{"title":"FOIA’s Common Law","authors":"Brinkerhoff, C. John","doi":"10.2139/ssrn.3211554","DOIUrl":"https://doi.org/10.2139/ssrn.3211554","url":null,"abstract":"","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"36 1","pages":"2"},"PeriodicalIF":2.8,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68574789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contract terms. This Article reports an attempt to reproduce that study’s results. Using the Reporters’ data, this study was unable to reproduce their numerical findings. This study found in the data fewer relevant decisions, and a lower proportion of decisions supporting the Draft Restatement position. It also found little support for the Draft’s claim that there is a clear trend recognizing privacy policies as contracts, and none for the claim that those decisions have been more influential than decisions coming out the other way. A qualitative analysis of the decisions in the dataset reveals additional issues. The analysis reveals that the Draft Restatement study’s numerical results obscure both the many judgment calls needed to code the decisions and their limited persuasive power. These results confirm the importance of transparency and replication in empirical case law studies. They also suggest that the closed nature of the Restatement process is perhaps ill-suited to producing reliable large-scale quantitative case law studies.
{"title":"Empiricism and Privacy Policies in the Restatement of Consumer Contract Law","authors":"Gregory Klass","doi":"10.2139/SSRN.3001212","DOIUrl":"https://doi.org/10.2139/SSRN.3001212","url":null,"abstract":"The Draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contract terms. This Article reports an attempt to reproduce that study’s results. Using the Reporters’ data, this study was unable to reproduce their numerical findings. This study found in the data fewer relevant decisions, and a lower proportion of decisions supporting the Draft Restatement position. It also found little support for the Draft’s claim that there is a clear trend recognizing privacy policies as contracts, and none for the claim that those decisions have been more influential than decisions coming out the other way. A qualitative analysis of the decisions in the dataset reveals additional issues. \u0000 \u0000The analysis reveals that the Draft Restatement study’s numerical results obscure both the many judgment calls needed to code the decisions and their limited persuasive power. These results confirm the importance of transparency and replication in empirical case law studies. They also suggest that the closed nature of the Restatement process is perhaps ill-suited to producing reliable large-scale quantitative case law studies.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"36 1","pages":"2"},"PeriodicalIF":2.8,"publicationDate":"2018-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46722766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
36 Yale Journal on Regulation 735 (2019).Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and artificial intelligence are visibly “disrupting” traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: The rise of fintech is gradually recasting our collective understanding of the financial system as simply another sphere of normatively neutral information technology and objective computer science. By making financial transactions faster, cheaper, and more easily accessible, fintech seems to promise a micro-level “win-win” solution to the financial system’s many ills.This Article challenges such narratives and presents an alternative account of fintech as a systemic, macro-level phenomenon. Grounding the analysis of evolving fintech trends in a broader institutional context, the Article exposes the normative and political significance of the current fintech moment. It argues that the arrival of fintech enables a potentially decisive shift in the underlying public-private balance of powers, competencies, and roles in the financial system.In developing this argument, the Article makes three principal scholarly contributions. First, it introduces the concept of the New Deal settlement in finance: a fundamental political arrangement, in force for nearly a century, pursuant to which profit-seeking private actors retain control over allocating capital and generating financial risks, while the sovereign public bears responsibility for maintaining systemic financial stability. Second, the Article advances a novel conceptual framework for understanding the deep-seated financial dynamics that have eroded the New Deal settlement in recent decades. In particular, it offers a working taxonomy of principal mechanisms that both (a) enable private market actors to continuously synthesize tradable financial assets and scale up trading activities, and (b) undermine the public’s ability to manage the resulting system-wide risks. Finally, the Article shows how and why specific fintech applications – cryptocurrencies, distributed ledger technologies, digital crowdfunding, and robo-advising – are poised to amplify the effect of these destabilizing mechanisms, and thus potentially exacerbate the tensions and imbalances in today’s financial markets and the broader economy. It is this potential that renders fintech a public policy challenge of the highest order.
