A Race for the Regs: Unified Government,Statutory Deadlines,and Federal Agency Rulemaking

Theory suggests that Congress should delegate more policymaking authority to the bureaucracy under unified government, where lawmakers are less worried about the president orchestrating “bureaucratic drift.” Yet, all unified governments come to an end, making broad delegations potentially advantageous to future lawmaking coalitions (“coalitional drift”). We seek to assess how lawmakers simultaneously limit the risk of each of these pitfalls of delegation. Our answer is rooted in Congress’s ability to spur agency rulemaking activity under unified government. Specifically, we expect statutes passed under unified government to require agencies to issue regulations quickly and for enacting coalitions to use oversight tools to influence agency policy choices. Such “proximate oversight” allows coalitions to cement policy decisions before a new election changes the configuration of preferences within Congress and the executive branch. We assess our argument using unique data on both congressional rulemaking deadlines (1995–2014) and the speed with which agencies issue regulations (1997–2014).     

A Set of Handwriting Features for Use in Automated Writer Identification,

A writer's biometric identity can be characterized through the distribution of physical feature measurements (“writer's profile”); a graph‐based system that facilitates the quantification of these features is described. To accomplish this quantification, handwriting is segmented into basic graphical forms (“graphemes”), which are “skeletonized” to yield the graphical topology of the handwritten segment. The graph‐based matching algorithm compares the graphemes first by their graphical topology and then by their geometric features. Graphs derived from known writers can be compared against graphs extracted from unknown writings. The process is computationally intensive and relies heavily upon statistical pattern recognition algorithms. This article focuses on the quantification of these physical features and the construction of the associated pattern recognition methods for using the features to discriminate among writers. The graph‐based system described in this article has been implemented in a highly accurate and approximately language‐independent biometric recognition system of writers of cursive documents.     

Traditional Local Justice,Women’s Rights,and the Rule of Law: A Pluralistic Framework

The paper focuses on the application of a particular conception of the rule of law to situations characterized by traditional local justice and legal pluralism. While in the twentieth century international rule‐of‐law programmes were directed almost exclusively at state legal system, they have recently begun to take into account traditional local justice, namely, those institutions which in many world regions represent the main form of effective justice. Starting with a review of the positive and negative aspects of traditional local justice from a rule‐of‐law perspective, the paper underlines the widespread lack of protection of human rights, particularly of women’s rights. Discussing vertical rule‐of‐law functions in contexts of legal pluralism the paper stresses the advantages of an approach to the promotion of the rule of law based on mutual recognition and influence between different legal authorities and sources. It is argued that this “interactive” approach appears best suited to the complex frameworks of relations that characterize present‐day systems of deep legal pluralism. Finally, the paper underlines the correspondence between this approach and a conception of the rule of law as an ideal framework of plural interactions characterized by the limits imposed on the law by the law itself, and it discusses its advantages from the perspective of human rights and women’s rights promotion.     

Legitimate Force in a Particularistic Democracy: Street Police and Outlaw Legislators in the Republic of China on Taiwan

This article explores a “particularistic” concept of legitimacy important to Taiwanese democracy. This form of legitimacy, I suggest, has been instrumental for Taiwan's successful democratic consolidation in the absence of the rule of law. As evidence, I combine ethnographic observation of neighborhood police work with historical consideration of a type of political figure emergent in the process of democratic reform, which I call the “outlaw legislator.” I focus my analysis on the institutional and ideological processes articulating local policing into the wider political field. The center of these processes is a mode of popular representation that positions the outlaw legislator as a crucial hinge articulating the particularistic local order with central state powers. By analyzing the cultural content of the dramaturgical work used to reconcile low policing with higher‐level state operations, this article shows how a particularistic idiom of legitimacy helps hold Taiwanese democracy together.     

The relationship between corporate governance characteristics and credit risk exposure in banks: implications for financial regulation

This article analyses board structures in listed Danish banks in the years prior to the financial crisis by exploring the relationship between corporate governance characteristics and credit risk exposure. The article presents a novel approach as it relies on a newly developed risk metric entitled the “Supervision Diamond” introduced by the Danish FSA, which “external” board directors must address. It contains five thresholds for measuring a bank’s exposure to credit risks i.e. the proportion of large customers, lending growth, the ratio of lending/deposits, liquidity buffer and the proportion of real estate loans. By employing quantitative governance variables the article finds that increased executive director remuneration is associated with increased credit risk posed by the bank’s borrowers. On the other hand, increasing the number of executive/“inside” directors is associated with a lower credit risk exposure. It is argued that more “inside” directors on the executive board constitutes a stronger “checks and balance” system. The article also documents that the probability of obtaining state capital from the Danish credit bailout package is negatively related to larger boards as well as higher executive director remuneration. The policy implication is that financial authorities should be increasingly aware of insufficient corporate governance characteristics in order to prevent excessive credit risk exposure. Moreover, the article provides important insights on which corporate governance variables have a significant impact on a bank’s credit risk exposure. This knowledge is valuable for financial authorities/policy makers considering future regulatory initiatives and how they should administer bank monitoring.     

