Clear Authority Research Articles

The Google-Doubleclick Merger, the FTC, and the Future of Transactional Privacy Inquiries in the United States

On April 13, 2007, Google, the world's largest search provider, announced that it would acquire DoubleClick, the largest existing online advertising company, in a cash merger. Within days, Google's $3.1 billion acquisition of DoubleClick was challenged by Microsoft and others on privacy and antitrust grounds. On April 20, the Electronic Privacy Information Center (EPIC) filed a complaint with the Federal Trade Commission (FTC) requesting that the Agency: (1) issue an injunction to prevent the Google-DoubleClick merger from proceeding, and (2) conduct an investigation regarding the circumstances of the merger. The FTC recently concluded an initial investigation into whether the Google-DoubleClick merger would promote unfair and deceptive trade practices substantially likely to harm consumers and not outweighed by countervailing benefits to consumers. Rather than clearing the transaction, however, the FTC requested that the parties submit significant volumes of additional information to allow the Agency to perform a more thorough investigation and analysis of the anticompetitive effects of a proposed merger. Despite the FTC's clear antitrust authority, however, the bulk of the EPIC complaint, and therefore presumably the thrust of the investigation, addresses privacy issues and not antitrust or competition concerns. This paper argues that the FTC has no authority to address the privacy concerns raised by the Google-DoubleClick merger. Section II will examine the FTC's authority both to review mergers and to investigate privacy concerns under § 5 of the FTC Act. Part III will review the two § 5 cases relied upon by EPIC to support its argument that the FTC has the authority to review the Google-DoubleClick merger. This section will argue that the present merger differs in significant ways from prior instances in which the FTC relied upon § 5 of the FTC Act. Finally, Part III will analyze EPIC's unfair trade practices claims under the § 5 standard, concluding that it is not likely that the merger will result in substantial harm to consumers not reasonably avoidable and not outweighed by countervailing benefits. Part IV will look to the future of the Google-DoubleClick merger in light of both U.S. and international pressures, concluding that judicial intervention is likely regardless of the decision of the FTC. Finally, in order to prevent the necessity of judicial intervention in the future, Part IV recommends the passage of legislation providing the FTC or another federal agency with the authority to require that companies collecting large volumes of nonpublic consumer data put comprehensive and effective data protection provisions into place or face sanction.

Dynamic Optimization Of Systems Of Systems Using Value Measurement

Many systems of systems (SoS) occur today through the collaboration of multiple stakeholders, without any clear authority or direction at the SoS level. Examples include a supply chain, an airport, and the Internet. Because of the uncontrolled interactions, such a SoS exhibits complexity behaviors such as reflexivity, emergence, self-organization, and adaptation. This paper presents underlying theory to explain a methodology for dynamic optimization of SoS, in which the stakeholders make changes based on local perceptions of the value of the SoS. Each stakeholder has a different local perception of value, measured against an objective function that may be unique to the stakeholder. As the stakeholder compares perceived value to desired value, the stakeholder attempts to optimize the SoS from its own point of view by making decisions that lead to SoS changes. These changes then affect other stakeholders, resulting in a dynamic architecture and implementation of the SoS. We present the optimizing value proposition of each stakeholder in terms of a quantifiable objective function based on the life-cycle value of the SoS to that stakeholder, and we present the dynamic interaction as a model of self-organization. An example based on supply chain management demonstrates the approach.

FDA Overhaul Needed to Ensure Drug Safety, IOM Says

FDA Overhaul Needed to Ensure Drug Safety, IOM Says

Protecting the Health of the Public — Institute of Medicine Recommendations on Drug Safety

The IOM committee assessed the U.S. drug-safety system and identified a number of serious problems, including a lack of clear regulatory authority, chronic underfunding, organizational difficulties, and a scarcity of post-approval data. Dr. Bruce Psaty and Sheila Burke discuss the recommendations of the IOM.

DRUG SAFETY STUDY

THE FDA SYSTEM FOR ENSURING the safety of new drugs needs a serious overhaul, says a report from the Institute of Medicine. The system for monitoring the safety of drugs after they are marketed is hampered by a lack of clear regulatory authority, chronic underfunding, scarcity of post-approval data, and organizational problems, IOM says. The committee that wrote the report offered a broad set of recommendations to improve drug safety. For two years after approval, drugs should have a black triangle on the label indicating that the drug is new. The committee also would favor a ban on direct-to-consumer advertising for the first two years, but acknowledged that such a moratorium would be subject to legal challenges. In addition, FDA needs increased enforcement authority and better enforcement tools—including fines, injunctions, and withdrawal of drug approvals—to ensure that industry complies with label changes and conditions imposed on new products after approval. There also should be ...

