Regulation by Reward: On the Use of Incentives as Regulatory Instruments*

This essay explores the use of positive reinforcement as a regulatory strategy. It discusses both financial and symbolic incentives and their application in furtherance of regulatory compliance, and presents various illustrative examples of the use of positive incentives by regulatory authorities. It then reviews the advantages and potential shortcomings of regulatory incentives, and suggests principles by which incentive instruments can be used as part of an overall regulatory regime.     

Ozone Partnerships,the Construction of Regulatory Communities,and the Future of Global Regulatory Power*

This article describes our effort to understand the Montreal Protocol as an unconventional approach to regulation, one that encourages the construction of volunteer partnerships, episodic networks, and regulatory communities comprised of public and private actors criss-crossing institutional and national boundaries. We examine three provisions of the Protocol that give official governments and private global corporations latitude to create temporary arrangements that leap beyond their typical institutional constraints. The provisions that promote collaboration are the use of trade sanctions as an incentive to cooperate; the creation of the Interim Multilateral Ozone Fund (IMOF), the funding mechanism that links the fate of developed and developing nations; and, the establishment of an international clearinghouse to share technology for reducing ozone depleting substances. Singly and together these mechanisms of coercion, exchange, and normative pressure permit individual actor's interests to be pursued, bind them into ephemeral but replicable networks of action, and result in the creation of the very meaning of regulatory compliance and effectiveness. The discussion draws out the implications of a transcorporate definition of power and global problem solving as it relates to democratic reliance on the political sovereignty of individual actors and nations.     

Regulatory Styles,Motivational Postures and Nursing Home Compliance*

Using Kagan and Scholz (1984) typology of regulatory noncompliance, this study examined the perceptions of regulators and of regulatees toward the regulatory encounter to predict subsequent compliance with nursing home quality of care standards. Appraisals of both regulators and regulatees were not driven by motivational analyses of each other's actions, but rather by assessments of performance and social group identity. The regulators saw nursing homes in terms of one evaluative dimension ranging from responsible and not in need of intervention through to irresponsible and needing intervention. The corresponding reactions of nursing home managers involved seeing the regulators as cooperative and sympathetic through to police-like and coercive. On both sides of the regulatory encounter, criticism and reactions to criticism swamped nuanced analyses of motivational underpinnings and rational decision models in explaining compliance. The motivational complexity underlying the Kagan and Scholz typology was, however, apparent in the self-reported motivational postures of managers toward the regulatory process. The postures of managerial accommodation and capture to the regulatory culture were associated with compliance. Over time, resisters to the new regulatory regime became more compliant, particularly those whom inspectors judged as best left alone to adjust. In contrast were managers whose response to the regulatory process was disengagement. Their organizations experienced deterioration in compliance. The study fails to find that certain kinds of regulatory strategies such as deterrence, education and persuasion work better than others across the sample or with specific groups. Extant models focus excessively on how to play the regulatory game without recognizing the potential for players dropping out of the game. Understanding reasons for disengagement and processes for reengagement are fundamental to the application of behavioral decision theory models to the regulatory context.     

Games of Engagement: Postures Within the Regulatory Community*

This paper seeks to advance understanding of compliance through identifying the constituent elements of four empirically derived postures of regulatees: resistance and disengagement (associated with non-compliance), and managerial accommodation and capture (associated with compliance) (V. Braith-waite et al. 1994). The nature of these postures is investigated through two theoretical frameworks, Meidinger's (1987) notion of regulatory culture (and the construct of social bonds) and Merton's (1968) modes of adaptation (and the construct of commitments to institutional goals and means). Social bonds and commitments to goals and means are important for explaining resistance, disengagement and managerial accommodation. In the case of capture of the regulatees, social bonds are more important than commitments to goals and means. The findings counsel regulatory agencies to establish trust and respect in the regulatee-regulator relationship.     

Regulatory and Administrative Agency Behavior: Accommodation,Amplification, and Assimilation*

Much scholarly analysis of regulatory and administrative behavior focuses on officials' reactions to external influences. Commonly discussed is officials' accommodation of external interests or pressures (such as those of interest groups). But case studies show two additional types of behavior: amplification, in which officials enlarge the effects of external influences by anticipating the potential likely consequences of certain kinds of agency actions based upon their understandings of how situations have been responded to or may be responded to by others in the future; and assimilation, where officials define a situation as problematic and coordinate with or take into account various elements of their environment in attending to the perceived problem. Focusing on all three patterns of behavior and the context within which they emerge yields a fuller analysis of the significance of external factors for the exercise of discretion.     

