Governance and Uncertainty

Government actors create law against a backdrop of uncertainty. Limited information, unpredictable events, and lack of understanding interfere with accurately predicting a legal regime’s costs, benefits, and effects on other legal and social programs and institutions. Does the availability of no-fault divorce increase the number of terminated marriages? Will bulk-collection of telecommunications information about American citizens reveal terrorist plots? Can a sensitive species breed in the presence of oil and gas wells? The answers to these questions are far from clear, but lawmakers must act nonetheless. The problems posed by uncertainty cut across legal fields. Scholars and regulators in a variety of contexts recognize the importance of uncertainty, but no systematic, generally-applicable framework exists for determining how law should account for gaps in information. This Article suggests such a framework and develops a novel typology of strategies for accounting for uncertainty in governance. This typology includes “static law,” as well as three varieties of “dynamic law.” “Static law” is a legal rule initially intended to last in perpetuity. “Dynamic law” is intended to change, and includes: (1) durational regulation, or fixed legal rules with periodic opportunities for amendment or repeal; (2) adaptive regulation, or malleable legal rules with procedural mechanisms allowing rules to change; and (3) contingent regulation, or malleable legal rules with triggering mechanisms to substantively change to the rules. Each of these strategies, alone or in combination, may best address the uncertainty inherent in a particular lawmaking effort. This Article provides a diagnostic framework that lawmakers can use to identify optimal strategies. Ultimately, this approach to uncertainty yields immediate practical benefits by enabling lawmakers to better structure governance.

The regulation of professional advertising practices in Spain, 1988–2013

From the perspective of the sociology of professions, every professional activity should have its own clearly circumscribed and regulated sphere of action. Such an articulation facilitates the regulation of the production of a given profession as well as the way in which it is practiced. The purpose of the research reported here was to provide a comprehensive review and evaluation of the regulatory framework governing the advertising sector in Spain. To this end, the authors analysed external regulatory legislation and self-regulatory codes extracted from the data base of the Asociación para la Autoregulación de la Comunicación Comercial (Autocontrol) that had been enacted or adopted between 1988, the year that Law 11/1998 on General Telecommunications entered into force, and 2003 as well as other relevant documents retrieved from the Boletin Oficial del Estado (BOE) pertaining to the same period. Findings indicate that although there has been a groundswell of legislation governing advertising practices in Spain since 1988, especially at the regional level, lawmakers have focused on the content of advertising messages and shown very little interest in regulating the professions of advertising and public relations. Furthermore, Spanish legislation enacted in 2003 and EU policies appear to have encouraged the adoption of voluntary codes of ethics. Sectors traditionally subject to mandatory advertising regulation, either due to the vulnerability of their target audiences or the potential impact of their commercial messages on public health or the environment, are more likely to develop self-regulatory codes of conduct than others

Copyright in the EU Digital Single Market. Report of the CEPS Digital Forum. June 2013

The scope and enforcement of copyright in the digital environment have been among the most complex and controversial subjects tackled by lawmakers all over the world for the last decade. Due to the ubiquitous use of digital technology, modern regulation of copyright inherently touches on numerous areas of law and social and economic policy, including communications privacy and Internet governance. Modernising the EU’s copyright framework is considered a key step towards achieving the goal of an EU Digital Single Market in the context of the ‘Digital Agenda for Europe’, an initiative launched by the European Commission in May 2010. How can the EU make copyright fit for purpose in the Internet age? What are the most suitable and realistic policy options to achieve the objective of a Digital Single Market in the creative content sectors? To give comprehensive answers to these questions, the CEPS Digital Forum formed a Task Force on Copyright in the EU Digital Single Market to foster a multi-stakeholder dialogue on the major challenges for copyright law in the online content sector today. Drawing on the discussions and input gathered by the Task Force, this report contains the conclusions and policy recommendations organised around three main themes: licensing rules and practices in the online music and film sectors, the definition and implementation of copyright exceptions in the digital environment and the present and future of online copyright enforcement in Europe.