{"title":"New Tech v. New Deal: Fintech as a Systemic Phenomenon","authors":"S. Omarova","doi":"10.2139/SSRN.3224393","DOIUrl":"https://doi.org/10.2139/SSRN.3224393","url":null,"abstract":"36 Yale Journal on Regulation 735 (2019).Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and artificial intelligence are visibly “disrupting” traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: The rise of fintech is gradually recasting our collective understanding of the financial system as simply another sphere of normatively neutral information technology and objective computer science. By making financial transactions faster, cheaper, and more easily accessible, fintech seems to promise a micro-level “win-win” solution to the financial system’s many ills.This Article challenges such narratives and presents an alternative account of fintech as a systemic, macro-level phenomenon. Grounding the analysis of evolving fintech trends in a broader institutional context, the Article exposes the normative and political significance of the current fintech moment. It argues that the arrival of fintech enables a potentially decisive shift in the underlying public-private balance of powers, competencies, and roles in the financial system.In developing this argument, the Article makes three principal scholarly contributions. First, it introduces the concept of the New Deal settlement in finance: a fundamental political arrangement, in force for nearly a century, pursuant to which profit-seeking private actors retain control over allocating capital and generating financial risks, while the sovereign public bears responsibility for maintaining systemic financial stability. Second, the Article advances a novel conceptual framework for understanding the deep-seated financial dynamics that have eroded the New Deal settlement in recent decades. In particular, it offers a working taxonomy of principal mechanisms that both (a) enable private market actors to continuously synthesize tradable financial assets and scale up trading activities, and (b) undermine the public’s ability to manage the resulting system-wide risks. Finally, the Article shows how and why specific fintech applications – cryptocurrencies, distributed ledger technologies, digital crowdfunding, and robo-advising – are poised to amplify the effect of these destabilizing mechanisms, and thus potentially exacerbate the tensions and imbalances in today’s financial markets and the broader economy. It is this potential that renders fintech a public policy challenge of the highest order.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"36 1","pages":"5"},"PeriodicalIF":2.8,"publicationDate":"2018-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3224393","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44205505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article uses recent history to reconsider two longstanding debates in public law and administration. Specifically, this Article examines presidential direction of administrative action in the Obama and early Trump Administrations against the backdrop of ongoing debates concerning: (i) the desirability of and appropriate techniques for presidential control of administration and (ii) the relevance of separated powers when American government is under unified political control. To give this analysis a concrete context, the Article provides in-depth case studies of presidential administration in immigration policy, climate change policy, and executive structuring of the administrative state, under both the Obama and early Trump Administrations. Based on these three case studies, the Article argues that proponents of “presidentialism,” who base their support on the supposed effectiveness and democratic legitimacy of muscular presidential administration, have operated with an anemic and poorly specified set of normative criteria. These defects have led supporters to overstate the benefits and understate the risks of presidentialism. The article further concludes that claims of the functional demise of separated powers, like Mark Twain’s death, have been exaggerated. While one cannot understand the functioning of separated powers without an understanding of the dynamics of party competition, separation of powers has retained functional importance in periods of both unified and divided government notwithstanding the emergence of the current era of hyperpartisanship.
{"title":"Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience","authors":"J. Mashaw, David M Berke","doi":"10.2139/SSRN.3018618","DOIUrl":"https://doi.org/10.2139/SSRN.3018618","url":null,"abstract":"This Article uses recent history to reconsider two longstanding debates in public law and administration. Specifically, this Article examines presidential direction of administrative action in the Obama and early Trump Administrations against the backdrop of ongoing debates concerning: (i) the desirability of and appropriate techniques for presidential control of administration and (ii) the relevance of separated powers when American government is under unified political control. To give this analysis a concrete context, the Article provides in-depth case studies of presidential administration in immigration policy, climate change policy, and executive structuring of the administrative state, under both the Obama and early Trump Administrations. Based on these three case studies, the Article argues that proponents of “presidentialism,” who base their support on the supposed effectiveness and democratic legitimacy of muscular presidential administration, have operated with an anemic and poorly specified set of normative criteria. These defects have led supporters to overstate the benefits and understate the risks of presidentialism. The article further concludes that claims of the functional demise of separated powers, like Mark Twain’s death, have been exaggerated. While one cannot understand the functioning of separated powers without an understanding of the dynamics of party competition, separation of powers has retained functional importance in periods of both unified and divided government notwithstanding the emergence of the current era of hyperpartisanship.