The Visible Hand: Coordination Functions of the Regulatory State
By Robert B. Ahdieh. Full text here. From the financial crisis and changing forms of musical creativity to the rise of the Internet and increasing standard-setting conflict, the challenges of modern social and economic life are increasingly defined not by the need to reconcile conflicting interests, but rather to coordinate the choices of dispersed—and diverse—individuals and…
Continue ReadingNote: Defining Unpatented Article: Why Labeling Products with Expired Patent Numbers Should Not Be False Marking
By Laura Arneson. Full text here. The false marking statute was designed to prevent products from being labeled with patents that do not apply to them, but the Federal Circuit recently extended its reach to prevent labeling products with expired patent numbers. This decision has spurred litigation by third parties against the makers of articles covered…
Continue ReadingNote: Relative Futility: Limits to Genetic Privacy Protection Because of the Inability to Prevent Disclosure of Genetic Information by Relatives
By Trevor Woodage. Full text here. The Note considers possible limits to reasonable expectations of genetic privacy given that people share their DNA sequences with their relatives. Most scholars and members of the general public believe that an individual’s DNA sequence is an intensely personal matter and that access to this information should be tightly controlled.…
Continue ReadingRegulation in the Behavioral Era
By Michael P. Vandenbergh, Amanda R. Carrico, & Lisa Schultz Bressman. Full text here. Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational-actor theory, but that is beginning to change. Agencies are now relying on behavioral economics to develop regulations that account for…
Continue ReadingSpecial Incentives to Sue
By Margaret H. Lemos. Full text here. In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suits by private actors, which in turn will bolster enforcement and encourage…
Continue ReadingExecutive Compensation in the Courts: Board Capture, Optimal Contracting, and Officers' Fiduciary Duties
By Randall S. Thomas & Harwell Wells. Full text here. Americans seem convinced that corporate executives are paid too much. So far, however, attempts to rein in executive compensation have met with little success. In the Article we propose a new approach to monitoring executive compensation, one that turns to an unlikely institution to oversee pay:…
Continue ReadingOn the Edge: Declining Marginal Utility and Tax Policy
By Sarah B. Lawsky. Full text here. Tax policy and scholarship generally assume that income has declining marginal utility (that is, that the next dollar is worth less to a wealthier person than to a poorer person). This assumption provides an easy justification for redistributive taxation. But the legal literature provides no firm grounding for the…
Continue ReadingMoney Talks but It Isn't Speech
By Deborah Hellman. Full text here. The Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech, and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case…
Continue ReadingNote: Legitimate Absenteeism: The Unconstitutionality of the Caucus Attendance Requirement
By Heather R. Abraham. Full text here. Dubbed by the Washington Post as “undemocratic,” the caucus system for selecting delegates to national party presidential nominating conventions tends to disenfranchise identifiable factions of voters, including deployed service members, religious observers, persons with disabilities or in poor health, students who attend school away from home, and shift workers…
Continue ReadingNote: Rule 14a-11 and the Administrative Procedure Act: It's Better to Have Had and Waived, than Never to Have Had at All
By Reed T. Schuster. Full text here. A dramatic sequence of events starting in the summer of 2007 caused the United States’ banking and financial systems to collapse and thrust the country into the worst financial crisis since the Great Depression. It was not just one thing, but a confluence of factors that led to the…
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