Introduction On October 28, 2016, regulations issued by the Copyright Office exempted a wide swath of cybersecurity research from the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). These regulatory exemptions were motivated by assertions that the DMCA anti-circumvention prohibitions hinder cybersecurity research and practice. This article investigates the accuracy of these claims by […]
Introduction Government-initiated enforcement actions aimed at exposing white-collar crime have proliferated considerably following the recent financial crisis. To get ahead of these investigations, many organizations hire in-house or external counsel to conduct their own preliminary investigations. These internal investigations create significant issues for lawyers who must provide to employees they interview an “Upjohn warning”—a disclosure […]
Introduction Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (“Board”) approves. These materials include a proxy statement used to solicit shareholder votes and a voting card allowing shareholders to vote without having to […]
In recent years, a combination of bruising market losses, increased correlation among asset classes, unexpected illiquidity and high-profile scandals has left the investment management industry reeling. In the wake of the Great Recession, asset managers find themselves scrambling to respond to significant shifts in investor behavior and an evolving regulatory landscape. Two of the most […]
Book Review Steve Isser, Electricity Restructuring in the United States: Markets and Policy from the 1978 Energy Act to the Present (Cambridge Univ. Press 2015) Most energy law scholars have a general sense of the piecemeal fashion in which energy law and policy have unfolded in the past several decades. Notwithstanding the lack of a […]
After the Supreme Court agreed to hear King v. Burwell, a case addressing whether taxpayers can receive Section 36B premium tax credits for health insurance policies purchased on federally established exchanges (“federal policies”), commentators have expressed concerns about a potential death spiral in the health insurance market. Under the worst case scenario, the absence of […]
General Verrilli: I think that it would be – certainly be a novel constitutional question, and I think that I’m not prepared to say to the Court today that it is unconstitutional. … But I don’t think there’s any doubt that it’s a novel question . . . . Justice Kennedy: Is it a—I was […]
This paper presents the results of the only publicly available empirical study of what agreements governing subprime securitized mortgages say about mortgage modifications. The mortgage and foreclosure crisis continues to transfix the nation, even as housing markets across the country show signs of improvement. The government has tried to promote mortgage modifications to allow homeowners […]
President Obama has rightly called on government agencies to establish ongoing routines for reviewing existing regulations to determine if they need modification or repeal. Over the last two years, the White House Office of Information and Regulatory Affairs (OIRA) has overseen a signature regulatory “lookback” initiative that has prompted dozens of federal agencies to review […]
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, […]
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 […]
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 […]
President Obama released his Climate Action Plan to much fanfare on June 25, 2013 in an attempt to reduce the country’s greenhouse gas emissions “in the range of 17 percent below 2005 levels by 2020.” The centerpiece of the plan is to have the Environmental Protection Agency (EPA) issue carbon dioxide (CO2) standards for new […]
This Comment argues that plaintiffs have painted “club deals” with a broad brush as anticompetitive, whereas applying the facts alleged plaintiffs themselves to the antitrust regulators’ measurement of market concentration—the Herfindahl-Hirschman Index—implies a more nuanced conclusion: consortium bidding can be pro-competitive for large targets, small bidders and small clubs. “We will have to trust [K]inder […]
The phrase “government failure” as a term of art originated in the critique of government regulation that emerged in the 1960s. This critique premised that “market failures” were the only legitimate rationale for regulation. Although the phrase is a popular currency in scholarship and politics, people attribute to it different values. As a result, all […]