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"35 1","pages":"5"},"PeriodicalIF":2.8,"publicationDate":"2017-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49224541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The gradual weakening and subsequent repeal of most provisions of the Glass-Steagall Act in 1999 allowed commercial banks to acquire investment banking subsidiaries, to grow substantially in size, and to access even more information through more diverse banking activities. At the same time, proprietary trading became a major source of revenue for the banks. The subsequent financial crisis of 2008 exposed another glaring weakness of banking in the post-Glass-Steagall era. Banks had grown too big, too risky and too interconnected, many surpassing trillions of dollars in assets, interbank loans and liabilities on and off balance sheet. The sheer size, risk and interconnectedness of banking alone raised concerns about systemically important and too-big-to-fail banks. After numerous attempts to bring back Glass-Steagall failed, Congress attempted to contain banking systemic banking risk by passing the Volcker rule to prohibit proprietary trading, and enacting consumer protection and other ring-fencing and fire-wall provisions in the Dodd-Frank Act. To test the potential importance of the Volcker Rule, we would need to know the amount of profits banks make from using proprietary adverse information about their clients. However, the source of the proprietary information banks use to execute their proprietary trading programs is typically confidential. Furthermore, banks do not disclose where and how they obtain this confidential information, which helps them create billions of dollars of profits every year. In this paper we investigate one possible source of this information. Specifically, we investigate the importance of the private information banks acquire as part of their financial intermediary and financial advisory role for their client firms. Banks often attain insider trading status and become subject to insider trading reporting requirements and trading restrictions when they are hired to provide financial advice to their client firms. When banks become temporary insiders, they must also report all of these trades executed on Forms 3, 4, and 5 alongside other legal insiders. Using this insider trading database, we demonstrate that banks can and do access important, private, material information about their clients and trade on this information. On average, the inside information that banks acquire and trade on is highly valuable, allowing the banks to earn more on 25% on their proprietary trades. Furthermore, we find that relaxation and elimination of the Glass-Steagall restrictions allowed the banks to trade more frequently and earn greater amount of abnormal profits. Since 2002, banks tend to trade and earn more than 40% abnormal profits from adverse information about their client firms. Consequently, we demonstrate that an added benefit of enforcement of the Volcker Rule would be to eliminate the incentives to trade on material, non-public information about their clients by eliminating proprietary trading by banks. Thus, we argue that en
{"title":"Eliminating Conflicts of Interests in Banks: The Significance of the Volcker Rule","authors":"S. B. Avci, Cindy A. Schipani, H. Seyhun","doi":"10.2139/SSRN.3017207","DOIUrl":"https://doi.org/10.2139/SSRN.3017207","url":null,"abstract":"The gradual weakening and subsequent repeal of most provisions of the Glass-Steagall Act in 1999 allowed commercial banks to acquire investment banking subsidiaries, to grow substantially in size, and to access even more information through more diverse banking activities. At the same time, proprietary trading became a major source of revenue for the banks. \u0000The subsequent financial crisis of 2008 exposed another glaring weakness of banking in the post-Glass-Steagall era. Banks had grown too big, too risky and too interconnected, many surpassing trillions of dollars in assets, interbank loans and liabilities on and off balance sheet. The sheer size, risk and interconnectedness of banking alone raised concerns about systemically important and too-big-to-fail banks. After numerous attempts to bring back Glass-Steagall failed, Congress attempted to contain banking systemic banking risk by passing the Volcker rule to prohibit proprietary trading, and enacting consumer protection and other ring-fencing and fire-wall provisions in the Dodd-Frank Act. \u0000To test the potential importance of the Volcker Rule, we would need to know the amount of profits banks make from using proprietary adverse information about their clients. However, the source of the proprietary