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Detecting Corporate Environmental Cheating
Get PDFAs evidenced by the Volkswagen diesel emissions scandal, corporations cheat on environmental regulations. Such scandals have created a surge in the academic literature in a wide range of areas, including corporate law, administrative law, and deterrence theory. This article furthers that literature by focusing on one particular area of corporate cheating—the ability to learn of the cheating in the first place. Detecting corporate cheating requires significant information about corporate behavior, activity, and output. Indeed, most agencies have broad statutory authority to collect such information from corporations, through targeted records requests, and inspection. However, authority is different from ability. The corporate world moves quickly, the number of regulated entities are many, and agencies often face legal and resource challenges to information collection processes that can impede detection of cheating. As a result, this article advocates for a shift in focus to mandatory self-monitoring and reporting mechanisms that place the initial burden of detection on the regulated corporate entity instead of the agency. It uses, as a case study, sulfur dioxide air pollution standards in the shipping industry to demonstrate that such a shift can improve the likelihood of detecting cheating. International standards for the harmful pollutant sulfur dioxide became more stringent in January 2020, and the price difference between compliance and non-compliance is high. Therefore, there is a significant incentive for shipping companies to cheat. Failure of agencies to catch the cheaters not only undermines the anticipated public benefits of the regulations, but it also creates an uneven playing field for those regulated entities that spend the money to comply. However, agencies alone simply cannot be responsible for all detection of corporate cheating. They need help from those that have the requisite information, specifically the regulated entities themselves
Assisted Reproduction: Reforming State Statutes After Obergefell v. Hodges and Pavan v. Smith
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The Off-Label Loophole in the Psychopharmacologic Setting: Prescription of Antipsychotic Drugs in the Nonpsychotic Patient Population
No full textU.S. physicians have wide discretion in treating patients with off-label medications. Many consider off-label prescription essential in our country’s health care system, and it is wholly supported by FDA and federal courts. Assumptions about physicians’ expertise, judgments, and commitments to beneficence and nonmaleficence undergird laissez-faire policies that allow and support physicians’ novel and innovate uses of FDA-approved drugs for purposes and populations not studied in original, strictly regulated clinical trials. Though sometimes beneficial, off-label prescribing, which flourishes in private practice psychiatry, often harms scores of psychiatric patients. Frequently, potential harms are insufficiently disclosed to patients. In the public health sector, officials have begun to identify and warn of dangers surrounding antipsychotic use in nonpsychotic foster children. Within the government-funded insurance apparatus there are built-in means for checking harmful physician practices. Such oversight mechanisms are deficient in the private insurance sector, and absent where treatment is paid for out-of-pocket. The Article proposes that private-practice psychiatrists’ collective widespread “experimental” treatment of nonpsychotic patients with antipsychotics off label resembles clinical research without regulation or meaningful accountability. Because harmful physician practices in the off-label antipsychotics space are largely unchecked by state regulation and law, action is required to protect some of our most vulnerable patients
ADR: Disputing with a Modern Face, or Bargaining for the Bargain Impaired?
Get PDFThe Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find common ground when they are unable to do so by themselves but who, unlike judges, do not tell the disputants how to act on that information once they have it. Think of this latter version of ADR as a system of bargaining for the bargaining impaired.Each version of ADR has its distinctive advantages and disadvantages, but both are susceptible to the well-known propensity of administrative regulation generally to bureaucratize decision-making by defining rights in collective rather than individual terms, standardizing outcomes, and giving repeat players disproportionate power to call the shots. If this happens with ADR, some of the most important commitments underlying the American system of adversary justice will be up for grabs. It is difficult to know how the ADR reform movement will play out, of course, since it is still early in the process and, given ADR’s propensity to operate in secret, trustworthy data is hard to come by. But there is considerable reason to be concerned about the unintended side effects of ADR and thus every reason to keep it on a short leash
