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1. The Russian Invasion of Ukraine: Legal Aspects

Author:
Pnina Sharvit Baruch and Ori Beeri
Publication Date:
03-2022
Content Type:
Working Paper
Institution:
Institute for National Security Studies (INSS)
Abstract:
Since Russia invaded Ukraine, it has been the object of significant legal pressure. While the various legal measures have no power to stop the bloody war, they deliver a powerful, unequivocal message: any state that flagrantly violates international world and undermines the world order will suffer isolation, condemnation, sanction, and criminal investigations. Israel, which has seemed to lean to sitting on the fence, must join the international efforts against Russia, Otherwise it is liable to find itself on the wrong side of history
Topic:
Military Strategy, Law, Conflict, and Russia-Ukraine War
Political Geography:
Russia, Europe, and Ukraine

2. Ethiopia’s Grand Renaissance Dam. The Law, History, Politics and Geopolitics behind Africa’s Largest Hydropower Project

Author:
Francesca Caruso
Publication Date:
10-2022
Content Type:
Working Paper
Institution:
Istituto Affari Internazionali
Abstract:
Since 2011, the construction of the Grand Ethiopian Renaissance Dam (GERD) has provoked a diplomatic crisis between Ethiopia, Egypt and Sudan, adding fuel to the already combustible geopolitics of the Horn of Africa. Despite its technical aspects, the GERD dispute has over time become a multi-layered geopolitical crisis where a plethora of actors and dynamics have been influencing the ongoing negotiations. Protagonists are no longer only Ethiopia, Egypt and Sudan, and the resolution of the crisis is now dependent on factors beyond technical solutions. Moreover, the crisis seems to have become an instrument that the three countries are using to deal with issues of national legitimacy, territorial disputes and regional balance. However, while instrumentalisation can be politically expedient in the short term, all parties have an interest an equitable and regionally based, inclusive and cooperative agreement. In order to understand how multilateral organisations can contribute to the finding of an equitable and reasonable solution, a multi-layered analysis – on local, national and regional dynamics – needs to identify the main drivers for Egypt, Ethiopia and Sudan.
Topic:
Diplomacy, History, Water, Infrastructure, Law, Geopolitics, Dams, Conflict Management, and Hydropower
Political Geography:
Africa, Ethiopia, and Egypt

3. Restructuring Sovereign Bonds: Holdouts, Haircuts and the Effectiveness of CACs

Author:
Chuck Fang, Julian Schumacher, and Christoph Trebesch
Publication Date:
01-2021
Content Type:
Working Paper
Institution:
Kiel Institute for the World Economy (IfW)
Abstract:
Sovereign debt crises are difficult to solve. This paper studies the “holdout problem”, meaning the risk that creditors refuse to participate in a debt restructuring. We document a large variation in holdout rates, based on a comprehensive new dataset of 23 bond restructurings with external creditors since 1994. We then study the determinants of holdouts and find that the size of creditor losses (haircuts) is among the best predictors at the bond level. In a restructuring, bonds with higher haircuts see higher holdout rates, and the same is true for small bonds and those issued under foreign law. Collective action clauses (CACs) are effective in reducing holdout risks. However, classic CACs, with bond-by-bond voting, are not sufficient to assure high participation rates. Only the strongest form of CACs, with single-limb aggregate voting, minimizes the holdout problem according to our simulations. The results help to inform theory as well as current policy initiatives on reforming sovereign bond markets.
Topic:
Debt, Economics, International Political Economy, Law, and Credit
Political Geography:
Global Focus

4. Transparency of Land-based Investments: Cameroon Country Snapshot

Author:
Sam Szoke-Burke, Samuel Nguiffo, and Stella Tchoukep
Publication Date:
03-2021
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.
Topic:
Agriculture, Environment, Law, Transparency, and Land Reform
Political Geography:
Africa and Cameroon