A tale of oversimplification and deregulation: the mainstream approach to labour market segmentation and the recent responses to the crisis in European countries. WP C.S.D.L.E. “Massimo D’Antona”.INT – 102/2013

After advocating flexibilization of non-standard work contracts for many years, some European and international institutions and several policy makers now indicate the standard employment relationship and its regulation as a cause of segmentation between the labour market of "guaranteed" insiders, employed under permanent contracts with effective protection against unfair dismissal, and the market of the “not-guaranteed” outsiders, working with non-standard contracts. Reforms of employment legislation are therefore being promoted and approved in different countries, allegedly aiming to balance the legal protection afforded to standard and non-standard workers. This article firstly argues that this approach is flawed as it oversimplifies reasons of segmentation as it concentrates on an “insiders-outsiders” discourse that cannot easily be transplanted in continental Europe. After reviewing current legislative changes in Italy, Spain and Portugal, it is then argued that lawmakers are focused on “deregulation” rather than “balancing protection” when approving recent reforms. Finally, the mainstream approach to segmentation and some of its derivative proposals, such as calls to introduce a “single permanent contract”, are called into question, as they seem to neglect the essential role of job protection in underpinning the effectiveness of fundamental and constitutional rights at the workplace.

... Reunion.

Mode of access: Internet.

The Privacy Paradox: Privacy, Surveillance, and Encryption

Thesis (Master's)--University of Washington, 2016-08

The distinctive politics of campaign finance reform

This article presents a unified theory explaining several conflicting empirical observations in the politics of campaign finance. It identifies those circumstances that foster or frustrate the enactment of financing laws that increase the competitiveness of elections. I argue that the competitiveness of financing laws is a result of three strong incentives when they operate in differently structured party systems. First, lawmakers have an incentive to make laws to protect their incumbency from competitors. This incentive generally overwhelms the (weaker) incentive to enact popular, competition-enhancing reforms. Secondly, lawmakers, when they act through political parties, have an incentive to cooperate with rivals to reduce the costs of political defeats. Thirdly, lawmakers seek to enact reforms that are consistent with their normative goals. These incentives combine with several party system variables to determine when campaign finance reform is likely to occur and how it will impact on the competitiveness of elections.

Should patients in a persistent vegetative state be allowed to die? Guidelines for a new standard of care in Australian hospitals

In this article we will be arguing in favour of legislating to protect doctors who bring about the deaths of PVS patients, regardless of whether the death is through passive means (e.g. the discontinuation of artificial feeding and respiration) or active means (e.g. through the administration of pharmaceuticals known to hasten death in end-of-life care). We will first discuss the ethical dilemmas doctors and lawmakers faced in the more famous PVS cases arising in the US and UK, before exploring what the law should be regarding such patients, particularly in Australia. We will continue by arguing in favour of allowing euthanasia in the interests of PVS patients, their families, and finally the wider community, before concluding with some suggestions for how these ethical arguments could be transformed into a set of guidelines for medical practice in this area.

Insider sales and the effectiveness of clawback adoptions in mitigating fraud risk

In recent years, firms (and lawmakers) have sought to mitigate the dysfunctional effects of incentive-based executive compensation by adopting clawbacks. However, extant clawbacks (whether firm-initiated or as mandated by the 2010 Dodd-Frank Act) do not go far enough in that they seem to allow executives to retain trading profits linked to sales of their own companies' shares at a time of inflated earnings (Fried and Shilon, 2011). In this paper, we examine the moderating effect of insider sales on the relation between firm-initiated clawback-adoptions and fraud risk. Our results indicate that clawback-adopting firms experience a decrease in fraud risk following adoption relative to non-adopters during the same time period. However, this decrease in fraud risk for the clawback-adopting firms is materially weakened in the presence of insider trading. At this time (July 2014), the SEC is still working on rules for implementing clawbacks (one of nearly half of the rules yet to be completed under Dodd-Frank). Our findings suggest that clawback rules (as and when issued by the SEC) need to address insider sales for clawbacks to be fully effective in mitigating the risk of fraudulent financial reporting.