{"title":"The Cherokee Removal and the Fourteenth Amendment","authors":"Gerard N. Magliocca","doi":"10.31228/osf.io/grpbc","DOIUrl":"https://doi.org/10.31228/osf.io/grpbc","url":null,"abstract":"53 Duke Law Journal 875 (2003)","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 1","pages":"875-965"},"PeriodicalIF":1.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The problems of pouring-rights contracts.","authors":"David S Almeling","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 3","pages":"1111-35"},"PeriodicalIF":1.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24619742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations--regulations that restrict behavior such as pollution--and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be used to evaluate transfer regulations. Although executive orders appear to require agencies to use cost-effectiveness analysis to evaluate transfer regulations that have a large economic impact, the agencies' record is dismal. Most agencies fail to perform cost-effectiveness analysis, and other agencies perform cost-effectiveness analysis incorrectly. More vigorous Office of Management and Budget and, possibly, judicial review could improve the quality of distributive regulations.
最近关于监管监督的学术研究主要集中在指令性法规(限制污染等行为的法规)的成本效益分析，以及它们用于治疗市场失灵的作用，而忽视了大量的转移监管。转移条例是指将资金输送给受益人的条例。这些规定是由法律授权的，这些法律建立了医疗保险和社会保障等福利项目，向自然灾害和9/11恐怖袭击等不幸事件的受害者支付一次性款项，并为猪肉桶支出提供资金。成本效益分析不能用于转移法规的评价，因为所有转移法规都不能进行成本效益分析;然而，成本效益分析可用于评价转让条例。尽管行政命令似乎要求各机构使用成本效益分析来评估具有重大经济影响的转移监管，但各机构的记录却令人沮丧。大多数机构没有进行成本效益分析，还有一些机构的成本效益分析不正确。管理和预算局(Office of Management and Budget)更有力的管理和预算局(Office of Management and Budget)，以及可能的司法审查，可以提高分配法规的质量。
{"title":"Transfer regulations and cost-effectiveness analysis.","authors":"Eric A Posner","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations--regulations that restrict behavior such as pollution--and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be used to evaluate transfer regulations. Although executive orders appear to require agencies to use cost-effectiveness analysis to evaluate transfer regulations that have a large economic impact, the agencies' record is dismal. Most agencies fail to perform cost-effectiveness analysis, and other agencies perform cost-effectiveness analysis incorrectly. More vigorous Office of Management and Budget and, possibly, judicial review could improve the quality of distributive regulations.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 3","pages":"1067-110"},"PeriodicalIF":1.9,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24619765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Managed care's Crimea: medical necessity, therapeutic benefit, and the goals of administrative process in health insurance.","authors":"William M Sage","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 2","pages":"597-651"},"PeriodicalIF":1.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24606127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"State regulation of medical necessity: the case of weight-reduction surgery.","authors":"Mark A Hall","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 2","pages":"653-72"},"PeriodicalIF":1.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24606128","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With the adoption of the Sarbanes-Oxley Act of 2002, Congress vested the Securities and Exchange Commission with the authority to promulgate professional standards of conduct for attorneys. The Commission, however, went beyond requiring that attorneys report corporate misconduct "up the ladder" by introducing a new corporate governance structure - the qualified legal compliance committee or QLCC. The QLCC reduces the statutory emphasis on lawyers as gatekeepers in favor of increasing the focus on board structure and director independence. Although increasing reliance on the board of directors rather than outside gatekeepers to prevent and address corporate misconduct may well be desirable, several components of QLCCs are problematic. The Commission appears to have given little consideration to the potential costs of establishing QLCCs. At the same time, the potential benefits of QLCCs may be overstated. These facts are particularly troubling, because the Commission's rules provide incentives for attorneys to pressure issuers to create QLCCs as a means of reducing the attorney's own liability. Accordingly, issuer decisions to create QLCCs could be influenced more by the market for legal services than the benefits and costs of QLCCs themselves. Finally, the Commission's conception of the ideal corporate governance model is open to question. QLCCs are part of a continuing effort to reduce corporate misconduct by enhancing the monitoring role of the board of directors through a rule-based approach to board structure and director independence. As recent governance scandals demonstrate, this approach is unlikely to produce radical changes in the effectiveness of directors, primarily because rules specifying board structure and director independence do not create adequate incentives for directors to take a more active role in monitoring corporate management. We conclude by considering ways to address the incentives of directors, including increased director liability, changes to director compensation, and alternative mechanisms for director selection. Although each of these methods is imperfect, collectively they illustrate the limitations of the Commission's approach, which emphasizes board structure without adequately addressing director passivity. The range of options available to improve director incentives and accountability highlights the shortcomings of the Commission's current rulemaking efforts.