information banks use to execute their proprietary trading programs is typically confidential. Furthermore, banks do not disclose where and how they obtain this confidential information, which helps them create billions of dollars of profits every year. \u0000In this paper we investigate one possible source of this information. Specifically, we investigate the importance of the private information banks acquire as part of their financial intermediary and financial advisory role for their client firms. Banks often attain insider trading status and become subject to insider trading reporting requirements and trading restrictions when they are hired to provide financial advice to their client firms. When banks become temporary insiders, they must also report all of these trades executed on Forms 3, 4, and 5 alongside other legal insiders. \u0000Using this insider trading database, we demonstrate that banks can and do access important, private, material information about their clients and trade on this information. On average, the inside information that banks acquire and trade on is highly valuable, allowing the banks to earn more on 25% on their proprietary trades. Furthermore, we find that relaxation and elimination of the Glass-Steagall restrictions allowed the banks to trade more frequently and earn greater amount of abnormal profits. Since 2002, banks tend to trade and earn more than 40% abnormal profits from adverse information about their client firms. Consequently, we demonstrate that an added benefit of enforcement of the Volcker Rule would be to eliminate the incentives to trade on material, non-public information about their clients by eliminating proprietary trading by banks. Thus, we argue that en","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"35 1","pages":"1"},"PeriodicalIF":2.8,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47225800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Administrative Procedure Act’s provisions on formal adjudication give individuals charged in administrative enforcement actions the right to an in-person oral hearing. But not always. Agency prosecutors can circumvent formal hearing procedures without the consent of the defendant by resolving cases on “administrative summary judgment.” A 1971 Harvard Law Review Article endorsed this procedure as a way for agency prosecutors to avoid “futile” hearings, and courts have upheld it based on the same technocratic approach. Yet administrative procedure is not merely an instrument to be expertly calibrated by administrators; it is a mechanism of political control. When Congress assigns enforcement of a given program to a formal adjudication regime, it is exercising its authority to “stack the deck,” giving defendants access to elaborate procedural protections and limiting or channeling the enforcement program. Administrative summary judgment “unstacks the deck” – it unwinds Congress’s procedural controls and allows an agency to recalibrate its enforcement priorities.At the Securities and Exchange Commission, many administrative proceedings are now resolved on “summary disposition” without any in-person hearing. The recent expansion of summary dispositions has facilitated a broad shift in the agency’s enforcement priorities towards easy-to-prosecute offenses, enabling the agency to show Congress a “record number of enforcement actions” year after year. That figure has (apparently) significant political value, but does not indicate anything about the effectiveness of the SEC’s enforcement program.Setting enforcement priorities is a critical function for agencies like the SEC that are charged with enforcing a vast and complex array of legal obligations but which have resources to pursue only a relatively small number of possible violations. Securities scholars have long debated the SEC’s enforcement priorities, but have overlooked the role administrative adjudication procedure plays in shaping those priorities – as both a vehicle for Congressional control and administrative rebellion.
《行政程序法》关于正式裁决的规定，赋予被控行政执法行为的个人进行当面口头听证的权利。但并非总是如此。机关检察官可以在没有被告同意的情况下，通过“行政简易判决”解决案件，从而绕过正式的审理程序。1971年《哈佛法律评论》(Harvard Law Review)的一篇文章支持这一程序，认为这是机构检察官避免“徒劳”听证会的一种方式，法院基于同样的技术官僚方法支持了这一程序。然而，行政程序不仅仅是一种需要行政人员熟练校准的工具;它是一种政治控制机制。当国会将某一项目的执行委托给一个正式的裁决制度时，它是在行使自己的权力，“叠牌”，让被告有机会获得精心设计的程序保护，并限制或引导执行项目。行政即决判决“打开了甲板”——它解除了国会的程序控制，允许机构重新调整其执法重点。在美国证券交易委员会，许多行政诉讼现在都是通过“即决处置”解决的，不需要任何面对面的听证会。最近即审即裁的扩大促进了该机构执法重点向容易起诉的犯罪行为的广泛转变，使该机构能够年复一年地向国会展示“创纪录数量的执法行动”。这个数字(显然)具有重大的政治价值，但并不能说明证交会执法计划的有效性。对于SEC这样的机构来说，设定执法重点是一项关键职能。SEC负责执行大量复杂的法律义务，但它们拥有的资源只能追究相对较少的可能违规行为。证券学者长期以来一直在争论证交会的执法重点，但他们忽视了行政裁决程序在塑造这些重点方面的作用——既是国会控制的工具，也是行政反叛的工具。
