November, 2015
High Value Lies, Ugly Truths, and the First Amendment
Nov. 23, 2015—High Value Lies, Ugly Truths, and the First Amendment AUTHORS Alan K. Chen William M. Beaney Memorial Research Chair and Professor of Law, University of Denver Sturm College of Law. Justin Marceau Animal Legal Defense Fund Professor of Law, University of Denver Sturm College of Law. The authors would like to thank Ashutosh Bhagwat, Richard...
An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law
Nov. 23, 2015—An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law ABSTRACT Private entities often administer federal law. The early-twentieth-century Supreme Court derived constitutional limits to delegations of administrative power to private entities, grounding them in Article I of the Constitution where legislative power is delegated and in the Due Process Clause where the delegee’s...
How Algorithmic Trading Undermines Efficiency in Capital Markets
Nov. 23, 2015—How Algorithmic Trading Undermines Efficiency in Capital Markets ABSTRACT This Article argues that the rise of algorithmic trading undermines efficient capital allocation in securities markets. It is a bedrock assumption in theory that securities prices reveal how effectively public companies utilize capital. This conventional wisdom rests on the straightforward premise that prices reflect available information...
Curb Your Enthusiasm for Pigovian Taxes
Nov. 23, 2015—Curb Your Enthusiasm for Pigovian Taxes ABSTRACT Pigovian (or “corrective”) taxes have been proposed or enacted on dozens of harmful products and activities: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of...
In Praise of Ex Ante Regulation
Nov. 23, 2015—In Praise of Ex Ante Regulation ABSTRACT Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only...
A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power
Nov. 23, 2015—A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power ABSTRACT Facing mounting cost and quality pressures, healthcare providers are in a difficult position. The rigid structure of the federal anti-kickback statute compounds the problem by restricting providers’ abilities to pursue innovative business arrangements in response to those pressures. Recognizing the need for thoughtful experimentation with...
Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas
Nov. 23, 2015—Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas ABSTRACT Since the passage of the Federal Magistrates Act in 1968, district judges with overloaded dockets have been able to delegate many of their most time-consuming duties to magistrate judges. In theory, this system allows district judges to spend...