Does the federal Family and Medical Leave Act of 1993 create a hole in ERISA preemption?

ERISA's board preemption provision has survived many challenges to its scope and effect. Now it may have succumbed in the face of a few statements tucked into the legislative history of the federal Family and Medical Leave Act (FMLA). Language in the legislative history presents the view that the Act was meant to overturn ERISA preemption of state family and medical leave laws. The text of the FMLA contains no corroborating language to support that view. However, at least one court found the statements in the legislative history to be persuasive and ruled that under the FMLA, ERISA does not preempt state family and medical leave laws that regulate ERISA plans. If other courts follow that decision, there will be great implications to employee benefit plan regulation and administration. This article explores the court's decision and the relationship between the FMLA and ERISA preemption.     

Federalism and the European Union: A constitutional perspective

Constitutional questions have resurfaced in the last few years with regard to the European Union. The Maastricht Treaty is a kind of constitutional reform. The rejection of this treaty by Denmark in its first referendum, and the subsequent debate of the treaty that has taken place, raise questions about both the nature of the European Union, and the process by which its rules (constitution) get revised and approved. Similar questions surround the entry of Austria and the three, additional Scandinavian countries into the Union. Perhaps, no event called the European Union's constitution, or lack thereof, into question more that way in which a new President of the Commission was chosen during the summer of 1994. This paper will reexamine the European Union's structure and procedures from a constitutional perspective. Drawing upon the author's recently completed book, Constitutional Democracy, the paper will review the purpose for the Union's existence, the implications of this purpose for the structure of the Union (federalism versus confederation), the rules for making collective decisions in the Union, citizenship, and in particular, the procedures by which the European Union's “Constitution” is written and revised. The constitutional perspective adopted is taken from public choice. The political institutions of the European Union are examined relative to those rational, self-interested individuals would choose to advance their interests.     

Simplicity and Spook: Terrorism and the Dynamics of Threat Exaggeration

It has been common, at least since 1945, to exaggerate and to overreact to foreign threats, something that seems to be continuing with current concerns over international terrorism. This paper sketches threat exaggeration during the Cold War and applies the experience from that era to the current one. Alarmism and overreaction can be harmful, particularly economically. And, in the case of terrorism, it can help create the damaging consequences the terrorists seek but are unable to perpetrate on their own. Moreover, many of the forms alarmism has taken verge on hysteria. The United States is hardly "vulnerable" in the sense that it can be toppled by dramatic acts of terrorist destruction, even extreme ones. The country can, however grimly, readily absorb that kind of damage, and it has outlasted considerably more potent threats in the past.     

A cross‐Canada analysis of the efficiency of residential recycling services

Abstract: The primary purpose of this article is to investigate the factors that predict the efficiency of residential recycling collection services in Canadian local governments. The findings are based on a survey of 128 residential recycling producers from all regions of Canada. One of the most significant findings is the lack of a relationship between private‐sector companies collecting recyclables and the overall efficiency of collection operations. The dominance of the private‐sector collection of recyclables (over seventy‐seven per cent of all producers were contracted companies) does not translate into greater efficiencies. The most important variables in the model are amenable to local control. They include tonnes collected per vehicle per year, requiring full bins, inclusion of composting operations in the overall recycling program, the number of different kinds of materials recycled, participation rate, and reliance on side‐loading collection vehicles. Among the direct predictors of unit costs, the key underlying factor is the productivity of residential recycling operations. Because recyclables are marketed, handling them takes time, reduces the weights that collection vehicles can carry, and generally reduces productivity. Even diligent efforts to improve productivity will not bring recycling costs down to the levels for residential solid‐waste collection. Sommaire: L'objectif principal du présent article est d'examiner les facteurs qui prévoient l'efficacité des services de collecte de produits recyclables résidentiels dans les municipalités canadiennes. Les résultats reposent sur un sondage réalisé auprès de 128 producteurs de collecte de produits recyclables résidentiels opérant dans toutes les régions du Canada. L'un des résultats les plus notoires est le manque de relations entre les sociétés du secteur privé qui récupèrent les produits recyclables et l'efficacité d'ensemble des opérations de collecte. La prédominance de la collecte de produits recyclables par le secteur privé (plus de soixante‐dix‐sept pour cent de tous les producteurs étaient des sociétés contractuelles) ne se traduit pas par une plus grande efficacité. Les variables les plus importantes du modèle peuvent faire l'objet d'un contrôle local. Elles comprennent les tonnes récupérées par véhicule par an, l'exigence de poubelles pleines, l'inclusion d'opérations de compostage au programme général de recyclage, le nombre de différentes sortes de matériaux recyclés, le taux de participation, et le recours à des camions de collecte à chargement latéral. Parmi les variables explicatives directes des coûts unitaires, le principal facteur sous‐jacent est la productivité des opérations de recyclage résidentiel. Comme les produits recyclables sont commercialisés, leur manutention prend du temps, réduit le poids que les camions de collecte peuvent transporter, et réduit d'une manière générale la productivité. Même des efforts diligents pour améliorer la productivité ne feront pas baisser les coûts du recyclage aux niveaux de ceux de la collecte des déchets solides résidentiels.     