{"title":"Unstacking the Deck: Administrative Summary Judgment and Political Control","authors":"Alexander I. Platt","doi":"10.2139/SSRN.2809199","DOIUrl":"https://doi.org/10.2139/SSRN.2809199","url":null,"abstract":"The Administrative Procedure Act’s provisions on formal adjudication give individuals charged in administrative enforcement actions the right to an in-person oral hearing. But not always. Agency prosecutors can circumvent formal hearing procedures without the consent of the defendant by resolving cases on “administrative summary judgment.” A 1971 Harvard Law Review Article endorsed this procedure as a way for agency prosecutors to avoid “futile” hearings, and courts have upheld it based on the same technocratic approach. Yet administrative procedure is not merely an instrument to be expertly calibrated by administrators; it is a mechanism of political control. When Congress assigns enforcement of a given program to a formal adjudication regime, it is exercising its authority to “stack the deck,” giving defendants access to elaborate procedural protections and limiting or channeling the enforcement program. Administrative summary judgment “unstacks the deck” – it unwinds Congress’s procedural controls and allows an agency to recalibrate its enforcement priorities.At the Securities and Exchange Commission, many administrative proceedings are now resolved on “summary disposition” without any in-person hearing. The recent expansion of summary dispositions has facilitated a broad shift in the agency’s enforcement priorities towards easy-to-prosecute offenses, enabling the agency to show Congress a “record number of enforcement actions” year after year. That figure has (apparently) significant political value, but does not indicate anything about the effectiveness of the SEC’s enforcement program.Setting enforcement priorities is a critical function for agencies like the SEC that are charged with enforcing a vast and complex array of legal obligations but which have resources to pursue only a relatively small number of possible violations. Securities scholars have long debated the SEC’s enforcement priorities, but have overlooked the role administrative adjudication procedure plays in shaping those priorities – as both a vehicle for Congressional control and administrative rebellion.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"34 1","pages":"2"},"PeriodicalIF":2.8,"publicationDate":"2017-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45362478","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent federal case law, however, holds that whistleblowers who report violations internally within their organizations are not eligible for the robust retaliation protections available under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and must report to the SEC to be protected. Given that external reporting by attorneys would run contrary to professional ethical rules in a number of states, lawyers currently find themselves caught in a “catch-22” making it exceedingly difficult to comply with the conflicting regulatory regimes to which they are held. This Article will address this emerging problem by considering a question that no court has yet addressed — whether the SOX attorney-reporting rules preempt conflicting state law — and will propose amendments to such rules to clarify when external reporting is appropriate. This Article will also consider a state-based solution to this conflict adopting a modified version of Model Rule 1.13, the ethical rule governing the behavior of attorneys when they represent organizations and are called to act as whistleblowers. This Article will also contribute to the ongoing scholarly discussion of “new governance” approaches to regulation by placing attorney-whistleblowers in this context and considering how their gatekeeping role ensures regulatory compliance within the organizations that they represent.
{"title":"Conflicted Counselors: Retaliation Protections for Attorney-Whistleblowers in an Inconsistent Regulatory Regime","authors":"Jennifer M. Pacella","doi":"10.2139/ssrn.2620365","DOIUrl":"https://doi.org/10.2139/ssrn.2620365","url":null,"abstract":"Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent federal case law, however, holds that whistleblowers who report violations internally within their organizations are not eligible for the robust retaliation protections available under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and must report to the SEC to be protected. Given that external reporting by attorneys would run contrary to professional ethical rules in a number of states, lawyers currently find themselves caught in a “catch-22” making it exceedingly difficult to comply with the conflicting regulatory regimes to which they are held. This Article will address this emerging problem by considering a question that no court has yet addressed — whether the SOX attorney-reporting rules preempt conflicting state law — and will propose amendments to such rules to clarify when external reporting is appropriate. This Article will also consider a state-based solution to this conflict adopting a modified version of Model Rule 1.13, the ethical rule governing the behavior of attorneys when they represent organizations and are called to act as whistleblowers. This Article will also contribute to the ongoing scholarly discussion of “new governance” approaches to regulation by placing attorney-whistleblowers in this context and considering how their gatekeeping role ensures regulatory compliance within the organizations that they represent.