Public Participation in Environmental Regulatory Conflicts: Treading Through the Possibilities and Pitfalls*

Based on two years of qualitative field work, this paper examines public participation in environmental regulatory disputes. Drawing on political economy critiques of environmentalism, we argue that regulation is both a political arena and a legal process that is about responsivity, competition, and bargaining. A combination of case study and Boolean algebra techniques are used to refine and apply the conceptualization. Five primary factors are identified which mediate citizens' participation: (I) information networks, (2) social resources, (3) cooperative linkages, (4) the ability to sustain linkages and levels of resource mobilization over time, and (5) agendas which fit within the narrow constitutive norms of a particular regulatory community.     

Theory and Practice of Regulatory Enforcement: Occupational Health and Safety Regulation in British Columbia*

Data about the activities of occupational health and safety officials in British Columbia is utilized to explore competing explanations for the overwhelming prevalence of persuasion over punishment in regulatory enforcement. By plotting the compliance histories of individual firms, this study demonstrates that many offenders repeatedly commit the same infraction. Few of these repeat offenders are punished. These findings suggest that the very limited use of penalties is not a result of the vast majority of firms being good apples induced to comply by mechanisms of social control other than punishment. Rather, there appears to be institutionalized tolerance of widespread violations. The enforcement deficit may be partly explained by such aspects of regulatory structure as the ongoing relationship between regulated firms and field officers who are the gatekeepers of the penalty process.     

监管失灵与市场监管权的重构

从中国市场监管权的制度设计看,明显存在定位模糊、设立缺乏合理考量、配置分散、监管者非专业性等缺陷,实质上是“政企不分”、行政主导的立法模式以及权力文化等体制痼疾在监管法制架构上的一种表象。因此,必须在推进市场化进程和政治改革的过程中,通过厘清政府经济职能、明晰政府经济职权的内涵和范围、重塑监管机构、设计适当的控制机制等路径,实现市场监管权的重构。     

A Preliminary Assessment of the Identification of Saw Marks on Burned Bone*

Abstract: This study assesses the degree of modification to the saw mark characteristics of dismembered skeletal remains when exposed to a controlled outdoor fire of limited duration. The sample consists of 36 adult pig hind limbs which were dismembered fleshed. Six handsaws and six power saws were used, with three limbs dismembered and burned for each of the saw types. Results indicate that fire exposure affects the visibility and identifiability of saw mark striae. With the handsaws, the bow saw, hacksaw, and keyhole saw were consistently recognizable. In the power saw group, the saw marks of the jigsaw, reciprocating saw, and chainsaw remained identifiable. Although the bone ends exhibited thermal alterations, the false starts were well preserved with minimal damage. Given the parameters of this study, it is possible to identify the class of saw based on the diagnostic characteristics present on the cremated bones.     

中国海外能源投资的地缘风险与法律对策

中国海外能源投资在欧美、非洲和拉丁美洲具有明显的地缘特点,面临的风险也带有一定的地缘特征,因而有必要采取相应的法律对策.中国能源企业在欧美主要通过跨国并购进行投资,主要面临政府许可风险,其对策主要在于如何以法律手段通过国家安全审查;在非洲的投资主要采取国家契约的方式,主要面临政治风险,需要强化投资保护协定和反恐对策;在拉丁美洲的投资则主要面临卡尔沃主义带来的法律变更风险和国有化与征收风险,需要加强国家契约条款的保护和灵活运用CISID仲裁机制加以保护.     

试析外资公平公正待遇标准

与国民待遇和最惠国待遇这些相对标准不同，公平公正待遇是东道国给予外资的绝对待遇标准。然而该标准的含义在理论和实践中存在广泛的争议。由于多数公平公正待遇条款并未提及国际法，不应以偏概全地将公平公正待遇视为习惯国际法中的标准，而应将其视作独立的条约条款，根据《维也纳条约法公约》进行解释。     

EC Competition Law and the Regulation of Passive Investments Among Competitors

Passive holdings and cross-investments among competing companiesare common phenomena in the modern marketplace. Yet under certainmarket conditions such investments may cause anticompetitiveeffects. This article explores the economic effects of passiveinvestments and their regulation under European competitionlaw. The article identifies a range of transactions that potentiallyaffect competition; however they remain unchallenged under currentregulation. Subsequently, the article explores the possibilityof applying the European Merger Regulation to these transactions.     

