of Land Management’s authorizations of on-the-ground mining exploration activities in the Sunset Roadless Area of western Colorado. The United States District Court for the District of Colorado’s holding has far-reaching consequences for federal agencies’ analysis and disclosure of impacts on the climate under the National Environmental Policy Act (“NEPA”). In addition to bolstering the Plaintiffs’ recent successes at establishing legal standing to challenge federal agencies’ disclosures and analyses of impacts on the climate under NEPA, High Country is the first case to …

The Bayh–Dole Act & Public Rights In Federally Funded Inventions: Will The Agencies Ever Go Marching In?, Ryan Whalen

Northwestern University Law Review

For over thirty years, the Bayh–Dole Act has granted federal agencies the power to force the recipients of federal research funding to license the resulting inventions to third parties. Despite having this expansive power, no federal agency has ever seen fit to utilize it. This Note explores why Bayh–Dole march-in rights have never been used, and proposes reforms that would help ensure that, in the instances when they are most required, the public is able to access the inventions it bankrolled.

There have been five documented march-in petitions since the Bayh–Dole Act was passed into law. Each petition was dismissed …

Purposivism In The Executive Branch: How Agencies Interpret Statutes, Kevin M. Stack

Vanderbilt Law School Faculty Publications

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation. This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose …

Kicking Employers While They Are Down: Vicarious Liability Under The Anti-Kickback Act, Daniel Horner

Catholic University Law Review

The Anti-Kickback Act is one of the instruments the Government uses to punish and prevent procurement fraud. The Act creates criminal and civil liability for the use of kickbacks by government contractors. Specifically, the civil provision contains two subsections -- one punishing employees for their actions, and the other punishing employers under a theory of strict liability. In United States ex rel. Vavra v. Kellogg, Brown & Root, the United States Court of Appeals for the Fifth Circuit held that employers are subject to vicarious liability for their employees' violations of the first subsection of the civil suit provision …

Judicial Review Of Agency Benefit-Cost Analysis, W. Kip Viscusi, Caroline Cecot

Vanderbilt Law School Faculty Publications

This Article evaluates judicial review of agency benefit-cost analysis ("BCA") by examining a substantial sample of thirty-eight judicial decisions on agency actions that implicate BCA. Essentially, the Administrative Procedure Act tasks federal courts with ensuring that federal agency action is reasonable. As more agencies use BCA to justify their rulemakings, the court's duty often requires judges to evaluate the reasonableness of agency BCAs. In this Article, we discuss the challenges that trigger judicial review of agency BCAs and the standards that govern the review. We then present specific examples of how courts analyze BCAs. Overall, we find many examples of …

The Interpretive Dimension Of Seminole Rock, Kevin M. Stack

Vanderbilt Law School Faculty Publications

A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency's interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency's interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." This Article argues that a court's choice of method for interpreting regulations” including how it determines which agency interpretations are inconsistent with the regulation ” may be just as important, if not more …

Agency Rulemaking And Political Transitions, Anne Joseph O'Connell

Northwestern University Law Review

No abstract provided.

An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, Eric A. Posner, E. Glen Weyl

Northwestern University Law Review

The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd–Frank Act, Congress sought to address the problem of speculative investment, but it merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Law Faculty Scholarship

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Promoting Innovation, Matthew Sag, Spencer Weber Waller

Faculty Articles

This Essay proceeds as follows. We briefly introduce the concept of creative destruction and its place in Schumpeter’s work in Part II. In Part III we explain why a truly Schumpeterian competition policy demands more than a laissez faire approach. We explain why the law must preserve opportunities and incentives for creative destruction at all stages of innovation and we review four key policy areas of antitrust law from this innovation-focused perspective: unilateral conduct cases (Part III.A), cases at the intersection of IP and antitrust (Part III.B), Sherman Act section 1 cases (Part III.C), and merger policy (Part III.D). In …

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, Thomas Simmons

Faculty Publications

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of any agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent's authority. The remaining powers should be construed and mapped …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

The Viability Of Enterprise Jurisdiction: A Case Study Of The Big Four Accounting Firms, Hannah L. Buxbaum

Articles by Maurer Faculty

One of the boundaries that U.S. courts must observe as they adjudicate regulatory disputes is the limit on their own jurisdictional authority -authority that is measured at the level of the particular forum state. Confronting the expansion of U.S. business activity from the local to the national scale during the second half of the twentieth century, courts consciously broadened jurisdictional standards to address the expanded activities of nationwide corporate groups. Today, by contrast, as the economy continues to expand from the national to the transnational scale, the U.S. Supreme Court has begun a retrenchment. In cases decided during the past …

Administering Patent Litigation, Jacob S. Sherkow

Articles & Chapters

Recent patent litigation reform efforts have focused on every branch of government — Congress, the President, and the federal courts — save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as “gatekeepers” to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation. Understanding administrative agencies’ functions in managing or directing, i.e., “administrating,” patent litigation sheds both descriptive and normative insight on several aspects of patent reform. …

Agency And Partnership Law [2014], Pearlie M. C. Koh, Stephen Noel Henry Bull

Research Collection Yong Pung How School Of Law

No abstract provided.

