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48 Colum. J.L. & Soc. Probs. [i] (2014-2015)

handle is hein.journals/collsp48 and id is 1 raw text is: COLUMBIA JOURNAL OF LAW
Volume 48                     Number 1                       Fall 2014
Copyright © 2014 by the Columbia Journal of Law and Social Problems, Inc.
SE C R E CY   ................................................................................................ 1
The conventional cocktail of drugs used in lethal injection executions has been
sodium thiopental, pancuronium bromide, and potassium chloride. However,
in 2011, the sole manufacturer of sodium thiopental in the United States,
Hospira, Inc., restricted the distribution of the drug to prevent it from being
used in executions. In response, states are now experimenting with drugs like
pentobarbital, midazolam and hydromorphone in executions. Furthermore,
several states have obtained, or intend to obtain, death penalty drugs from
compounding pharmacies, entities which have recently come under intense
scrutiny for their lack of regulatory oversight and production of sub-standard
drugs. The most alarming development, however, is the secrecy that has
accompanied lethal injection executions in recent years. For example, some
states, like Georgia, have passed statutes that make information about the
source of the drugs and the professional qualifications of the lethal injection
participants a confidential state secret. Understandably, much discussion
about lethal injection drugs and the states' lethal injection protocols is focused
on the Eighth Amendment and Due Process consequences for the condemned.
This Note, however, analyzes a particular lethal injection secrecy statute
under the First Amendment, and concludes that the public has a qualified
right of access to information about lethal injection drugs under the First
EMPLOYM     ENT  RULE .................................................................... 57
In June 2011, the Department of Education (the Department) promulgated a
gainful employment rule, seeking to deny Title IV federal student aid to for-
profit education programs whose students struggled to repay loans. The
Department wanted to rein in the for-profit higher education industry, which
depends heavily on its students' ability to apply for federal funding. In June
2012, a federal court struck down the entire rule on the basis that one of its
penalty thresholds was arbitrary and capricious. The regulatory landscape in
the case of gainful employment is complex and presents many uncertainties.
As such, the current command-and-control model of rulemaking is not suited
to crafting a well-tailored, non-arbitrary rule.  Instead, the gainful
employment rule should follow a legislative or administrative experimentalist
approach.  Experimentalism is a regulatory framework that encourages
regulator and regulated entities to cooperate in the production of data and
fine-tuning of complex regulation through constant monitoring. Thus, the
Department would establish a default regulatory scheme through the rule,
but incorporate a waiver mechanism that would allow greater cooperation
between regulator and regulated entities. The Department could thus
monitor and learn from the regulated entities in an effort to craft a better rule
with penalty thresholds that do not set arbitrary standards for the for-profit
schools to meet.

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