Volume 88, Issue 3
Articles
Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty. The conventional wisdom is that federal law should resolve this problem by allowing the President to serve as a proxy for the “will of the people” in administrative rulemaking. However, Professor Criddle suggests that a better solution for promoting popular representation in agency rulemaking is to extend private fiduciary duties to administrative agencies.
Professor Criddle begins by accepting the premise that federal agency rulemaking often diverges from the will of the electorate. However, he rejects the notion that this inconsistency can be eliminated by equating the President’s preferences on questions of regulatory policy with the will of the people. Empirical evidence has shown that presidents do not necessarily pursue administrative policies that are consistent with the views of the electorate. Indeed, the notion that presidents might serve as reliable proxies for majoritarian preferences in agency rulemaking becomes indefensible once one acknowledges how little the public knows about agency rulemaking.
As an alternative to the presidential proxy argument, Professor Criddle proposes the adoption of a fiduciary model of popular representation. Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency. Rather than focus on a representative’s obedience to the public will, fiduciary representation emphasizes agencies’ responsibilities to act deliberatively and reasonably in promoting the public welfare.
Responses in See Also:
In this Article, Professor Golden examines the debate about what the value of patent remedies generally is or should be. This public debate has become relatively heated in light of recent Supreme Court jurisprudence that may decrease the availability of injunctions forbidding continued infringement. Professor Golden concludes that policy making in this area should take guidance from specific principles of adaptation and implementation.
The 2006 decision of the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C. has spawned conflicting answers from lower courts and academic commentators regarding how to decide when injunctions should issue. At the same time, Capitol Hill entities representing a variety of industry heavyweights have poured millions into lobbying for or against patent reform bills. Amidst all the resulting commotion, one fact seems clear. We really have little specific sense of what the value of remedies for patent infringement generally is or should be. Indeed, with a patentee’s ability to invoke the leverage of an injunction cast into doubt by the eBay case, the hunt for a satisfactory remedial system is likely to be a long one.
How then should we determine patent remedies’ proper nature and scope? Professor Golden argues that policy making should take guidance from three principles of adaptation and two principles of implementation: (1) nonabsolutism in the formulation and application of legal doctrine; (2) antidiscrimination with respect to business models; (3) learning, an interest in fostering the production of useful information; (4) administrability; and (5) devolution of significant decisional responsibility to private or government actors nearest to the facts of an individual case. Although these principles do not uniquely determine any single best system of patent remedies, they provide a framework for assessing the relative merits of policy proposals and for suggesting ways in which proposals can be improved. In particular, the principles have implications for current debates regarding the availability of permanent injunctions, the calculation of reasonable-royalty damages, and the possibility of remedial exemptions for prior users or independent creators.
Responses in See Also:
Book Reviews
Professor Baker reviews The Patent Crisis and How the Courts Can Solve It, by Dan Burke and Mark Lemley.
Professor Baker examines Burke and Lemley’s proposal that the courts, and not Congress, are best suited to resolve the patent crisis by adopting a more sensible approach to innovation policy. To implement this proposal in an industry-specific manner (as the authors suggest), the Federal Circuit must identify the problems of a given industry and then come up with a doctrine to solve the identified problems. Professor Baker discusses the potential pitfalls of this proposal and examines the likely effects on patent law if the proposal is ultimately implemented.
Notes
In this Note, Francis examines the payday-loan industry and the existing and proposed regulations that control it. Looking through the lens of behavioral law and economics, she illustrates how some borrowers systematically underestimate their future borrowing, leading to unexpected rollover loans and imposing substantial and unnecessary costs on these borrowers. The Note also demonstrates how lenders are able to exploit these borrowers’ underestimation biases to aggravate the costs incurred in the "debt trap."
The Note begins by drawing on empirical research to offer a snapshot of the industry and the "typical" borrower of payday loans. Next, Francis sets the regulatory stage of the payday-loan industry, paying specific attention to the proposed framework under House Bill 1214. She then lays out the BLE theory with respect to payday lending, specifically showing how the underestimation bias may explain the frequency of payday-loan rollovers. Lastly, she presents a debiasing solution to increase the effectiveness of the disclosures proposed under House Bill 1214.
In this Note, Hackney discusses the legal issues surrounding state/local preemption. He examines this broad area of law by looking at what steps a city may take to ensure that its citizens breath clean air if the city determines that the state is not doing enough to regulate air pollution.
Noting that local government is often the only entity that can effectively solve this type of problem, Hackney addresses the question of how far a city can go in addressing the issue given that state law expressly governs.