From public open access to common property: the prospects and challenges of institutionalizing boundaries for self-governance and management of community irrigation dams in the Upper East Region, Ghana

The Hardian solutions to the excessive abuses of common-pool resources are still being contested. On the one hand public ownership is seen as a major draw back to the efficient and sustainable management of common-pool resources, and on the other the challenges of private ownership in addressing issues of equity and access. Self-governing community management groups are now seen as the panacea. The paper explores the mechanisms that the Water User Associations are using to address the critical issues of boundaries. It addresses three interrelated questions, i.e. how do communities: (1) delimit the territoriality of their irrigation schemes? (2) define authority spheres within the context of the traditional land ownership system? (3) define the limits of each individual user within the context of competing users such that conflicts are minimized? The central finding is that, although successes are not uniform across the board, the WUAs are employing ingenious mechanisms to define clear resource, authority and user boundaries to enable them set up workable systems for self-governance and the management of their communal dams in more sustainable ways. On the basis of the findings, it is recommended that for a lasting impact, the Ministry of Food and Agriculture (MoFA) will need to assist the emerging WUAs in this process of institutionalization. Ghana Journal of Development Studies Vol. 3(1) 2006: 102-118

Ehud Olmert's plan

The new Israeli government will have to secure American support for convergence, the term applied by Prime Minister Ehud Olmert to a process by which Israel would give up settlements east of the security barrier now under construction. Convergence is a buzzword using a Hebrew term that connates ingathering or assembly. Israel will not be prepared to move unilaterally for another six months. This will give Palestinians more time to settle on an arrangement that provides Abbas with clear authority to talk to Israel. In the meantime, Hamas’s refusal to agree to the Quartet’s conditions – recognition of Israel, respect for previous PA commitments, and renunciation of violence – will provide adequate cover for Olmert’s unilateral instincts.

Federal Executive Power and Communicable Disease Control: CDC Quarantine Regulations

The Centers for Disease and Prevention (CDC) recently published official notice of proposed Control of Communicable Diseases regulations that empower the federal government to deprive individuals both of civil liberties (through quarantine, surveillance, and contact tracing) and of economic interests (by permitting the inspection, disinfection, and destruction of private property). (1) The rules also impose a mandate on airlines to collect and provide personal passenger data to the CDC. The Department of Health and Human Services justified these measures on grounds of the potential human and economic costs of dangerous biologic agents. To be sure, the federal government has a major interest in preventing the spread of communicable diseases in the United States. But to what extent do these powers conform to the rule of law? Are there adequate checks and balances? Scope of Federal Power The Public Health Service Act (PHSA) authorizes the apprehension, detention, or conditional release of individuals for only a small number of diseases listed by executive order--cholera, diphtheria, infectious tuberculosis, yellow fever, viral hemorrhagic fevers, SARS, and novel influenza viruses with pandemic potential. (2) The new regulations would significantly expand the scope of federal power by defining to include the signs or symptoms commonly associated with quarantinable diseases--fever, rash, headache, persistent cough, diarrhea, severe bleeding, jaundice, and changes in cognitive functioning. This inclusive approach affords the CDC greater flexibility and adaptability. The proposed rule captures a wide, undifferentiated range of signs and symptoms, however, allowing for the unfettered exercise of discretion by lay directors of federal quarantine stations. By contrast, the WHO's new International Health Regulations contain specifications of health threats that come within its authority. (3) An agency's jurisdiction and power must be contained within clear boundaries, which create accountability to the public and to affected communities. Federal Quarantine Authority: Personal Liberty Quarantine should be based on clear legal authority and applied safely and effectively while according respect to the individual. The regulations would empower the CDC to provisionally quarantine ill passengers for up to three business days, and to order full quarantine on grounds of a reasonable belief that a person or group is in the qualifying stage of a quarantinable disease. This standard is too vague. Quarantine should be based on clear and convincing evidence that the individual poses a significant risk to the public. The length of quarantine may not exceed the period of incubation and communicability of the disease. During periods of quarantine, officers can offer individuals vaccination, prophylaxis, or treatment, but refusal can result in continued deprivation of liberty. Furthermore, the rule does not ensure that quarantine would be safe, humane, and accompanied by high-quality medical care. HHS is authorized to pay for necessary medical and other services but is not bound to do so. In practice, quarantine may take place in numerous venues, such as private homes, hospitals, and other institutions. The CDC does not intend to provide individuals with hearings during a provisional quarantine. (4) A full hearing may not be feasible, but some way of contesting arbitrary or discriminatory actions is needed. Individuals can request an administrative hearing to contest an order for full quarantine--not to review the legal authority (which is available through habeas corpus), but to contest the factual and scientific evidence of exposure to or infection with a quarantinable disease. The administrative hearing comports with some basic elements of due process: notice, hearing officer, and communication with counsel. The provision of procedural due process for full quarantine is long overdue and constitutionally required. …

