The Empire Fracks Back: The Case for Hydraulic Fracturing Strict Liability in New York

The possibility that New York will allow high-volume hydraulic fracturing in the near future raises the issue of liability for environmental and other extraction-related harms. Given the potential risk, New York courts should consider treating natural gas exploration under a strict liability regime. Natural gas producers facing strict liability for drilling mishaps would be forced to internalize the environmental and other social costs inherent in the drilling process, thus incentivizing producers to exercise a maximum of care.     

论纵向价格卡特尔的规制基础与结构优化

转销价格维持的反竞争效应及其规制原则长期存在争议。2013年茅台、五粮液因转销价格维持行为被重罚,虽适用纵向价格卡特尔的禁制条款,但在处罚对象上的单边性以及处罚理由中对市场地位的强调等方面又背离了价格卡特尔规制的传统模式。这些矛盾集中投射了纵向垄断规制的制度张力。通过《反垄断法》垄断行为谱系结构的再分析,可以揭示纵向价格限制的反竞争效应是以生产商形成相当的价格支配力作为基础的,尽管并不要求达到完全的支配地位。这样,纵向价格卡特尔的规制原则就可以超越现存的本身违法与合理原则之争,进而通过建构价格支配力的分析框架开辟新的优化进路。     

Hydraulic Fracturing in North Carolina: How It Came to Be,and What It Means for Our State

This article details the process of legalizing hydraulic fracturing in North Carolina, which began with a request by the North Carolina Congress for a study of implementation strategies and geologic concerns from the state's environmental agencies. Steadily afterwards several pieces of legislation were introduced to create a regulatory scheme to encompass the issuing of drilling permits, regulating operations, and protecting surrounding groundwater. This article illustrates the legislative history, highlighting key components. Lastly, two recent studies regarding groundwater safety around hydraulic fracturing sites are explored in order to gain a brief understanding of the scientific consensus of the process.     

Escaping the Regulatory Net: Why Regulatory Reform Can Fail Consumers*

This paper considers the impact of recent reforms to the UK food safety régime and considers whether the reforms have been able to deliver their promised benefits and if not, why not. Empirically, the paper examines the UK Food Standards Agency's (FSA) reforms to the régime managing food allergen risks, and the extent to which those reforms have reflected the FSA's guiding principle of “putting consumers first”. The paper finds that the operationalization of that guiding principle was mitigated by a number of factors, including: interpretative flexibility in representing consumer interests; the institutional structure and character of the régime; the political and cultural environment in which the régime operated; and normative uncertainties about the allocation of rights and responsibilities in managing risks. The paper concludes that risk regulation reforms are likely to fail in prioritizing consumer interests unless such factors are taken into account.     

国际经济管制法的范围、体系和内容

本文将国际经济法界定为管制法,由此时我国国际经济法教科书的范围、体系和内容等问题进行技术层面的探讨。在范围上可以从广义国际经济法中剥离出国际商法;在体系安排上突出WTO法的核心地位,注重逻辑性和论题性;在内容上可以加大判例和立法阐述的比例。     

国家调节权:第四种权力形态

中国的改革已进入攻坚阶段,下一轮改革的关键是改政府。长期以来,我们的改革一直致力于"政企分开",即国家行政管理权与国家所有权分开,却将国家调节权长期混同在行政权之中。国家调节权与行政权有明显的区别,是一种独立于传统的立法权、行政权、司法权之外的第四种权力形态。实现"十一五规划"政府职责的科学化目标,将改革深入下去,必须进一步分权,将国家调节权从行政权中分离出来。     

Accountability in the Regulatory State

Accountability has long been both a key theme and a key problem in constitutional scholarship. The centrality of the accountability debates in contemporary political and legal discourse is a product of the difficulty of balancing the autonomy given to those exercising public power with appropriate control. The traditional mechanisms of accountability to Parliament and to the courts are problematic because in a complex administrative state, characterized by widespread delegation of discretion to actors located far from the centre of government, the conception of centralized responsibility upon which traditional accountability mechanisms are based is often fictional. The problems of accountability have been made manifest by the transformations wrought on public administration by the new public management (NPM) revolution which have further fragmented the public sector. In this article it is argued that if public lawyers are to be reconciled to these changes then it will be through recognizing the potential for additional or extended mechanisms of accountability in supplementing or displacing traditional accountability functions. The article identifies and develops two such extended accountability models: interdependence and redundancy     

Introduction: Governing Regulatory Interaction: the Normative Question

Abstract:  The demise of the Keynesian National Welfare State and its transformation into a more competitive and interactive unit of governance has given rise to an increased interest in the processes that are shaping the legal framework for markets. For several decades, one force has been taken to be tantamount to the law of nature governing the interaction between jurisdictions, namely, the force of regulatory competition. However, this model is open to severe criticism of its emphasis on efficiency. First, elected decision-makers may not be interested in efficiency gains regardless of where the resulting distributive consequences may fall. Second, we suggest the theory of regulatory competition has a federalist bias that potentially blinds it to institutional alternatives. The model also rests on unexamined normative premises. Research has shown that competition is only one mode of regulatory behaviour. Cooperation and information flows play important roles in shaping regulatory activity as well. We contend that a more satisfactory model of regulatory interaction needs to take into account a variety of agents, standards, and systems. In devising such an alternative model, a satisfactory theory would have to understand the multiplicity of relevant agents beyond the narrow confines of the traditional nation-centred federal model. Standards guarding regulatory interaction would—not dissimilar to competition law—have to state its own limitations.     

