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Governing Corporate Compliance
No full textIn light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages
Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf
Get PDFThis Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution-the Commission on the Limits of the Continental Shelf-to make recommendations concerning them. Limits set by coastal states on the basis of such recommendations shall be final and binding. Yet the Law of the Sea Convention\u27s third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.
International courts and tribunals are likely to play only limited roles in reviewing a coastal state\u27s compliance with the substantive and procedural requirements of the Law of the Sea Convention related to the outer limits of its continental shelf. Rules about jurisdiction and standing, and the need to accord appropriate deference to the Commission on the Limits of the Continental Shelf, will restrict the cases that may be pursued. Although third-party tribunals might issue occasional advisory opinions or rulings in contentious interstate cases, helping to settle disputes or promote consistent and accurate application of the law, alternative mechanisms will often have to further these goals
Fighting an Anonymous Enemy: The Uncertainty of Auction Sites in the Face of Tiffany v. eBay and LVMH v. eBay
Get PDFI Was Put Out the Door With Nothing -- Addressing the Needs of the Exonerated Under a Refugee Model
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Lobbying and Litigating Against Legal Bootleggers --The Role of the Organized Bar in the Expansion of the Courts\u27 Inherent Powers in the Early Twentieth Century
Get PDFWhat We Learn in Troubled Times: Deregulation and Safe Work in the New Economy
Get PDFReviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness. By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light on the OSH challenges facing employees in the new economy, highlights better ways of protecting workplace safety and health, and identifies sustainable practices worth preserving and strengthening. To those ends, the academic debates surrounding new governance scholarship and responsive regulatory techniques provide a backdrop. Situating the safety agencies\u27 recent records within those debates reveals the pitfalls of traditional and new approaches to regulation and the synergies between them. To improve the safety and health of America’s increasingly vulnerable workers, both approaches are required but must be linked. Yet the necessary links between them may be more diffuse than many scholars assume. In other words, it is not necessary or advisable for all cooperative, reflexive, and participatory programs to be housed in traditional regulatory agencies. During periods when, as in the last administration, deregulation is ascendant, agencies that lack enforcement powers may be better positioned to obtain substantive results than are their regulatory counterparts
The United States and the Law of the Sea Convention: U.S. Views Concerning the Settlement of International Law Disputes in International Tribunals and U.S. Courts
No full textThe United States has not yet accepted the Law of the Sea Convention and the 1994 Part XI Implementation Agreement, which is to be read together with the Convention as a single instrument. The U.S. opposition to the Convention reflects longstanding and deeply held positions of some segments of the U.S. body politic about foreign policy and international law. Part I of this article discusses these opposition themes. If we understand how opposition to the Convention links to U.S. historical traditions, as well as understand the underpinnings of support for the Convention, we can better appreciate likely U.S. positions. Part II of this article examines U.S. attitudes towards the jurisdiction of international courts and tribunals authorized to interpret and apply the Convention, and Part III examines U.S. attitudes towards application of the Convention in U.S. courts. Finally, Part IV of this article critically evaluates restrictive U.S. positions towards the jurisdiction of international third-party dispute settlement forums under the Convention and U.S. resistance to the direct application of the Convention in U.S. courts