5. India’s Sustained Economic Recovery Will Require Changes to Its Bankruptcy Law

Author:
Anirudh Burman
Publication Date:
04-2021
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
As India’s economy recovers from the coronavirus pandemic, Indian businesses need efficient financial structures to regain their ground. Key reforms to India’s Insolvency and Bankruptcy Code could fill these gaps. One of the key drivers of economic recovery in India will be the efficient movement of capital from inefficient firms to efficient ones. The economic downturn caused by the coronavirus pandemic has been severe, and India’s economy was one of the worst affected in 2020–2021. Though the economy is recovering faster than initial estimates, sustained economic recovery will not take place if stressed businesses cannot restructure their debts properly or if failing firms cannot be resolved efficiently. India’s bankruptcy law is key to solving these challenges. In 2016 India enacted the Insolvency and Bankruptcy Code, 2016 (IBC), which was a landmark reform to the nation’s financial system and the first comprehensive law to regulate insolvency.1 But the IBC has been suspended for a period of one year since the COVID-19-related lockdown was imposed in March 2020. In its place, India’s banking regulator, the Reserve Bank of India (RBI), has introduced a limited restructuring scheme for COVID-19-related stress in the meantime. Older mechanisms for insolvency that are still in operation have historically not worked according to expectations. As the one-year period of suspension comes to a close, this paper argues that bringing back the IBC—with adequate modifications—is an important prerequisite for sustained economic growth. India historically suffered from a patchwork framework of insolvency laws that either did not give lenders adequate powers to recover their debts upon default or only catered to the interests of certain kinds of lenders—to the exclusion of others.2 The IBC is a modern and comprehensive bankruptcy law that since its enactment has had a significant role in reducing the problem of nonperforming assets (NPAs), or “bad loans,” in India’s financial system. In the wake of the economic disruption caused by COVID-19, the Indian government suspended the operation of critical parts of the IBC. These changes meant that lenders could not trigger insolvency proceedings against defaulting businesses if the default occurred after March 20, 2020. While this suspension possibly prevented unnecessary business failures and provided a “calm period” for the economy, these measures have outlived their utility.
Topic:
Law, Finance, Economy, and COVID-19
Political Geography:
South Asia and India

6. Do gendered laws matter for women’s economic empowerment?

Author:
Marie Hyland, Simeon Djankov, and Pinelopi Koujianou Goldberg
Publication Date:
03-2021
Content Type:
Working Paper
Institution:
Peterson Institute for International Economics
Abstract:
reater legal equality between men and women is associated with a narrower gender gap in opportunities and outcomes, fewer female workers in positions of vulnerable employment, and greater political representation for women. While legal equality is on average associated with better outcomes for women, the experience of individual countries may differ significantly from this average trend, depending on the countries’ stage of development (as proxied by per capita GDP). Case studies from the Democratic Republic of the Congo, India, and Spain demonstrate this deviation. Especially in developing countries, legislative measures may not necessarily translate into actual empowerment, due mainly to deeply entrenched social norms, which render legal reforms ineffective. Women are more likely than men to be in vulnerable employment in low- and lower-middle-income economies but less likely than men to be in vulnerable employment in upper-middle- and high-income economies. Analysis of a 50-year panel of gendered laws in 190 countries reveals that country attributes that do not vary or change only slowly over time—such as a country’s legal origin, form of government, geographic characteristics, and dominant religion—explain a very large portion of the variation across countries. This finding suggests that the path to legal equality between men and women may be a long and arduous one. Nevertheless, the data also show that the past five decades have seen considerable progress toward legal gender equality. Gendered laws do evolve, suggesting a role for legal reforms in women’s economic empowerment.
Topic:
Gender Issues, Law, Women, Inequality, and Economy
Political Geography:
Africa, Europe, South Asia, India, Democratic Republic of the Congo, and Spain

7. Proportionality and Karlsruhe’s Ultra Vires Verdict: Ways Out of Constitutional Pluralism?

Author:
Martin Hopner
Publication Date:
01-2021
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB’s Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussion about the possible introduction of an Appeal Court with the “final say” over constitutional conflict. As the analysis of the PSPP conflict shows, such a judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an Appeal Court, if it were introduced.
Topic:
Regional Cooperation, Law, European Union, Economic Cooperation, European Monetary Union, and Banking
Political Geography:
Europe

