Law Commons^™

Teaching Compliance, D. Daniel Sokol

D. Daniel Sokol

Compliance is a growing field of practice across multiple areas of law. Increasingly companies put compliance risk among the most important corporate governance issues facing them. Moreover, as “JD plus” jobs proliferate, the demand for hiring both at the entry level and for former students currently in practice who are experienced in the compliance field will continue to grow. The growth in compliance jobs comes at a time in shifting demand for legal jobs for law school graduates. Traditional law firm entry level jobs at large law firms, which were the staple of on campus recruiting before 2007, have not …

Revitalizing Regulation, Daniel A. Farber

Daniel A Farber

A Review of Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector by David Osborne and Rethinking the Progressive Agenda: The Reform of the American Regulatory State by Susan Rose-Ackerman

Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Cynthia Williams, Janis P. Sarra

Cynthia A. Williams

The Expert Panel on Sustainable Finance has been commissioned by the Canadian Government to determine how best to generate sustainable finance, a significant challenge given the carbon intensity of Canada’s economy. The Expert Panel has defined sustainable finance as capital flows, risk management activities and financial processes that assimilate environmental and social factors as a means of promoting sustainable economic growth and the long-term stability of the financial system. While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this report addresses two critically important issues: fiduciary obligation of corporate- and pension-fiduciaries, and national …

The New Wal-Mart Effect: The Role Of Private Contracting In Global Governance, Michael P. Vandenbergh

Michael Vandenbergh

No abstract provided.

Climate Change: The China Problem, Michael P. Vandenbergh

Michael Vandenbergh

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process …

Climate Change Governance: Boundaries And Leakage, Michael P. Vandenbergh, Mark A. Cohen

Michael Vandenbergh

This article provides a critical missing piece to the global climate change governance puzzle: how to create incentives for the major developing countries to reduce carbon emissions. The major developing countries are projected to account for 80% of the global emissions growth over the next several decades, and substantial reductions in the risk of catastrophic climate change will not be possible without a change in this emissions path. Yet the global climate governance measures proposed to date have not succeeded and may be locking in disincentives as carbon-intensive production shifts from developed to developing countries. A multi-pronged governance approach will …

Cooperative Transboundary Mechanism, Alena Drieschova, Gabriel Eckstein

Gabriel Eckstein

Management of transboundary waters in increasingly becoming more challenging, and climate change is likely to exacerbate these pressures. Not least because climate change is a global issue, adaptation will require an international response. This book aims to identify issues, both theoretical and practical, that States face in establishing cooperative transboundary mechanisms to effectively adapt water management to climate change. Furthermore, it will address complex legal hurdles that existing transboundary water institutions face when attempting to adapt existing mechanisms to function in a changing climate. It will also provide an overview of best practices in transboundary adaptive water governance thus far, …

Dialectical Regulation, Robert B. Ahdieh

Robert B. Ahdieh

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

Regulating Spyware: The Limitations Of State Laboratories And The Case For Federal Preemption Of State Unfair Competition Laws, Peter S. Menell

Peter Menell

Drawing on Justice Brandeis's oft-cited observation that states can serve as 'laboratories" of policy experimentation, this Article develops a framework for assessing the allocation of governance authority for regulating Internet activities. In particular, it focuses on whether states should be free to experiment with regulatory approaches or whether the federal government should have principal, if not exclusive (preemptive), regulatory authority over Internet-related activities. Using recent efforts to regulate spyware and adware as a case study, the analysis shows that the lack of harmonization of and uncertainty surrounding, state unfair competition law produces costly, confusing, multi-district litigation and pushes enterprises to …

Competitive Supragovernmental Regulation: How Could It Be Democratic?, Errol E. Meidinger

Errol Meidinger

This paper explores the possibility that a developing form of regulatory governance is also sketching out a new form of anticipatory regulatory democracy. 'Competitive supra-governmental regulation' is largely driven by non-state actors and is therefore commonly viewed as suffering a democracy deficit. However, because it stresses broad participation, intensive deliberative procedures, responsiveness to state law and widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance, this form of regulation appears to stand up relatively well under generally understood criteria for democratic governance. Nonetheless, a more satisfactory evaluation will require a much better understanding …

Scaling "Local": The Implications Of Greenhouse Gas Regulation In San Bernardino County, Hari M. Osofsky

Hari Osofsky

This Essay analyzes local climate regulation in San Bernardino County as a window into the complexities of defining a local scale in an interconnected world. In so doing, it aims to contribute to the Symposium's broader dialogue about "Territory Without Boundaries" and the Panel's more specific discussion of "Urban Territory in a Global World." As a purely territorial matter, U.S. cities and counties differ substantially in their sizes, the quantity and physical characteristics of their land, the size and density of their populations, and the needs of their citizens. Structurally, these localities remain administrative subunits of states, but they also …

Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, Lloyd Hitoshi Mayer, Brendan M. Wilson

Lloyd Hitoshi Mayer

For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best …

The Law Of Society: Governance Through Contract, Peter Zumbansen

Peer Zumbansen

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractual governance and posits that …

Administrative Law Unbounded: Reflections On Government And Governance, Martin Shapiro

Martin Shapiro

No abstract provided.

