{"title":"The Health Security Act: coercion and distrust for the market.","authors":"H. Beresford","doi":"10.31228/osf.io/wk8vc","DOIUrl":"https://doi.org/10.31228/osf.io/wk8vc","url":null,"abstract":"79 Cornell Law Review 1405 (1994)","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"79 6 1","pages":"1405-33"},"PeriodicalIF":2.5,"publicationDate":"2018-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47561086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Laws Intentionally Favoring Mainstream Religions: An Unhelpful Comparison to Race","authors":"G. Simson","doi":"10.31228/osf.io/ndv84","DOIUrl":"https://doi.org/10.31228/osf.io/ndv84","url":null,"abstract":"79 Cornell Law Review 514 (1994)","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"79 1","pages":"514-1682"},"PeriodicalIF":2.5,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47172119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Role of History in Constitutional Interpretation: A Case Study","authors":"G. Simson","doi":"10.31228/osf.io/ftw68","DOIUrl":"https://doi.org/10.31228/osf.io/ftw68","url":null,"abstract":"70 Cornell Law Review 253 (1985)","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"70 1","pages":"253-270"},"PeriodicalIF":2.5,"publicationDate":"2018-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47682515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse. In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment—this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the relevant sources were not publicly accessible, so this project not only collects important data but in so doing also makes state procedure more accessible. Formal rulemaking authority is only part of the story. At the federal level, scholars have focused on the Advisory Committee on Civil Rules: an elite committee of mostly judges and practitioners, selected by the Chief Justice, that plays a primary role in proposing amendments to the Federal Rules of Civil Procedure. Critics have argued that the advisory commit- tee favors corporate interests, and they have attributed these effects to committee membership. Since the 1960s, there has been a dramatic decline in the share of practitioners on the committee and, simultaneously, an increased homogeneity among its members—i.e., Republican judges and corporate defense attorneys. State advisory committees have gone virtually unstudied. Indeed, in many states, advisory committee membership is not readily accessible. I collected membership information for every state advisory committee, and this Article compares these little-studied state committees to the well-known federal committee. In brief, state committees are notably more diverse. They have far greater representation of practitioners than the federal committee, and those practitioners are more evenly divided between plaintiff- and defense-side lawyers and between individual and corporate lawyers. Partisan effects are less severe among state judge members than at the federal level. State committees have much greater female representation than the federal advisory committee, and at least equal representation of racial and ethnic minorities. But at the same time, many state committees are less accessible to the public than the federal committee is. This Article then makes at least three contributions. First, although these data do not support causal inference, they permit normative engagement with the design of rulemaking institutions. This analysis connects with interdisciplinary re- search on decision-making that suggests that epistemic diversity can produce better and more durable outputs. Second, I argue that civil rulemaking can unite accessibility and diversity. States can be more accessible, and federal rulemaking can be more diverse. Finally, as state procedure becomes more important, this Article
{"title":"Making state civil procedure","authors":"Z. Clopton","doi":"10.2139/SSRN.3147280","DOIUrl":"https://doi.org/10.2139/SSRN.3147280","url":null,"abstract":"State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse. \u0000 \u0000In order to evaluate state procedure—and in order to understand the states’ relationship to federal procedural retrenchment—this Article presents the first comprehensive study of who makes state civil procedure. This project begins with a systematic review of the formal processes by which states make their rules of procedure. Many of the relevant sources were not publicly accessible, so this project not only collects important data but in so doing also makes state procedure more accessible. \u0000 \u0000Formal rulemaking authority is only part of the story. At the federal level, scholars have focused on the Advisory Committee on Civil Rules: an elite committee of mostly judges and practitioners, selected by the Chief Justice, that plays a primary role in proposing amendments to the Federal Rules of Civil Procedure. Critics have argued that the advisory commit- tee favors corporate interests, and they have attributed these effects to committee membership. Since the 1960s, there has been a dramatic decline in the share of practitioners on the committee and, simultaneously, an