Political interference and regulatory resilience in Brazil

Governments face a fundamental tradeoff between regulatory independence and control. Attempts of interference have the effect of reducing the system's level of commitment and credibility. On the other hand, an administration runs the risk that the autonomy delegated to regulators might be used to pursue outcomes that may harm their interests. This tradeoff is particularly relevant when there is an alternation of power with the arrival of a new political elite with different preferences. This paper uses data from a 2016 survey on regulatory governance applied to Brazilian regulatory agencies. This data is compared to a similar survey performed in 2005. The new survey results turn out to be surprisingly similar to those of a decade earlier, suggesting strong resilience of regulatory agencies despite significant attempts at political interference by powerful presidents. The factors explaining the resilience of regulatory governance in Brazil lie in its broader institutional endowment, which moderates the effects of executive interference.     

Keeping face in the public sphere: recognition,discretion and Uzbekistan's relations with the United States and Germany, 1991–2006

The manner in which President Karimov's roles were recognized in the global arena affected how Uzbekistan's international relations developed – a perspective that highlights both the form and the content of bilateral relationships. While mutual interests are crucial to beginning a relationship, it is also important to understand how those relations were recognized in public and dealt with in private. If partners managed to recognize Karimov's agenda publicly, or at least act with discretion, this tended to create an atmosphere favouring cooperation. As such, recognition and discretion reveal much about Karimov's concerns with international equality and self-reliance, pointing to the reasons why Uzbekistan's relations fluctuated more with some actors than others. The United States and Germany are ideal examples of that ambivalent situation: Washington often cooperated with Uzbekistan on security matters, but then saw its military personnel excluded from Qarshi-Qanabad after the 2005 Andijan crisis; whereas Berlin witnessed little change in its relationship with Uzbekistan and continued to lease a base in Termez after 2005. This difference in outcomes can be explained in part by a dynamic of recognition and discretion.     

Asymmetric septal hypertrophy of the heart. New findings concerning the possible etiology of sudden deaths in five males

This report describes certain interesting postmortem findings in the hearts of five subjects who died suddenly, silently, and unexpectedly, and in whom the only significant abnormality at autopsy was asymmetric septal hypertrophy (ASH) of the heart. Deep clefts, cystic faults, and dilated vascular channels were not only seen within the septal myocardium in all the hearts, but also within the left ventricular free walls of two hearts. The septal myocardium and the left ventricular free walls of two hearts and the A-V node and His bundle of one heart demonstrated mural and luminal thrombi of several dilated vascular channels. In another heart, foci of cardiocytic myofibrillar degeneration were seen, especially close to narrowed small coronary vessels. Fetal dispersion and fibrosis of the A-V node and His bundle were evident in one heart. These abnormalities in the conducting system and the ventricular myocardium suggest that the hearts of subjects with ASH are not only excellent anatomic substrates for lethal arrhythmias, but also are bound to be hemodynamically impaired. We believe that conditions such as hypoxia, increased oxygen demand by the heart or abnormal sympathetic stimulus may easily trigger fatal arrhythmias in such individuals, thereby causing sudden death.