This paper was prepared for a conference about constraints on executive discretion. In addition to law and politics (to whatever extent they do or do not constrain the executive), there is also a distinct third bound on executive discretion: conventions, roughly understood as unwritten but obligatory rules of the political game. Debates over executive discretion should take account of distinctions between contingent politics and conventions; between intragovernmental conventions and extragovernmental conventions; and between conventions against doing things and conventions against saying things. The last distinction, in particular, illuminates the strong resistance, in contexts such as immigration, to executive policy statements that make explicit a pattern of enforcement discretion, one that would otherwise remain only implicit. Even holding legal authority constant, making that authority explicit through general policy statements may trigger the normatively-inflected political sanctions that are characteristic of conventions.
{"title":"The Third Bound","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2821115","DOIUrl":"https://doi.org/10.2139/SSRN.2821115","url":null,"abstract":"This paper was prepared for a conference about constraints on executive discretion. In addition to law and politics (to whatever extent they do or do not constrain the executive), there is also a distinct third bound on executive discretion: conventions, roughly understood as unwritten but obligatory rules of the political game. Debates over executive discretion should take account of distinctions between contingent politics and conventions; between intragovernmental conventions and extragovernmental conventions; and between conventions against doing things and conventions against saying things. The last distinction, in particular, illuminates the strong resistance, in contexts such as immigration, to executive policy statements that make explicit a pattern of enforcement discretion, one that would otherwise remain only implicit. Even holding legal authority constant, making that authority explicit through general policy statements may trigger the normatively-inflected political sanctions that are characteristic of conventions.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"164 1","pages":"1949"},"PeriodicalIF":2.5,"publicationDate":"2016-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68354796","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}
Pub Date : 2016-01-05eCollection Date: 2016-01-01DOI: 10.2147/COPD.S78000
Maria Gabriella Matera, Alessandro Sanduzzi, Mario Cazzola
Co-administration of a long-acting β2-agonist and a long acting muscarinic antagonist produces superior bronchodilation compared with their individual effects. Our preclinical data indicated that combining aclidinium bromide (ACLI) and formoterol fumarate (FORM) provides synergistic benefit on smooth muscle relaxation of both large and small human airways. Data from more than 2,000 patients in eleven clinical trials documented that ACLI/FORM, a twice-daily fixed-dose combination, produces a greater degree of bronchodilation than ACLI or FORM monotherapy alone and is safe and well tolerated. Two large key trials have shown that there is a benefit in using ACLI/FORM when the clinical target is the variability of symptoms and mainly nighttime and/or early morning symptoms. ACLI/FORM is the only long acting muscarinic antagonist/long acting β2-agonist fixed-dose combination that has been studied for this therapeutic indication.
{"title":"Specific role of combination aclidinium: formoterol in the treatment of chronic obstructive pulmonary disease.","authors":"Maria Gabriella Matera, Alessandro Sanduzzi, Mario Cazzola","doi":"10.2147/COPD.S78000","DOIUrl":"10.2147/COPD.S78000","url":null,"abstract":"<p><p>Co-administration of a long-acting β2-agonist and a long acting muscarinic antagonist produces superior bronchodilation compared with their individual effects. Our preclinical data indicated that combining aclidinium bromide (ACLI) and formoterol fumarate (FORM) provides synergistic benefit on smooth muscle relaxation of both large and small human airways. Data from more than 2,000 patients in eleven clinical trials documented that ACLI/FORM, a twice-daily fixed-dose combination, produces a greater degree of bronchodilation than ACLI or FORM monotherapy alone and is safe and well tolerated. Two large key trials have shown that there is a benefit in using ACLI/FORM when the clinical target is the variability of symptoms and mainly nighttime and/or early morning symptoms. ACLI/FORM is the only long acting muscarinic antagonist/long acting β2-agonist fixed-dose combination that has been studied for this therapeutic indication. </p>","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"135 1","pages":"73-9"},"PeriodicalIF":2.8,"publicationDate":"2016-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4708173/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91056972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Governing Health Information","authors":"C. Konnoth","doi":"10.2139/SSRN.2701436","DOIUrl":"https://doi.org/10.2139/SSRN.2701436","url":null,"abstract":"","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"165 1","pages":"1317"},"PeriodicalIF":2.5,"publicationDate":"2015-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68263012","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}
Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. Yet this Article demonstrates that the appeals process for the immigration courts — a system of administrative adjudication that makes as many decisions as the federal courts — does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal, either by the Board of Immigration Appeals or a federal Court of Appeals.Why? To explain this puzzling finding, I use an internal administrative database, obtained by Freedom of Information Act request, to track the decisions of initial immigration judges on appeal. I find that the Board of Immigration Appeals and the Courts of Appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board of Immigration Appeals therefore rarely reviews the removal orders of immigrants who might have meritorious claims, but who are assigned harsh judges and lack lawyers at the beginning of their proceedings. These quantitative findings, together with interviews and immigration court observation, point the way to reform. First, the Board of Immigration Appeals and the Courts of Appeals should adopt a less deferential standard of review of an immigration judge’s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants, allowing the Board more often to review judges’ decisions about continuances, which are rarely appealed. Finally, and most broadly, the government should appoint counsel for immigrants in removal proceedings.
{"title":"The Failure of Immigration Appeals","authors":"David K. Hausman","doi":"10.2139/SSRN.2568960","DOIUrl":"https://doi.org/10.2139/SSRN.2568960","url":null,"abstract":"Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. Yet this Article demonstrates that the appeals process for the immigration courts — a system of administrative adjudication that makes as many decisions as the federal courts — does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal, either by the Board of Immigration Appeals or a federal Court of Appeals.Why? To explain this puzzling finding, I use an internal administrative database, obtained by Freedom of Information Act request, to track the decisions of initial immigration judges on appeal. I find that the Board of Immigration Appeals and the Courts of Appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board of Immigration Appeals therefore rarely reviews the removal orders of immigrants who might have meritorious claims, but who are assigned harsh judges and lack lawyers at the beginning of their proceedings. These quantitative findings, together with interviews and immigration court observation, point the way to reform. First, the Board of Immigration Appeals and the Courts of Appeals should adopt a less deferential standard of review of an immigration judge’s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants, allowing the Board more often to review judges’ decisions about continuances, which are rarely appealed. Finally, and most broadly, the government should appoint counsel for immigrants in removal proceedings.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"164 1","pages":"1177"},"PeriodicalIF":2.5,"publicationDate":"2015-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68208212","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}
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.
{"title":"Class Actions and the Counterrevolution Against Federal Litigation","authors":"Stephen B. Burbank, Sean Farhang","doi":"10.2139/SSRN.2622201","DOIUrl":"https://doi.org/10.2139/SSRN.2622201","url":null,"abstract":"In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"165 1","pages":"1495"},"PeriodicalIF":2.5,"publicationDate":"2015-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68228793","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 student comment provides a new lens through which to understand the controversial practice of Civil Forfeiture. The comment divides forfeited items into Low, Mid, and High Value Chattel (along with Real Property, which is not discussed), and suggests solutions for protecting Low and Mid Value Chattel, while encouraging the pursuit of High Value Chattel forfeiture. Specifically, the comment proposes treating forfeiture as a transaction in the Coasean/Calabresian paradigm, limiting externalities and increasing transaction costs to adjust the "market" for forfeiture.
