Laws protecting consumers from unfair and deceptive acts and practices – commonly called “UDAP” laws – have played a stunning role in recent years. As one example, state and federal enforcers plied these laws more than any other to hold individuals and companies accountable for the Great Recession, while chalking-up record payouts. And with the shift in national power, the spotlight shows no signs of dimming. Given the outsized role these statutes play, critics have directed their sights on both the laws and the enforcers who wield them. Missing from this debate, however, is an account of the actual conduct of UDAP enforcement in America. How do public UDAP enforcers exercise their considerable discretion? This article examines every UDAP matter resolved by state and federal enforcers in 2014 and presents the initial results of the first comprehensive empirical study of public UDAP enforcement. Across a range of attributes, public UDAP enforcement varies while also revealing clear patterns. We organize the data to show how enforcers employ distinct strategies. The two main federal enforcers adopt sharply different approaches, especially regarding targets and relief. The state enforcers divide into seven distinct strategies, distinguished not only by case variables, but also by case quantity and leadership in multi-enforcer actions. The picture that emerges should shape the policy and scholarly debate on public UDAP enforcement and help optimize the work of public enforcers.
{"title":"Strategies of Public UDAP Enforcement","authors":"Prentiss Cox, Amy Widman, Mark D. Totten","doi":"10.2139/SSRN.2942406","DOIUrl":"https://doi.org/10.2139/SSRN.2942406","url":null,"abstract":"Laws protecting consumers from unfair and deceptive acts and practices – commonly called “UDAP” laws – have played a stunning role in recent years. As one example, state and federal enforcers plied these laws more than any other to hold individuals and companies accountable for the Great Recession, while chalking-up record payouts. And with the shift in national power, the spotlight shows no signs of dimming. Given the outsized role these statutes play, critics have directed their sights on both the laws and the enforcers who wield them. Missing from this debate, however, is an account of the actual conduct of UDAP enforcement in America. How do public UDAP enforcers exercise their considerable discretion? This article examines every UDAP matter resolved by state and federal enforcers in 2014 and presents the initial results of the first comprehensive empirical study of public UDAP enforcement. Across a range of attributes, public UDAP enforcement varies while also revealing clear patterns. We organize the data to show how enforcers employ distinct strategies. The two main federal enforcers adopt sharply different approaches, especially regarding targets and relief. The state enforcers divide into seven distinct strategies, distinguished not only by case variables, but also by case quantity and leadership in multi-enforcer actions. The picture that emerges should shape the policy and scholarly debate on public UDAP enforcement and help optimize the work of public enforcers.","PeriodicalId":39812,"journal":{"name":"Harvard Journal of Legislation","volume":"55 1","pages":"37-104"},"PeriodicalIF":0.0,"publicationDate":"2017-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48040747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When no presidential candidate wins a majority in the electoral college, the House of Representatives holds a “contingent election” between the top three candidates. Unfortunately, if one of those three candidates should die there is no way to provide a substitute, so the dead candidate’s supporters and party would be disenfranchised.Section 4 of the Twentieth Amendment, ratified in 1933, addressed this situation; it authorized Congress to legislate a process for substituting a new candidate. But for eighty-three years Congress (along with scholars) has never seriously considered Section 4 — let alone passed legislation under it. This neglect has fostered a dangerous incentive for assassination in the presidential electoral system. In every other stage in the process, dead candidates can be replaced; only here can an assassin eliminate an entire party from consideration in the election. A contingent election would be dramatic enough as it is; without Section 4 legislation, a candidate’s death could turn the election from a drama into a disaster.Part I of this Article provides context and background on Section 4. Part II considers what Congress should provide if it ever enacts Section 4 legislation and concludes with draft legislation. Part III briefly considers why Congress has failed for so long to use its Section 4 power.
{"title":"Of Death and Deadlocks: Section 4 of the Twentieth Amendment","authors":"B. Kalt","doi":"10.2139/SSRN.2635633","DOIUrl":"https://doi.org/10.2139/SSRN.2635633","url":null,"abstract":"When no presidential candidate wins a majority in the electoral college, the House of Representatives holds a “contingent election” between the top three candidates. Unfortunately, if one of those three candidates should die there is no way to provide a substitute, so the dead candidate’s supporters and party would be disenfranchised.Section 4 of the Twentieth Amendment, ratified in 1933, addressed this situation; it authorized Congress to legislate a process for substituting a new candidate. But for eighty-three years Congress (along with scholars) has never seriously considered Section 4 — let alone passed legislation under it. This neglect has fostered a dangerous incentive for assassination in the presidential electoral system. In every other stage in the process, dead candidates can be replaced; only here can an assassin eliminate an entire party from consideration in the election. A contingent election would be dramatic enough as it is; without Section 4 legislation, a candidate’s death could turn the election from a drama into a disaster.Part I of this Article provides context and background on Section 4. Part II considers what Congress should provide if it ever enacts Section 4 legislation and concludes with draft legislation. Part III briefly considers why Congress has failed for so long to use its Section 4 power.","PeriodicalId":39812,"journal":{"name":"Harvard Journal of Legislation","volume":"54 1","pages":"101"},"PeriodicalIF":0.0,"publicationDate":"2016-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68234523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands the world of business – the modern equivalent of the mercantilist fallacy. Business firms form networks of relationships with little reference to political borders, whereas neomercantilism envisions a world in which business firms are siloed by national borders. By importing this fallacy, a neomercantilist perspective invariably yields a flawed analysis. Third, Congress asked that the Foreign Corrupt Practices Act become part of a global anticorruption regime, and that request has been robustly answered. By its own definitions the Act applies only to business actors engaged in transnational activities. These business actors will also be subject to the other elements of the global regime, as will their competitors. Neomercantilism cannot account for the Act’s place in that regime. Legal analysis in general has difficulty in accounting for domestic business regulations that encompass transnational behavior. Law must overcome this difficulty or it risks becoming irrelevant to business. Analysis of the Foreign Corrupt Practices Act must avoid the neomercantilist approach, not just for the sake of intellectual rigor, but also to accrue the benefits of a sound market as envisioned by Congress.