{"title":"The Qualified Legal Compliance Committee: Using the Attorney Conduct Rules to Restructure the Board of Directors","authors":"Jill E. Fisch, C. M. Gentile","doi":"10.2139/SSRN.471302","DOIUrl":"https://doi.org/10.2139/SSRN.471302","url":null,"abstract":"With the adoption of the Sarbanes-Oxley Act of 2002, Congress vested the Securities and Exchange Commission with the authority to promulgate professional standards of conduct for attorneys. The Commission, however, went beyond requiring that attorneys report corporate misconduct \"up the ladder\" by introducing a new corporate governance structure - the qualified legal compliance committee or QLCC. The QLCC reduces the statutory emphasis on lawyers as gatekeepers in favor of increasing the focus on board structure and director independence. Although increasing reliance on the board of directors rather than outside gatekeepers to prevent and address corporate misconduct may well be desirable, several components of QLCCs are problematic. The Commission appears to have given little consideration to the potential costs of establishing QLCCs. At the same time, the potential benefits of QLCCs may be overstated. These facts are particularly troubling, because the Commission's rules provide incentives for attorneys to pressure issuers to create QLCCs as a means of reducing the attorney's own liability. Accordingly, issuer decisions to create QLCCs could be influenced more by the market for legal services than the benefits and costs of QLCCs themselves. Finally, the Commission's conception of the ideal corporate governance model is open to question. QLCCs are part of a continuing effort to reduce corporate misconduct by enhancing the monitoring role of the board of directors through a rule-based approach to board structure and director independence. As recent governance scandals demonstrate, this approach is unlikely to produce radical changes in the effectiveness of directors, primarily because rules specifying board structure and director independence do not create adequate incentives for directors to take a more active role in monitoring corporate management. We conclude by considering ways to address the incentives of directors, including increased director liability, changes to director compensation, and alternative mechanisms for director selection. Although each of these methods is imperfect, collectively they illustrate the limitations of the Commission's approach, which emphasizes board structure without adequately addressing director passivity. The range of options available to improve director incentives and accountability highlights the shortcomings of the Commission's current rulemaking efforts.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 1","pages":"517-584"},"PeriodicalIF":1.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67742969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay advocates a new role for the Delaware Court of Chancery - the handling of "mediation only" business cases. Mediation only cases are matters submitted to the court solely for the purpose of invoking the services of a member of the Court of Chancery as a mediator to help the parties resolve a business dispute through a mediated settlement. The judicial-mediator would have no adjudicative role in the traditional sense, but would solely act to facilitate a mutually acceptable resolution.In the essay, the author identifies the possible utility of this concept - which was recently enacted into law - and its consistency, in broad terms, with the historic role of the Delaware Court of Chancery in filling "gaps" in corporate instruments and commercial contracts.
{"title":"\"Mediation-Only\" Filings in the Delaware Court of Chancery: Can New Value Be Added by One of America's Business Courts?","authors":"L. Strine","doi":"10.2139/SSRN.414483","DOIUrl":"https://doi.org/10.2139/SSRN.414483","url":null,"abstract":"This essay advocates a new role for the Delaware Court of Chancery - the handling of \"mediation only\" business cases. Mediation only cases are matters submitted to the court solely for the purpose of invoking the services of a member of the Court of Chancery as a mediator to help the parties resolve a business dispute through a mediated settlement. The judicial-mediator would have no adjudicative role in the traditional sense, but would solely act to facilitate a mutually acceptable resolution.In the essay, the author identifies the possible utility of this concept - which was recently enacted into law - and its consistency, in broad terms, with the historic role of the Delaware Court of Chancery in filling \"gaps\" in corporate instruments and commercial contracts.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 1","pages":"585-596"},"PeriodicalIF":1.9,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68706974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others. Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between public and private concerns. Traditional approaches include deferring to the media, distinguishing between public and private figures, and looking to the nature of the information disclosed. However, these approaches are flawed. Instead, we should focus on the relationships in which information is transferred and the uses to which information is put. The propriety of disclosures depends upon their purpose, not merely on the type of information disclosed. The Article analogizes to the law of evidence, in which certain information is admissible for some purposes but not others and then examines the values of free speech and argues that privacy often furthers the same ends, demonstrating that free speech should not always prevail in the balance. Next, the Article tackles the judgment and trust critique, which views personal information as essential for making judgments about whether to trust people with whom one associates. Although personal information can help facilitate judgments about other people, the Article contends that these judgments are often made quickly and out of context. In short, more information does not necessarily lead to more accurate judgments. The Article also contends that privacy protects against certain rational judgments that society may want to prohibit (such as employment decisions based on genetic information). The Article then responds to commentators who argue that gossip is valuable because it helps educate us about human nature and argues that the value of concealing one's past can, in many circumstances, outweigh the benefits of disclosure.