increased homogeneity among its members—i.e., Republican judges and corporate defense attorneys. \u0000 \u0000State advisory committees have gone virtually unstudied. Indeed, in many states, advisory committee membership is not readily accessible. I collected membership information for every state advisory committee, and this Article compares these little-studied state committees to the well-known federal committee. In brief, state committees are notably more diverse. They have far greater representation of practitioners than the federal committee, and those practitioners are more evenly divided between plaintiff- and defense-side lawyers and between individual and corporate lawyers. Partisan effects are less severe among state judge members than at the federal level. State committees have much greater female representation than the federal advisory committee, and at least equal representation of racial and ethnic minorities. But at the same time, many state committees are less accessible to the public than the federal committee is. \u0000 \u0000This Article then makes at least three contributions. First, although these data do not support causal inference, they permit normative engagement with the design of rulemaking institutions. This analysis connects with interdisciplinary re- search on decision-making that suggests that epistemic diversity can produce better and more durable outputs. Second, I argue that civil rulemaking can unite accessibility and diversity. States can be more accessible, and federal rulemaking can be more diverse. Finally, as state procedure becomes more important, this Article","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"104 1","pages":"1-100"},"PeriodicalIF":2.5,"publicationDate":"2018-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45364304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438 R I. JURY SELECTION AND THE BATSON RIGHT . . . . . . . . . . . . . 441 R II. CREATION AND EXPANSION OF THE BATSON CHALLENGE . 442 R A. Mechanics of the Batson Challenge . . . . . . . . . . . 442 R B. Batson’s Equal Protection Analysis Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 R III. EXISTING CONSTITUTIONAL LAW IS UNLIKELY TO LEAD TO THE EXTENSION OF BATSON PROTECTIONS TO THE DISABLED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 R A. Disability Is Subject Only to Rational Basis Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 R B. The ADA Does Not Entitle the Disabled to Heightened Scrutiny Protection . . . . . . . . . . . . . . . 450 R C. Statutory Protections of the ADA Do Not Independently Entitle the Disabled to BatsonLike Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 R D. Recent Appellate Court Decisions Have Upheld the Use of Peremptory Strikes Against Disabled Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 R IV. COULD THE RATIONAL BASIS TEST PROVIDE PROTECTIONS FOR DISABLED JURORS?. . . . . . . . . . . . . . . . 454 R V. POSITIVE STATUTORY LAW IS NEEDED TO PREVENT DISCRIMINATION ON THE BASIS OF DISABILITY IN JURY SELECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458 R A. Federal Legislation Is Unlikely to Be Successful in Reducing Discriminatory Peremptory Strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 R
简介。438 R.I.陪审团的选择和巴特森权利。441 R II。巴特森挑战赛的创建和扩展。442 R A.巴特森挑战赛的力学。442 R B.Batson的平等保护分析框架。445 R III.现行宪法不太可能将巴特森保护扩大到残疾人。447 R.A.残疾仅接受理性基础审查。448 R.B.《残疾人法案》不赋予残疾人加强审查保护的权利。450 R.C.《美国残疾人法》的法定保护不独立地赋予残疾人类似蝙蝠的听证会的权利。452 R.D.最近上诉法院的裁决搁置了对残疾陪审员使用永久罢工。452 R IV.理性基础测试能为残疾陪审员提供保护吗。454诉积极成文法需要防止陪审团选择中基于残疾的歧视。458 R.A.联邦立法不太可能成功减少歧视性永久罢工。459 R
{"title":"Stricken: the Need for Positive Statutory Law to Prevent Discriminatory Peremptory Strikes of Disabled Jurors.","authors":"Jordan Benson","doi":"10.31228/osf.io/5hnrf","DOIUrl":"https://doi.org/10.31228/osf.io/5hnrf","url":null,"abstract":"INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438 R I. JURY SELECTION AND THE BATSON RIGHT . . . . . . . . . . . . . 441 R II. CREATION AND EXPANSION OF THE BATSON CHALLENGE . 442 R A. Mechanics of the Batson Challenge . . . . . . . . . . . 442 R B. Batson’s Equal Protection Analysis Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 R III. EXISTING CONSTITUTIONAL LAW IS UNLIKELY TO LEAD TO THE EXTENSION OF BATSON PROTECTIONS TO THE DISABLED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 R A. Disability Is Subject Only to Rational Basis Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 R B. The ADA Does Not Entitle the Disabled to Heightened Scrutiny Protection . . . . . . . . . . . . . . . 450 R C. Statutory Protections of the ADA Do Not Independently Entitle the Disabled to BatsonLike Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 R D. Recent Appellate Court Decisions Have Upheld the Use of Peremptory Strikes Against Disabled Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 R IV. COULD THE RATIONAL BASIS TEST PROVIDE PROTECTIONS FOR DISABLED JURORS?. . . . . . . . . . . . . . . . 