8. What Does China’s Update of its Anti-Monopoly Law and New Regulations for the “Platform Economy” Mean for Business?

Author:
David Hoffman
Publication Date:
05-2021
Content Type:
Working Paper
Institution:
The Conference Board
Abstract:
The recently enacted revisions to China’s Anti-Monopoly Law, and its extensive provisions for regulating China’s “platform economy” – i.e., fintech and ecommerce platforms – are consequential for foreign investors in China, bearing both upside and downside risks. On the one hand, they reinforce the trend of increasing state intervention in China’s economy and commercial markets and raise concerns about a more confined and controlled play-space for the private sector in China, a cohort which includes foreign multinational companies and financial investors.
Topic:
Governance, Law, Economy, Business, Investment, Monopoly, Private Sector, and Commerce
Political Geography:
China and Asia

9. The Erroneous Foundations of Law and Economics

Author:
Mark Glick and Gabriel A. Lozada
Publication Date:
02-2021
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
The fundamental originating principle of law and economics (L&E) is that legal decisions should be (and are) based on maximizing efficiency. But L&E proponents do not define “efficiency” in the way agreed to by most economists, as Pareto Efficiency. A Pareto optimal condition is obtained when no one can be made better off without making someone worse off. Pareto Improvements are win-win changes where no losers exist. In the judicial system, however, there are always winners and losers, because under Article III § 2 of the Constitution a legal case does not exist unless there is a justiciable “case or controversy” in need of resolution. Unable to use Pareto Efficiency, L&E scholars have been forced to adopt alternative definitions of efficiency. Most L&E scholars claim to define “efficiency” based on the work of Kaldor and Hicks, but (perhaps unwittingly) instead use a definition of “efficiency” derived from the 19th century idea of consumer surplus, which encompasses L&E notions such as “wealth maximization,” and “consumer welfare” in antitrust. Neither of these alternative definitions is viable, however. Outside of L&E, the Kaldor-Hicks approach has long been recognized to be riddled with logical inconsistencies and ethical failures, and the surplus approach is even more deficient. Remarkably, virtually none of the numerous L&E textbooks even hint at such problems. Critically, all definitions of efficiency improvements in economics are biased in favor of wealthy individuals or firms, either because they are dependent on the status quo ante distribution of assets, or because they bestow large advantages on parties with political influence or who can afford to bring lawsuits quickly. Many L&E practitioners treat efficiency improvements instead as being objectively good, an error revealing that L&E is primarily motivated by its neoliberal policy agenda.
Topic:
Economics, Law, Neoliberalism, and Efficiency
Political Geography:
Global Focus

10. The Impact of Common Law on the Volume of Legal Services: An International Study

Author:
Enzo Dia and Jacques Melitz
Publication Date:
11-2021
Content Type:
Working Paper
Institution:
Centre d'Etudes Prospectives et d'Informations Internationales (CEPII)
Abstract:
We show that the heavy use of legal services relative to output in the US is not a peculiarity of the country but applies to common law countries in general. It stems largely from better ability to contract and easier access to justice. Yet in close association, common law also opens significantly more room for rentseeking by lawyers than civil law. Thereby the costs could outweigh the benefits. Both real GDP per capita and openness emerge as further factors making room for lawyers.
Topic:
International Cooperation, International Law, Labor Issues, and Law
Political Geography:
Global Focus

11. Proportionality and Karlsruhe’s Ultra Vires Verdict: Ways Out of Constitutional Pluralism?

Author:
Martin Höpner
Publication Date:
01-2021
Content Type:
Working Paper
Institution:
Max Planck Sciences Po Center on Coping with Instability in Market Societies (MaxPo)
Abstract:
In May 2020, for the first time in its history, the Federal Constitutional Court (FCC) of Germany declared Union acts as being ultra vires. According to the FCC, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU) had acted beyond their mandates because they did not apply strong proportionality standards to the ECB’s Public Sector Purchase Programme (PSPP). The resulting stalemate within constitutional pluralism has revived the discussion about the possible introduction of an Appeal Court with the “final say” over constitutional conflict. As the analysis of the PSPP conflict shows, such a judicial authority would reach its limits the more we move from the surface to the core of the struggles between European and national constitutional law. The different readings of proportionality are difficult to bridge, and the mutually exclusive claims about the nature of the supremacy of European law are not accessible to compromise at all. We should therefore not expect too much from an Appeal Court, if it were introduced.
Topic:
Law, European Union, Constitution, Conflict, European Monetary Union, Court of Justice of the EU (CJEU), and Proportionality
Political Geography:
Europe