{"title":"Proposing a Transactional Approach to Civil Forfeiture Reform","authors":"Michael van den Berg","doi":"10.2139/ssrn.2572022","DOIUrl":"https://doi.org/10.2139/ssrn.2572022","url":null,"abstract":"This student comment provides a new lens through which to understand the controversial practice of Civil Forfeiture. The comment divides forfeited items into Low, Mid, and High Value Chattel (along with Real Property, which is not discussed), and suggests solutions for protecting Low and Mid Value Chattel, while encouraging the pursuit of High Value Chattel forfeiture. Specifically, the comment proposes treating forfeiture as a transaction in the Coasean/Calabresian paradigm, limiting externalities and increasing transaction costs to adjust the \"market\" for forfeiture.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"107 1","pages":""},"PeriodicalIF":2.5,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2572022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68209019","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}
The Rehnquist and Roberts Courts have reinterpreted rules 8, 23, and 56 of the Federal Rules of Civil Procedure, in each case altering them to restrict access to the federal courts and make early dismissals more readily available. Neither changes in the text of the rules nor new discoveries about their original intended meaning justified those decisions. Indeed, the reinterpretations conflicted with the stated purposes of those rules and contradicted the Court’s own repeated acknowledgments that it has no authority to change the meaning of any Federal Rule once Congress has adopted it. This article examines those changed interpretations, shows that they brought parallel anti-plaintiff results, and demonstrates that those results are consistent with the practical social results that flow from a wide variety of other decisions of the Rehnquist and Roberts Courts. The decisions construing Rules 8, 23, and 56 advance the same anti-plaintiff policies that mark the Court’s decisions restricting or defeating tort, antitrust, civil rights, securities, environmental, and employment discrimination claimants. The article argues that the Federal Rules decisions of the Rehnquist and Roberts Courts are not only compatible in their social results with their decisions in those other areas but that they all spring from the same extra-legal source, the commitments of the Court’s conservative Republican justices to their party’s market-based ideologies. Although those justices commonly assert text, tradition, and original meaning as justifications for their decisions, they have been wholly inconsistent in applying those methods. The consistency of their jurisprudence lies not in their application of any rigorous legal method but in their ideologically-rooted desire to block certain kinds of lawsuits and to protect from liability state governments, state and local officials, and corporate defendants.
{"title":"From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts","authors":"Purcell, A. Edward","doi":"10.2139/SSRN.2613995","DOIUrl":"https://doi.org/10.2139/SSRN.2613995","url":null,"abstract":"The Rehnquist and Roberts Courts have reinterpreted rules 8, 23, and 56 of the Federal Rules of Civil Procedure, in each case altering them to restrict access to the federal courts and make early dismissals more readily available. Neither changes in the text of the rules nor new discoveries about their original intended meaning justified those decisions. Indeed, the reinterpretations conflicted with the stated purposes of those rules and contradicted the Court’s own repeated acknowledgments that it has no authority to change the meaning of any Federal Rule once Congress has adopted it. This article examines those changed interpretations, shows that they brought parallel anti-plaintiff results, and demonstrates that those results are consistent with the practical social results that flow from a wide variety of other decisions of the Rehnquist and Roberts Courts. The decisions construing Rules 8, 23, and 56 advance the same anti-plaintiff policies that mark the Court’s decisions restricting or defeating tort, antitrust, civil rights, securities, environmental, and employment discrimination claimants. The article argues that the Federal Rules decisions of the Rehnquist and Roberts Courts are not only compatible in their social results with their decisions in those other areas but that they all spring from the same extra-legal source, the commitments of the Court’s conservative Republican justices to their party’s market-based ideologies. Although those justices commonly assert text, tradition, and original meaning as justifications for their decisions, they have been wholly inconsistent in applying those methods. The consistency of their jurisprudence lies not in their application of any rigorous legal method but in their ideologically-rooted desire to block certain kinds of lawsuits and to protect from liability state governments, state and local officials, and corporate defendants.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"162 1","pages":"1731"},"PeriodicalIF":2.5,"publicationDate":"2014-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68225471","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}
The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their "judicial experience and common sense" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.
