Regulatory Choice for Alternative Modes of Regulation: How Context Matters

The growing role of alternative modes of regulation (self‐ and co‐regulation) gives rise to major questions about regulatory choice between available governance mechanisms. Strategic policy instruments such as regulatory impact assessment guidelines (RIA) typically suggest assessing the suitability of alternative modes of regulation but they hardly specify assessment criteria. This article identifies contextual factors that should be included in any effort to predict when alternative regulatory arrangements are likely to emerge and to be effective. To demonstrate the value of the approach, it is applied to an analysis of self‐regulation in the domain of content‐rating in the audiovisual industry.     

Regulating Global Financial Markets

This paper discusses the role of regulation in the emergence of a global system of linked financial markets. It traces the origins of the internationalization of financial markets to the emergence of new competitive pressures, rooted in changes in the social structures of savings and investment, breaking down both national systems of financial control and international arrangements for monetary and financial co-ordination. These changes have been accompanied and facilitated by a process of international re-regulation, through informal specialist networks. Although these have facilitated the international diffusion of regulatory standards and practices, and attempted to co-ordinate them, they are greatly hampered by espousing the perspectives of the various markets and firms which it is their task to supervise. Together with their minimalist view of the aims of public legitimation and oversight of financial markets, they have proved inadequate to prevent the destabilizing effects of the new global finance on the world economy.     

Analyzing regulatory failure: mismatches, less restrictive alternatives, and reform

Professor Breyer presents here a framework for analysis and reform of economic regulation. The framework consists of three basic elements: justifications for regulation, modes of classical regulation and the problems they entail, and "less restrictive alternatives" to regulation, including taxation and disclosure. Using contemporary regulatory programs as examples, Professor Breyer argues that many such programs are ill designed to meet their objectives, and that the problems inherent in such regulatory regimes are severe. Finally, he briefly sketches how one might, as a practical matter, go about achieving reform, citing as an example the recent change in airline regulation.     

The Politics of Jurisdiction

Jurisdiction is a central concept in the framing of the legal world but it has received short shrift in mainstream legal theory. This article examines the prevailing conceptual forms of jurisdiction in order to retrieve space for the political. The study of jurisdiction is also the study of the political community that it invokes and authorises. The first part of the article examines the three forms that jurisdiction takes in contemporary scholarship (territory, community, governance) to show that each form overlooks some implication of the political community that is tethered to jurisdiction. The second part of the article flips the inquiry to demonstrate the oversight of jurisdiction in theories of sovereign exception. The emergent understanding of jurisdiction as political provides an anchor for the study of jurisdiction going forward and highlights the potential role for jurisdictional arrangements in contemporary public law and constitutional law settings.     

Perils of Governance through Networks: The Case of Regulating Payday Lending in Canada

Much has been written in recent years about new modes of governance facilitated by discrete policy networks. While emphasis is usually placed on the functional attributes of such governance arrangements, there are occasional observations in the literature about their democratic credentials as well. Such discussions of the democratic potential of governance through networks tend mostly to focus on questions of the efficacy and fairness of these types of interest intermediations. My article seeks to explore the complex prior role that legitimation plays in the policy process associated with governance through networks by way of a case study detailing the recent construction of a new regulatory regime for payday lending in Canada.     

MAPPING PARADIGMS OF EUROPEAN INTERNET REGULATION: THE EXAMPLE OF INTERNET CONTENT CONTROL

The article introduces three of the paradigms used to analyze internet regulation and applies them to the history of internet content control in Europe. It builds on Thomas Kuhn’s notion of paradigms and previous works on regulatory theory, defining regulatory paradigms as a “shared understanding of the purpose of regulation, of the way of thinking about how regulation works, and of the set of institutional arrangements and instruments through which regulation is conducted.” Building on this definition, the prevalent concepts of the paradigms of internet regulation refer to the intention, mechanisms, and the intensity of regulation. The article discusses these concepts with regard to the regulation of internet content control in Europe and analyzes three paradigm shifts that have taken place since the early days of the internet. These paradigm shifts concern the responsiveness, differentiation, and intensity of regulation.     

Between Law and Social Norms: The Evolution of Global Governance

Abstract.  It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulty in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality." We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation." As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria , and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research.     

