• A Citizen's Guide to the Healthcare Reform Debate

      Marmor, Theodore; Oberlander, Jonathan (1994-01-01)
      Universal health insurance has been a source of both promise and peril for the Clinton Administration. The promise was most evident in the early months of 1993, following candidate Clinton's effective use of the problems of American healthcare in the 1992 presidential campaign. A healthcare reform plan, the nation was told, would be unveiled in April, 1993; the unveiling was then postponed, in turn, to May, June, August, and September. Despite the predictable grousing of interest groups left out of the initial design phase, anticipation of the plan was great.
    • A Comprehensive Market Strategy For Tort Reform

      Choharis, Peter (1995-01-01)
      This Article outlines the basic features of a market for selling, purchasing, and trading tort claims. It argues that, in contrast to other tort reform proposals, a market approach will benefit tort victims with quicker, higher, and certain damage awards; offer defendants numerous ways to hedge their liability; reduce crowded court dockets and induce faster, fairer settlements; and help society by retaining appropriate safety incentives and allocating the costs of accidents to those most able to bear them. In short, a tort claims market will create a new kind of insurance after accidents occur.
    • A Declaration of Interdependence: The "New Liberalism"

      Rose-Ackerman, Susan (1988-01-01)
      The Conditions of Discretion: Autonomy, Community, Bureaucracy, by Joel F. Handler.* New York, N.Y.: Russell Sage Foundation, 1986. 327 pages. $27.50. Lawyers misunderstand bureaucrats. They suppose that an adversary system in which clients demand "their rights" from recalcitrant public officials will produce beneficial results. They cast the bureaucrat as the "enemy." In The Conditions of Discretion: Autonomy, Community, Bureaucracy, Professor Handler argues that the adversarial approach is the wrong way to mediate the relationship between the individual and the welfare state. Adversarial procedures designed to resolve particular, self contained disputes by impartial decisionmakers are unsuited to the long term, fluid relationships between individuals and government bureaucrats that characterize many public programs. These controversies simply cannot be "decided" once and for all by neutral outsiders. In the educational system, for example, students are educated in public institutions for several hours per day over a twelve-year period by people trained as teachers. A student who brings even a successful lawsuit against a school risks making his or her situation worse by antagonizing teachers, locking the school into a rigid court-mandated judgment, and generating a decision that does not reflect the special nature of the educational process.
    • A Defense of Source Rules in International Taxation

      Kane, Mitchell (2015-01-01)
      The concept of "source" is central to the functioning of the current international tax system. To the extent the "source" of income is meant to reflect the spatial location of income; however, many academic commentators have come to regard the concept as completely incoherent. Further, that incoherence is viewed as a partial explanation of the perceived artificiality and frailties of current instantiations of source rules. In this Paper I make three basic claims. First, it is in fact coherent to conceive of the source concept in terms of the spatial location of income. Second, most of the problems with current instantiations of source rules can be understood as reflections of fundamental complications in designing an income tax in a closed economy and thus have nothing to do with spatial indeterminacy. This observation allows for incremental improvement to source rules in the same fashion as one can make incremental improvement to a closed economy income tax. Third, from an efficiency perspective, a novel and ambitious way to approach source rules would be to use such rules to segregate rents from non-rents and mobile income from non-mobile income. Traditionally, scholars have viewed the efficiency characteristics of a rents-only tax as an affirmative argument for cashflow taxes over income taxes. Holding the existence of the income tax constant, however, source rules could theoretically achieve an efficient result on this dimension. The practical implementation hurdles, though, are substantial.
    • A Delicate Balancing Act: Satisfying the Fourth Amendment While Protecting the Bankruptcy System from Debtor Fraud