贝尔大西洋诉托姆布雷案和阿什克罗夫特诉伊克巴尔案对抗辩原则的改变受到了多方面的批评。正如许多评论家所指出的那样，这些案件引入的合理性辩护原则与其他程序改革是一致的，这些改革具有限制推定原告获得联邦民事裁决的影响。在本文中，我认为托姆布雷和伊克巴尔不仅仅是反诉讼改革的最新例子。合理性辩护要求联邦法院——自《联邦民事诉讼规则》(federal Rules of Civil Procedure)问世以来，这是第一次——利用他们的“司法经验和常识”，在证据被发现之前评估一项索赔成功的可能性。但是，导致托姆布雷和伊克巴尔案的程序变化的特点——审判减少、仲裁等私人裁决的增加、普遍保密和简易判决的增加——也使法官不太可能拥有可靠地应用合理性辩护所必需的经验。在缺乏相关信息的情况下，法官可能会依赖启发式，这将使他们远离对是非曲直的准确决定。我认为，其结果是——迄今可获得的经验数据证实了这一点——将导致越来越多的案件被驳回，这些案件本质上是随机的，而不是基于能力的。
{"title":"The Burdens of Pleading","authors":"A. Reinert","doi":"10.2139/SSRN.2411065","DOIUrl":"https://doi.org/10.2139/SSRN.2411065","url":null,"abstract":"The changes to pleading doctrine wrought by Bell Atlantic v. Twombly and Ashcroft v. Iqbal have been criticized on many grounds. As many commentators have noted, the plausibility pleading doctrine introduced by these cases is consistent with other procedural reforms that have the effect of limiting access of putative plaintiffs to federal civil adjudication. In this Article, I argue that Twombly and Iqbal are more than just the most recent examples of anti-litigation reforms. Plausibility pleading asks federal courts – for the first time since the advent of the Federal Rules of Civil Procedure – to use their \"judicial experience and common sense\" to assess the likelihood of a claim’s success prior to discovery. But the very characteristics of the procedural changes leading up to Twombly and Iqbal – fewer trials, an increase in private adjudication such as arbitration, pervasive secrecy, and increased use of summary judgment – also make it far less likely that judges will have the experience necessary to reliably apply plausibility pleading. In the absence of relevant information, judges are likely to fall back on heuristics that will take them farther from an accurate decision on the merits. The result, I contend –one that is confirmed by the empirical data available to date – will be an increased dismissal of cases that is essentially random rather than merit-based.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"162 1","pages":"1767"},"PeriodicalIF":2.5,"publicationDate":"2014-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68187718","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}
Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes to new problems. The challenge of managing statutory obsolescence affects many agencies, and arises in areas as diverse as financial, telecommunications, and food and drug regulation. We examine this dynamic in two fast-moving policy domains, environmental and energy regulation, where Congress has been remarkably absent in recent decades. Contrary to what some might suspect, we find that agencies manage these statutory fit problems carefully, strategically and often with deliberate restraint. Rather than “going for broke,” they tend to choose policies that stop short of open conflict with Congress, yet reflect the agency’s mission, the president’s priorities, and the limits of their statutory authority. We show how, following the Goldilocks principle, agencies seek to get it “just right.” We then explore the implications of this dynamic — in which agencies are the primary statutory updaters — for the institutions in our Separation of Powers scheme: the president, Congress, the courts and the agencies. We argue that the absence of Congress from the policy process can inure to the president’s benefit in the contest to shape agency decisions, especially when the president’s priorities are consistent with the agency’s traditional mission, meaning that the White House and agency are aligned. Finally, we focus on what this new strategic environment of agency policymaking means for judicial review of agency efforts to update the regulatory regime. We argue that, for a variety of reasons, agencies are better suited than courts to do that updating work, and that the case for deferring to agencies in that task is stronger than ever with Congress absent from the updating process. Our account also challenges the view that courts should return important regulatory matters to Congress rather than allow agencies to adapt statutes, because to do so is “democracy forcing.” We argue that the normative commitment to democracy forcing is based on a flawed empirical assumption about the probability of congressional action. Indeed, because the agency is the legally designated custodian of the statute (so designated by the enacting Congress), the agency may have the superior claim to interpret the statute’s application to new problems during periods of congressional quiescence.