{"title":"The Neoercantilist Fallacy and the Contextual Reality of the Foreign Corrupt Practices Act","authors":"Philip M. Nichols","doi":"10.2139/SSRN.2567940","DOIUrl":"https://doi.org/10.2139/SSRN.2567940","url":null,"abstract":"The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands the world of business – the modern equivalent of the mercantilist fallacy. Business firms form networks of relationships with little reference to political borders, whereas neomercantilism envisions a world in which business firms are siloed by national borders. By importing this fallacy, a neomercantilist perspective invariably yields a flawed analysis. Third, Congress asked that the Foreign Corrupt Practices Act become part of a global anticorruption regime, and that request has been robustly answered. By its own definitions the Act applies only to business actors engaged in transnational activities. These business actors will also be subject to the other elements of the global regime, as will their competitors. Neomercantilism cannot account for the Act’s place in that regime. Legal analysis in general has difficulty in accounting for domestic business regulations that encompass transnational behavior. Law must overcome this difficulty or it risks becoming irrelevant to business. Analysis of the Foreign Corrupt Practices Act must avoid the neomercantilist approach, not just for the sake of intellectual rigor, but also to accrue the benefits of a sound market as envisioned by Congress.","PeriodicalId":39812,"journal":{"name":"Harvard Journal of Legislation","volume":"27 3 1","pages":"203"},"PeriodicalIF":0.0,"publicationDate":"2015-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68207242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Interest group pluralism presumes that public policy outcomes are determined principally through a contest for influence among organized pressure groups. Most interest groups, however, do not represent themselves in this process. Rather, they rely on professional lobbyists for representation, information, and advice. These lobbyists are agents with their own interests, and these interests may not align perfectly with those of their clients. This essay outlines this principal-agent problem and sketches its possible implications for policy outcomes. In particular, we hypothesize that the lobbyist-client agency problem may bias policy in favor of small homogeneous groups, may exacerbate status quo bias and lead to excessive attention to symbolic issues, may promote expansive delegations to administrative agencies, and may impede systematic reforms to the policy-making process.
{"title":"Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System","authors":"M. Stephenson, H. Jackson","doi":"10.2139/SSRN.1331503","DOIUrl":"https://doi.org/10.2139/SSRN.1331503","url":null,"abstract":"Interest group pluralism presumes that public policy outcomes are determined principally through a contest for influence among organized pressure groups. Most interest groups, however, do not represent themselves in this process. Rather, they rely on professional lobbyists for representation, information, and advice. These lobbyists are agents with their own interests, and these interests may not align perfectly with those of their clients. This essay outlines this principal-agent problem and sketches its possible implications for policy outcomes. In particular, we hypothesize that the lobbyist-client agency problem may bias policy in favor of small homogeneous groups, may exacerbate status quo bias and lead to excessive attention to symbolic issues, may promote expansive delegations to administrative agencies, and may impede systematic reforms to the policy-making process.","PeriodicalId":39812,"journal":{"name":"Harvard Journal of Legislation","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68163908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On January 4, 2002, President Bush signed into law the Best Pharmaceuticals for Children Act, which is the government's most comprehensive legislation regarding pediatric research to date. The Act offers pharmaceutical companies a six-month exclusivity term in return for their agreement to conduct pediatric tests on drugs. It also provides public funding and organizes private funding to help conduct pediatric research on those drugs that pharmaceutical companies opt not to test in children. This Note reviews the history of pediatric research and traces the development of the Best Pharmaceuticals for Children Act's unique incentive and public funding structure. The Note contends that, while the Act is comprehensive and promotes important pediatric studies, its incentive structure forces consumers and taxpayers to bear the costs of testing pharmaceuticals in children instead of the manufacturers who research, develop, and market those drugs. Congress should consider mandating pediatric studies in any future enactment of the legislation.
{"title":"The Best Pharmaceuticals for Children Act of 2002: the rise of the voluntary incentive structure and congressional refusal to require pediatric testing.","authors":"Lauren Hammer Breslow","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>On January 4, 2002, President Bush signed into law the Best Pharmaceuticals for Children Act, which is the government's most comprehensive legislation regarding pediatric research to date. The Act offers pharmaceutical companies a six-month exclusivity term in return for their agreement to conduct pediatric tests on drugs. It also provides public funding and organizes private funding to help conduct pediatric research on those drugs that pharmaceutical companies opt not to test in children. This Note reviews the history of pediatric research and traces the development of the Best Pharmaceuticals for Children Act's unique incentive and public funding structure. The Note contends that, while the Act is comprehensive and promotes important pediatric studies, its incentive structure forces consumers and taxpayers to bear the costs of testing pharmaceuticals in children instead of the manufacturers who research, develop, and market those drugs. Congress should consider mandating pediatric studies in any future enactment of the legislation.</p>","PeriodicalId":39812,"journal":{"name":"Harvard Journal of Legislation","volume":" ","pages":"133-93"},"PeriodicalIF":0.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25955118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Protecting the right to die: the Patient Self-Determination Act of 1990.","authors":"Kelly C. Mulholland","doi":"10.4324/9781315050492-6","DOIUrl":"https://doi.org/10.4324/9781315050492-6","url":null,"abstract":"","PeriodicalId":39812,"journal":{"name":"Harvard Journal of Legislation","volume":"28 2 1","pages":"609-30"},"PeriodicalIF":0.0,"publicationDate":"1991-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70624546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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