Controversial Medical Treatment and the Right to Health Care

People have long argued that health care is a basic right that the government is obligated to provide. Our constitutional system, however, is notoriously lax in recognizing positive rights to state-funded resources. As a result, health care coverage for the more than forty million uninsured remains hostage to politics and the political process. A less sweeping approach would talk about health care as a negative right. A negative right to health care means the right of a patient and doctor to pursue a course of treatment of their choosing without interference by the government. While a far cry from a positive right to universal coverage, a negative right is not to be sneered at. Such a right anchors a woman's use of abortion and contraception, and underlies the great deference ordinarily accorded doctors and patients to pursue medical care. A negative right to health care may also play a role in disputes about access to new medical and alternative treatments. Because conflicts over negative rights to health care have usually been settled in the policy or legislative arena, it is of more than passing interest that a prestigious federal appeals court has now staked out a role for the courts by holding that constitutional rights to life and liberty protect such rights. (1) Although such a right is not absolute and may be limited by compelling state interests, the constitutional principle recognized is a significant one. If upheld on appeal, the principle underlying Abigail Alliance for Improved Access to Treatment v. von Eschenbach will require the government to show that there is a substantial, narrowly tailored justification for restricting patient and physician choice about disputed therapies in many different areas, including access to new cancer drugs, embryonic stem cell therapies, and organ transplants. Access to Drugs in Phase II Trials The case arose out of a long campaign by several groups, including both free market business interests and patient advocates, to loosen the Food and Drug Administration's rules for approving new drugs. The steady drumbeat of criticism and the activist efforts of AIDS advocacy groups did lead in the late 1980s to major changes in FDA policy. There is now a fast-track procedure for drugs that show early promise and clear authority for compassionate use exceptions for phase III drugs. (2) Yet this new flexibility has not quieted all attacks. The father of a young woman who had died from cancer after being denied access to the then-experimental cancer drug Erbitux founded the Abigail Alliance for Better Access to Developmental Drugs in memory of his daughter. (3) Along with the Washington Legal Foundation, a conservative public interest law firm, it formally petitioned the FDA to allow cancer patients to use any drugs that had been approved for phase II clinical trials. When the petition was turned down, the two groups sued, claiming that FDA rules violated their constitutional right to health care. The federal district court dismissed their complaint on the ground that there was no such right. In a novel move, the Court of Appeals for the District of Columbia, widely viewed as the most important court outside of the Supreme Court, reversed and remanded the case to the lower court to hear evidence as to whether the government could show a narrowly tailored, compelling need to deny cancer patients access outside a study to phase II drugs. The government has appealed the decision. While no final determination of the plaintiffs' claims is expected soon, the principle unleashed has potentially wide application in other areas of medicine. [See also Rebecca Dresser's discussion in At Law, in this issue, for further analysis of the case.] Both liberals and conservatives have criticized the decision. Liberals dislike it because it appears to constrain the FDA from preventing unsafe, ineffective drugs from reaching the market, thus exposing end-stage cancer patients to exploitation by unscrupulous sellers. …

Developing Leaders for Decision Making Under Stress: Wildland Firefighters in the South Canyon Fire and Its Aftermath

To identify the sources of ineffective leadership decisions, we focus on ten decisions made by a leader of a wildland firefighter crew during the fatal South Canyon fire of July 5–6, 1996. The decisions of team leaders in fire zones are unusually clear-cut and consequential for the goals of the enterprise, but they are not unlike decisions faced by managers of most organizations. We suggest that three factors—underpreparation, acute stress, and ambiguous authority—can result in suboptimal decisions by team leaders on a fireline. Through detailed evaluation of the team leader's ten most consequential decisions in the South Canyon fire, we conclude that five were relatively optimal for the triple objectives of safety, speed, and suppression, but five others proved suboptimal. Much of their suboptimality is traced to the fact that the team leader was undertrained for leadership decision making, faced intense stress, and operated without clear authority. In the wake of this firefighting disaster—14 men and wo...