Agreement In Principle: A Compromise For Activist Shareholders From The Uk Stewardship Code, David W. Roberts

Vanderbilt Journal of Transnational Law

Equity ownership in the United States and Europe is now highly concentrated in the hands of institutional investors, which gives rise to new problems of agency and corporate governance. These large investment intermediaries, such as mutual funds, specialize in maximizing beneficial owner value based on short-term performance benchmarks but lack the expertise and incentive to actively engage corporate boards on business strategy and governance matters. Instead, institutional investors are "rationally reticent," meaning that they are willing to respond to governance proposals but not to propose them. Activist shareholders may offer an endogenous solution to address "latent activism" in institutional intermediaries …

Reflections On Teaching Business Associations: The Case For Teaching More Agency And Unincorporated Business Entity Law, Mark J. Loewenstein

Publications

This paper argues for increased coverage of the law of agency and alternative entities in business associations courses.

Agency In The Alternatives: Common-Law Perspectives On Binding The Firm, Deborah A. Demott

Faculty Scholarship

This chapter in a forthcoming book examines the external aspects of agency law in the context of unincorporated firms, that is, the capacity of actors associated a firm to bind it to the legal consequences of interactions with third parties. The chapter focuses in particular on the impact of acts done by a representative for which the representative lacked actual authority. The chapter differentiates the terminology and concepts associated with partnership law from the common law of agency, in particular, a partner's capacity to bind the firm albeit the partner lacks actual authority, which the chapter terms the partner's "positional …

Forum-Selection Bylaws Refracted Through An Agency Lens, Deborah A. Demott

Faculty Scholarship

Both praise and controversy surround director-adopted bylaws that affect shareholders' litigation rights. Recent bylaws specify an exclusive forum for litigation of corporate governance claims, limit shareholder claims to resolution through arbitration, and (most controversially) impose a one-way regime of fee shifting on shareholder litigants. To one degree or another, courts have legitimated each development, while commentators differ in their assessments. This Article brings into clear focus issues so far blurred in debates surrounding these types of bylaws. Focusing on forum-selection bylaws, and on Delaware precedents, I argue that beginning from the standpoint of common law agency reveals the attenuated and …

Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Rizwaan J. Mokal

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

From Integrity Agency To Accountability Network: The Political Economy Of Public Sector Oversight In Canada, Jamie Baxter

Articles, Book Chapters, & Popular Press

The federal integrity agencies that are delegated collective responsibility for public sector oversight in Canada face a common challenge to stabilize their ongoing independence from political control. While Parliament has delegated to these agencies key oversight functions that demand some degree of structural independence, they remain vulnerable to shifting political preferences and to an increasingly partisan national politics. This Article uses a political economy framework to theorize the objectives that shape political preferences for agency independence in Canada, and to suggest that structural innovations in the form of 'accountability networks' may provide one strategy to help stabilize those preferences over …

Meeting The Youthful Inmate Standard: Addressing Operations, Finding Promising Practices And Knowing The Law, Brenda V. Smith, Elissa Rumsey, Carmen Daugherty

Presentations

No abstract provided.

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

Determining The Extent Of The Work For Hire Doctrine And Its Effect On Termination Rights, Allison E. Dolzani

Touro Law Review

No abstract provided.

"Do No Harm": A Comparative Analysis Of Legal Barriers To Corporate Clinical Telemedicine Providers In The United States, Australia, And Canada, Ian R. Landgreen

Georgia Journal of International & Comparative Law

No abstract provided.

Cgmp Violations Should Not Be Used As A Basis For Fca Actions Absent Fraud, Kyle Faget

Seattle University Law Review

Since Congress amended the False Claims Act (FCA) in 1986, the statute has evolved into a seemingly boundless weapon for enforcing other statutes and regulations applicable to every industry that accepts any form of government funding. Use of the FCA by the Department of Justice (DOJ) and by private citizens bringing actions on behalf of the U.S. government to enforce other statutes and regulations is particularly evident in the field of health care. The FCA has been utilized in actions where the allegations include off-label promotion of drugs, kickbacks, and violations of current good manufacturing practices (cGMPs) by linking the …