454 R V. POSITIVE STATUTORY LAW IS NEEDED TO PREVENT DISCRIMINATION ON THE BASIS OF DISABILITY IN JURY SELECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458 R A. Federal Legislation Is Unlikely to Be Successful in Reducing Discriminatory Peremptory Strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 R","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"103 2 1","pages":"437-64"},"PeriodicalIF":2.5,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is wellestablished that the Constitution protects the right of political association, which includes contributions to candidates in return for ingra-tiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutch-eon, this Note and other commentators conclude that the Su-preme Court may have inadvertently created a First Amendment right to buy a politician’s influence, favor, and advocacy even outside the campaign finance setting. Undoubtedly, to the general public this must appear as nothing other than a First Amendment right to bribery. Yet this right has already been articulated in courts and has the support of at least one U.S. Circuit Court of Appeals judge. These findings suggest that Congress may no longer be able to criminalize certain types of corruption. Some courts have begun to reverse convictions and invalidate parts of existing anti-corruption statutes. While the impact of the First Amendment right remains unclear, the dismantling of the United States’ anti-corruption framework may already have begun. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466 R I. MCDONNELL V. UNITED STATES: SUPREME COURT DEFINES THE BRIBERY STATUTE’S “OFFICIAL ACT” REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470 R
{"title":"A First Amendment Right to Corrupt Your Politician","authors":"E. Temchenko","doi":"10.31228/osf.io/x98u2","DOIUrl":"https://doi.org/10.31228/osf.io/x98u2","url":null,"abstract":"Are you dealing with state or federal agencies, to no avail? Do you need someone on top to advocate for you? You may have a right to buy your Governor’s help. It is wellestablished that the Constitution protects the right of political association, which includes contributions to candidates in return for ingra-tiation and access. Nonetheless, courts and scholars have generally limited this right to contributions to campaigns for public office. After McDonnell v. United States, that may change. Reading the McDonnell opinion in light of McCutch-eon, this Note and other commentators conclude that the Su-preme Court may have inadvertently created a First Amendment right to buy a politician’s influence, favor, and advocacy even outside the campaign finance setting. Undoubtedly, to the general public this must appear as nothing other than a First Amendment right to bribery. Yet this right has already been articulated in courts and has the support of at least one U.S. Circuit Court of Appeals judge. These findings suggest that Congress may no longer be able to criminalize certain types of corruption. Some courts have begun to reverse convictions and invalidate parts of existing anti-corruption statutes. While the impact of the First Amendment right remains unclear, the dismantling of the United States’ anti-corruption framework may already have begun. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466 R I. MCDONNELL V. UNITED STATES: SUPREME COURT DEFINES THE BRIBERY STATUTE’S “OFFICIAL ACT” REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470 R","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"103 1","pages":"465-499"},"PeriodicalIF":2.5,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Stricken: the Need for Positive Statutory Law to Prevent Discriminatory Peremptory Strikes of Disabled Jurors.","authors":"Jordan Benson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"103 2","pages":"437-64"},"PeriodicalIF":2.5,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35846308","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on "intellectual production without IP" (or "IP without IP") has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group--all without recourse to IP. I analyze the Network as an example of "open science," a mode of information production that differs strikingly from conventional IP, and yet that successfully produces important scientific goods in response to social need. The theory and example developed here refute the most powerful criticisms of the emerging "IP without IP" literature, and provide a stronger foundation for this important new field. Even where capital costs are high, creation without IP can be reasonably effective in social terms, if it can link sources of funding to reputational and evaluative feedback loops like those that characterize open science. It can also be sustained over time, even by loose-knit groups and where the stakes are high, because organizations and other forms of law can help to stabilize cooperation. I also show that contract law is well suited to modes of information production that rely upon a "supply side" rather than "demand side" model. In its most important instances, "order without IP" is not order without governance, nor order without law. Recognizing this can help us better ground this new field, and better study and support forms of knowledge production that deserve our attention, and that sometimes sustain our very lives.
