Critics of the Obama Administration’s recently announced efforts to control climate pollution seek to discredit the idea of existing power plant greenhouse gas emissions limits based on legal arguments that are both shortsighted and unfounded. These arguments have most recently appeared in an essay posted on the Yale Journal on Regulation Online by attorney Brian […]
Introduction The question of when a war exists has been extensively considered in international law, but the subject is greatly important in the regulation of government contracting because of the little-known Wartime Suspension of Limitations Act (WSLA). The Act declares that when the nation is “at war,” the statute of limitations on fraud committed against […]
The CAN-SPAM Act of 2003 was passed in an attempt to stop “the extremely rapid growth in the volume of unsolicited commercial electronic mail” and thereby reduce the costs to recipients and internet service providers of transmitting, accessing, and discarding unwanted email. The Act obligates the senders of commercial email to utilize accurate header information, […]
People hold strong views about regulation, but do they know what “regulation” means? National Federation of Independent Business (NFIB) is a landmark in regulation jurisprudence, yet the NFIB Court was divided over the meaning of the term “to regulate.” Long ago, John Stuart Mill observed that “we do not [always] understand the grounds of our opinion. But when we […]
In 2011, Congress passed the Leahy-Smith America Invents Act (AIA) and reformed the U.S. patent system. Most significantly, the Act replaced the “first-to-invent” patent system with a “first-to-file” system. The law is now the subject of a constitutional challenge. In this short Essay, I will explore two obstacles to this challenge: one that I view […]
Some local communities in the United States, particularly in the Northeast, are scrambling to oppose natural gas production enabled by hydraulic fracturing (or fracing, fracking, or hydrofracking) in shale formations. Local opposition to the impacts of fracking is understandable, but recent proposals for national bans ignore a key, more potent threat. Due to a mismatch […]
With President Obama’s nomination of Gina McCarthy as the new Administrator of the Environmental Protection Agency (EPA), much attention has turned to her record as the EPA official in charge of air pollution programs, experience as the head of two states’ environmental agencies, and views on specific policies and priorities. And with the President’s nomination […]
I. Introduction Over the past decade, operating costs in the hedge fund industry have ballooned as the rate of new institutional investment in hedge funds has rapidly accelerated. These new institutional investors are demanding greater portfolio and operational transparency, more conscientious compliance, and tighter internal controls. This correlation—between the institutionalization of hedge funds and their […]
When a fiscal crisis strikes a local government, local communities suffer. Fiscal crises mean that there is no money for public safety, no money for pensioners, no money to keep residents’ lights on, and no money for the basic services that make for modern life. Just ask the residents of Detroit or Puerto Rico, who […]
In a recent post, the Cato Institute’s Isaiah McKinney presented empirical findings that, over the last three years, circuit courts applied the Chevron “two-step” 84.5% of the time when reviewing agency interpretations of their enabling statutes, with 59.2% of these cases proceeding to a deferential posture at Chevron step two. McKinney contrasted Chevron’s prevalence in […]
Venture capital is widely perceived to have a gender problem. Both founders seeking capital and the investors themselves are overwhelmingly male, fomenting concerns about how—and how fairly—the VC sector distributes its economic gains. Although gender disparities in funding are well documented, we still know little about whether the governance of VC-backed startups similarly manifests gender […]
The Supreme Court will hear oral arguments in Gonzalez v. Google next month. This is the first time the Court will consider Section 230(c)(1) of the Communications Decency Act, the central internet liability statute. The Gonzalez plaintiffs are families of victims of the Paris, Istanbul, and San Bernardino terrorist attacks. They claim that YouTube’s targeted recommendations assisted or aided in […]
Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One […]
Small businesses are the mainstay of the U.S. economy, but they face particular challenges in acquiring financing because of a set of informational problems. It is difficult for lenders to obtain reliable information about small businesses’ finances, and even when they can get information, credit modeling is difficult because of small businesses’ heterogenous nature. These […]
Appropriations, budget, and public debt law lurk in the recesses of public law. Every now and again, in a blaze of glory and spilled ink, they emerge under the guise of a constitutional issue. Should a constitutional question arise, usually separation of powers, amid a political stalemate, then an extended shutdown or debt ceiling drama […]