Global Administrative Law: The View from Basel

International law-making by sub-national actors and regulatorynetworks of bureaucrats has come under attack as lacking inaccountability and legitimacy. Global administrative law isemerging as an approach to understanding what internationalorganizations and national governments do, or ought to do, torespond to the perceived democracy deficit in internationallaw-making. This article examines the Basel Committee on BankingSupervision, a club of central bankers who meet to develop internationalbanking capital standards and to develop supervisory guidance.The Basel Committee embodies many of the attributes that criticsof international law-making lament. A closer examination, however,reveals a structure of global administrative law inherent inthe Basel process that could be a model for international law-makingwith greater accountability and legitimacy.     

Politicians and bankers: The political origins of two local banking crises

This paper analyzes the role that political corruption played in banking crises in two states, Rhode Island and Maryland, where, in the 1980s and 1990s, private deposit insurance funds collapsed and state governments were forced to intervene to bail out member institutions. The argument is made that the collapse of these funds was not the result of abstract economic forces but rather was the outcome of structural weaknesses in the two banking systems, weaknesses that ultimately derived from close relationships and overlapping interests among bankers, politicians and regulators. These structural weaknesses are examined and the implications of these two case studies for private deposit insurance and self-regulation among financial institutions are considered. *** DIRECT SUPPORT *** A8806012 00002     

Risk Governance of the Swedish Customs Service: Negotiating Security,Efficiency, and Poor Information

During the last decade, ‘risk management’ has become the common language through which different and sometimes contradictory expectations are brokered in the Swedish customs service. Security concerns, corporate interests and managerial reforms are all phrased—or re‐phrased—as considerations of risk. These considerations are then used to direct organizational strategy and resources. The crucial moment is the operationalization of risks, which are negotiated at the policy level, all the way down through the organization. I will argue that this has happened in the Swedish customs service during the last decade. The successive operationalizations of drugs, violation of intellectual property rights and organized crime have enabled a streamlining of the organization along the policy level risks. The resulting risk governance is mainly about managing the customs as an organization. Yet it also affects the customs' use of force by changing the way border crossers are singled out for control. The traditional, informal risk assessment at the border is being replaced—or supplemented—by formal risk profiles, constructed from the booking information provided by transportation companies. As a consequence, the control selection is increasingly based on a set of impersonal indicators such as mode of payment and possible rebooking.     

Scaling the baseline: Technicalities and environmental regulation in Owens Valley,California

If we want to understand the logic of environmental regulation—as well as its uneven effects—we should look to how regulators and regulated alike generate and deploy baselines. In this article, I chart the scalar frames used to mark the “natural” conditions that are perceived as normal, desirable, and worthy of legal protection and intervention. I explore these frames and resulting legal standards through the case of Owens Lake, California, which has long been a subject of state efforts to regulate resources and remediate pollution. This case study provides an opportunity to understand how presumed technicalities of environmental governance, such as baselines, are constructed and deployed.     

Global Banks as Global Sustainability Regulators?: The Equator Principles

Banks might now seem odd candidates for the role of global sustainability regulator. Nonetheless, in limited areas of their operation, where global banks kept risk on their balance sheets and were financially exposed to many types of risk often otherwise treated as “externalities,” banks began to enact policies to encourage what they construe as “sustainable” banking. A small number of these banks have started to extend these principles of responsible action more broadly, across many of their business lines, as conditions of lending to their corporate clients. To this extent, it is possible to talk about (some) global banks as global sustainability regulators. The “law of unintended consequences” as used in the legal literature almost always refers to the unintended negative consequences of a regulation or policy. In this article, however, we discuss a potentially positive unintended consequence of the deregulatory and privatization trend of the 1980s and 1990s that was fueled by neoliberal political commitments: some private banks have taken a leadership role in regulating development. Specifically, these banks are enacting policies that attempt to mitigate the potentially negative social and environmental consequences of infrastructure development in politically unstable or environmentally fragile landscapes. The vehicle for doing this is a voluntary agreement called the Equator Principles (EPs). The article describes and analyzes the EPs and reports the initial results from an interview‐based study of the various EPs stakeholders, including bankers, government officials, lawyers, consultants, and critics from nongovernmental organizations. We address—from the perspective of these stakeholders—such questions as why the participating banks decided to join the EPs, what effects, if any, the EPs are having on development practice, and whether the EPs will ultimately prove to be more than a public relations exercise.     