{"title":"Order Without Intellectual Property Law: Open Science in Influenza.","authors":"A. Kapczynski","doi":"10.31228/osf.io/6ep4x","DOIUrl":"https://doi.org/10.31228/osf.io/6ep4x","url":null,"abstract":"Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on \"intellectual production without IP\" (or \"IP without IP\") has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group--all without recourse to IP. I analyze the Network as an example of \"open science,\" a mode of information production that differs strikingly from conventional IP, and yet that successfully produces important scientific goods in response to social need. The theory and example developed here refute the most powerful criticisms of the emerging \"IP without IP\" literature, and provide a stronger foundation for this important new field. Even where capital costs are high, creation without IP can be reasonably effective in social terms, if it can link sources of funding to reputational and evaluative feedback loops like those that characterize open science. It can also be sustained over time, even by loose-knit groups and where the stakes are high, because organizations and other forms of law can help to stabilize cooperation. I also show that contract law is well suited to modes of information production that rely upon a \"supply side\" rather than \"demand side\" model. In its most important instances, \"order without IP\" is not order without governance, nor order without law. Recognizing this can help us better ground this new field, and better study and support forms of knowledge production that deserve our attention, and that sometimes sustain our very lives.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 6 1","pages":"1539-648"},"PeriodicalIF":2.5,"publicationDate":"2017-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42372534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A vast literature in law and political theory focuses on questions of accountability and independence in democratic government. Commentators tend to celebrate accountability in the legislative and regulatory arenas, and independence in the context of adjudication. Yet they largely ignore the government function that lies at the intersection of law-making and law-application: enforcement. The gap in theory is reflected in our current laws and institutional structures. When an agency proposes a new regulation, we have rules in place to promote political accountability, public participation, and neutral expertise in the regulatory process. When the same agency adopts a new approach to enforcing the relevant statutes and regulations, however, we lack equivalent mechanisms for legitimating government action. This Article seeks to fill that gap. Focusing on the civil side of the civil/criminal divide, I develop a theory of enforcement that makes sense of its place in our system of government. Enforcement, I explain, connects law-making and adjudication both in terms of how it operates—bringing cases to adjudicators so that generally applicable laws may be interpreted and applied to particular individuals and firms—and in terms of the features it shares with those more familiar modes of governance. Enforcement is a form of discretionary policymaking, necessitating the same sorts of policy judgments that characterize law-making, and triggering similar demands for accountability, transparency, and public engagement. But enforcers also must make individualized, retroactive, legal determinations of the sort we associate with judging, making the strongest forms of popular control seem inapt.
