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Coloring Outside The Lines: A Response to Professor Seamon’s Dismantling Monuments
Get PDFIn Dismantling Monuments, Professor Richard H. Seamon defends President Donald Trump’s recent proclamations modifying the boundaries of two national monuments, Grand Staircase-Escalante and Bears Ears, that Presidents Clinton and Obama each designated at the ends of their Administrations. Professor Seamon is not alone in making these arguments, as I am not alone in saying that Professor Seamon’s arguments, while well-intentioned, are wrong. He exaggerates the persuasive power of congressional silence. He elevates the importance of the statute’s original intent. Professor Seamon and I read the text and legislative history of the Antiquities Act differently—he sees unlimited presidential power, I see limits. But rather than engaging in hand-to-hand combat with Professor Seamon over who is right with respect to the specific arguments we each make, I think it may be more useful, certainly more interesting, to broaden the discussion to include: (1) the importance over time of an Act’s original intent; (2) the correct role of the Take Care Clause in the debate we are having; (3) the use of the interpretive canon of textual ambiguity to resolve our differences; and (4) the impact of his arguments on the separation of powers doctrine
Invigorating Vertical Merger Enforcement
Get PDFThis Feature summarizes why and how vertical merger enforcement should be invigorated. In our modern market system, vigorous vertical merger enforcement is a necessity. Strong enforcement is particularly important in markets where economies of scale and network effects lead to barriers to entry and durable market power. Even when there are parallel vertical mergers, the result may well be an anticompetitive reciprocal dealing, coordinated equilibrium rather than intense competition among efficient integrated firms. Stronger enforcement would involve several steps, including recognition that claims of elimination of double marginalization do not deserve to be silver bullets and that behavioral remedies are generally unable to prevent anticompetitive effects
Tackling Obesity and Disease: The Culprit Is Sugar; the Response Is Legal Regulation
Get PDFIt is staggering to observe the new normal in America: 37.9 percent of adults are obese, and 70.7 percent are either obese or overweight. One out of every five minors is obese. The real tragedy, of course, is the disability, suffering, and early death that devastates families and communities. But all of society pays, with the annual medical cost estimated at $147 billion. The causal pathways are complex, but if we drill down, sugar is a deeply consequential pathway to obesity, and the single greatest dietary source is sugar-sweetened beverages (SSBs). The copious amount of sugar in the American diet is no accident. Industry practices and regulatory failures have fueled this explosion. Yet there are sensible, effective interventions that would create the conditions for healthier behaviors. What are the key interventions, and how can we overcome the social, political, and constitutional roadblocks? Tobacco control offers a powerful model, suggesting that success requires a suite of interventions working in concert: labeling, warnings, taxation, portion sizes, product formulation, marketing restrictions, and bans in high-risk settings such as schools and hospitals. Each intervention deserves detailed analysis, but I\u27m kick-starting scholarly and policy conversation by systematically laying out the major legal tools
The Long History of “Truth in Lending”
No full textThis article offers the first comprehensive history of the development of mandatory disclosure rules for the cost of consumer credit. In contrast to prior studies, which begin with the creation of federal disclosure rules in 1968, this story starts with state-level laws that were drafted before World War I. By looking back over a longer time period, it reveals the challenges involved in defining “truth” in lending, and how the perceived purpose of a regulatory technique like mandatory disclosure may change over time. Although the modern APR disclosure metric has come to seem natural and inevitable, history shows that lenders and policymakers once hotly debated the design of disclosure rules, with each faction claiming the mantle of “truth.” Moreover, policymakers did not always view disclosure as a means to increase price competition, obviating the need for direct price controls. Disclosure was once a complement to usury laws, rather than a substitute
Two Centuries of Policing Swindles and Humbugs
No full textSince the 1860s, when P.T. Barnum, the self-described Prince of Humbug, practiced his art, much has changed in the way that commercial deception is policed. Yet, humbug remains an important tool for some modern American capitalists. Indeed, the American marketplace has never been nor will ever be entirely cleansed of fraud, as Edward Balleisen reports in his exciting new book Fraud: An American History from Barnum to Madoff. Fraud chronicles the history of business fraud and its regulation over the past two hundred years, beginning in the early nineteenth century. Unlike previous works that focus on particular fraudsters or incidents of fraud, Balleisen casts a wide net that draws in examples from many corners of the world of commerce, including from the sale of securities, lightning rods, and other home improvement services, appliances, and medicine. An array of capsule stories illustrate the many varieties of business fraud and range of antifraud policing efforts over the past two centuries, as well as the similarities in approaches to fighting fraud across different domains of business within each era. Although this method does not yield clean plotlines or deep explorations of central figures and events, it serves Balleisen\u27s purpose well, which is to find the enduring patterns and key inflection points in the fight against business fraud, in addition to explaining the value of this history for present-day policymaking. Without lingering for long on the question of how we define fraud, Balleisen provides historians and policymakers with a rich history of the machinery designed to stop and prevent it
Treaty Self-Execution as “Foreign” Foreign Relations Law?