12. Russia at the United Nations: Law, Sovereignty, and Legitimacy

Author:
Philip Remler
Publication Date:
01-2020
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
The central task for Russian foreign policy in the era of President Vladimir Putin has been to regain the undisputed recognition that Russia is a world power like the Soviet Union before it, a status to which Russia feels entitled.1 The United Nations (UN) is Russia’s most important venue for putting its global aspirations and achievements on display. Russia’s status as a permanent member of the UN Security Council boosts its claim to be part of a global oligarchy and grants it the power to veto or undermine initiatives that it deems contrary to its interests. The concepts underlying Russia’s use of the UN to promote its aspirations form the subject of this paper. Russia, like the Soviet Union before it, devotes great resources to its missions at the UN, especially New York and Geneva. It traditionally cultivates extensive expertise among its mission members, appointing them to UN postings several times over their careers and leaving them in place for long periods. Russian diplomats are noted for their abilities in drafting highly technical UN documents in English—none more so than Sergey Lavrov, currently Russia’s foreign minister and formerly its permanent representative to the UN from 1994 to 2004.
Topic:
Foreign Policy, Sovereignty, Power Politics, Law, Geopolitics, and Legitimacy
Political Geography:
Russia and United Nations

13. EU law in the time of COVID-19

Author:
David Edward, Robert Lane, and Leandro Macano
Publication Date:
09-2020
Content Type:
Working Paper
Institution:
European Policy Centre (EPC)
Abstract:
The COVID-19 emergency has caused unprecedented legal challenges to the EU institutions and the member states across a wide spectrum of areas. The measures put in place to coordinate the immediate cross-border response to the outbreak are unlikely to lead to contentious legal problems. However, the Council, and especially the Commission, being also able to react to measures taken by member states, companies or firms, could prove to be potentially more intrusive. This paper deals with the powers governing the EU’s public health response to the COVID-19 outbreak and analyses the legal implications of actions taken by member states, companies and firms to mitigate the economic fallout of the lockdown and restrictions put in place to stop the spread of the virus.
Topic:
Law, European Union, Crisis Management, Institutions, Public Health, and COVID-19
Political Geography:
Europe

14. Will India’s Proposed Data Protection Law Protect Privacy and Promote Growth?

Author:
Anirudh Burman
Publication Date:
03-2020
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
How should a legal framework for data protection balance the imperatives of protecting privacy and ensuring innovation and productivity growth? This paper examines the proposed data protection legislation in India from the perspective of whether it maintains this balance. In December 2019, the government introduced the Personal Data Protection Bill, 2019, in parliament, which would create the first cross-sectoral legal framework for data protection in India.1 This paper argues that the bill does not correctly address privacy-related harms in the data economy in India. Instead, the bill proposes a preventive framework that oversupplies government intervention and strengthens the state. This could lead to a significant increase in compliance costs for businesses across the economy and to a troubling dilution of privacy vis-à-vis the state. The paper argues that while the protection of privacy is an important objective, privacy also serves as a means to protecting other ends, such as free speech and sexual autonomy. A framework for protecting personal data has to be designed on a more precise understanding of the role of privacy in society and of the harms that emanate from violations of individual privacy.
Topic:
Science and Technology, Law, Privacy, and Data
Political Geography:
South Asia and India

15. A Syrian Perspective on the Special Tribunal for Lebanon: What Lessons to Be Learnt?

Author:
Mansour Omari
Publication Date:
11-2020
Content Type:
Working Paper
Institution:
Arab Reform Initiative (ARI)
Abstract:
Along with the Lebanese, many Syrians were also closely watching the verdict of the Special Tribunal for Lebanon. This is due in part to suspicions that the Syrian regime may have been involved in Hariri’s assassination but also because of the growing interest of many Syrians in international options for justice for the grave violations committed in Syria since 2011. This paper examines the lessons that Syrians can learn from the STL’s experience in their goal to hold those responsible for war crimes and crimes against humanity accountable.
Topic:
Genocide, Law, Judiciary, Humanitarian Crisis, and Tribunal
Political Geography:
Middle East and Lebanon