Understanding the New Regulatory Governance: Business Perspectives

This article considers business understandings of two of the principal features of the new regulatory governance. First, it focus on attempts to place greater responsibility for risk regulation on business and asks how well equipped they are to manage this. Second, it examines the decentering of the state and considers how business organizations view the influence of nonstate actors on their business regulation. These issues are discussed with reference to data from two different research projects in the United Kingdom. The findings question the implicit assumptions the new regulatory governance makes about how well equipped businesses are to manage the risks they generate and how able nonstate influences are to influence the full range of businesses.     

Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures

The recent decisions of the panel and Appellate Body in Brazil– Measures Affecting Imports of Retreaded Tyres touchedupon a number of issues of ongoing significance to the applicationof necessity tests, such as those in Article XX of the GeneralAgreement on Tariffs and Trade. This article argues that thedispute represents a mixed outcome for the application of necessitytests. The express recognition that some regulatory measuresare complementary to one another rather than reasonably availablealternatives constitutes a welcome step forward. On the otherhand, the panel's characterization of Brazil's regulatory goalhighlights an approach common to a number of panel reports thatcould justify a perception of arbitrariness in application ofnecessity tests. Similarly, comments made by the Appellate Bodyto the effect that a panel is obliged to consider the importanceof a state's regulatory goal extend the role of a panel in anunjustifiable manner.     

Regulatory Domain and Regulatory Dexterity: Critiquing the UK Governance of ‘Fracking’

This article provides a critique of the UK government's regulatory response to ‘fracking’. It shows how government has adopted two distinct schemas of regulation, which may usefully be classified under the headings ‘regulatory domain’ and ‘regulatory dexterity’. These schemas rely on very different interpretive conventions and are in many ways contradictory. Yet, government uses both ‘domain’ and ‘dexterity’ arguments simultaneously in order to advance its policy in favour of fracking. The article explains how two seemingly different regulatory approaches work together towards the same policy goal, and highlights the role of law in facilitating technological development.     

Offshore Wind: Government Control and the Regulatory Landscape

The open ocean, especially off the eastern seaboard of the United States, presents a significant opportunity for the generation of electricity with the development of offshore wind projects. The first offshore wind project commenced operation during 2016 with a five-turbine project in Rhode Island. It is anticipated this is the first of many offshore wind projects that are expected along the East Coast of the United States. The legal and regulatory landscape for the development of offshore wind projects is complex and expensive. Projects are typically fifteen miles offshore where the federal government has jurisdiction and is responsible for leasing the ocean bottom for projects. Additionally, the U.S. Army Corps of Engineers has jurisdiction with regard to the disturbance of the ocean bottom. The state's jurisdiction commences within three miles of the coast, where the principal role for the states will be permitting for transmission lines both offshore and onshore.     

Editor's Introduction: Understanding Regulatory Enforcement

This issue of Law & Policy adds to the growing body of empirical case studies of decision-making and enforcement in regulatory agencies. Summarizing that research, regulatory enforcement styles can be described in terms of two dimensions, one concerning the ways in which regulatory violations are defined and punished, the other concerning outcomes, described in policy-evaluative terms. In explaining variation in enforcement style, existing studies point to three sets of factors: characteristics of the regulatory "legal design"; features of agencies' "task environment"; and the regulatory "political environment." Weighting the relative importance of these factors, however, is difficult because of the number and fluidity of variables and the adaptiveness of regulatory agencies.     

Telecommunications and Crime: Regulatory Dilemmas

This paper examines the regulatory context of crime arising from the connectivity of computing and communications. Nine varieties of telecommunications‐related crime are considered: theft of services, communications in furtherance of criminal conspiracies, telecommunications piracy, the dissemination of offensive materials, electronic money laundering, electronic vandalism, telemarketing fraud, illegal interception, and electronic funds transfer fraud. The paper concludes that the most appropriate configuration of regulatory strategies for the control of telecommunications‐related crime entails a mixture of law enforcement, and technological and market‐based solutions. The pursuit of a strict regulatory agenda is, in most cases, not feasible because of the limited capacity of the state. Over‐regulation, moreover, may stifle commercial and technological development. It is argued that the marketplace may be able to provide more efficient solutions to the problems of telecommunications crime than state interventions.