{"title":"Old Statutes, New Problems","authors":"J. Freeman, D. Spence","doi":"10.2139/SSRN.2393033","DOIUrl":"https://doi.org/10.2139/SSRN.2393033","url":null,"abstract":"Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes to new problems. The challenge of managing statutory obsolescence affects many agencies, and arises in areas as diverse as financial, telecommunications, and food and drug regulation. We examine this dynamic in two fast-moving policy domains, environmental and energy regulation, where Congress has been remarkably absent in recent decades. Contrary to what some might suspect, we find that agencies manage these statutory fit problems carefully, strategically and often with deliberate restraint. Rather than “going for broke,” they tend to choose policies that stop short of open conflict with Congress, yet reflect the agency’s mission, the president’s priorities, and the limits of their statutory authority. We show how, following the Goldilocks principle, agencies seek to get it “just right.” We then explore the implications of this dynamic — in which agencies are the primary statutory updaters — for the institutions in our Separation of Powers scheme: the president, Congress, the courts and the agencies. We argue that the absence of Congress from the policy process can inure to the president’s benefit in the contest to shape agency decisions, especially when the president’s priorities are consistent with the agency’s traditional mission, meaning that the White House and agency are aligned. Finally, we focus on what this new strategic environment of agency policymaking means for judicial review of agency efforts to update the regulatory regime. We argue that, for a variety of reasons, agencies are better suited than courts to do that updating work, and that the case for deferring to agencies in that task is stronger than ever with Congress absent from the updating process. Our account also challenges the view that courts should return important regulatory matters to Congress rather than allow agencies to adapt statutes, because to do so is “democracy forcing.” We argue that the normative commitment to democracy forcing is based on a flawed empirical assumption about the probability of congressional action. Indeed, because the agency is the legally designated custodian of the statute (so designated by the enacting Congress), the agency may have the superior claim to interpret the statute’s application to new problems during periods of congressional quiescence.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"163 1","pages":"1-93"},"PeriodicalIF":2.5,"publicationDate":"2014-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68174028","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}
Among the most significant commercial activities to emerge on the Internet, both in terms of revenue generated and numerical participation, has been multi-player gaming. Such Internet gaming increasingly includes professional play. These "e-sports" feature the structure of team owners, sponsorships, leagues, prize money, and star players that have long been familiar in physical sport competitions. But because these competitions are played in a virtual environment, control of rights to the matches is anything but familiar. E-sports play is typically mediated by proprietary software, raising a set of difficult issues regarding the licensing and control of professional matches and tournaments. As e-sports become increasingly established around the world, unsettled questions of copyright, right of publicity, and neighboring rights will need to be resolved among players, team owners, and developers of e-sports platforms.
{"title":"Owning E-Sports: Proprietary Rights in Professional Computer Gaming","authors":"D. Burk","doi":"10.17605/OSF.IO/BRMV7","DOIUrl":"https://doi.org/10.17605/OSF.IO/BRMV7","url":null,"abstract":"Among the most significant commercial activities to emerge on the Internet, both in terms of revenue generated and numerical participation, has been multi-player gaming. Such Internet gaming increasingly includes professional play. These \"e-sports\" feature the structure of team owners, sponsorships, leagues, prize money, and star players that have long been familiar in physical sport competitions. But because these competitions are played in a virtual environment, control of rights to the matches is anything but familiar. E-sports play is typically mediated by proprietary software, raising a set of difficult issues regarding the licensing and control of professional matches and tournaments. As e-sports become increasingly established around the world, unsettled questions of copyright, right of publicity, and neighboring rights will need to be resolved among players, team owners, and developers of e-sports platforms.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"161 1","pages":"1535-1578"},"PeriodicalIF":2.5,"publicationDate":"2014-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67653366","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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