16. The first and last word in debates: Plaintive plaintiffs

Author:
Elena D'Agostino and Daniel J. Seidmann
Publication Date:
02-2020
Content Type:
Working Paper
Institution:
Nottingham Interdisciplinary Centre for Economic and Political Research (NICEP)
Abstract:
Is it better to have the first or the last word in two-round debates like common law trials? If litigants always share available witnesses then they never prefer to present first (to lead), and may prefer to follow; and they never prefer to choose the order after observing the available witnesses than to always follow. Litigants can prefer to lead if they have different available witnesses because the outcomes when some litigant leads coincide with the outcomes in an alternative game where that litigant follows, but commits to its reaction function before observing its available witnesses. Leading is therefore a commitment device.
Topic:
Law, Criminal Justice, and Legal Sector
Political Geography:
Global Focus

17. How did Serbia unite Chomsky, Mironov and Fukuyama? Engaging with the New Despotism

Author:
Vedran Dzihic and Gazela Pudar Drasko
Publication Date:
08-2020
Content Type:
Working Paper
Institution:
Austrian Institute for International Affairs (OIIP)
Abstract:
It is difficult to imagine what could unite Jürgen Habermas, Francis Fukuyama, Judith Butler, Noam Chomsky, Martha Nussbaum, Michael Walzer, Yuval Noah Harari and Vladimir Mironov.1 However, the renowned Institute for Philosophy and Social Theory in Belgrade (IFDT), founded to settle dissident intellectuals expelled from the university for their involvement in the Yugoslav 1968 protests, managed to do so. An international appeal has reached us in the past few days which has revealed once more the ongoing clandestine attack on freedom of thought and academic autonomy in Serbia. Unfortunately, Serbia is not alone in democratic backsliding, neither in Southeast Europe or Europe more generally, nor at the global level. Democracy has been openly challenged in several EU states, while the most recent developments in the USA have revealed the depth of internal fractures in American liberal democracy. Thus, it is not surprising that the Southeast European region (SEE) - a post-conflict, semi-peripheral area in Europe - faces growing illiberalism and varying types of competitive authoritarianism and new despotism.
Topic:
Human Rights, Law, and Authoritarianism
Political Geography:
Europe and Serbia

18. Step by Step Guidelines for Making Ordinances and Bylaws for Local Governments in Uganda

Author:
Onesmus Mugyenyi and Dickens Kagarura
Publication Date:
11-2020
Content Type:
Working Paper
Institution:
Advocates Coalition for Development and Environment (ACODE)
Abstract:
Law making process by local governments is a challenging task in Uganda largely due limited skills at the local government level. the publication of these guidelines, therefore, is intended to simplify the process of law making by providing step by step procedure of making ordinances by district councils and byelaws by lower local governments. These guidelines are based on the Local Government Act, and the Handbook on Making Ordinances and Byelaws in Uganda (Second Edition-2010) by the Uganda Law Reform Commission.
Topic:
Government, Governance, Law, and Local
Political Geography:
Uganda and Africa

19. Public procurement in law and practice

Author:
Erica Bosio, Simeon Djankov, Edward Glaeser, and Andrei Shleifer
Publication Date:
08-2020
Content Type:
Working Paper
Institution:
Peterson Institute for International Economics
Abstract:
This paper examines a new dataset of laws and practices governing public procurement, as well as procurement outcomes, in 187 countries. The authors measure regulation as restrictions on the discretion of the procuring agents. They find that laws and practices are highly correlated with each other across countries, and better practices are correlated with better outcomes, but laws themselves are not correlated with outcomes. To shed light on this puzzle, they present a model of procurement in which both regulation and public sector capacity determine the efficiency of procurement. In the model, regulation is effective in countries with low public sector capacity and detrimental in countries with high public sector capacity because it inhibits the socially optimal exercise of discretion. The paper finds evidence broadly consistent with this prediction: Regulation of procurement improves outcomes but only in countries with low public sector capacity.
Topic:
Government, Law, Regulation, and Procurement
Political Geography:
Global Focus

