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Draft Text Providing for Transparency and Prohibiting Certain Forms of Third-Party Funding in Investor–State Dispute Settlement
Get PDFThe United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to it. Having identified various concerns about ISDS, UNCITRAL is now taking stock of potential reform options, and will consider this fall which options to pursue and in what order. To contribute to UNCITRAL’s work, CCSI, together with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD), submitted this document outlining potential reform options and considerations.
A Draft Text Providing for Transparency and Prohibiting Certain Forms of Third-Party Funding in Investor-State Dispute Settlement, (also available in Spanish and in French), builds on our work examining the role and implications of third-party funding, and provides draft language that could be used by states in reform instruments
Regulation in India: Design, Capacity, Performance
No full textThe rise of the regulatory state has been a major feature of modern constitutional democracies. India, the world\u27s largest democracy, is no exception to this trend. This book is the first major study of regulation in India. It considers how the development of regulation in India has altered the nature and functions of the state; how it is reshaping the relationship between business and the state; how it has called for the refashioning of established legal principles; and how it has raised new questions about the relationship between technical expertise and the rule of law. The chapters cover topics ranging from the foundations of the Indian regulatory state to the form of regulation across different sectors to regulation in practice. Together, the chapters reveal the challenges, promise, and limitations offered by contemporary regulatory practices, and they capture the close if sometimes fraught relationship that regulation must inevitably share with the political economy and constitutional schema within which it operates.https://scholarship.law.columbia.edu/books/1324/thumbnail.jp
Showcase Panel I: What Is Regulation For?
Get PDF2018 National Lawyers Convention Transcripts
“The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and enforce regulations, and provides for judicial review of agency action. Supporters of the administrative state point to the successes of agency actions leading to a cleaner environment, more sensible use of finite resources, healthier foods, safety on the roads and rails, and many other areas of improved quality of life. But even looking past structural separation of powers issues written into the bones of the administrative state, critics assert that in the ensuing 70 years the APA has become an ineffective limitation on agency power, as agencies bypassed its requirements by issuing sub-regulatory guidance, letters, FAQs, and more. Compounding the problem, the critics continue, the courts have adopted a policy of deference to agency actions that grant agencies even more latitude. Is it time to revisit the APA? If so, how should it be updated?
Re-Examining the Line Between Personal and Political Campaign Expenditures: Possible Solutions for a Hazy Statutory Framework
Get PDFOn Wednesday, May 16, 2018, the Public Integrity Bureau of the New York State Attorney General’s Office indicted Richard Thomas. Thomas, the mayor of Mount Vernon, New York, faced felony charges of grand larceny and filing false statements resulting from the alleged theft of thousands of dollars from his mayoral campaign committee, Friends of Richard Thomas, for meals, automobile payments, and other personal expenses. While Thomas eventually pled guilty to misdemeanor charges and resigned from office, the prosecutors’ choice to use fraud and theft statutes rather than election law violations as the foundation for their theory of the case calls into question the relevant election law’s usefulness as a tool to mitigate harm at all. As discussed at length in this paper, election law prohibits the use of campaign funds for any personal use except for specifically enumerated exceptions, and such a law seems to speak more directly to Thomas’ actions than general theft. Yet, the pertinent election law statutes are often too vague to conduct effective prosecutions.
This paper will analyze the relevant election law statute in New York governing the personal use of campaign funds. Using the facts of the Thomas prosecution as a case study, this analysis will highlight the vagueness inherent in the statute’s overarching language, multiple exceptions, and rule promulgation mechanism, both in the statute’s original form and after its revision in 2015. After noting the reasons why a more concrete standard may be desirable, the paper will identify multiple possible solutions to the statute’s vagueness issue, including borrowing from other state laws, conforming to a more stringent federal standard, or the institution of a series of new criminal penalties for legislators and political candidates. The paper concludes that the latter option, combined with changes to the existing statute based on federal standards and those of the state of Rhode Island, would be the best method of solving the problems of New York’s law. While facing policy drawbacks and implementation obstacles of its own, this solution seems the most likely to prevent personal use from multiple angles while creating a rigid standard for prosecutors to engage in more effective prosecutions of violators
Assessment of Medicaid Beneficiaries Included in Community Engagement Requirements in Kentucky
Get PDFStates are pursuing Section 1115 Medicaid demonstration waiver authority to apply community engagement (CE) requirements (eg, participation in work, volunteer activities, or training) to beneficiaries deemed able-bodied as a condition of coverage. Understanding the size and characteristics of the populations included in these requirements can help inform policy initiatives and anticipate effects
Janus\u27s Two Faces
Get PDFIn ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education.The Janus decision marks the end of the post – New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on labor rights – as well as for a broader erosion of civil society and democracy at the expense of corporate power. In that way, Janus represents an unequivocal transition to what Justice Kagan termed a “weaponized” view of the First Amendment among the Court’s majority – indeed, far more so than her dissent elaborates.
