Digital Commons Network^™

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

The Emergence Of Global Environmental Law, Tseming Yang, Robert V. Percival

Robert Percival

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have become increasingly internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems around the world. The result is the emergence of a set of legal principles and norms regarding the environment, such that one can arguably describe it as a body of law. After exploring the diverse forces that are contributing to the emergence of what we call “global environmental law,” this Article considers …

The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

The Incentives Matrix: The Comparative Effectiveness Of Rewards, Liabilities, Duties And Protections For Reporting Illegality, Yuval Feldman

Yuval Feldman

Social enforcement is becoming a key feature of regulatory policy. Increasingly, statutes rely on individuals to report misconduct, yet the incentives they provide to encourage such enforcement vary significantly. Despite the clear policy benefits that flow from understanding the factors that facilitates social enforcement, i.e., the act of individual reporting of illegal behavior, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2000 employees, this article compares the effect of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. By exploring the interplay …

The Regulation Of Structured Debts: Why? What? And How?, Cyrus C. Y. Chu

Cyrus C. Y. Chu

This article contributes to the legal theoretical foundation of the regulation of structured notes. We shall first anatomize the most typical kind of structured note, the collateralized debt obligation (CDO). We analyze the similarity between a CDO and a constructed pledged mortgage, point out the embedded fuzzy information behind this structured mortgage, and then identify the implicit externality of this mortgage construction. We argue that CDOs can be treated as properties instead of contracts, and the usual notion of numerus clausus does support more severe regulations on such properties. Most existing literature has emphasized the moral hazard problem of investment …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Balance Of Power, Certainty And Discretion In The Franchise Relationship: An Analysis Of Contractual Terms, Elizabeth Crawford Spencer

Elizabeth Crawford Spencer

Executive Summary: Balance of power is a factor in considerations of fairness in the formation of contracts and in Australia is an express factor in determining unconscionability in contract formation and performance. Certainty is essential to business confidence that underpins planning and investment. Certainty is also a factor in evaluating what parties have agreed to in making the contract. Discretion, if it is too wide, may no longer represent the true intentions of the parties, but may instead be an indication of other forces, including asymmetries in the power relationship. These issues are of particularly significance in franchising; redressing imbalance …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Case Studies In Abandoned Empiricism And The Lack Of Peer Review, Rob M. Frieden

Rob Frieden

In far too many instances, the Federal Communications Commission (“FCC”) engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer G. Hill

Jennifer Hill Professor

Who’s Afraid of Shareholder Power? A Comparative Law Perspective Jennifer G. Hill* Abstract US corporate law is undergoing a seismic shift in relation to shareholder power. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate raised shareholder power as a serious subject for corporate law reform. The global financial crisis has given the issue further impetus, and an unprecedented array of reforms and proposals to increase shareholder power are now on the table in the US. There has, however, been great resistance to adjusting the …

Tailoring Deference To Variety With A Wink And A Nod To Chevron: The Roberts Court And The Amorphous Judicial Framework For Review Of Agency Interpretations Of Law, J. Lyn Entrikin Goering

J. Lyn Entrikin Goering

In the 25 years since the Court issued its venerable opinion in Chevron, the Supreme Court has all but disregarded the judicial review provisions of the Administrative Procedure Act (APA), first enacted in 1946. From 1984 to 2000, Chevron took center stage as the most-cited opinion in administrative law. Beginning in 2000, the Rehnquist Court issued a series of decisions limiting the reach of Chevron. At the same time, the Court revived common law deference frameworks that predate the APA. Yet the Rehnquist Court failed to fully reconcile Chevron with its previous common law deference doctrines and with the APA’s …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property, And Restitution, Jacqueline Lipton

Jacqueline D Lipton

The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with other’s trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