{"title":"The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure","authors":"Daniel J. Solove","doi":"10.2139/SSRN.440200","DOIUrl":"https://doi.org/10.2139/SSRN.440200","url":null,"abstract":"This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others. Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between public and private concerns. Traditional approaches include deferring to the media, distinguishing between public and private figures, and looking to the nature of the information disclosed. However, these approaches are flawed. Instead, we should focus on the relationships in which information is transferred and the uses to which information is put. The propriety of disclosures depends upon their purpose, not merely on the type of information disclosed. The Article analogizes to the law of evidence, in which certain information is admissible for some purposes but not others and then examines the values of free speech and argues that privacy often furthers the same ends, demonstrating that free speech should not always prevail in the balance. Next, the Article tackles the judgment and trust critique, which views personal information as essential for making judgments about whether to trust people with whom one associates. Although personal information can help facilitate judgments about other people, the Article contends that these judgments are often made quickly and out of context. In short, more information does not necessarily lead to more accurate judgments. The Article also contends that privacy protects against certain rational judgments that society may want to prohibit (such as employment decisions based on genetic information). The Article then responds to commentators who argue that gossip is valuable because it helps educate us about human nature and argues that the value of concealing one's past can, in many circumstances, outweigh the benefits of disclosure.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 1","pages":"967-1065"},"PeriodicalIF":1.9,"publicationDate":"2003-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.440200","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68788009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations--regulations that restrict behavior such as pollution--and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be used to evaluate transfer regulations. Although executive orders appear to require agencies to use cost-effectiveness analysis to evaluate transfer regulations that have a large economic impact, the agencies' record is dismal. Most agencies fail to perform cost-effectiveness analysis, and other agencies perform cost-effectiveness analysis incorrectly. More vigorous Office of Management and Budget and, possibly, judicial review could improve the quality of distributive regulations.
最近关于监管监督的学术研究主要集中在指令性法规(限制污染等行为的法规)的成本效益分析，以及它们用于治疗市场失灵的作用，而忽视了大量的转移监管。转移条例是指将资金输送给受益人的条例。这些规定是由法律授权的，这些法律建立了医疗保险和社会保障等福利项目，向自然灾害和9/11恐怖袭击等不幸事件的受害者支付一次性款项，并为猪肉桶支出提供资金。成本效益分析不能用于转移法规的评价，因为所有转移法规都不能进行成本效益分析;然而，成本效益分析可用于评价转让条例。尽管行政命令似乎要求各机构使用成本效益分析来评估具有重大经济影响的转移监管，但各机构的记录却令人沮丧。大多数机构没有进行成本效益分析，还有一些机构的成本效益分析不正确。管理和预算局(Office of Management and Budget)更有力的管理和预算局(Office of Management and Budget)，以及可能的司法审查，可以提高分配法规的质量。
{"title":"Transfer regulations and cost-effectiveness analysis.","authors":"E. Posner","doi":"10.2139/SSRN.398820","DOIUrl":"https://doi.org/10.2139/SSRN.398820","url":null,"abstract":"Recent scholarship on regulatory oversight has focused on cost-benefit analysis of prescriptive regulations--regulations that restrict behavior such as pollution--and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be used to evaluate transfer regulations. Although executive orders appear to require agencies to use cost-effectiveness analysis to evaluate transfer regulations that have a large economic impact, the agencies' record is dismal. Most agencies fail to perform cost-effectiveness analysis, and other agencies perform cost-effectiveness analysis incorrectly. More vigorous Office of Management and Budget and, possibly, judicial review could improve the quality of distributive regulations.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"53 3 1","pages":"1067-110"},"PeriodicalIF":1.9,"publicationDate":"2003-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68676557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Is self-abortion a fundamental right?","authors":"Suzanne M Alford","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 5","pages":"1011-29"},"PeriodicalIF":1.9,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22568442","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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