市场型金融创新法律监管路径的反思与超越

市场型金融创新凸显了规范与现实之间的冲突。无论是选择性监管路径,还是规则扩张式监管路径,抑或是以监管沙箱为代表的实验式监管路径,都不能很好地解决该冲突。以上三种路径,都是在“术”的层面上展开。为了超越以上三种路径,我国应在“道”的层面上进行理念与制度完善,即我国需要完善金融法治基础,建构金融法治哲学,制定《金融法典》或《金融法总则》,创新金融法的更新机制,创建市场型金融创新合法性裁定制度,完善市场型金融创新的法律责任,以便进一步提升我国对市场型金融创新监管的法治化水平。     

Impact Assessment of EU Non‐Legislative Rulemaking: The Missing Link in ‘New Comitology’

Impact assessment (IA) has gone from an innocuous technical tool typically used in the pre‐legislative phase to an instrument at the heart of the European institutional machinery. However—in deviation from its roots as a tool governing delegated rulemaking in the US—most experience with IA in the EU has been gathered in a legislative context. Against the background of the recent evolution of the EU's old ‘comitology’ system into a two‐track system of delegated acts and implementing measures, this contribution discusses in three parts the ‘whys,’ ‘whats’ and ‘hows’ of extending IA to ‘non‐legislative rulemaking.’ It explores various aspects of the rulemaking process that IA—if properly applied—could strengthen: consultation, control and quality.     

Trademark parody and the mass media: Going beyond survey evidence in the determination of “a likelihood of confusion”

This article examines trademark parody in statutory and mass media case law by, in part, analyzing several key cases which illustrate the use of quantitative social science research in the determination of trademark parody infringement. Although the definition and nature of trademark parody has not been settled definitively, courts’ attitudes toward survey evidence, particularly its probative value and materiality in the determination of copyright and trademark infringement litigation, have evolved over time. Courts now admit survey evidence if it meets certain methodological conditions. In trademark parody litigation, survey evidence pointing to a “likelihood of confusion” has evolved as the standard test of trademark infringement. However, there are questions whether vague, subjective concepts like “a likelihood of confusion” and “perception of substantial similarity” between trademarks can be adequately measured by consumer surveys. It is argued that multi‐method research which has both quantitative and qualitative aspects would provide more reliable data than the “one‐shot” surveys or case studies that are widely used in settling trademark infringement cases.     

Creating the Reasonable Child: Risk,Responsibility, and the Attractive Nuisance Doctrine

In common law, trespassers could not sue for injuries. In the early 1870s, however, courts exempted child trespassers injured by industrial machinery from this rule. The development of the hotly contested “attractive nuisance” doctrine illustrates turn‐of‐the‐twentieth‐century debates about how to allocate the risk of injury from industrial accidents, which linked responsibility to the capacity to understand danger and to exert self‐control. Although at first courts in attractive nuisance cases perceived children as innocent, irrational “butterflies,” they gradually reconceived child plaintiffs to be rational, risk‐bearing individuals, a change reflected and accelerated by the Safety First campaign launched by railroad corporations. This reframing of children's ability to bear risk created the standard of the “reasonable child,” which transferred responsibility for industrial accidents to children themselves. Although by the 1930s the attractive nuisance doctrine had been widely accepted, in practice the “reasonable child” standard posed a difficult hurdle for child plaintiffs to overcome.     

Busting the Myth of the Unavailability of Insurance Rule's Application to Loss Allocation for Pollution Liability Claims Since 1986

Tens of millions of dollars in pollution liability losses have been mistakenly allocated to general liability insurers under the “Unavailability of Insurance” rule in jurisdictions that employ it. Under this rule, a policyholder is not allocated losses for years when they claim that pollution liability was unavailable – mainly after the advent of the 1986 “absolute” pollution exclusion. Recent research has been compiled to include thousands of pages of evidence that by 1986 and to this date there was and has been a viable pollution liability insurance market that would not only underwrite a current year's risks, but also erase any prior pollution insurance coverage gaps by insuring decades of prior acts. This article looks at this rule and the enormous impact it could have on insurers' pollution liability reserves if it continues to be misapplied.     

Financial crisis, effective policy rules and bounded rationality in a New Keynesian framework

This paper extends a standard open-economy New Keynesian model to include a third-generation “balance sheet effect” which is made operational through an endogenous risk premium impacting on investment. Using rational expectations and adaptive learning solutions, the efficiency of alternative monetary policy rules is examined during a period of financial crisis. We find that the Taylor rule is the welfare superior policy, questioning the idea of an “information encompassing” inflation-forecast based rule. Under adaptive learning we find additional policy traction and less instrument variability in rules augmented with the exchange rate. All rules, however, advocate a sharp initial interest rate response to the crisis.     

CTS Corporation v. Waldburger: Tempest in a Teapot or the End of Toxic Torts As We Know It?