Perverse Incentives: Risk Taking And Reform, Aaron J. Unterman

Aaron J. Unterman

The common theme that ties the financial crisis (and this article) together is one of misguided incentives that pervaded the finance industry and perverted the actions of individuals and institutions resulting in a global crisis with severely deleterious social effects. In the world of finance, the greatest way to achieve a dramatic increase in wealth is to take large risks, of course, this is also the easiest way to lose it. A great deal of the so-called financial innovation that we experienced preceding the crisis was devoted to finding ways to take on as much risk as possible. The rise …

The Tie Between Hedge Funds And Financial Stability: Is The Current Financial Crisis A Call For Regulation?, Domenico Ferrari

Domenico Ferrari

The attitude of regulatory authorities towards hedge funds has been severely affected by the current international financial crisis. The international financial crisis, and the need to develop a brand new regulatory framework to address the current failures, urges a solution for the problem of what degree of regulation should be required for hedge funds. At the same time, the mistake of over-regulation, by using hedge funds as an easy scapegoat for a crisis caused by many different shortcomings and several regulatory loopholes, should be avoided. The examples of the U.S. and Singapore regulatory experience with hedge funds show that the …

The Milgram Universe Of Credit Derivatives: A Regulatory Proposal, Grace Chong

Grace Chong

Much work in social psychology suggests that in compressed and interactively complex systems, subjects surrender responsibility for their actions in full faith of the system. The leading experiment on obedience, the Milgram experiment, was originally devised by Stanley Milgram to test the willingness of subjects to comply with acts against their conscience under the instruction of authority. However, his later findings, and further research by other academics have expanded the scope of his previous conception of ‘authority’ to hospital studies , aviation , and business contexts. No research has yet been conducted as to the relation between Milgram’s theory and …

Spectrum Reform: The Theory, Practice, Politics And Problems, William T. Webb

William T Webb

Regulation of the radio spectrum is just over 100 years old – in the UK the first act of Parliament in this area was in 1904. For almost all that period, the regulator has managed the spectrum in a very direct “command & control” manner. As market economics have been more widely used across other areas of our economy there has been increasing interest in utilising a market in radio spectrum to deliver greater economic benefits. Actually achieving this has proven to be a slow, contentious and complex process. Various countries have played leading roles at different stages of the …

The Coming Demise Of Deregulation Ii, Richard D. Cudahy

Richard D. Cudahy

An article that I had written in 1993, which forecast the "coming demise of deregulation," might at last be vindicated by the fallout from the banking and credit crisis. This article discuses recent developments in the banking and financial services industry, and anticipates a resurgence of regulation.

Why We Need A Superfund For Hedge Funds, Dale B. Thompson

Dale Thompson

The current financial crisis has led to numerous calls for regulation of hedge funds. This article argues that the appropriate response is a combination of mechanisms: establishment of a Superfund financed by a tax on hedge funds, whose revenues are then used to conduct market purchases of “toxic” financial assets, along with supporting regulations. This article develops this solution by focusing on the market failures caused by hedge funds, namely the externalities posed by liquidity risks, and the inability of market prices to provide information about the valuation of financial securities. It then considers possible solutions through the prism of …

Why We Need A Superfund For Hedge Funds, Dale B. Thompson

Dale Thompson

The current financial crisis has led to numerous calls for regulation of hedge funds. This article argues that the appropriate response is a combination of mechanisms: establishment of a Superfund financed by a tax on hedge funds, whose revenues are then used to conduct market purchases of “toxic” financial assets, along with supporting regulations. This article develops this solution by focusing on the market failures caused by hedge funds, namely the externalities posed by liquidity risks, and the inability of market prices to provide information about the valuation of financial securities. It then considers possible solutions through the prism of …

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

Star Creation: The Manipulation Of Mutual Fund Performance Through Incubation, Ahmed E. Taha, Alan R. Palmiter

Ahmed E Taha

This article reveals how mutual fund companies mislead investors by marketing new funds with artificially high returns. Fund companies create a number of small, new funds (“incubator funds”) that initially operate out of public view. After a period of incubation, the strong performers are actively marketed to the public while the weak performers are quietly terminated. By highlighting the successful incubator funds and hiding the unsuccessful ones, funds companies create the illusion that that the successful funds’ returns were the result of skill rather than luck. In addition, fund companies often subsidize their incubator funds to further artificially boost their …