Failed Governance: A Comment on Baker and Griffith's Ensuring Corporate Misconduct

This essay evaluates Baker and Griffith's book, Ensuring Corporate Misconduct, as a contribution to the social science literatures on regulation and governance, risk, and insurance. Previous social science work on insurance often took an “insurance on the ground” perspective comparing how insurance actually works with the theory of insurance and scrutinizing the actions of insurers as well as the actions of their policyholders. In line with this perspective, Baker and Griffith find that directors and officers (D&O) insurers do not actually charge premiums that vary with risk or monitor the actions of the officers and directors covered by the insurance. Because insurers and governments share governance tasks (a point Baker makes elsewhere), insurers' failures in fact amount to “failed governance” of the corporate world.     

In Defence of <Emphasis Type="Italic">Punishment</Emphasis> and the Unified Theory of Punishment: A Reply

My book, Punishment, has three aims: to provide the most comprehensive and updated examination of the philosophy of punishment available, to advance a new theory—the unified theory of punishment—as a compelling alternative to available theories and to consider the relation of theory to practice. In his recent review article, Mark Tunick raises several concerns with my analysis. I address each of these concerns and argue they rest largely on misinterpretations which I restate and clarify here.     

Towards ‘Accountable Independence’? Parliamentary Controls of the European Central Bank and the Rise of a New Democratic Model

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of ‘accountability’ is elaborated in this unprecedented relationship between ‘politicians’ and lsquo;technocrats’. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of ‘accountability’ is emerging in the EU. From a horizontal point of view (inter‐institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility.     

Obstacles to preserving precaution and equity in global hazardous waste regulation: an analysis of contested knowledge in the Basel Convention

The Basel Convention is regaining attention for the potential entry into force of the heretofore stalled Ban Amendment. In this paper, we draw parallels between the current debate surrounding the Ban Amendment and contestations that occurred in the early years of the Basel Convention’s Technical Working Group (TWG) over defining ‘hazardousness.’ Like the present debate, TWG deliberations involved a contestation between two divergent discourses concerning how hazardous wastes should be regulated—as ideally managed versus actually managed in the global South. Scholars have shown how the TWG is a site for industry to press for a definition of hazardousness favorable to their economic interests. However, explorations of the specific processes by which this occurred—particularly, how a framework for defining hazardousness that privileges private technical expertise over concerns of precaution and equity was successfully institutionalized within the TWG—have yet to be completed. We show that it is important to reexamine this debate today in order to better understand current Basel Convention developments.     

Review of Findlay Stark,Culpable Carelessness: Recklessness and Negligence in the Criminal Law

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.     

Data security: Past,present and future

The loss by Her Majesty's Revenue and Customs (HMRC) of two CDs containing 25 million child benefit details has changed the data security landscape forever. No longer is data security the exclusive and rather arcane preserve of spotty technology professionals or data protection lawyers. HMRC has thrust data security onto the front pages of the mainstream media and brought it very suddenly to the top of the political and commercial agendas of senior politicians and boards of directors. In this article, the author will outline the reasons behind the rise of data security as a front line issue and examine the lessons to be learnt from HMRC. He will analyse the different facets of data security risk and explore ways in which organisations can go about managing it. He will outline the attitude of regulators to data security and where regulatory developments are likely to take us. The final part of the article looks into the future, with particular focus on the emergence of privacy enhancing technologies.     

乡镇政府治理模式的历史演变及其现代取向——基于农民政治参与的视角

新中国成立60多年来,我国农民政治参与在不同时期以不同的参与方式影响着乡镇政府治理模式的形成。当下,浙江台州乡镇治理转型的现代探索——民主协商下善治式乡镇政府的本质特征在于,乡镇政府与农民对农村社会公共生活的共同管理,它既体现了政治国家与公民社会的一种新型关系,同时也使国家与农村社会在乡镇治理中达成全面、积极和有效的合作,进而实现了官治与民治的契合共治。     

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.

Throwing the rascals out? The electoral effects of corruption allegations and corruption scandals in Europe 1981–2011

Corrupt politicians have to a surprisingly great extent been found to go unpunished by the electorate. These findings are, however, drawn from case studies on a limited number of countries. This study, on the contrary, is based on a unique dataset from 215 parliamentary election campaigns in 32 European countries between 1981 and 2011, from which the electoral effects of corruption allegations and corruption scandals are analyzed. Information about the extent to which corruption allegations and scandals have occurred is gathered from election reports in several political science journals, and the electoral effects are measured in terms of the electoral performances—the difference in the share of votes between two elections—of all parties in government, as well as the main incumbent party, and the extent to which the governments survive the election. The control variables are GDP growth and unemployment rate the year preceding the election, the effective number of parliamentary and electoral parties, and the level of corruption. The results show that both corruption allegation and corruption scandals are significantly correlated with governmental performances on a bivariate basis; however, not with governmental change. When controlling for other factors, only corruption allegation has an independent effect on government performances. The study thus concludes—in line with previous research—that voters actually punish corrupt politicians, but to a quite limited extent.     

