Tag: Regulations

Blood Electronics: Congo’s Conflict Minerals and the Legislation that Could Cleanse the Trade – Note by Shannon Raj

From Volume 84, Number 4 (May 2011)
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The law, when enforced, can be used to punish. It can be used to articulate social norms and standards, or to define and impose responsibilities. The law can also, however, be used to change incentives. When designed and implemented properly, a good law establishes an incentive structure to align legal responsibility with the actors most able to change a set of results–actors who possess the information, the institutional capacity, and the practical ability to make a difference in a situation our society seeks to improve. In the 111th Congress, Representative Jim McDermott proposed just such a law. The Conflict Minerals Trade Act took note of America’s role in the devastating humanitarian crisis it may be inadvertently fueling: the situation in the Democratic Republic of Congo (“DRC” or “DR Congo”), home to the minerals used in nearly every electronic product known to man. Indeed, as the conflict in DR Congo reaches catastrophic proportions, the interests of a broad range of actors have become affected–and not just those in the human rights sector. Mineral wealth extracted from DR Congo is likely inside of your cell phone, your laptop, and your iPod–raising issues of personal responsibility as well as corporate ethics. As individuals confront their consciences and investors contemplate their stock portfolios, issues once relegated to the realm of international human rights law have now entered many of our homes and purses without us realizing. The Conflict Minerals Trade Act, by altering an incentive structure, aimed to change that unawareness by bringing our trade legislation in line with both our best interests and our ethical responsibilities.

 

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Turbulence in the Airline Industry: Rethinking America’s Foreign Ownership Restrictions – Note by Josh Cavinato

From Volume 81, Number 2 (January 2008)
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The dawn of the twenty-first century has proven to be one of the most tumultuous times for the U.S. airline industry. Industry losses have soared past a staggering $40 billion since 2001, sending four of the top seven airlines—United, Northwest, Delta, and USAirways—into bankruptcy protection with others, such as American, narrowly averting the same fate. One estimate put half of all seats on U.S. airlines as belonging to bankrupt carriers. At a time of relative economic growth for the economy as a whole, the airline industry has weathered massive layoffs and pension fund defaults, including United’s record $9.8 billion pension default in 2005. As several airlines are seeking new sources of capital as one way to help regain the posture of the aviation industry as a global leader, a law restricting foreign sources of capital continues to hamper their ability to do so. This law requires that U.S. airlines be controlled and owned by U.S. citizens and prohibits foreign investors from owning 25 percent or more of the voting stock of any such airline. Tracing its roots back to when Calvin Coolidge was president, and strengthened during the presidency of Franklin Delano Roosevelt, the law, which was originally designed to protect an infant industry, has now hamstrung an ailing industry from seeking vital sources of capital. A rethinking of this restriction seems particularly ripe for discussion.

 

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Markets as Regulators: A Survey – Article by Stavros Gadinis & Howell E. Jackson

From Volume 80, Number 6 (September 2007)
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Stock exchanges around the world have recently discarded their traditional mutual membership structure in favor of a for-profit corporate format. This development increased fears of conflicts of interest, as for-profit exchanges are more sensitive to pressures from their constituents and more likely to abuse their regulatory powers. In this Article, we explore the allocation of regulatory responsibilities to market infrastructure institutions, administrative agencies, and central government entities in the eight most influential jurisdictions for securities regulation in the world. Examining how different jurisdictions answer this question is particularly pressing given the December 2006 transatlantic stock exchange merger activity. After discussing the role of self-regulatory organizations in the oversight of modern stock exchanges, we report the results of a survey of the allocation of regulatory powers in a sample of eight key jurisdictions. In that survey, we examine the allocation of such powers at three levels: rulemaking, monitoring of compliance with these rules, and enforcement of rules violations. Based on our findings, we categorize these jurisdictions in three distinct models of allocation of regulatory powers: a Government-led Model that preserves significant authority for central government control over securities markets regulation, albeit with a relatively limited enforcement apparatus (France, Germany, and Japan); a Flexibility Model that grants significant leeway to market participants in performing their regulatory obligations, but relies on government agencies to set general policies and maintain some enforcement capacity (United Kingdom, Hong Kong, and Australia); and a Cooperation Model that assigns a broad range of power to market participants in almost all aspects of securities regulation, but also maintains strong and overlapping oversight of market activity through well-endowed governmental agencies with more robust enforcement traditions (United States and Canada).