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"33 1","pages":"4"},"PeriodicalIF":2.8,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68227663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Created in 1966 primarily as a rulemaking body empowered to force the technology of motor vehicle safety, by the late 1970's the National Highway Safety Administration (NHTSA) had largely abandoned its rulemaking mission in favor of the aggressive recall of "defective" motor vehicles. That first period adaptation was driven by devastating losses in pre-enforcement judicial review proceedings combined with enthusiastic judicial embrace of the agency's recall efforts. Congressional reaction mimicked the signals from the courts, and the Reagan administration's regulatory reform and relief programs of the 1980's further solidified NHTSA's revised agenda. Prodded by congressional mandates, beginning in1991, but largely of 21st century origin, NHTSA has returned to rulemaking in the last two decades, but in a largely illusory form. Rather than forcing new technologies, the agency has largely required the diffusion of existing technologies already in widespread use -- technologies that might well have reached universal deployment in the absence of the agency's rules. Recalls (which have no demonstrable effect on motor vehicle safety) have continued at increasingly high levels and have been combined with consumer information campaigns, the encouragement of state behavior modification efforts, and agency-industry agreements, to round out NHTSA's emerging model of "cooperative regulation". Whether or not this strategy has substantial effects in promoting motor vehicle safety, NHTSA's accommodating posture has resulted in congressional and OMB approval and industry acceptance without litigation. This article describes the evolution of motor vehicle safety regulation and interprets the agency's transformation as an almost perfect adaptation to a legal culture skeptical of ex ante coercive restraints on individual or firm conduct and accepting of post hoc compensatory or punitive action when that conduct fails to live up to broad social norms.
{"title":"From Command and Control to Collaboration and Deference: The Transformation of Auto Safety Regulation","authors":"J. Mashaw, David L. Harfst","doi":"10.2139/SSRN.2703370","DOIUrl":"https://doi.org/10.2139/SSRN.2703370","url":null,"abstract":"Created in 1966 primarily as a rulemaking body empowered to force the technology of motor vehicle safety, by the late 1970's the National Highway Safety Administration (NHTSA) had largely abandoned its rulemaking mission in favor of the aggressive recall of \"defective\" motor vehicles. That first period adaptation was driven by devastating losses in pre-enforcement judicial review proceedings combined with enthusiastic judicial embrace of the agency's recall efforts. Congressional reaction mimicked the signals from the courts, and the Reagan administration's regulatory reform and relief programs of the 1980's further solidified NHTSA's revised agenda. Prodded by congressional mandates, beginning in1991, but largely of 21st century origin, NHTSA has returned to rulemaking in the last two decades, but in a largely illusory form. Rather than forcing new technologies, the agency has largely required the diffusion of existing technologies already in widespread use -- technologies that might well have reached universal deployment in the absence of the agency's rules. Recalls (which have no demonstrable effect on motor vehicle safety) have continued at increasingly high levels and have been combined with consumer information campaigns, the encouragement of state behavior modification efforts, and agency-industry agreements, to round out NHTSA's emerging model of \"cooperative regulation\". Whether or not this strategy has substantial effects in promoting motor vehicle safety, NHTSA's accommodating posture has resulted in congressional and OMB approval and industry acceptance without litigation. This article describes the evolution of motor vehicle safety regulation and interprets the agency's transformation as an almost perfect adaptation to a legal culture skeptical of ex ante coercive restraints on individual or firm conduct and accepting of post hoc compensatory or punitive action when that conduct fails to live up to broad social norms.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"34 1","pages":"4"},"PeriodicalIF":2.8,"publicationDate":"2015-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68263368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a “Modern-Day Monitorship.�? Modern-day monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization’s efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, modern-day monitorships have been employed in an ad-hoc and reactionary manner, which has resulted in repeated instances of controversy and calls for reform. Underlying these calls for reform has been an implicit assumption that broad-based rules can effectively regulate all monitorships. Yet, when tested, this assumption is found lacking. This Article traces the rise of the modern-day monitorship and, for the first time, analyzes the use of monitorships in five different contexts. The analysis demonstrates that modern-day monitorships have experienced a rapid evolution with important consequences. First, as the Apple monitorship demonstrates, this evolution has changed the manner in which courts and lawyers conceive of the appropriate boundaries and norms for court-ordered monitorships. Second, as the Penn State scandal reveals, private organizations are co-opting the use of monitorships, which may transform the nature of monitorships from a quasi-governmental enforcement mechanism to a privatized reputation remediation tool. Third, monitorships fall into different categories based on the type of remediation effort the monitorship is meant to achieve. Because these different categories necessitate different monitorship structures to achieve the goals of each monitorship, attempts to adopt universal rules governing monitorships may be misguided. In short, differences matter when evaluating monitorships.
