Agency Commons^™

Designating Health Care Decisionmakers For Patients Without Advance Directives: A Psychological Critique, Nina A. Kohn, Jeremy A. Blumenthal

Georgia Law Review

States' default surrogate statutes allow family or friends to make health care decisions for incapacitated patients who lack advance directives. Although such statutes are commonly justified on the grounds that they honor the wishes of incapacitated persons, the review of empirical research on surrogate decision making in this Article challenges this justification. The authors find that default surrogate statutes do a reasonable job of capturing majority preferences for health care decision making processes, but do not ensure that patients receive the treatment they would have selected for themselves if able. Rather,surrogates appointed under default surrogate statutes can be expected to …

The History Of The New York City Law Department: Fighting For The City By William E. Nelson, Ross Sandler

NYLS Law Review

No abstract provided.

The Independence Of The Law Department, Jeffrey D. Friedlander

NYLS Law Review

No abstract provided.

The Challenges And Risks Of Creating Independent Regulatory Agencies, Mariana M. Prado

Vanderbilt Journal of Transnational Law

Between 1996 and 2002, the Brazilian government established independent regulatory agencies (IRAs) for electricity, telecommunications, oil, gas, and other infrastructure sectors as part of a very ambitious privatization program. Following the formulas advocated internationally, Brazilian IRAs have institutional guarantees of independence, such as fixed and staggered terms of office for commissioners, congressional approval of presidential nominations, and alternative sources of funds to ensure their financial autonomy. This Article analyzes the design of IRAs in Brazil and asks whether their institutional guarantees of independence were effective in insulating them from the political sphere. The Author's general conclusion is that these guarantees--typical …

Irrevocable Proxies, Deborah A. Demott

Faculty Scholarship

This short article explores the circumstances under which the power to vote shares owned by another may be made irrevocable. Irrevocable proxies often serve as integral ingredients within corporate governance arrangements because they serve as mechanisms that enable alliances among shareowners or enhance the holder’s voting power in disproportion to the holder’s residual economic interest in the corporation. The rights and duties of holders of irrevocable proxies are best understood against a background of common-law agency relationships, in which agent and principal always have the power–albeit having contracted otherwise–to terminate their relationship and the agent’s actual authority. Courts in the …

The Transformation Of The U.S. Rulemaking Process - For Better Or Worse, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

For Whom The Tel Tolls: Can State Tax And Expenditure Limits Effectively Reduce Spending?, Thad Kousser, Mathew D. Mccubbins, Ellen Moule

Faculty Scholarship

Can voters stop state governments from spending at high rates through the enactment of tax and expenditure limits (TELs), or do these laws become dead letters? We draw upon the principal-agent literature to theorize that TELs – one of the most frequent uses of the initiative process across the country – may be circumvented by the sorts of elected officials who would inspire their passage.

In order to investigate our claim, we conduct an event study. First, we test for the effectiveness of TELs across states using a differences-in-differences model. Second, we dissect our treatment variable using different legal provisions …

Special Topics In Preventing And Responding To Prison Rape: Medical And Mental Healthcare, Community Corrections Settings And Oversight, Brenda V. Smith, Theodis Beck, Michele Deitch

Presentations

Hearing transcripts regarding medical and mental health care, community corrections, and oversight related to the prevention of and response to inmate sexual assault. Points of entry are: full transcript; opening remarks; personal accounts; response and treatment—caring for sexual assault victims in correctional and detention facilities; confidentiality and reporting—medical ethics, victim safety, and facility security; sexual violence and community corrections—the special considerations of community-based settings; and best practices and emerging trends—the community corrections field’s response to the Prison Rape Elimination Act. This article contains testimony specifically about the State of North Carolina.

Procedures As Politics In Administrative Law, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

Legal scholars view administrative law as alternately shaped by concerns for procedural integrity and issues of political control, and therefore as consisting of largely conflicting rules. But they have overlooked that the Court may be elaborating administrative law, and more particularly, administrative procedures, for a political purpose - to ensure that agency action roughly tracks legislative preferences. Thus, rather than vacillating between procedures and politics, the Court may be striving to negotiate two sorts of politics: congressional control, exercised through administrative procedures, and presidential control, vindicated by presumptive judicial deference. Positive political theorists, meanwhile, have appreciated that administrative procedures can …

Arieh Israel Insurance Company Ltd V. Kaplansky, Edna Arbel, Miriam Naor, Mishael Cheshin

Translated Opinions

Facts: The respondent, a lawyer, represented a company (hereinafter ‘the company’) that filed a claim against the appellant insurance company for fire loss. Before it received the insurance payout, the company asked the respondent to sign a document stating that he no longer represented them. It explained that the insurance company refused to make the payout for as long as the respondent represented the company. The respondent signed the document. When the company received the payout, it refused to pay the respondent the agreed fee for his services. The respondent sued the company for breach of contract, and the insurance …

Fundamental Reform In Public Safety Communications Policy, Jon M. Peha

Federal Communications Law Journal

Symposium: The Crisis in Public Safety Communications. Held at the Mercatus Center at George Mason University, December 8, 2006.