27-10-15 Wigan Ieee Smart Cities Guadalajara Education Workshop Presentatation, Marcus R. Wigan

Marcus R Wigan

Bioethics And Self-Governance: The Lessons Of The Universal Declaration On Bioethics And Human Rights, O. Carter Snead

O. Carter Snead

The following article analyzes the process of conception, elaboration, and adoption of the Universal Declaration of Bioethics and Human Rights, and reflects on the lessons it might hold for public bioethics on the international level. The author was involved in the process at a variety of levels: he provided advice to the IBC on behalf of the President's Council of Bioethics; he served as the U.S. representative to UNESCO's Intergovernmental Bioethics Committee; and led the U.S. Delegation in the multilateral negotiation of Government experts that culminated in the adoption of the declaration in its final form. The author is currently …

Governance And Anarchy In The S.2(B) Jurisprudence: A Comment On Vancouver Sun And Harper V. Canada, Jamie Cameron

Jamie Cameron

The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings, it represents a high water mark for open court and s.2(b) …

The New York Limited Liability Company Law At Twenty: Past, Present & Future, Meredith R. Miller

Meredith R. Miller

The New York Limited Liability Company Law (“LLC Law”) has turned 20. This occasion presents an opportunity to reflect on its past, present and future.

Governance Of Intellectual Resources And Disintegration Of Intellectual Property In The Digital Age, Peter S. Menell

Peter Menell

The Supreme Court's decision in eBay v. MercExchange brought into focus whether intellectual property policy should follow reflexively in the wake of tangible property doctrines or instead look to the distinctive market failures and institutional features of intellectual resources. Professor Richard Epstein argues in a recent article that `virtually all of the current malaise in dealing with both tangible and intellectual property stems from the failure to keep to the coherent rules of acquisition, exclusion, alienation, regulation, and condemnation that are called for by the classical liberal system ... .' Professor Epstein purports to validate what he calls the `carryover …

From Keeping Peace To Building Peace: A Proposal For A Revitalized United Nations Trusteeship Council, Saira Mohamed

Saira Mohamed

No abstract provided.

Yours, Mine, And Ours: Managing Intellectual Property In Third Sector Enterprise, Elizabeth Spencer, Francina Cantatore

Francina Cantatore

Effective intellectual property (IP) management is an important aspect of good governance for any enterprise, but there is little research on IP management in the third sector. This article explores the potential differences in approach to the management of IP in the third sector from both philosophical and practical perspectives. It outlines the challenges in developing, managing and protecting IP, and the many reasons why third sector initiatives may fail to adequately protect and manage IP as effectively as their for-profit counterparts. This article concludes that third sector objectives and IP protection can be reconciled in practice only by balancing …

Principles For Constitutions And Institutions In Promoting The Rule Of Law, Jon Mills

Jon L. Mills

Proceedings of the Fourth Annual Legal & Policy Issues in the Americas Conference (2003). Panel IV. Comparative Constitutional Approaches to the Rule of Law and Judicial Independence.

Legal Duties As Part Of The Governance Framework For Incorporated Associations: A Comparative Analysis, Kim Weinert

Kim Weinert

Incorporated associations are founded by, and subsequently operate exclusively on, the collective action of individuals, which is largely voluntary and motivated by altruistic goals. This article will examine through doctrinal analysis the statutory duties and common law obligations of an incorporated association. In examining these specific legal duties, this article will reveal the lack of consistency across Australian jurisdictions, and gaps in how the law regulates the conduct of committee members within an incorporated association. Furthermore, this article will consider whether an officer of an incorporated and unincorporated association is a fiduciary — and, if this is so, whether this …

The Democratic State In Africa: The Challenges For Institutional Building, Muna Ndulo

Muna B Ndulo

No abstract provided.

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

Private Certifiers And Deputies In American Health Care, Frank Pasquale

Frank A. Pasquale

So-called “public programs” in U.S. health care pervasively contract with private entities. The contracting does not merely involve the purchase of drugs, devices, information technology, insurance, and medical care. Rather, government agencies are increasingly outsourcing decisions about the nature and standards for such goods and services to private entities. This Article will examine two models of outsourcing such decisions. In private licensure, firms offer a stamp of approval to certify that a given technology or service is up to statutory or regulatory standards. Via deputization, firms can pursue a regulatory or law enforcement role to correct (and even punish) providers …

Global Environmental Law At A Crossroads: Introduction, Robert V. Percival, Jolene Lin, William Piermattei

Robert Percival

No abstract provided.

Old Lessons For New Governance: Safety Or Profit And The New Conventional Wisdom, Eric Tucker

Eric M. Tucker

New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the …

Closing The Gaps: Building Capacity In Pacific Fisheries Governance And Institutions, Quentin Hanich, Feleti Teo, Ben Tsamenyi

Quentin Hanich

Governance and institutions must function effectively if sustainable development and growth are to occur within the Pacific Islands region. In 2007, the FFA and the Australian Department of Agriculture, Fisheries and Forestry (DAFF), supported by funding from AusAID, contracted Quentin Hanich, Feleti Teo and Professor Martin Tsamenyi to research governance and institutional gaps within the region that undermine the effective management and development of the region's fish stocks. Following an intensive round of interviews throughout the Pacific islands region by all three consultants, Mr Hanich authored a comprehensive report that discussed relevant governance and institutional gaps and recommended a number …

Governance Approaches That Can Be Used To Implement Sustainability Criteria, Evgenia Pavlovskaia

Evgenia Pavlovskaia

Implementation of sustainability criteria, both in legal frameworks and voluntary sustainability standards, is an urgent and important issue. In the article, three less state-centric governance approaches and their capacity to be used to implement sustainability criteria have been investigated. The chosen approaches are good governance, multi-level governance and selfgovernance. Their potential strengths and weaknesses have been pointed out. The research indicates that sustainability criteria can be implemented in different ways, which have the potential to highlight, strengthen or weaken different aspects of their function. The use of different governance approaches, or their combinations, can lead to different implementation results for …