So you're thinking of buying an ERP? Ten critical factors for successful acquisitions

PurposeThis paper aims to present a discussion of the critical success factors (CSF) that affect the acquisition process for enterprise resource planning (ERP) software.Design/methodology/approachThe research strategy was a multiple‐case design with three organizations that had recently completed the acquisition of an ERP solution. The rationale for the multiple‐case design was that, as a research strategy, the focus could be directed to understanding the dynamics and complexities present within each case, these being critical success factors of the ERP software acquisition process within the organization.FindingsThis study identified ten factors critical to the successful outcome of acquiring an ERP solution. Their omission would have resulted in a less than optimal outcome for the organization. For each of the three cases, the elements that stand out the most are as follows: clear and unambiguous authority, a structured, rigorous and user‐driven process, its planning, the establishment of criteria, and the sense of partnership that the team works to establish not only with various user commitments, but also with the potential vendor.Originality/valueIt is important to note that no one CSF alone is going to make an ERP acquisition successful. It is rather the combination of several critical factors that will result in its successful outcome.

FDA Officials Divided Over Need for Policy Change

FDA Officials Divided Over Need for Policy Change

Evidence-Based Medicine In The United States—De Rigueur Or Dream Deferred?

Although evidence-based medicine (EBM) is an important concept for promoting value in health care, meaningful application of EBM tools in commercial settings has proceeded slowly. Barriers to the use of EBM include patient preference, physician resistance, the lack of automated decision support systems, managed care failures, lack of research on which to base decisions, and the inherent subjectivity of interpretations of evidence. Political concern has mirrored these barriers; consequently, Medicare still lacks clear authority to apply many evidence-based decision tools. Dialogue and consensus will be critical in bridging public concern and the eagerness of researchers to apply EBM.

IT Outsourcing Success: A Psychological Contract Perspective

Information technology (IT) outsourcing success requires careful management of customer-supplier relationships. However, there are few published studies on the ongoing relationships, and most of these adopt a customer perspective, de-emphasizing suppliers. In this study, we look at both customer and supplier perspectives, by means of the psychological contract of customer and supplier project managers. We apply the concept of psychological contract to perceived mutual obligations, and to how such fulfillment of obligations can predict success. Our research questions are (1) What are the critical customer-supplier obligations in an IT outsourcing relationship? and (2) What is the impact of fulfilling these obligations on success? We use a sequential, qualitative-quantitative approach to develop and test our model. In the qualitative study, we probe the nature of customer-supplier obligations using in-depth interviews. Content analysis of interview transcripts show that both customers and suppliers identify six obligations that are critical to success. Customers perceive supplier obligations to be accurate project scoping, clear authority structures, taking charge, effective human capital management, effective knowledge transfer, and effective interorganizational teams. Suppliers perceive customer obligations as clear specifications, prompt payment, close project monitoring, dedicated project staffing, knowledge sharing, and project ownership. In the second quantitative study, we assess the impact of fulfilling these obligations on success through a field study of 370 managers. Results show that fulfilled obligations predict success over and above the effects of contract type, duration, and size.

Globalization and Peremptory Norms in International Law: from Westphalian to Global Constitutionalism?

Constitutionalism in international law is shifting from a Westphalian to a global framework. This shift is driven by globalist social forces who are ideologically committed to neo-liberalism and have an interest in free trade. They have succeeded in making free trade the next peremptory norm in international law after non-aggression, and have pre-empted the emergence of countervailing peremptory norms on Human Rights and environmental imperatives. There is no clear juridical authority to pronounce between calls for justice from a Westphalian frame, and property claims enshrined in global supranational institutions. The emergence of such authority in global constitutionalism, will depend upon both bargaining power and ideological alternative to neo-liberalism. The territorial state is still an important site for mobilizing the necessary bargaining power to reshape global authority.

Policy-Relevant Research: When Does It Matter?