The communications systems used by first responders in the U.S. are inadequate, primarily because of outdated and ineffective public policy. Fundamental reform is needed, and the upcoming digital TV transition provides an outstanding opportunity. This Article describes options available to policymakers, if they act soon.

Solving The Interoperability Problem: Are We On The Same Channel? An Essay On The Problems And Prospects For Public Safety Radio, Gerald R. Faulhaber

Federal Communications Law Journal

Symposium: The Crisis in Public Safety Communications. Held at the Mercatus Center at George Mason University, December 8, 2006.

A number of disasters over the last two decades have demonstrated the dire consequences that occur when first responders are unable to communicate due to interoperability of their communications equipment. Each such disaster is followed by a strong reaction from the Federal government, promising immediate action, often with plans to deploy the latest technology. In fact, nothing has ever actually happened at the Federal level to solve first responders' interoperability problem. As I show using a case study from Delaware, states …

Sending Out An S.O.S.: Public Safety Communications Interoperability As A Collective Action Problem, Jerry Brito

Federal Communications Law Journal

Symposium: The Crisis in Public Safety Communications. Held at the Mercatus Center at George Mason University, December 8, 2006.

Lack of public safety communications interoperability is the result of what economist Mancur Olson called a collective action problem. In this case, the collective action problem that first responders face is caused by the federal policy of allocating and assigning public safety spectrum in a way that segregates first responders to their own bands and ultimately Balkanizes their radio systems. This Article shows that market forces can be employed to solve collective action problems, and it surveys several successful commercial interoperable …

Communicating During Emergencies: Toward Interoperability And Effective Information Management, Philip J. Weiser

Federal Communications Law Journal

Symposium: The Crisis in Public Safety Communications. Held at the Mercatus Center at George Mason University, December 8, 2006.

To change the culture and realities of public safety communications, this Article calls on policymakers to develop a new architecture for the use of information and communications technologies and provide a framework for leadership to transition to a next generation system for public safety communications. Such a culture change would include not only an embrace of new technologies, but a new framework for technology leadership--at the state or regional level-that spurs decision making in a coordinated fashion (and not through ad …

The Safe Harbor Of 35 U.S.C. § 271(E)(1): The End Of Enforceable Biotechnology Patents In Drug Discovery?, Paul T. Nyffeler

University of Richmond Law Review

No abstract provided.

Judicial Deference And The Credibility Of Agency Commitments, Jonathan Masur

Vanderbilt Law Review

Consider the following situation: In late 2004, towards the end of President George W. Bush's first term, the National Highway Transportation Safety Administration ("NHTSA"), pursuant to its congressionally delegated authority, promulgates a rule that would relax inspection and testing regimes for automobile manufacturers- thereby saving those firms substantial amounts of money-if the manufacturers independently deployed cutting-edge vehicle safety technology. The research and development of this technology will require significant up-front expenditures, and automobile manufacturers must decide whether to invest the funds necessary to bring the technology to market. However, the cost-benefit analysis is not so straightforward. The predicament, as the …

United States Food Law Update, A. Bryan Endres

Journal of Food Law & Policy

Michael T. Roberts and Margie Alsbrook noted in the Journal's inaugural Food Law Update that "[t]he one constancy about food law in the United States is change, especially in a rapidly-developing food industry." This observation holds true today and also augurs a change in authorship of this section of the Journal. I hope to follow my colleagues' lead and provide timely and cogent updates of the federal (and occasionally state) statutes, regulations, and judicial decisions impacting food law and policy. It is both an honor and a duty, as food and its legal implications remain in many respects "the world's …

Safe But Not Wholesome: The Troubling State Of Trans Fat Regulation, Ross Williams

Journal of Food Law & Policy

On March 7, 2007, the New York Times reported that Starbucks, the retail coffee chain which sells millions of baked goods every day from its over 8,700 U.S. stores, had asked its suppliers to eliminate all trans fats from their products by the end of the year. The big story for New York readers, though, was not that Starbucks was requiring the elimination of trans fats from its baked goods. In fact, New York City had just passed an ordinance strictly limiting the use of artificial trans fats, the type present in partially hydrogenated vegetable oil (PHVO), by virtually all …

European Union Food Law Update, Nicole Coutrelis

Journal of Food Law & Policy

On December 23, 2006, the European Commission published Commission Directive 2006/142/EC "amending Annex IlIa of Directive 2000/13/EC of the European Parliament and of the Council listing the ingredients which must under all circumstances appear on the labelling of foodstuffs" in regard to Directive 2000/13/EC of the European Parliament and of the Council of March 20, 2000, "on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs."' "Annex IIla of Directive 2000/13/EC lists the ingredients which must under all circumstances appear on the labeling of foodstuffs ... " and the new Directive …

Harvey V. Veneman And The National Organic Program: Can Organic Be Synthetic?, Jennifer C. Fiser

Journal of Food Law & Policy

The market for organic products has increased dramatically in the United States and across the world in recent years.' Since 1997, sales of organic foods have grown from 15% to 21% per year, and while organic foods accounted for only 2.5% of total food sales in the United States in 2005, those sales amounted to $13.8 billion.