风险社会与政府危机管理创新

现代社会风险的运行逻辑,标志着反思性风险社会从理论形态开始成为人类社会的实践。本文认为,现代社会风险的“人化”、“制度化”和“全球化”等本质特征,对传统政府管理职能、政府管理体制和民族国家管理模式提出了严峻的挑战。因此,风险社会下的政府危机管理创新包括以下三个层面:政府管理职能从统治到善治的创新,政府管理体制从传统官僚科层制向全面危机管理体制创新,政府管理模式从民族福利国家管理模式向国际复合型危机管理模式的创新。     

New Governance,Chief Privacy Officers,and the Corporate Management of Information Privacy in the United States: An Initial Inquiry

While the turn from traditional regulation to more collaborative, experimentalist, and flexible forms of governance has garnered significant academic focus, far less attention has been paid to the effects of such “new governance” approaches on regulated firms' understanding of the laws' demands, and on the structures employed within business organizations to meet them. This article targets this analytic gap by examining internal corporate practices regarding consumer privacy, an arena in which the Federal Trade Commission and the states have adopted new governance models. Using data from qualitative interviews with leading corporate Chief Privacy Officers, as well as internal corporate documentation, it examines the way privacy practices have been catalyzed in the shadow of new privacy governance approaches and the combination of regulatory, market, and stakeholder forces they seek to harness. Specifically, it suggests the convergence of a set of practices adopted by privacy officers identified as “leaders,” regarding both high‐level corporate privacy management and the integration of privacy into entity‐wide risk management goals through technology, decision‐making processes, and the empowerment of distributed expertise networks throughout the firm.     

Regulatory Disclosure of Offending Companies in the Dutch Financial Market: Consumer Protection or Enforcement Publicity?

Regulatory disclosure of names of offending companies is increasingly popular as an alternative to traditional command and control regulation. The goals and intended effects of disclosure are not always clear, however. Do regulators wish to increase their transparency, or do they intend to name and shame? This article aims to contribute to a better understanding of the underlying working mechanism of regulatory disclosure of offenders' names through a case study of the Dutch Authority for Financial Markets' disclosure policy. It distinguishes two types of disclosure strategies: consumer oriented and firm oriented. The case study shows that although informing consumers was the primary purpose of disclosure as intended by the Dutch legislature, the purpose in practice has shifted to informing companies about the regulators' enforcement policy. The nature of the disclosed information makes it unlikely that disclosure adequately prevents financial risk taking by consumers. Instead of empowering consumers, disclosure has been incorporated in a traditional deterrence logic, turning out not to be an example of new governance but instead a modern version of command and control enforcement publicity.     

The Legitimacy of New Risk Governance—A Critical View in Light of the EU's Approach to Nanotechnologies in Food

The objective of this article is to draw attention to legitimacy concerns raised by tendencies in EU risk regulation to supplement legislation with alternative regulatory options that are commonly captured under the umbrella term of ‘new governance’. To this end, the risk regulation of nanotechnologies in food serves as an empirical test case. The rise of nanotechnologies affects various societal actors and constitutes a highly controversial development due to the persistence of scientific uncertainties. To reach a compromise in the legislative process is, given the contradicting knowledge claims, a contentious and time‐consuming undertaking. This article, hence, shows that controversial decisions are not necessarily taken through the legislature—the European Parliament and the Council—but are settled, outside the political arena, in guidance documents or via non‐legislative acts. This article argues, relying on an understanding of legitimacy borrowed from Habermas and Scharpf, that despite ‘new governance’ ambitions in this direction the legitimacy of these measures is at best controversial.     

Siberian "Zharki"

The charter of "Zharki"—the first experimental cooperative book publishing association in Siberia—has been registered with the Tsentral'nyi District Executive Committee in Novosibirsk. Our correspondent talked with V. Skal'nitskii, the chairman of its board.     

Women, urban governance and the public service ethos

This article considers gender and the public sector, examining the degree to which women make a ‘difference’ to public service. In reporting on a research project into the 30% seat reservation or quota system for local female politicians in the Indian Mega-City of Mumbai (formerly Bombay), consideration is given to the ways in which women and men manage and organise their daily lives and contribute to public governance, with particular attention given to the cultural specificities of the Indian context in the period of post-colonial rule. It is argued that women politicians and officers are held in high regard as valued and respected holders of public office, that their values and attitudes are more closely aligned to a public service ethos than men's and that their role in the processes of change affecting India at the present time may prove to be significant. This revised version was published online in July 2006 with corrections to the Cover Date.