当性侵丑闻震惊宾夕法尼亚州立大学时，当苹果公司被发现从事反竞争行为时，当美国银行(Bank of America)等服务机构不当取消了数十万房主的抵押品赎回权时，每个机构都进入了“现代监控”(modern Monitorship)状态。现代监测在各种情况下被用来协助各种各样的补救工作。这是因为它们为外部人士提供了一个独特的信息来源，可以了解这家受损组织解决不当行为的有效性。然而，尽管它们被用于高调和严重的组织不法行为，但它们并不是仔细研究和深思熟虑计划的产物。相反，现代的监测是以一种临时和反动的方式进行的，这导致一再出现争议和要求改革的呼声。这些要求改革的呼声背后隐含着一个假设，即基础广泛的规则能够有效地监管所有监督机构。然而，经过检验，发现这种假设是缺乏的。本文追溯了现代监控的兴起，并首次分析了监控在五种不同背景下的使用。分析表明，现代监测经历了迅速演变，产生了重要后果。首先，正如苹果公司的监控所表明的那样，这种演变改变了法院和律师对法院命令的监控的适当界限和规范的看法。其次，正如宾夕法尼亚州立大学丑闻所揭示的那样，私人组织正在吸收监督的使用，这可能会将监督的性质从准政府执法机制转变为私有化的声誉补救工具。第三，根据监督所要实现的补救工作的类型，监督可以分为不同的类别。由于这些不同的类别需要不同的监测结构来实现每次监测的目标，试图采用管理监测的普遍规则可能是错误的。简而言之，在评估监控时，差异很重要。
{"title":"Modern-Day Monitorships","authors":"Veronica Root Martinez","doi":"10.2139/ssrn.2581700","DOIUrl":"https://doi.org/10.2139/ssrn.2581700","url":null,"abstract":"When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a “Modern-Day Monitorship.�? Modern-day monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization’s efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, modern-day monitorships have been employed in an ad-hoc and reactionary manner, which has resulted in repeated instances of controversy and calls for reform. Underlying these calls for reform has been an implicit assumption that broad-based rules can effectively regulate all monitorships. Yet, when tested, this assumption is found lacking. This Article traces the rise of the modern-day monitorship and, for the first time, analyzes the use of monitorships in five different contexts. The analysis demonstrates that modern-day monitorships have experienced a rapid evolution with important consequences. First, as the Apple monitorship demonstrates, this evolution has changed the manner in which courts and lawyers conceive of the appropriate boundaries and norms for court-ordered monitorships. Second, as the Penn State scandal reveals, private organizations are co-opting the use of monitorships, which may transform the nature of monitorships from a quasi-governmental enforcement mechanism to a privatized reputation remediation tool. Third, monitorships fall into different categories based on the type of remediation effort the monitorship is meant to achieve. Because these different categories necessitate different monitorship structures to achieve the goals of each monitorship, attempts to adopt universal rules governing monitorships may be misguided. In short, differences matter when evaluating monitorships.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"1 1","pages":""},"PeriodicalIF":2.8,"publicationDate":"2015-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68212563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article focuses on wastewater discharges generated by hydraulic fracturing, otherwise known as “produced water,” onto Native American lands. Produced water discharges are a hazardous byproduct of hydraulic fracturing operations, and current federal laws do not require operators to disclose all contents of produced water, or any associated health and safety risks. This Article will explore the legal landscape that evolved to allow produced water discharges in Indian Country, using the Wind River Reservation’s history to explain how such a system develops. That system, today, includes a statutory and regulatory framework under two major environmental laws. First, the Resource Conservation and Recovery Act (RCRA) ordinarily prohibits toxic waste discharges, but EPA’s regulations define compounds contained in produced water as a “special waste,” exempting them from the permitting requirements of the statute. Furthermore, despite their sovereign status, because Congress did not delegate regulatory authority under RCRA to tribes, courts have held that they therefore lack authority under RCRA to impose permitting standards of their own. Second, the Clean Water Act (CWA) prohibits water-based discharges of toxics contained in produced water, but EPA’s regulations allow produced water to be used “in agricultural and wildlife propagation” west of the 98th meridian, including in Indian Country. Theoretically, Congress has delegated authority to tribes to regulate water-based discharges under the Clean Water Act, but has imposed a series of standards that are financially burdensome and difficult for many tribes to meet, leaving many tribes, such as the Wind River tribes, unable to regulate because they lack this special status. Together, these statutory and regulatory exemptions under RCRA and the CWA form a “livestock loophole,” allowing untreated produced water disposal in Indian Country. In Part I, this Article describes