Control Modes in the Age of Transnational Governance

The article starts with the observation that there are overlaps in, so far, largely unrelated research programs concerned with the legalization in international relations, on the one hand, and transnational regulation and governance, on the other. The analysis of the literature at the interface between the "fourth strata of the geology of international law" and the "governance in the age of regulation" literatures reveals a substantial common interest in structures of transnational regulatory governance. At the same time, the theoretical toolkit of both strands of literature does not match the task of coping analytically with structures and processes in the overlapping realm. To sharpen the analytical edge, the article elaborates hierarchy, market, community, and design as four ideal types of control modes in transnational regulatory spaces. The application of this model to the empirical analysis of a number of regimes underpins the observation that control frequently occurs in hybrid regulatory constellations involving public and private actors across national and international levels. A key example concerns the prominence of domestic regulatory regimes in underpinning transnational governance processes, where national rules achieve extraterritorial effect as much through competitive as through hierarchical mechanisms.     

Conceptualising Multilevel Regulation in the EU: A Legal Translation of Multilevel Governance?

How should we conceive of regulation in the European context? This paper attempts to answer this by developing multilevel regulation as a theoretical concept. The basic aim of the paper is to explore the difference and convergence between regulation and governance and develop multilevel governance and multilevel regulation as two individual heuristic concepts. We suggest that it is useful to frame multilevel governance in the context of regulatory spaces. As an example, we undertake an exploratory investigation of multilevelness of the regulatory space of marketing authorisation of medical devices. This allows us to help focus on certain aspects of the regulatory process by acknowledging that it is no longer located in the hand of a single (governmental) actor and highlighting the necessity of considering interventions beyond the state in addressing regulatory effectiveness problems that may crop up in this context. Ultimately, we assess whether multilevel regulation is a legal translation of the concept of multilevel governance.     

Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements

The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private organizations, and civil society groups influence the meaning of legal rules in regulatory governance arrangements that they participate in. Drawing from participant observation at consumer law conferences and interviews with stakeholders, my empirical data suggest that consumer rights and, in fact, consumer law, mean different things to different stakeholders tasked with adjudicating consumer rights. Rights afforded consumers who purchase warranties are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations with soft state oversight and others run by stakeholders but with greater state oversight and involvement. Using new institutional sociology and regulatory governance theories, I find that stakeholders involved in overseeing and administering these dispute resolution systems filter the meaning of consumer rights through competing business and consumer logics. Because consumer laws mean different things to stakeholders tasked with adjudicating consumer rights, two different rights regimes simultaneously exist in this field. I conclude that how rule‐intermediaries administering private and state‐run dispute resolution systems conceptualize what consumer laws mean in action may have implications for regulatory governance and more broadly, consumers' access to justice.     

Children and Young People who have Sexually Harmful Behaviours: From Fixed to Transformative Risk Assessment

Risk, risk assessment and risk management have become central to contemporary policies and practices in criminal justice, with consequences for those who apply and receive such approaches. It has been argued that risk has been the key organising principle of contemporary correctional practice and offender management, and that actuarial risk in particular has taken on a hegemonic dominance that supersedes other models of governance, such as welfare and disciplinary forms of regulation. This article focuses on the construction and deployment of two assessment frameworks for young people with sexually harmful behaviour to illustrate the epistemological differences between a clinical/actuarial guided approach and that of constructing safety. It identifies current theorising about risk/technologies as being within a neo-liberal political and governance agenda and the opportunities for moving from a fixed to a transformative risk subject.

Corporate Governance: Towards a Theory of Regulatory Shift

Providing effective corporate governance regulation and controls is a contemporary challenge to all law makers. There exists a need to restore investor confidence while seeking to facilitate and encourage enterprise. This paper reflects on the traditional choice between shareholder versus stakeholder models of corporate governance and suggests that these are inappropriate in the light of emerging news theories of the firm. Instead this paper suggests that law makers should accommodate a shift away from the traditional paradigms of these models in favour of a processual approach of governance. This would require a recognition of the tensions that exist in the regulation of corporate governance and invite the application of a collibratory process to the control of governance. The development and reform of directors’ duties and liabilities, in the UK, is provided as an illustration of the need for the recognised application of a collibratory process. Within that we also consider the application of the economists concept of ‘rent-seeking’ and the conflict between private property rights and public interference.JEL M14, D72, K22, K33     

Regulation of health practitioners: national reform in Australia

From the second half of 2010 Australia has had a uniform regime for registration of health practitioners and, with the exception of New South Wales, a nationally consistent scheme for regulation of a number of categories of health practitioners. This entails a move toward validation requirements, a continuing focus on protection of titles as the principal regulatory mechanism, and an identification of those professions currently suitable for formal registration and regulation. This editorial discusses issues arising from the new national regulatory arrangements, controversies about the distinction between "conduct" and "performance" investigations, challenges in relation to assessment of impairment and what constitutes a "fit and proper person" as well as issues arising from the mandatory notification provisions within the legislation.     