“We, The Paparazzi”: Developing A Privacy Paradigm For Digital Video, Jacqueline Lipton

Jacqueline D Lipton

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

Who's Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer Hill

Jennifer Hill Professor

Who's Afraid of Shareholder Power? A Comparative Law Perspective JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract Shareholder power is back on the regulatory agenda. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate and the Paulson Committee report both raise shareholder power as a serious subject for corporate law reform. Yet, in spite of calls for stronger shareholder rights, there has been great resistance to …

Who’S Afraid Of Shareholder Power? A Comparative Law Perspective, Jennifer Hill

Jennifer Hill Professor

Who's Afraid of Shareholder Power? A Comparative Law Perspective JENNIFER G. HILL University of Sydney – Faculty of Law; Visiting Professor, Vanderbilt University – School of Law; Research Associate – European Corporate Governance Institute (ECGI) Abstract Shareholder power is back on the regulatory agenda. Although shareholders have traditionally had restricted participatory rights under US corporate law, this paradigm has been challenged in recent times. The shareholder empowerment debate and the Paulson Committee report both raise shareholder power as a serious subject for corporate law reform. Yet, in spite of calls for stronger shareholder rights, there has been great resistance to …

Wobbling Back To The Fire: Economic Efficiency And The Creation Of A Retail Market For Set-Top Boxes, T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, Michael Stern

GEORGE S FORD

Under Section 629 of the Communications Act, Congress directed the FCC to adopt regulations to promote a retail market for set-top boxes. The Commission’s first attempt was the ill-fated CableCard experiment, which—by the Commission’s own admission—was a dismal failure. In response, the Commission is now contemplating an aggressive new “AllVid” regime, whereby the agency would mandate multichannel video program distributors (“MVPDs”) to provide an adapter to serve as a “common interface for connection to televisions, DVRs, and other smart video devices.” Because the FCC is again proceeding without any formal economic analysis of the nature of the service-equipment relationship in …

The Need For Better Analysis Of High Capacity Services, George S. Ford, Lawrence J. Spiwak

GEORGE S FORD

In 1999, the Federal Communications Commission (“FCC”) began to grant incumbent local exchange carriers (“LECs”) pricing flexibility on special access services in some Metropolitan Statistical Areas (“MSAs”) when specific evidence of competitive alternatives is present. The propriety of that deregulatory move by the FCC has been criticized by the purchasers of such services ever since. Proponents of special access price regulation rely on three central arguments to support a retreat to strict price regulation: (1) the market(s) for special access and similar services is unduly concentrated; (2) rates of return on special access services, computed using FCC ARMIS data, are …

Правовая Политика Советского Государства В Сфере Регулирования Научной Деятельности (1917-Конец 20-Х Годов), Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

The Soviet state legal policy bases in the sphere of the scientific activities regulation have been founded in 1917-1929. In statutory acts the subjects circle of the management boards in research activities has been defined. The legal policy was carried out by attraction of the scientific institutes, separate scientists to performance researches for the purpose of the substantiation, creation and strengthening the State-legal system. It was provided by means of legislative regulating the creation order of the state research institutes and high schools, processes of their interaction and regulation of the scientific activity itself, scientific researches financing out from the …

Case Studies In Abandoned Empiricism And The Lack Of Peer Review, Rob M. Frieden

Rob Frieden

In far too many instances, the Federal Communications Commission (“FCC”) engages in results-driven decision making that accrues political dividends at the expense of the public interest. Remarkably, the Commission has used questionable and unverifiable statistics to confirm both the need for greater regulation, but also its abandonment. In the former, a former Chairman of the FCC insisted that data, not even compiled by Commission staff, proved that the cable television market had become so concentrated as to meet a Congressionally legislated trigger for heightened regulatory scrutiny. But in the latter, the FCC has used its statistics to support the conclusion …