城市公用事业民营化法律路径的比较分析

传统观念认为城市公用事业应当由政府所有和经营以维护公共利益,但是20世纪80年代以来,世界各国纷纷进行城市公用事业民营化的改革。当前,在我国,城市公用事业旧的经营模式的弊端已经暴露,越来越多的人开始认识到政府在城市公用事业供应中应承担责任并不等于政府直接生产产品或服务,实际上,私人生产和政府安排的有机结合更有效率。公私合资经营、合同外包和特许权经营都是实现城市公用事业民营化的有效法律路径,但是应依据具体项目的特征慎重选择甚至混合使用。     

Discrimination of Falls and Blows in Blunt Head Trauma: Assessment of Predictability Through Combined Criteria*

Abstract: The discrimination of falls from homicidal blows in blunt head injuries is a common but difficult problem in both forensic anthropology and pathology. Three criteria have been previously proposed for this distinction: the hat brim line rule, side lateralization of fractures, and number of lacerations. The aim of the present study was to achieve a better distinction rate by combining those criteria and assess the predictability of these combined criteria tools. Over a 6‐year period, a total of 114 cases (92 males and 22 females) were studied: 21 cases of downstairs falls, 29 cases of falls from one’s own height, and 64 cases of head trauma by a blunt weapon. The results revealed predictability rates varying from 62.5 to 83.3% for criteria pointing towards a fall. As for combined criteria in favor of a blow, the assumption was accurate in all cases (100%).     

Regulatory Agencies and Interest Groups in Occupational Health and Safety in Great Britain and West Germany: A Perspective from West Germany*

In this paper, results are introduced of an empirical study which investigated the practice of occupational health and safety regulation in two countries, Great Britain and West Germany. The analysis concentrates on the specific relationship that regulatory agencies and the concerned interest groups, employers and trade unions, develop in the two stages of policy formulation and implementation of health and safety regulation. Results show that interest groups actively participate in the regulation-making systems in both countries. Their policy pursued in this process is influenced and mediated by their actual resources as well as by individual views and assessments of each side's representatives. In Germany, a strong fragmentation with numerous private and quasi-governmental bodies entitled to formulate standards makes it difficult for the interest groups to concentrate on the competent and important committees. In contrast, we find a clearer responsibility of bodies and committees in the case of Britain. In both countries, enforcement policy prefers an advisory and persuasive style even though the legal backgrounds are quite different.     

Nanotechnology,Nanomaterials, and the Potential for Regulatory Action by USEPA

The U.S. Environmental Protection Agency (USEPA) has recently taken steps toward directly regulating the potential environmental, health, and safety risks associated with the manufacture and use of nanomaterials, and indications are that it is considering additional regulatory action. More particularly, the agency appears ready to start relying more on the exercise of its existing statutory authorities—including the Toxic Substances Control Act and the Federal Insecticide, Fungicide and Rodenticide Act—than on voluntary industry efforts to address these potential risks. As a result, companies that work with nanomaterials should pay close attention to USEPA's activities in this arena.     

Assessment of Silicone Polymer Composites for Environmental Forensic Applications: A Proof of Concept Study*

Abstract: This study evaluates the use of polydimethylsiloxane polymer composites (PDMS, Fe–PDMS) as a passive sampling media to preconcentrate analytes found in environmental settings. Samplers were made using commercially available silicone products. The composite samplers were assessed for their sorption properties using Atrazine and Irgarol 1051 as model compounds. The initial study assessed the utility of PDMS sheets as adsorption material by following analyte depletion from spiked water samples by solid‐phase microextraction gas chromatography/mass spectrometry (GC/MS). Follow‐up studies conducted at high and low concentrations using lab manufactured iron‐ PDMS rods (Fe–PDMS) showed effective uptake at differential rates from concentrations ranging between 1 μg/L and 10 μg/L. Adsorption mechanism was reversible, and compounds were recovered from the exposed materials and analyzed by liquid–liquid extraction‐GC/MS. Both composites showed better affinity for Irgarol 1051, 100% removal, than for Atrazine, 30% removal, likely representing their K_OW differences, 3.6 and 2.6, respectively. This “proof of concept” study demonstrates the positive implications for the use of silicon polymer composites as a monitoring tool for environmental forensic purposes.