Evidence-based medicine is most meaningful to policy makers when research questions are clearly informed by strategic health policy questions. In Washington State workers' compensation, key structural characteristics allow for the conduct of effective policy-relevant research. These include clear authority and a stable funding stream, a formal relationship between a policy agency and a University, development of appropriate research capacity, development of research questions related to strategic goals, and a robust data source. The research conducted relies on computerized medical bills and work disability records, medical records, structured telephone surveys to collect data on pain, functional status, quality of life, and computerized data on employment status. The types of policy-relevant research include identification of factors leading to preventable disability, outcomes research of specific procedures, technology assessment, and "real-time" research that addresses rapidly emerging questions. Health policy changes implemented from research have been substantial in Washington State workers' compensation, including: 1) noncoverage or partial coverage decisions for emerging technologies not proven to be of value to injured workers, 2) formal treatment guidelines and utilization review criteria for invasive, expensive, or marginally effective procedures, 3) disability prevention efforts, and 4) relatively rapid changes in policy as emerging patterns suggest harmful outcomes from existing treatments (e.g., schedule II opioids). Key structural characteristics must be in place to conduct policy-relevant research effectively. The workers' compensation system in Washington State is a single-payer system with other unique properties that have allowed the emergence of these structural characteristics and the conduct of research linked to the strategic goals of policy makers.

Rebuilding a professional practice model. The return of role-based practice accountability.

There is no patient care without clinical practice. To improve the quality of health care, organizations must build a finely tuned and resilient clinical enterprise, one founded on clear role accountability and decision authority within the team. The author views scope of practice and professional standards as the foundation for practice accountability and decision authority. A case is made that an interdisciplinary, professional practice model is an appropriate delivery model in today's health care environment; a model that places the professional role in its rightful place as decision maker and supports the role's inherent accountability to evaluate and monitor practice performance. The importance of measuring professional practice performance is seen as a key link toward better understanding ways to reduce error and ensure patient safety.

Economic Instruments and the Kyoto Protocol: Can Parliament Implement Emissions Trading without Provincial Co-operation

The ability of the federal government to ratify the Kyoto Protocol — the international treaty to reduce greenhouse gas emissions — is uncontested by provincial governments. However, the recent provincial opposition to this treaty could result in a constitutional challenge to Parliament's domestic implementation of the binding emission targets. This potential challenge is a result of the uncertainty in Parliament's authority to implement the necessary legislation. This article examines the federal authority to implement emissions trading — an economic instrument into which the federal government has invested a considerable amount of research in recent years. As possible reliance for Parliament's jurisdiction over trading, three federal powers are investigated: the peace, order and good government power, the criminal law power and the trade and commerce power. While there are difficulties with reliance on each of these powers, the peace, order and good government power is likely to provide the strongest argument for federal jurisdiction. Given the federal government's lack of clear legislative authority for trading, this article finishes by examining the alternative economic instrument of emissions taxation, concluding that Parliament's power to implement taxes is much more certain.

Questioning the ‘true effect’ of the Human Rights Act

One of the most important issues arising from the Human Rights Act 1998 is the degree of its applicability, if any, to relations between private individuals. While the wording of the Act itself provides no clear guidance on the matter, and a wide-ranging spectrum of potential outcomes has been identified, there is an emerging academic consensus that the Act will have some horizontal effect – but limited to enabling development of the existing common law, and not extending to provision of new actions and remedies. This paper seeks to challenge that consensus. Fidelity to the jurisprudence of the European Court of Human Rights requires that the effect of the Act go beyond mere incremental development. There is clear authority that the legal systems of signatory states must provide remedies for infringement of individual rights by other individuals. Nothing in the Human Rights Act 1998 obstructs this interpretation. Further, the paper seeks to identify certain fatal errors in the arguments of the ‘developmental consensus’ .

An Analysis of a Partnership Arrangement between an Institution of Further Education and an Institution of Higher Education

This article is the result of qualitative research undertaken over a two-year period to study a partnership arrangement between a college of further education and a university, in the context of a franchised programme of study. The results of the research appear in the form of a case study narrative, the aim of which is to provide an insight into how a partnership arrangement and the concept of quality can be defined. The outcome of the research should be of interest to both academics and administrators who are involved in or contemplating a franchise arrangement. It can be stated that a franchise operation can be classified as a loose arrangement, underpinned by clear authority and legality. Collaboration requires a high level of trust and teamwork, and a commitment to providing quality educational provision through shared responsibility. Mutuality is one of the factors behind collaboration, and in the case of an institution of further education can provide major benefits such as facilitating a higher education ethos and further opportunities for developing additional partnerships with other institutions of higher education.