      Sousa, Michael (2011-01-01)
      Since the Middle Ages, bankruptcy laws have been concerned with preventing and deterring fraudulent debtors, most notably debtors who willfully fail to fully disclose all of their assets to their creditors. This concern was no less prevalent during the passage of the first Bankruptcy Act in the United States in 1800, which established bankruptcy fraud as a criminal offense. No doubt, the evolution of modern American bankruptcy law has moved toward a more liberal treatment of debtors. Significantly, so long as debtors conform to certain behavioral norms prescribed in the Bankruptcy Code, honest, but unfortunate debtors can expect to receive a discharge of their pre-petition indebtedness. Notwithstanding the existing civil and criminal remedies for committing bankruptcy fraud through a failure to disclose assets, it is suspected that many individuals who file for bankruptcy protection attempt to improperly shield assets from their creditors' reach. Consequently, this Article proposes a normative framework under which a bankruptcy trustee can conduct a warrantless search of an individual debtor's residence upon suspicion that a debtor is attempting to commit fraud by failing to disclose assets. More specifically, this Article argues that a bankruptcy trustee, though bound by the Fourth Amendment, can conduct a warrantless search of a debtor's home based upon one of three distinct theories: (1) the bankruptcy process can be considered a "special needs" administrative search exception to the Fourth Amendment warrant requirement; (2) the bankruptcy law system can be equated to a "closely regulated industry" under Fourth Amendment jurisprudence; and (3) debtors implicitly consent to have their homes searched by a bankruptcy trustee as a consequence of submitting themselves to the intrusive nature of the bankruptcy process.
    • A False Start? The Impact of Federal Policy on the Genotechnology Industry

      Malinowski, Michael; O'Rourke, Maureen (1996-01-01)
      Important scientific discoveries in the field of human genetics have been reported in the nation's major newspapers since the beginning of the decade, and these discoveries have given rise to a multi-billion dollar industry. Mr. Malinowski and Professor O'Rourke explore the impact of federal policy on the field and the resulting industry. They argue that federal policy in support of genetics research and development has not been followed by the introduction of regulatory and health policy necessary for the efficient and responsible commercialization of the industiy's products. As a consequence, Mr. Malinowski and Professor O'Rourke suggest, federal policy may have given rise to a 'false start "for the industry. The authors suggest that, in light of the potential impact of genetics products on human health and the societal and ethical implications of said technologies, ignoring the policy and regulatory questions surrounding genetics products is, at best, irresponsible. Mr. Malinowski and Professor O'Rourke identify many of the regulatory shortcomings and offer a series of reforms and suggestions to foster the responsible commercialization of the forthcoming generation of genetics products.
    • A Guide to Takeovers: Theory, Evidence, and Regulation

      Romano, Roberta (1992-01-01)
      The last decade witnessed an explosion of activity in the field of corporate takeovers, which ended in an environment of increased regulation of these transactions. These events have prompted extensive study into the causes for takeovers and the effects of their regulation. This article surveys and analyzes both the economic literature and the law in an attempt to determine which regulatory regimes make the most sense in light of the empirical evidence.
    • A Heartfelt, Albeit Largely Statistical, Salute to Judge Richard D. Cudahy

      Posner, Richard (2012-01-01)
      This Essay elaborates on Judge Cudahy's distinction as a judge and discusses our relationship and the broader issue of the management of disagreement, particularly ideological disagreement, in an appellate court. The Essay departs from the usual form of tribute essays by organizing its discussion around statistics and focusing on more general issues ofjudicial performance. These statistics reveal that Judge Cudahy has been an unusually prolific judge, penning separate opinions at a higher rate than his colleagues both nationwide and on the Seventh Circuit. The numbers also reveal that Judge Cudahy 's dissent rate has declined markedly over time. After considering several possible explanations for this trend, including his increased presence as a visiting judge on other circuit courts, the Essay concludes that the best explanation for Judge Cudahy's declining dissent rate is the evolution of his personal ideology and his increasing ability to see eye-to-eye with his more conservative colleagues.
    • A Legislative Alternative to "No Cause" Liability in Blood Products Litigation

      Klein, Andrew (1995-01-01)
      Recently, tort law commentators have discovered truth in Justice Holmes' maxim that "hard cases make bad law." In particular, commentators have criticized cases in which courts have relaxed the traditional rule of causation, permitting plaintiffs to recover damages without connecting their harm to a specific defendant. A notable example has arisen in the context of litigation involving Factor VIII concentrate, a pharmaceutical product used by hemophiliacs to replace the clotting protein missing in their blood.
    • A New Look at Nonprofits: Health Care Policy in a Competitive Age

