Yale Journal on Regulation最新文献

{"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}

{"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}

{"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}

{"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}

{"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}

{"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}

{"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}

{"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}

{"title":"Fact or Fiction: The Legal Construction of Immigration Removal for Crimes","authors":"M. A. Sweeney","doi":"10.2139/ssrn.1361670","DOIUrl":"https://doi.org/10.2139/ssrn.1361670","url":null,"abstract":"Thousands of long-term legal permanent residents are deported from the United States each year because they have been convicted of criminal offenses, many quite minor. These deportations occur without any of the constitutional safeguards that generally protect criminal defendants. Immigration authorities rely on cases asserting that such deportations are not punishment for the crime, but merely collateral consequences of the conviction. This article challenges that reasoning. It argues that its factual and doctrinal foundation has completely disintegrated over the last 20 years. Far-reaching changes in immigration law and enforcement have rendered deportation for aggravated felonies a \"definite, immediate and largely automatic effect on the range of the defendant's punishment,\" that is, the direct consequence of a conviction. As such, the state should impose it only subject to the same constitutional protections that apply to criminal prosecutions. One key implication is that non-citizen criminal defendants should be fully and accurately advised of the immigration consequences of any plea agreement. Finally, this article argues that, while deportation has essentially become an additional criminal sanction for non-citizens, it is not a particularly effective or appropriate one. The article thus advocates a deep revision of immigration laws to restore deportation as a sanction imposed in the exercise of discretion on those whose criminal offenses outweigh their ties to the United States community and the hardship they and their community would suffer if they were deported.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"27 1","pages":"3"},"PeriodicalIF":2.8,"publicationDate":"2010-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.1361670","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68169706","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}

{"title":"Hedging the IRS - A Policy Justification for Excluding Liability and Tax Insurance Proceeds","authors":"J. Kahn","doi":"10.2139/SSRN.1106343","DOIUrl":"https://doi.org/10.2139/SSRN.1106343","url":null,"abstract":"Uncertainty as to tax results is an ever present obstacle to business transaction despite the extensive number of Code sections that exist. Private insurance companies have seen an opportunity to enter the market and provide a useful service which can reduce tax uncertainty obstruction to engaging in promising endeavors. Some insurance companies now provide an insurance product to protect the insured against adverse tax consequences from proposed transactions.Ironically, this new insurance product, labeled tax insurance, poses uncertain tax consequences itself. If the adverse tax consequences arise (that is, the taxpayer has additional tax liability) and the insurance company is contractually required to cover that liability, are the insurance proceeds that reimburse the insured for the additional tax liability included in the insured's gross income? If so, the insured might need to purchase additional coverage to pay for the tax incurred on receiving the proceeds.Commentators have concluded that the proceeds are taxable, and insurance companies also appear to adopt that view since tax insurance generally includes gross-up provisions to cover the tax that might be imposed on the disbursement of the proceeds. Contrary to that general opinion, this article argues that the tax insurance proceeds are not includable in the insured's gross income.The proceeds of general liability insurance have not been treated as taxable to the insured when paid to satisfy a liability of the insured. Some commentators have questioned whether there is a justification for that treatment under tax policy. As part of the reasoning that underlies the author's conclusion concerning tax insurance, the article examines that question and develops a novel approach that provides a tax policy justification for excluding those proceeds from the insured's income. The article concludes that the same justification also applies to exclude tax insurance proceeds from the insured's gross income.","PeriodicalId":46196,"journal":{"name":"Yale Journal on Regulation","volume":"26 1","pages":"1"},"PeriodicalIF":2.8,"publicationDate":"2008-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68140673","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}