 

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Policing State Testing Under No Child Left Behind: Encouraging Students with Disabilities to Blow the Whistle on Unscrupulous Educators – Note by Richard C. Herrera

From Volume 80, Number 6 (September 2007)
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With these words, U.S. Secretary of Education Margaret Spellings expressed her belief that the progress of state public educational systems can only be trusted when supported by objective data. While the age-old adage, “numbers do not lie,” may hold true in other contexts, the results of recent investigations along with teacher and student allegations suggest that in the educational context, sometimes they do. In an effort to feign educational progress on state assessment tests in reading and mathematics, educators at state and local levels are targeting low performing students by excluding these students from state testing, providing them with the correct answers to test questions during their exams, and doctoring their answer sheets before submitting them for scoring.

What is driving educators to cheat? The answer: federal legislation known by four words that are striking fear into educators throughout the nation – “No Child Left Behind.” Few can argue with the Act’s admirable goals: (1) ensuring that all children, including those historically left behind, are held to the same academic achievement standards; (2) narrowing the achievement gap between our nation’s highest and lowest performing students; and (3) ensuring that all students reach grade-level proficiency by 2014. However, under No Child Left Behind (“NCLB”), states, school districts, and public schools are exposed to an escalating series of harsh sanctions when student test scores on state assessment tests in reading and mathematics do not reflect “adequate yearly progress.” Since NCLB’s inception, many of our nation’s school districts and public elementary and secondary schools have failed to make adequate yearly progress. These failures have coincided with reports indicating that teachers and administrators, whose jobs and professional reputations are at risk, are doing whatever it takes to portray progress.

 

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The Calabasas Smoking Ban: A Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation – Note by Jordan Raphael

From Volume 80, Number 2 (January 2007)
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Smokers who plan to smoke in public probably should avoid doing so in Calabasas, California. On March 17, 2006, the city’s smoking ban – the most restrictive in the nation – went into effect, prohibiting smoking virtually anywhere that another person could be exposed to secondhand smoke. The designated nonsmoking areas include bars, restaurants, stadiums, parks, and even streets and sidewalks. The Calabasas ordinance is enforceable by the city attorney or, alternatively, by “private enforcers,” private individuals filing civil suits on behalf of themselves or the general public. To avoid the various penalties that the ordinance imposes, smokers must seek out special smokers’ outposts or light up at least twenty feet away from nonsmokers or others who might potentially be offended by secondhand smoke.

Over the past thirty years, smoking-regulation advocates have fought to curb secondhand smoke, or environmental tobacco smoke (“ETS”), in a variety of settings where it imposes health risks on nonsmokers. Early efforts targeted ETS in workplaces and airplanes, where it was difficult – and in some cases, impossible – for nonsmokers to avoid exposure. Buoyed by victories in these settings and a concomitant shift in public norms regarding the propriety of smoking, advocates agitated for and won smoking restrictions in bars, restaurants, and other public locations. Smoking-regulation forces were especially successful at the local level, pushing through 3000 county and city anti-smoking laws. In California, which serves as a national test bed for anti-smoking legislation, local ETS ordinances tend to be stricter and more comprehensive than those imposed at the state level. The Calabasas ordinance follows this paradigm; by outlawing smoking in public outdoor areas, it goes further than any state law – or any local law – and perhaps even beyond what is justified by the scientific findings on ETS. The ordinance is the logical next step in the progression of ETS legislation, and it demonstrates how strongly rooted the notion that nonsmokers have a right to be free of secondhand smoke has become in our culture. The Calabasas secondhand smoke ordinance, while applicable to only a 13.2-square-mile patch of the San Fernando Valley, is in fact an important model for other states, counties, and cities that would like to enact smoking bans or to strengthen those bans that they currently have.