{"title":"Democratic Enforcement: Accountability and Independence for the Litigation State","authors":"M. Lemos","doi":"10.31228/osf.io/scq2t","DOIUrl":"https://doi.org/10.31228/osf.io/scq2t","url":null,"abstract":"A vast literature in law and political theory focuses on questions of accountability and independence in democratic government. Commentators tend to celebrate accountability in the legislative and regulatory arenas, and independence in the context of adjudication. Yet they largely ignore the government function that lies at the intersection of law-making and law-application: enforcement. The gap in theory is reflected in our current laws and institutional structures. When an agency proposes a new regulation, we have rules in place to promote political accountability, public participation, and neutral expertise in the regulatory process. When the same agency adopts a new approach to enforcing the relevant statutes and regulations, however, we lack equivalent mechanisms for legitimating government action. This Article seeks to fill that gap. Focusing on the civil side of the civil/criminal divide, I develop a theory of enforcement that makes sense of its place in our system of government. Enforcement, I explain, connects law-making and adjudication both in terms of how it operates—bringing cases to adjudicators so that generally applicable laws may be interpreted and applied to particular individuals and firms—and in terms of the features it shares with those more familiar modes of governance. Enforcement is a form of discretionary policymaking, necessitating the same sorts of policy judgments that characterize law-making, and triggering similar demands for accountability, transparency, and public engagement. But enforcers also must make individualized, retroactive, legal determinations of the sort we associate with judging, making the strongest forms of popular control seem inapt.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 1","pages":"929"},"PeriodicalIF":2.5,"publicationDate":"2017-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45685687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the SEC adjudicates claims of misconduct under the securities laws, and the Federal Trade Commission deals with concerns regarding anticompetitive behavior. This segmentation of enforcement authority has created an information and coordination problem amongst regulators, resulting in an enforcement regime where institutional misconduct is adjudicated in a piecemeal fashion. Enforcement actions focus on compliance with a particular set of laws instead of on whether the corporate wrongdoing is a result of a systematic compliance failure that requires a comprehensive, firm-wide, compliance overhaul. As a result, the government’s goal of incentivizing companies to implement “effective ethics and compliance programs” appears at odds with its current enforcement approach.Yet governmental actors currently have the tools necessary to provide strong inducements for corporations to, when needed, engage in restructuring of their compliance programs. This Article argues that efforts to improve corporate compliance would benefit from regulatory mechanisms that (i) recognize when an institution is engaged in recidivist behavior across diverse regulatory areas and(ii) aggressively sanction institutions that are repeat offenders. If governmental actors adopt a new enforcement strategy aimed at “Coordinating Compliance Incentives,” they can more easily detect when an institution is suffering from a systemic compliance failure, which may deter firms from engaging in recidivist behavior. If corporations are held responsible for being repeat offenders across diverse regulatory areas, it may encourage them to implement more robust reforms to their compliance programs and, ultimately, lead to improved ethical conduct and more effective compliance programs within public companies.
{"title":"Coordinating Compliance Incentives","authors":"Veronica S. Root","doi":"10.31228/osf.io/ktj7x","DOIUrl":"https://doi.org/10.31228/osf.io/ktj7x","url":null,"abstract":"In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the SEC adjudicates claims of misconduct under the securities laws, and the Federal Trade Commission deals with concerns regarding anticompetitive behavior. This segmentation of enforcement authority has created an information and coordination problem amongst regulators, resulting in an enforcement regime where institutional misconduct is adjudicated in a piecemeal fashion. Enforcement actions focus on compliance with a particular set of laws instead of on whether the corporate wrongdoing is a result of a systematic compliance failure that requires a comprehensive, firm-wide, compliance overhaul. As a result, the government’s goal of incentivizing companies to implement “effective ethics and compliance programs” appears at odds with its current enforcement approach.Yet governmental actors currently have the tools necessary to provide strong inducements for corporations to, when needed, engage in restructuring of their compliance programs. This Article argues that efforts to improve corporate compliance would benefit from regulatory mechanisms that (i) recognize when an institution is engaged in recidivist behavior across diverse regulatory areas and(ii) aggressively sanction institutions that are repeat offenders. If governmental actors adopt a new enforcement strategy aimed at “Coordinating Compliance Incentives,” they can more easily detect when an institution is suffering from a systemic compliance failure, which may deter firms from engaging in recidivist behavior. If corporations are held responsible for being repeat offenders across diverse regulatory areas, it may encourage them to implement more robust reforms to their compliance programs and, ultimately, lead to improved ethical conduct and more effective compliance programs within public companies.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"102 1","pages":"1003"},"PeriodicalIF":2.5,"publicationDate":"2017-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42372942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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