But Janus may also have another, more hopeful, forward-looking face. Ultimately, Janus’s undoing of the compromise that governed union fees for nearly fifty years provides the opportunity for a systematic rethinking of the relationship between labor and the Constitution and, more generally, of the meaning of the First Amendment
Judges and Judgment: In Praise of Instigators
Get PDFThis Essay is about mutual funds. Because of that, it may put many to sleep long before we get to the heart of the matter. I encourage you right now to stay awake, or at least keep one eye propped open. For embedded in this story about mutual funds, rent seeking, the challenge of separating the good and the bad, and the even greater challenge of respecting autonomy in an environment where so many choices seem to be bad ones, is the story of a judge. That judge is the Honorable Richard A. Posner, aka RAP, Dick, Professor Posner, the one to be feared, the one to be revered, the one who inspires, the one who causes many to perspire, and the one who somehow gets it right even when he is wrong (and he is sometimes wrong). It is a story of how he judges. It is a story of curiosity and truth seeking. It is a story of respecting process and precedent while not being overly constrained by convention or rules. It is also a story of constantly seeing things anew, even when that requires letting go of views that seemed true when first embraced. It is a story of positionality and insight, and law and humanity, and the perfection of embracing imperfection. It is a story of using stories to help others see, and the power and limits of such methods
Driving Toward Autonomy? The FBI in the Federal System, 1908-1960
Get PDFThis paper explains the growth of the FBI (“Bureau”) in the United States at a time when criminal justice was largely a local matter by reframing the criminal justice “(eco)system” in terms of informational economy, rather than jurisdictional authority. It argues that the Bureau came to occupy a key position in the national law enforcement ecosystem by providing an informational infrastructure that enabled it to cultivate relationships with local police agencies. This history offers two insights about the nature of American state and federalism in the twentieth century. First, the Bureau’s particular strategy for enlarging its capacity beyond its small size had the ironic effect of trading bureaucratic autonomy for political and operational support. Second, the strategy impeded the development of the states’ role in criminal law enforcement and stymied state-state collaborations. The patterns of collaboration that were set by the 1920s provided the blueprint for the federal government’s anti-crime initiatives throughout the rest of the century
A Softer, Simpler View of \u3cem\u3eChevron\u3c/em\u3e
Get PDFJustice Kennedy\u27s concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron\u27s opening language, as distinct from its inherent reasoning. When courts quote language like precise question and permissible to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within which the EPA would have authority to act (infra vires) and then (b) reviewed its action for reasonableness. There is no problem reconciling this approach with either proper judicial function or 5 USC 706.6
The Core Corporate Governance Puzzle: Contextualizing The Link To Performance
Get PDFThere is a puzzle at the core of corporate governance theory. Prior scholarship reports a strong relationship between firms best at creating shareholder value and those rated highly by the established corporate governance indices. Little work explores why, however. We hypothesize that the link between governance and performance depends centrally on context. We illustrate the importance of context by exploring circumstances when a firm\u27s governance structure can operate as a signal of the quality of its management. The idea is that better managers are on average more likely to choose a highly rated governance structure than are bad managers because a structure garnering a high rating increases the risk of job loss more for bad managers than for good ones. Conversely, the choice of a poorly rated governance structure signals negative information about managerial quality because good managers would not wish to make a false negative signal. Signals of managerial quality can take on particular significance under certain circumstances.
This Article tests empirically the hypothesis that a particular context – the existence of an especially high information asymmetry between a firm\u27s insiders and the market concerning the quality of its management – is a situation in which a change in the firm\u27s governance structure will become a stronger signal concerning its management\u27s quality. The test compares ordinary times with 2000-2002, a period of unprecedented corporate accounting scandals that led to greater than usual uncertainty as to which firms had the better managers. We show that an index-score-altering change in governance structure during these accounting scandal years is associated with a much larger change in a measure affirm value creation – Tobin\u27s Q – than a comparable governance change in the years before or after the accounting scandal period. By running both OLS and fixed effect regressions, we are able to show that the market\u27s perception of the effectiveness of a highly-rated governance structure at better incentivizing managers, or at filtering out bad ones, was not significantly different in the scandal years than in the years before or after. Thus, signaling – the third possible causal link between good scores and higher Tobin\u27s Q must have been at work. The reasoning is that the clarifying signal arising from a governance change should have a bigger effect in a period of greater uncertainty as to which firms had good managers. This conclusion is further confirmed by empirical evidence that the impact of a governance change on Tobin\u27s Q during the scandal years was especially elevated for firms engaging in substantial amounts of R&D. Such firms have been shown by other studies to be generally more opaque.
These results also teach a larger lesson: the impact of governance is in important respects contextual, depending on the particular circumstances of the time, and the particular characteristics of the firms, involved. This point, largely missed to date, helps illuminate the current debate concerning the corporate governance index studies. It suggests that that there is an empirically verified theory that provides one explanation for the index studies\u27 strong results linking governance structure with firm value creation, but that, rather than a single link between the specified corporate governance provisions and performance, a range of linkages are possible whose direction and intensity depend centrally on the particular context in which a firm is operating