      Marmor, Theodore; Schlesinger, Mark; Smithey, Richard (1986-01-01)
      The importance of organizational form in American medicine has been the subject of much debate. But the character of the debate-the nonprofit form versus its competitors-has been sufficiently confused that much of the controversy should be reconsidered. That debate has been both ideological (commercialism and profit versus service and professionalism) and practical (which form is more efficient)? The challenge of public policy is to adapt public rules to the central realities of American medicine, not the shibboleths of shrill discourse. In the case of medicine, factors other than the form of legal ownership-among them, the nature of the service provided, the developmental stage of the service, the role of physicians in providing the service, and the nature of government regulation-are more important in fashioning those appropriate responses.
    • A New Proposal for Loan Modifications

      Mayer, Christopher; Morrison, Edward; Piskorski, Tomasz (2009-01-01)
      We propose a new three-pronged plan to address the recent harmful flood of foreclosures. Our plan would address the major barriers that inhibit the ability of third-party servicers to modify mortgages the way portfolio lenders are now doing with greater success. The plan provides greater compensation for servicers to perform their duties, removes legal constraints that inhibit modification, and addresses critical second liens that often get in the way of effective mortgage modifications. Our plan has more modest costs than competing plans and is likely to be the most effective while still protecting the rights of investors in mortgage-backed securities.
    • A Proposal to Revise the SEC Instructions for Reporting Waivers of Corporate Codes of Ethics for Conflicts of Interest

      Mori, Madoka (2007-01-01)
      Enron's collapse focused attention on its application of its Code of Ethics to related-party transactions. That focus produced section 406 of the Sarbanes- Oxley Act of 2002, which attempts to regulate conflicts of interest between officers and their companies through codes of ethics that public companies adopt. Pursuant to SOX section 406(a), the Securities and Exchange Commission issued new regulations requiring each public company to disclose whether it has a code of ethics, and if a company has not adopted such a code, to explain why it has chosen not to do so. SEC rules also require each company that has a code to disclose any waiver of the code for certain officers whom the SEC rules identify, in a timely manner under Item 5.05 of Form 8-K. However, some companies have adopted a hypertechnical interpretation of the SEC's definition of a "waiver " -- "the approval by the registrant of a material departure from a provision of the code of ethics"--such that these companies do not report the "approvals," and the investment community does not learn of the officer's conflict in a timely way. To remedy this shortcoming, this paper proposes that the SEC change its definition of a waiver in Instruction 2(1) to Item 5.05 to include "every approval by the registrant that permits executive or senior officer participation in conflict-creating transactions and activities. " This change should prevent companies from using internal approvals to avoid waiver disclosures.
    • A Reply to Regulation and Competition in Cable Television

      Hazlett, Thomas (1990-01-01)
      The Comment by Albert Smiley deals with both the economics and policy implications of my analysis. In regard to the economics, it questions the ability of competitive forces to improve consumer welfare in local cable television markets, citing a host of arguments in support of imperfect competition. As he readily concedes, however, the necessary experiment has not been run: what will happen when municipal entry barriers have been removed and firms are free to compete? I have tried to answer this question by way of induction through my analysis of particular markets. Based upon evidence that prices decline and services can improve upon competitive entry, I conclude that consumers would be well served by allowing unpredictable rivalry to proceed. Although one might argue that many or even most markets would fail to experience robust competition, consumers face virtually no downside risk. Thus, the experiment of competition is worth a try in all cable markets.
    • A Review and Analysis of Electric Utility Conservation Incentives

      Stoft, Steven; Gilbert, Richard (1994-01-01)
      During the energy crisis of the 1970s, consumers were responsible for energy conservation; today, a large part of the burden has shifted to the utility. Common energy saving schemes have proven inadequate, prompting state regulators to introduce demand-side management (DSM) incentives which reward either expenditures, savings, or net-benefits. DSM benefts are intended to induce investor-owned electric utilities to promote energy conservation aggressively. Stoft and Gilbert discuss the difficulties of estimating the net social benefit of an incentive program and examine how information influences regulators to select a particular incentive. Currently, most net-benefit incentives, while offering significant expected total rewards.for utility conservation activities, provide only a weak incentive fir conservation. This Article describes how these DSM programs can be tailored to achieve greater energy conservation.
    • A State Regulatory Strategy for the Transitional Phase of Gas Regulation