 

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On Software Regulation – Article by R. Polk Wagner

From Volume 78, Number 2 (January 2005)
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This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibrium of regulation-by-software. The absence of a legal right will stimulate a technological response – and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.”

The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) cyberproperty right – defined as the right to exclude others from one’s network resources. The debate over whether, how, and why concepts of property rights can be extended to bits stored on Web servers, e-mail systems, and the like is both deeply intertwined with technology and fundamentally comparative in nature, bringing the importance of understanding the regulatory costs and benefits of software, as compared to law, into sharp relief.

The analysis that emerges suggests that, contrary to much of the relevant scholarly literature (and perhaps counterintuitively), the availability of technological mechanisms to replace legal rights likely strengthens, rather than weakens, the case for legal regulation in the form of property rights. At least in this context, a software-centric regulatory approach is dominated by regimes premised on property-backed contractual relationships.

Considering the regulatory environment of cyberspace from this perspective may have profound effects on the way we think about the form and function of law online. The nature of cyberspace as particularly sensitive to emerging concerns about the tyranny of software suggests that the online environment might be better suited for a broad property rights regime than has been recognized to date.

 

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For the Birds: The Statutory Limits of the Army Corps of Engineers’ Authority over Intrastate Waters After SWANCC – Note by Jennifer DeButts Cantrell

From Volume 77, Number 6 (September 2004)
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Every year the Army Corps of Engineers receives over 74,500 applications for permits under section 404(a) of the Clean Water Act (“CWA”), the provision regulating the discharge of fill or dredged material into the nation’s waters. Consequently, when the Supreme Court granted certiorari for Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”) – a case potentially affecting the status of millions of acres of American wetlands – property owners, developers, and environmentalists alike were wise to stand up and take notice.

The SWANCC case involved a Chicago-area consortium of municipalities that sued the U.S. Army Corps of Engineers (“Corps”) for denying them a permit to develop a landfill on an abandoned mining site because the Corps had determined the land in question was inhabited by migratory birds. The central issue presented in SWANCC was whether this “Migratory Bird Rule” – a regulation promulgated in 1986 giving the Corps authority over wetlands populated by migrating birds – was a proper exercise of jurisdiction under the CWA. The municipalities argued that the rule exceeded the Corps’ authority because the CWA was meant to only regulate waters that are navigable or that adjoin navigable waterways. On the other hand, the Corps argued that its jurisdiction is not limited by traditional notions of navigability; rather it has authority over the nation’s waters to the fullest extent of the Commerce Clause.

 

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Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself? – Article by Howard F. Chang

From Volume 77, Number 4 (May 2004)
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The dispute between the United States and the European Union (“EU”) regarding the EU ban on meat imports treated with hormones raises the question: How should regulators respond to public fears that are disproportionate to the risks as evaluated by experts in risk assessment? If regulators cannot eliminate public fears through education, then there is some social benefit from regulations that reduce the feared risks and thereby reduce public anxiety and distortions in behavior flowing from that anxiety. These considerations imply that we cannot simply ignore public fears that technocrats would deem “irrational.” On the other hand, there is the danger that special interests may seek to generate consumer anxiety and lobby for regulations that serve their interests. I explore an approach that takes public fears seriously as social costs but also treats them as endogenous variables. I use this framework to evaluate risk regulations in terms of economic efficiency and suggest that the danger of inefficient regulation is most acute when domestic industries promote or sustain fears regarding imported products. From this perspective, the World Trade Organization ruling against the EU in the hormones dispute, based on the risk assessment requirements in the Agreement on the Application of Sanitary and Phytosanitary Measures, may represent a reasonable approach to guarding against the danger of regulatory protectionism, understood broadly to describe inefficient regulations that the importing country would not have adopted but for the foreign nationality of the producers disadvantaged and the domestic nationality of the producers favored by those regulations.

 

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