42 USC § 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act imposes a “discovery rule” on state law actions for personal injuries and property damage caused or contributed to by exposure to a hazardous substance, pollutants, or contaminants. In CTS Corporation v. Waldburger, 134 S. Ct. 2175, 2181 (2014), the U.S. Supreme Court ruled that section 9658 does not preempt statutes of repose, which establish absolute limits on the rights of plaintiffs to bring civil actions, notwithstanding any “discovery rule.” This article explores the potential impact of the Court's decision in Waldburger.     

购置款抵押权的竞存对抗规则研究

满足《民法典》第416条要件的购置款抵押权可以对抗公示在先的固定担保权,此种处理模式虽使外部债权人负担一定审查成本,但总体上符合利益衡量视角下的比例原则。《民法典》在浮动抵押领域中采取“登记主义”的立场,与“超级优先权规则”形成了体系性的规范协调。购置款抵押权与留置权竞存时,后者始终处于优先受偿顺位。在功能主义视角下,所有权保留和融资租赁可准用超级优先权规则,但应作必要限制。购置款抵押权人不得对抗正常经营活动中已经支付合理价款并取得抵押财产的买受人。《民法典》未明文确立担保权收益延伸规则,但在理论层面上仍尚有将其纳入现行法体系的解释空间,且民事主体可在商业实践中通过意思自治达致类似效果。     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

Presumptions,Burdens, and Best Interests in Relocation Law

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and discouraging settlement. The “fundamental questions” proposed by Parkinson and Cashmore in their article will not reform the law. Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers. The first three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is in the best interests of the child, unless the contrary is proved. There will remain a small minority of in‐between cases where none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation reform debate beyond pure “best interests,” to the next stage, to a serious discussion of which cases warrant presumptions, and of what strength.

Key Points for the Family Court Community
• Pure best interests approach to relocation law is a failure
• Presumptions or burdens needed to reform the law, but not just “for” or “against”
• Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care, and predominant primary caregivers

     

Vote Switchers and Party Influence In the U.S. House

Party‐centered theories of Congress often rely on the critical assumption that some majority party members vote against their preferences when granting their leadership procedural powers, such as closed rules. Such an assumption renders these approaches ad hoc, and thus theoretically dubious, unless firm support for the assumption can be found. Firm support is elusive largely because it is difficult to separate party and preference effects. In this article, we produce a simple but critical test of the party persuasion assumption that largely avoids these measurement problems. Specifically, we use a “switcher analysis” (Krehbiel 1998) to compare votes on final passage of the legislation with the votes on the closed rule. Our analysis of all closed rule‐final passage vote pairs for the 104th–108th Congresses reveals vote patterns that cannot exist absent significant party effects.     

Legislative Effectiveness and Legislative Careers

We studied an underutilized source of data on legislative effectiveness and exploited its panel structure to uncover several interesting patterns. We found that effectiveness rises sharply with tenure, at least for the first few terms, even when we control for legislators' institutional positions, party affiliation, and other factors. Effectiveness never declines with tenure, even out to nine terms. The increase in effectiveness is not simply due to electoral attrition and selective retirement, but to learning‐by‐doing. We also found evidence that a significant amount of “positive sorting” occurs in the legislature, with highly talented legislators moving more quickly into positions of responsibility and power. Finally, effectiveness has a positive impact on incumbents' electoral success and on the probability of legislators moving to higher office. These findings have important implications for arguments about term limits, the incumbency advantage, and seniority rule.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Offshoring — which way to India?

Over recent years there has been a great deal of speculation over the prospect of taking various business processes offshore to low cost economies. More recently, and to the concern of various trade unions, the speculation is becoming reality — major UK and multinational organisations are now “offshoring” a significant proportion of their business processes. This article explores the issues involved.     

RULEMAKING POSSIBILITIES: EFFORTS OF THE UNITED STATES JUDICIAL CONFERENCE ADVISORY COMMITTEE ON EVIDENCE RULES TO ADDRESS THE CHALLENGES TO FORENSIC EXPERT TESTIMONY

This piece is an echo to one of the main subjects of the Sixth International Conference on Evidence Law and Forensic Science which is to determine what evidentiary reforms are necessary for regulating forensic expert testimony, and how those reforms might be implemented. In United States, the predominant way of evidentiary reform is through rulemaking. As the Reporter of Judicial Conference Advisory Committee on the Federal Rules of Evidence since 1996, the author, with a pragmatic spirit throughout the article, examines such an effort at the federal level of U.S. in six parts (levels), starting from the most general, abstract level till finishing with the most detailed and substantive points. Part I begins with a brief introduction of the hierarchies of evidentiary rulemaking authorities at the federal level of the United States, various interested groups and their interesting interactions in the rulemaking process. The author then shifts to the general topic of writing rules with a specific focus on the level of detail that is to be provided in doing so; Part II further narrows down the scrutiny into writing a rule on forensic expert testimony with an emphasis on the necessity of making such a rule change to the current general standards of FRE; Part III directly addresses the challenges of drafting a rule on forensic evidence in FRE, including a comparation of various alternative drafting models; Part IV and Part V respectively discusses the Reporter’s comments and the Justice Department’s concerns over the drafted rules; and Part VI briefly discusses the feasibility and effectiveness of a Best Practices Manual on forensic evidence in lieu of rulemaking.