8227 research outputs found
Sort by
Delaware Supreme Court Clarifies Standard of Review for Advance Notice Bylaw
Full text linkDelaware’s high court resolves “confusion” by distinguishing “validity” and “enforceability” challenge
The Public Health Cost of Online Behavioral Targeting
No full textBehavioral targeting is an increasingly popular marketing technique that utilizes users’ online activity to personalize advertisements aimed at consumers. However, since personalized advertisements aim to influence individual consumers, behavioral targeting can negatively impact vulnerable users. For instance, it may reinforce harmful behaviors—like showing alcohol advertisements to individuals with alcohol dependency—or worsen mental health struggles, such as prolonging grief by continuing to serve parenting advertisements to those mourning the loss of a child. These practices can perpetuate harmful behaviors, such as relapse or heightened psychological distress, and contribute to long-term health problems, such as addiction or other mental health problems, creating a significant public health burden. While the Health Insurance Portability and Accountability Act (HIPAA) already protects health data classified as protected health information within covered entities, it does not apply to most consumer health applications. Although other federal and state regulators—such as the Federal Trade Commission (FTC)—are starting to act on behavioral targeting, users of popular health applications may still be unaware of how voluntarily shared health data can be used to influence their health decisions and outcomes. This Note proposes the establishment of state regulatory agencies to enforce stricter informed consent rules, similar to those used in human subjects research, in order to protect vulnerable health app users while also preserving the marketing efficiency created by online behavior targeting techniques. These rules would require clear and accessible disclosures about how data is used, modeled after the stringent consent requirements in human subjects research, and ensure that consumers understand the potential risks to their health
Tennessee’s Families Rights and Responsibilities Act: A Risky Gamble with Adolescent Health and Safety
No full textRegulatory Settlement, Stare Decisis, and Loper Bright
No full textIn Loper Bright v. Raimondo, the Supreme Court adopted and deployed a particular narrative about agency action in support of overruling Chevron: Agencies reverse their own statutory interpretations “as much as [they] like[],” creating pervasive instability in the law, thereby destroying private reliance interests. Based on a study of two decades of agency regulations affirmed by the D.C. Circuit under Chevron, we show how infrequently agencies reversed their interpretive positions. Our study suggests that the Court’s regulatory “whiplash” narrative is overstated and that there is an underappreciated institutional settlement for notice-and-comment rules under Chevron. Identifying this regulatory settlement is important not only to correct the record but because it sheds light on a pressing question raised by Loper Bright: How much stare decisis effect should courts give to prior judicial decisions that affirmed an agency interpretation in reliance on Chevron? Our study reveals the true risks to legal stability that would come from courts re-interpreting the relevant statutory language and reversing previously upheld regulations. Courts therefore should have an extraordinary justification for overruling or avoiding precedent that affirmed an agency regulation under Chevron. In addition, our study provides guidance to courts on another significant issue after Loper Bright: How much respect should they give under Skidmore to regulations that amend the agency’s prior regulations in some respect? Although we find that agencies rarely reversed their interpretive positions under Chevron, we also find that they did revise their regulations in routine ways, as a necessary part of informed rulemaking. Our study suggests that courts should not treat any agency regulatory change as proving the Court’s whiplash narrative and as presumptively ousting amended regulations from judicial consideration and respect
Much Ado About Critical Race Theory
No full textThis Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory
(CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither reflecting a “legitimate pedagogical concern” nor pursuing a “valid educational purpose” is all for naught under current doctrine that effectively presumes the legitimacy and validity of state educational actions without question. And so, this Article argues for adjusting this conclusory presumption into a rebuttable one, and it turns to education science and practice on teaching and learning for expert insight on which actions satisfy this basic condition. This Article’s proposed “workable constitutional rule” is the rarest of doctrinal interventions that would be simultaneously corrective, conservative, and critical. The irony elaborated by this Article is that these so-called “anti-CRT” laws had little to do if anything with critical race theory. It was the states’ misappropriation of CRT for political purposes that elevated the theory to doctrinal, popular, and pedagogical prominence. That it took “much ado about critical race theory” to begin meaningful constitutional inquiry in various stakeholders’ interests in how states choose to educate is befitting—and instructive