Analysing and Assessing Accountability: A Conceptual Framework1

Abstract: It has been argued that the EU suffers from serious accountability deficits. But how can we establish the existence of accountability deficits? This article tries to get to grips with the appealing but elusive concept of accountability by asking three types of questions. First a conceptual one: what exactly is meant by accountability? In this article the concept of accountability is used in a rather narrow sense: a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences. The second question is analytical: what types of accountability are involved? A series of dimensions of accountability are discerned that can be used to describe the various accountability relations and arrangements that can be found in the different domains of European governance. The third question is evaluative: how should we assess these accountability arrangements? The article provides three evaluative perspectives: a democratic, a constitutional and a learning perspective. Each of these perspectives may produce different types of accountability deficits.     

Private Regulation of the Public Sector: A Neglected Facet of Contemporary Governance

The centrality of regulation among the tools deployed by governments is well established in the social science literature. Regulation of public sector bodies by non-state organizations is an important but neglected aspect of contemporary governance arrangements. Some private regulators derive both authority and power from a legal mandate for their activities. Statutory powers are exercised by private regulators where they are delegated or contracted out. Contractual powers take collective (for example, self-regulatory) and individuated forms. But a further important group of private regulators, operating both nationally and internationally, lack a legal mandate and yet have the capacity to exercise considerable power in constraining governments and public agencies. In a number of cases private regulators operate more complete regulatory regimes (in the sense of controlling standard setting, monitoring, and enforcement elements) than is true of public regulators. While private regulators may enhance the scrutiny given to public bodies (and thus enhance regimes of control and accountability), their existence suggests a need to identify the conditions under which such private power is legitimately held and used. One such condition is the existence of appropriate mechanisms for controlling or checking power. Such controls may take the classic form of public oversight, but may equally be identified in the checks exercised by participation in communities or markets.     

习近平全面依法治国新理念新思想新战略对法治理论的发展

习近平全面依法治国新理念新思想新战略对国家治理意义重大,是中国特色社会主义法治理论的最新成果。其汲取了古今中外各类法治理论的有益元素,对法治理论做了七项创新发展,即建设法治中国、建设中国特色社会主义法治体系、坚持"三个核心要义"、坚持"共同推进、一体建设"、完善党内法规体系与实现依规治党、着力实现制度现代化、统筹国内法治和国际法治;还对法治理论做了十五项拓展深化,即关于依法治国方针、坚持党的领导、法治为民、法治经济、法律面前人人平等、科学立法、严格执法、公正司法、全民守法、权力监督、德法并重、改革和法治关系、加强社会治理、政法机关职能、法治环境建设的拓展深化。习近平全面依法治国新理念新思想新战略具有强大的生命力,继承了马克思主义法治理论系列成果,传承了中华传统法律文化精华,吸收了世界法治理论精华,且勇于探索当代中国法治实践。     

从监管走向治理——数字货币规制的全球格局与实践共识

全球数字货币正沿着两个方向飞速发展,技术驱动下私人数字货币的自发秩序仍在不断生长,而国家规制下法定数字货币的公权扩张也日趋明显.纵观数字货币规制的全球格局,虽然各国在数字货币ICO和交易所监管思路及其最新发展各不相同,但都是在促进金融创新与防范风险之间寻求最优平衡.因地制宜,我国亦不应采取单一的监管或控制思维,而应更多...     

国际金融软法的效力与发展趋势

在全球治理与公民社会兴起的背景下,国际金融软法的蓬勃发展是一种必然趋势。国际金融软法虽然不具有法律约束力,但在实践中却可能产生某种实际约束效果。运用社会法学派和现实主义学派的方法,可以较好地解释这一现象。国际金融软法的制定主体、调整范围和表现形式具有广泛性和多样性,能够在一定程度上弥补国际金融硬法的不足。国际金融软法的实际约束效果主要通过法律上和事实上的"硬化"来体现。从发展趋势来看,除转化为国际条约、国际习惯和国内法之外,国际金融软法在较长的时期内仍有自己独立的发展空间。国际金融软法的未来发展有赖于进一步提高公众参与度和透明度。     

食品安全视域下政府监管存在的矛盾及改进策略

目前,突出的食品安全问题与政府管理机制的运行缺陷、内在矛盾有着密切关系。政府在管理职能、管理手段、治理过程、信息传播、法规执行上存在着诸多的问题。因此,厘清矛盾关系,找出监管"失灵"的根源,转变监管理念,调整监管行为,提升监管效能,这样,才能提高政府对食品安全监管的公信力。