Armageddon: The Inevitable Death of Nuclear Power and Whether New York State Has the Legal Authority to Keep It on Life Support

This Note seeks to make the argument for New York’s ZEC program as a legitimate exercise of state power. Part I provides context—the history of nuclear power, the rise and fall in the incidence of nuclear power projects, and why such investments are failing. Part II then provides an overview of the CES and the ZEC program contained therein. In Part III, the legal challenges filed in response to Tier 3 are discussed, as well as the Illinois case which parallels the conventional generator challenge in New York. Part III will also discuss relevant legal precedent the cases concern, namely the recent United States Supreme Court case, Hughes v. Talen Energy Marketing, LLC. Part IV analyzes federal preemption to the extent it affects the New York program. This analysis mirrors—and in some areas, expands upon—the district court’s findings regarding New York’s program. Further, it compares similar crediting mechanisms currently used across the United States and other analogs demonstrating that, although federal preemption appears to control, there is significant room for the states to regulate. This Note ultimately concludes in Part V that the ZEC program is likely a legitimate exercise of state power, despite incidental effects it may have on related federal regulation

State and Federal Roles in Facilitating Electricity Competition: Legal and Economic Perspectives in the Electricity Sector

Jurisdictions have overlapping authority regarding electricity restructuring when a national authority and subnational regional governments—for example, states—both have a say. The initial sections of the paper review the division of regulatory authority over electricity markets in the United States, constitutional provisions, recent developments, and how federalist concerns have been manifested in antitrust and telecommunications. Justifications for using private markets rather than central governments suggest an efficiency approach to dividing authority, based on information, cross-border externalities, and agency, that is, the ability of a government to reflect the political preferences of its constituents. The goal is not to impose a “right” policy (e.g., promoting efficiency) through a rhetorical “back door,” but to set up rules that would best reflect constituent views. This analysis suggests that transmission and environmental regulations should be set on a regional or national level. States should retain control over when and how to open local retail markets. Uncertainty regarding the best way to organize electricity markets warrants localized experimentation. The paper concludes with brief discussions of nonefficiency ethical criteria and transnational considerations.electricity restructuring, federalism, regulatory policy

The DTSA’s Federalism Problem: Federal Court Jurisdiction over Trade Secrets

The Defend Trade Secrets Act of 2016 (“DTSA”) greatly expanded federal protection of trade secrets. But how many trade secrets were “federalized”? The short answer is: many, but not all. At the heart of the DTSA lies a mammoth jurisdictional problem: Congress only federalized certain trade secrets. Unlike copyrights and patents, Congress has no independent constitutional basis to regulate trade secrets. Instead, like trademarks, trade secrets are regulated under the commerce clause and must satisfy a jurisdictional element, which requires a nexus between interstate commerce and trade secrets. But unlike trademarks, Congress chose not to legislate to the fullest extent of its commerce clause power, excluding some trade secrets from federal protection. In short, the DTSA’s jurisdictional element ensures that only “technical” trade secrets—i.e., formulae, manufacturing processes, etc.—qualify for federal protection. “Business information” secrets are protected, if at all, only under state law. This Article is the first to explain the DTSA’s jurisdictional element in depth and explore its practical and theoretical implications. Interpretation of the jurisdictional element in the DTSA is the Act’s key judicial dilemma. The jurisdictional element imposes two requirements on a federal plaintiff’s trade secret: (1) that the trade secret closely relates to a product or service; and (2) that the product or service actually flows in interstate commerce. As a practical matter, the old trade secret tort has been split in two—with technical trade secrets federalized and business information remaining protected solely by state law. Theoretically, this interpretation brings trade secret policy in line with other species of federal intellectual property policies

Policy, Federalism, and Regulating Broadband Internet Access

Following recent telecommunications mergers, local (mostly municipal and county) governments and the federal government are fighting over who should determine whether cable television systems must make their facilities available to unaffiliated providers of high-speed (“broadband”) Internet service. This intergovernmental dispute is only the latest in a series of such clashes regarding competition and communications policy. A brief review of the policy suggests that substantively, local open-access requirements are not yet warranted. However, the economics of federalism, primarily that the relevant markets are local, indicates that local governments should have the right to choose these policies, perhaps erroneously. Federal preemption could prevent learning from multiple independent local “experiments.” The best case for limiting local authority is if it is only the exploitation of opportunistic ability to extract nationwide rents in exchange for approving transfer of the incumbent’s cable franchise to an acquiring firm. Key Words: Federalism, Internet, regulation, vertical integration JEL Classification Numbers: H1, L5, L1 We find that the welfare change from increasing NHS output could easily be negative, particularly when extra spending is financed by distortionary taxes. In contrast, expanding private health care is always efficiency-improving in our simulations. In our central estimates, increasing private health care by a pound’s worth of output produces an efficiency gain of 55 pence, but increasing national health output produces a net efficiency loss of 32 pence per pound! One reason for these results is that increasing the output of rationed health care has ambiguous effects on the total deadweight losses from waiting costs, but these costs unambiguously fall when the private health sector expands. Financing policies by user fees avoids the efficiency costs of raising distortionary taxes, and it also produces efficiency gains by reducing waiting lists. In fact, increasing national health care output produces an overall efficiency gain in most of our simulations, rather than an efficiency loss, when the policy is financed by higher user fees rather than by distortionary taxes. Still, the policy is generally less efficient than a user fee–financed increase in private health care.

The relationship between copyright and contract law

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction. Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements? This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory

Mergers, Station Entry, and Programming Variety in Radio Broadcasting

Free entry into markets with decreasing average costs and differentiated products can result in an inefficient number of firms and suboptimal product variety. Because new firms and products draw their customers in part from existing products, concentration can affect incentives to enter as well as how to position products. This paper examines how product variety in the radio industry is affected by changes in ownership structure. While it is in general difficult to measure the effect of concentration on other factors such as the number of products and the extent of product variety, the 1996 Telecommunications Act substantially relaxed local radio ownership restrictions, giving rise to a major and exogenous consolidation wave. Between 1993 and 1997 the average Herfindahl index in major US media markets increased by almost 65 percent. Using a panel data set on 243 U.S. radio broadcast markets in 1993 and 1997, we find that concentration reduces entry and increases product variety. Our results are consistent with spatial preemption. Jointly owned stations broadcasting from the same market are more likely than unrelated stations - and more likely than jointly owned stations in different markets - to broadcast in similar formats.