the fracking process, how produced water is generated, and the toxins known to occur in produced water discharges. Part II will discuss the legal components of the livestock loophole, from RCRA, the CWA, and the regulations under each statute that allow produced water discharges on native lands and in native waters. Part III discusses the Wind River Tribes’ history, including various treaty negotiations with the federal government and the concurrent development of the federal trust responsibility to these tribes. Part IV will discuss the Federal Trust Doctrine and relevant provisions of RCRA and the CWA, as well as trade secrets laws, which serve to undermine the effective implementation of both statutes. Part V will discuss necessary changes to the RCRA and CWA regulatory structures to eliminate the livestock loophole and curb unregulated produced water discharges. Part VI concludes by encouraging federal officials at EPA to implement the suggestions from Part V to improve water quality, human health, the health of wildlife and dome
{"title":"Fracking in Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Beneficial Use of Produced Water","authors":"Heather Whitney-Williams, H. M. Hoffmann","doi":"10.2139/SSRN.2364376","DOIUrl":"https://doi.org/10.2139/SSRN.2364376","url":null,"abstract":"This Article focuses on wastewater discharges generated by hydraulic fracturing, otherwise known as “produced water,” onto Native American lands. Produced water discharges are a hazardous byproduct of hydraulic fracturing operations, and current federal laws do not require operators to disclose all contents of produced water, or any associated health and safety risks. This Article will explore the legal landscape that evolved to allow produced water discharges in Indian Country, using the Wind River Reservation’s history to explain how such a system develops. That system, today, includes a statutory and regulatory framework under two major environmental laws. First, the Resource Conservation and Recovery Act (RCRA) ordinarily prohibits toxic waste discharges, but EPA’s regulations define compounds contained in produced water as a “special waste,” exempting them from the permitting requirements of the statute. Furthermore, despite their sovereign status, because Congress did not delegate regulatory authority under RCRA to tribes, courts have held that they therefore lack authority under RCRA to impose permitting standards of their own. Second, the Clean Water Act (CWA) prohibits water-based discharges of toxics contained in produced water, but EPA’s regulations allow produced water to be used “in agricultural and wildlife propagation” west of the 98th meridian, including in Indian Country. Theoretically, Congress has delegated authority to tribes to regulate water-based discharges under the Clean Water Act, but has imposed a series of standards that are financially burdensome and difficult for many tribes to meet, leaving many tribes, such as the Wind River tribes, unable to regulate because they lack this special status. Together, these statutory and regulatory exemptions under RCRA and the CWA form a “livestock loophole,” allowing untreated produced water disposal in Indian Country. In Part I, this Article describes the fracking process, how produced water is generated, and the toxins known to occur in produced water discharges. Part II will discuss the legal components of the livestock loophole, from RCRA, the CWA, and the regulations under each statute that allow produced water discharges on native lands and in native waters. Part III discusses the Wind River Tribes’ history, including various treaty negotiations with the federal government and the concurrent development of the federal trust responsibility to these tribes. Part IV will discuss the Federal Trust Doctrine and relevant provisions of RCRA and the CWA, as well as trade secrets laws, which serve to undermine the effective implementation of both statutes. Part V will discuss necessary changes to the RCRA and CWA regulatory structures to eliminate the livestock loophole and curb unregulated produced water discharges. Part VI concludes by encouraging federal officials at EPA to implement the suggestions from Part V to improve water quality, human health, the health of wildlife and dome","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"32 1","pages":"7"},"PeriodicalIF":2.8,"publicationDate":"2014-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68142788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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