Get PDFThis contribution to the Oxford Handbook on Comparative Foreign Relations considers how a state’s approach to foreign relations problems may have an external origin, or what we call “foreign” Foreign Relations Law (FFRL). Using the distinction between self-executing and non-self-executing treaties as a case study, we find close parallels between manifestations of this distinction in various states and how it evolved in the United States, where the distinction was first articulated. The chapter explores whether these parallels reflect the distinction’s transplantation from one legal system to another or the organic development of similar doctrines to address similar problems within the states involved. The chapter then addresses the utility of differentiating the exogenous/endogenous origins of particular foreign relations doctrines. We argue that consideration of a doctrine’s exogenous origins raises questions that can deepen and develop the nascent field of comparative foreign relations law. Why do states accept (or reject) FFRL? How does FFRL enter a state’s system? Who is doing the transporting? What happens to FFRL in its new site(s) – i.e., how static or dynamic does the concept prove in different settings? Further research on such questions may, in turn, set the table for more normative questions such as when states should seek (or resist) the importation of foreign relations law
New Ebola Outbreak in Africa Is a Major Test for the WHO
Get PDFOn May 8, the Democratic Republic of Congo (DRC) notified the World Health Organization (WHO) of a confirmed outbreak of Ebola in Bikoro, on the shores of Lake Tumba in Équateur Province. Ebola in the DRC is not unexpected. The first-ever identified Ebola outbreak occurred in the DRC—then Zaire—in 1976. This is the ninth of DRC’s outbreaks, which until now have been confined mainly to rural areas. With high fatality rates, earlier outbreaks quickly burned out due to the natural firewall of remoteness.
Bikoro and a nearby village, Ikoko-Impenge, are rural, but on May 16, the WHO confirmed spread to Mbandaka, home to 1.2 million people. Peter Salama, MD, MPH, head of the WHO’s Emergencies Program, called urban spread a game changer that could spill over porous borders. Lake Tumba flows to the Congo River, connecting 2 capital cities (Kinshasa, DRC, and Brazzaville, Republic of the Congo) along the waterway. The WHO warned that 9 neighboring countries, including the Central African Republic, are at high risk
Health Data and Privacy in the Digital Era
Get PDFIn 2010, the social networking site Facebook launched a platform allowing private companies to request users’ permission to access personal data. Few users were aware of the platform, which was integrated into Facebook’s terms of service. In 2014, Cambridge Analytica, a UK-based political consulting firm, developed a data-harvesting app. That app prompted Facebook users to provide psychological profiles, including responses such as “I get upset easily” and “I have frequent mood-swings” as part of a “research project.”
The Facebook platform allowed users to share their friends’ data as well, enabling Cambridge Analytica to access tens of millions of personal profiles, identifying voters’ political preferences. The controversy revealed risks to identifiable health data posed by social media and web services companies’ practices. After the Cambridge Analytica controversy, Facebook suspended a project that aimed to link data about users’ medical conditions with information about their social networks.
Individuals often reveal detailed, sensitive health information online. Through wearable devices, social media posts, traceable web searches, and online patient communities, users generate large volumes of health data. Although some individuals participate in online patient forums and wellness information sharing apps under their own names, others participate via pseudonyms, assuming their privacy is preserved. Many users believe their data will be shared only with those they designate
A Fixed Rule for a Changing World: The Legacy of \u3ci\u3eLucas v. South Carolina Coastal Council\u3c/i\u3e
Get PDFIn light of the 25th anniversary of the Supreme Court’s Lucas decision, this Article reexamines the actual relevance of the opinion by weighing the framing, reach, and aftermath of Justice Scalia’s majority opinion. This Article argues that Justice Scalia’s opinion consciously framed the regulatory takings doctrine in a more favorable way for private property owners, and by doing so, helped pave the way for subsequent denial that environmental and climate concerns are a valid basis for any government action. Justice Scalia attempted to create a regulatory environment that protects private real estate investments instead of protecting the public environment as intended by democratically enacted regulations, but courts have applied Lucas in a more limited manner than Justice Scalia probably intended
Curing the Cost Disease: Legal Education, Legal Services, and the Role of Income-Contingent Loans
Get PDFThe costs of both legal education and legal services have been rising steadily for decades. This is because they share a common root: the constant above-inflation growth in the cost of labor-intensive goods and services known as the “cost disease.” The cost disease story roots cost growth not in market failure or bureaucratic waste, but in natural, even healthy, economic forces—productivity and wage growth. Because the source of this cost growth is productivity growth, the nature of the cost disease is such that an economy as a whole can afford these rising costs. But in a world of deep income inequality, the costs must be socialized, to be shared collectively. I argue here that the Income-Driven Repayment program for student loans is a mechanism for partially socializing the costs of both legal education and legal services, while still maintaining the vital independence of both law schools and the bar. I also take a critical look at the Public Service Loan Forgiveness program, counter-intuitively arguing that it has serious flaws in its goal of serving the broader public interest