Valuing Heat-Related Mortality Risks
No full textHeat-related mortality risks are a substantial component of the looming costs of climate change in the United States and globally. This article presents the results from a risk-risk survey to test whether U.S. respondents place a valuation premium on mortality risks from heat relative to cancer and transportation risks. The questionnaire exploits exogenous shocks to temperatures during a heat wave and randomized elements to further test whether preferences vary with heat exposure or the age of individuals exposed to heat risks. The results provide strong evidence that there is no valuation premium in the U.S. for heat-related risks. Subjects valued cancer risks twice as highly as heat and transportation risks, the latter of which are a common benchmark for general traumatic fatalities. While there is some evidence that subjects value heat risks more when exposed to a heat shock of approximately 3–4 °C, the size of the differential is too small to establish a statistically significant heat risk premium. Finally, subjects’ responses demonstrate no differential valuation of mortality risks to seniors versus the general population based on the preferences of the general population or the senior subsample
Energizing Federal Action Toward a More Coherent National Nuclear Waste Policy
Full text linkNuclear power offers the United States one viable path toward decarbonization of the energy sector as the only zero-emission energy source capable of baseload generation. Despite the clear climatic, economic, and energy independence benefits of expanding reliance on nuclear power and the emergence of cheaper, safer, and more efficient advanced reactor technology that has lowered barriers to adoption, buildout of nuclear generation capacity faces impediments. The lack of a comprehensive national nuclear waste management strategy is perhaps the most significant obstacle to the siting of new nuclear power facilities. Currently, due to the federal government’s failure to establish a geologic disposal repository as required by statute, or to put forth an alternative plan for interim storage of waste, radioactive spent nuclear fuel is stored at civilian reactor sites where it will remain until a storage facility or repository is constructed and licensed to accept high-level nuclear waste. With global technology companies expressing interest in the collocation of energyintensive data centers with reactors, the introduction of tax incentives to expand nuclear power production, and the rapid evolution of advanced reactor technology, the production and accumulation of high-level nuclear waste will accelerate.
This Note examines the tension between the need for energy decarbonization and the deficiencies in the United States’ federal nuclear waste management framework that discourage the buildout of nuclear power. It concludes that effective high-level waste management is an environmental imperative, and the development of suitable storage and disposal is a necessary precursor to the expansion of nuclear power. To that end, the federal government must specify and effectuate a coordinated nuclear waste policy. Federal agencies should rely on existing statutory authority to slow the accumulation of spent nuclear fuel at reactor sites, for example, by enabling and incentivizing investment in waste-reduction technologies and processes that are commonplace outside of the United States. Ultimately, Congress must amend unworkable provisions of the Nuclear Waste Policy Act to allow the administrative state to pursue nuclear waste solutions
Private Equity’s Viable Path to College Athletics Investment: Potential Entity Mechanisms and Antitrust Considerations
No full textThe recent House settlement with the National Collegiate Athletic Association was another blow to traditional collegiate governance in an age of uncertainty in college athletics. In the wake of the House settlement and other recent decisions, multiple private equity funds have shown interest in investing on a school-by-school basis or buying out dozens of teams to form a new commercialized league in select sports. Many questions remain with the viability of private investment in college athletics. Unlike traditional private equity investment, schools are 501(c)(3) nonprofit organizations typically operating within an athletic conference. This creates an additional hurdle to for-profit investing because colleges want to protect their nonprofit status. This Note theorizes an entity creation mechanism that allows schools to maintain their tax status which could be scaled for investment on a school-by-school basis or through a league formation. Further, this Note postulates that if private funds elect to form a sports league, a key consideration will be the selection of entity form to minimize potential antitrust liability. This Note analyzes the decision between a single entity structure and joint venture seen in most professional sports leagues in the United States. Based on the entity formation and antitrust considerations, the most viable option for private investment is a full buyout leading to the league operating as a joint venture with traditional sports league collective bargaining