      Darr, Frank (1995-01-01)
      This Article addresses the transitional period of natural gas deregulation under the Federal Energy Regulatory Commission's recently promulgated Order No. 636. Regulation of the natural gas industry is complicated because although production is competitive, transportaion and local delivery systems remain monopolistic. Order No. 636 requires gas pipelines to act as common carriers and therefore shifts the locus of regulation to local distribution companies (LDCs). This change means that small customers unable to switch gas suppliers will likely face higher gas costs. Changes in the manner of calculating rates and fuel-switching capabilities by larger purchasers encourages this shift in cost. Additionally, deregulation of gas provision will increase the exposure of LDCs to fluctuations in gas price and availability. This Article proposes that state regulators adopt a system of advanced planning and incentive rate setting. Primarily this involves setting target gas cost ranges for LDCs based on a mix of spot and longer-term contract prices for natural gas and a sharing of gains and losses by the utility and its customers. Using planning, utilities and regulatory commissions can reduce the amount of regulatory risk inherent in the changing environment. By explicitly allowing some risk sharing, state commissions can encourage utilities to take advantage of competitive opportunities in gas commodity markets to the benefit of both large and small gas customers.
    • A Transaction Cost Economizing Approach to Regulation: Understanding the NIMBY Problem and Improving Regulatory Responses

      Richman, Barak; Boerner, Christopher (2006-01-01)
      This paper develops a transaction cost economic model for regulation and applies the model to environmental siting regulations designed to overcome NIMBY ("Not In My Back Yard') political opposition. Negotiations between developers and resistant local communities to site waste facilities, such as landfills or solid waste incinerators, can be characterized as a contracting problem. A rudimentary application of the Coase theorem suggests that developers should be able to compensate communities adequately for hosting a waste facility, but rarely do such negotiations find success. Transaction costs associated with the requisite negotiations, communication, and implementation of the projects preclude efficient bargaining, and thus NIMBY opposition halts the siting of socially necessary and beneficial facilities. Viewing NIMBY disputes as a contracting problem within the world of positive transaction costs therefore reveals the dynamics that foil negotiations between developers and communities. Such a perspective also identifies the role that the theory of the firm can play in understanding how siting regulations overcome those transaction costs and how regulatory regimes can be optimally designed for siting alternative facilities.
    • A Tribute to Judge Richard D. Cudahy

      In 1979, nearly twenty-five years after graduating from the Yale Law School, Richard D. Cudahy joined the United States Court of Appeals for the Seventh Circuit. To celebrate Judge Cudahy's long and distinguished career as a jurist, the Yale Journal on Regulation has asked a diverse array of contributors, including his colleagues on the bench and his former clerks in the legal academy and in private practice, to reflect on his remarkable legacy and imprint on the law.
    • A Voice From the Wilderness, Calling Your Name

      Bonine, John (1989-01-01)
      Four great ideas in United States environmental law have caught on in other countries. The National Park idea, first implemented in 1872 with the creation of Yellowstone National Park, reverberated around the globe. New Zealand created the second national park in 1887 when Maori chieftains asked that certain land be protected by the Crown against white colonization and exploitation. In the last century, dozens of countries have created National Parks and reserves, from the summit of Mt. Everest to the depths of the Rift Valley in Kenya. The United Nations has intensified this effort still further by creating and recognizing the notion of World Heritage Areas.
    • Accountable Compensation: The Progressive Case for Stakeholder-Focused, Board-Empowering Executive Compensation Laws

      Barreca, Emily (2020-01-01)
      Shareholder primacy has long dominated American legal thought and politics across the ideological spectrum. Over the past several years, however, U.S. political progressives have begun to criticize shareholder primacy, arguing that corporations should also serve other stakeholders. This Note conducts the first academic analysis of this emerging movement’s executive compensation policy proposals. This Note finds that stakeholder-primacy progressives have failed to propose policies that would effectively regulate executive compensation. Given the connection between rising executive compensation and economic inequality, this finding is surprising and concerning. The final Part develops an original executive compensation policy proposal for the progressive stakeholder primacy movement.
    • Adding Institutional Insult to Personal Injury

      Coleman, Jules (1991-01-01)
      In this brief comment on the very interesting paper by Blumstein, Bovbjerg and Sloan, I want to question the desirability and defensibility of their proposal to substitute contracts-for-care for the traditional damage award in an important subclass of tort cases. In doing so, I want to draw attention to the connection between one way of understanding of what it is that makes something tortious and the appropriateness of various kinds of remedies given that understanding. The thesis I advance, which I am calling "connectedness" or continuity between offense and remedy, is important not only to our understanding of tort law, but to our understanding of legal liability more generally.