Defying Nature: The Ethical Implications Of Genetically Modified Plants, Debra M. Strauss

Journal of Food Law & Policy

Genetic engineering is changing the semantics, the meaning of life itself. We're trying to usurp the plant's choice. To force alien words into the plant's poem, but we [have] a problem. We barely know the root language. Genetic grammar's a mystery.... We've learned a lot about the letters-maybe our ability to read and spell words now sits halfway between accident and design - but our syntax is still haphazard. Scrambled. It's a semiotic nightmare.

Legitimacy, Selectivity, And The Disunitary Executive: A Reply To Sally Katzen, Lisa Schultz Bressman, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Professors Bressman and Vandenbergh respond to the comments of Sally Katzen on their article presenting and analyzing results from an empirical study of the top political appointees at the Enviromental Protection Agency (EPA) during the William Clinton and George H.W. Bush administrations. In their previous article, Professors Bressman and Vandenbergh examined White House involvement in EPA rulemaking during the relevant periods, concluding that it may be a more complex and less positive phenomenon than previous studies have acknowledged. In this reply, the authors reinforce why the EPA is an important agency to study for information about White House involvement in …

The Cautionary Tale Of The Failed 2002 Ftc/Doj Merger Clearance Accord, Lauren K. Peay

Vanderbilt Law Review

Antitrust law in the United States is the patchwork result of over two hundred years of evolving and often conflicting views of the government's proper role in regulating business. Depending upon the social and business climate of the era and the economic philosophies of Congress, the President, and the judiciary, federal antitrust jurisdiction has waxed and waned. The result is the current system wherein the Department of Justice Antitrust Division ("Antitrust Division") and the Federal Trade Commission ("FTC") share dual jurisdiction to enforce the federal antitrust laws. However, in the push and pull of the changing eras, the intersection of …

The Constitutional Foundations Of Chenery, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …

Disloyal Agents, Deborah A. Demott

Faculty Scholarship

This paper examines the consequences of an agent's breach of the fiduciary duty of loyalty. These consequences are underexplored in academic literature, in contrast to rationales for fiduciary duties more generally. The consequences of an agent's disloyalty are, moreover, not uniform across jurisdictions. The paper begins by differentiating between the meaning and consequences that the law ascribes to agency and its meaning in other academic disciplines, including economics and philosophy. It then considers the extent to which principles derived from contract and tort law can account for the consequences that courts assign to agents' disloyal conduct and concludes that a …

Only A Sith Thinks Like That: Llewellyn's Dueling Canons, Eight To Twelve, Michael B.W. Sinclair

Articles & Chapters

In this, the second installment in a series of articles planned to examine each of the twenty eight pairs of "dueling canons" having opposite effect left to us in 1950 by Karl N. Llewellyn (Karl N. Llewellyn, "Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed", 3 VANDERBILT L.REV. 395 (1950)), I examine pairs 8 through 12. I start with Pair 12, Llewellyn's formulation of the Plain Meaning Rule; it is not so much a canon of construction as a condition on construction: unless one or both of its conditions …

United States Food Law Update, Michael Tingey Roberts, Margie Alsbrook

Journal of Food Law & Policy

This update summarizes some of the significant changes and developments in food law over the first half of 2006. Not every change in food law is included; instead, this update provides a starting point for scholars, practitioners, food industry members, and policymakers determined to understand the shaping of food law in modern society. Tracing the development of food law through these updates, which appear in each issue of the Journal of Food Law & Policy, also provides historical context for the development of significant food law issues over time. New developments in state law, while certainly important and deserving in …

Creating Balance: Problems Within Dshea And Suggestions For Reform, Jennifer Akre Hill

Journal of Food Law & Policy

The Dietary Supplement Health and Education Act of 1994 (DSHEA) was signed into law on October 25, 1994. At the signing, President Clinton endorsed the "intense efforts" of manufacturers and legislators to change the "treatment of dietary supplements under regulation and law." Further, the bill was signed with the hope that it would benefit consumers by permitting more access to dietary supplements and more choices for consumer directed healthcare. In support, politicians on both sides of the aisle claimed the DSHEA as a victory for consumer freedom, populist protection, and preventative medicine.

Animal Identification And Traceability Under The Us National Animal Identification System, Margaret Rosso Grossman

Journal of Food Law & Policy

The identification of animals has a long history in the United States. Since the late nineteenth century, livestock producers have used brands to mark their animals. Ear tags and other marks now identify individual animals or animals from a specific producer, but not all livestock are identified to facilitate traceability.

European Union Food Law Update, Nicole Coutrelis

Journal of Food Law & Policy

On March 31, 2006, the European Commission published Council Regulation (EC) No. 510/2006 On the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs. This new regulation repealed Council Regulation (EEC) No. 2081/92 On the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs mainly to bring Community law into conformity with the World Trade Organization (WTO) agreements and the findings of a recent WTO panel. Under the new Regulation, persons in third countries (non-European Union members) are entitled to address applications for the protection of geographic names and statements of objection …