20. Who’s Responsible Here? Establishing Legal Responsibility in the Fissured Workplace

Author:
Tanya Goldman and David Weil
Publication Date:
02-2020
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
The nature of work is changing, with workers enduring increasingly precarious working conditions without any safety net. In response, this Article proposes a new “Concentric Circle framework” which would improve workers’ access to civil, labor, and employment rights. Many businesses, including app-based platforms, have restructured toward “fissured workplace” business models. They treat workers like employees (specifying behaviors and closely monitoring outcomes) but they classify workers as independent contractors (engaging them at an arms-length and cutting them off from rights and benefits tied to employment). These arrangements confound legal classifications of “employment” and expose deficiencies with existing workplace protections, which are based on “employment relationships.” As a result, a growing number of workers lack both bargaining power and critical workpalce rights and benefits. We propose a Concentric Circle framework to better govern workers’ rights in the modern era. At the core, we maintain that certain rights and protections should not be tethered to an employment relationship, but to work itself. Thus, the right to be compensated for work and paid a minimum wage; freedom from discrimination and retaliation; access to a safe working environment, and the right to associate and engage in concerted activity should belong to all workers, not just employees. Second, as a middle circle, we argue for a rebuttable presumption of employment to address those rights that remain exclusive to employees (and not independent contractors), and we propose an updated legal test of employment. Finally, at the outer ring of the framework, we suggest policies that could enhance workers’ access to benefits that promote worker mobility and social welfare. Other scholarship has focused exclusively on either independent contractors or employees, or it has proposed a new category of worker altogether. We contend that this comprehensive framework better assigns rights, responsibilities, and protections in the modern workplace than do current legal doctrines or alternative proposals.
Topic:
Economics, Labor Issues, Law, Legal Theory, Civil Rights, Legal Sector, and Workforce
Political Geography:
Global Focus

21. New York City’s Building Emissions Law Shows the Importance of Economywide Climate Policy

Author:
Noah Kaufman and Yu Ann Tan
Publication Date:
10-2020
Content Type:
Working Paper
Institution:
Center on Global Energy Policy (CGEP), Columbia University
Abstract:
Regulations of greenhouse gas emissions, which are global pollutants, should ideally be coordinated across broad geographic and economic scopes. That way, climate policies can capture important interactions across sectors and borders. However, the United States has repeatedly failed to implement national and economywide climate legislation. That failure has led to an increasing focus on climate actions that are much narrower in scope: sector-specific regulations from subnational governments. A prominent recent example is New York City’s Local Law 97, which limits carbon dioxide (CO2) emissions from a large segment of the city’s residential and commercial buildings. This law is among the most ambitious building emissions regulations in the world, but this commentary focuses on a concern with the design of Local Law 97. The law does not account for the planned decarbonization of the local electricity grid over the next decade, and thus fails to sufficiently encourage a shift from fossil fuels to electricity (or “electrification”), a critically important strategy for achieving a low-carbon building sector. Such a narrow focus is common for sector-specific climate regulations. The following sections explain the importance of electrification to deep decarbonization and the failure of building regulations to encourage it, focusing on New York City’s Local Law 97. Fortunately, solutions to the overly narrow focus of the New York City buildings law are readily available, including via New York State’s comprehensive climate strategy, which can align climate action across economic sectors within the state.
Topic:
Climate Change, Energy Policy, Environment, Law, Green Technology, and Carbon Emissions
Political Geography:
New York, North America, and United States of America

22. Factsheet: Legal Challenges to Guantánamo Bay Detention Camp

Author:
Bridge Initiative Team
Publication Date:
07-2020
Content Type:
Working Paper
Institution:
The Bridge Initiative, Georgetown University
Abstract:
U.S. legislation and case law have both upheld and challenged the legal authority of the Guantánamo Bay military prison. This includes the 2001 Authorization for Use of Military Force (AUMF) and the Military Commissions Act of 2006, as well as Supreme Court cases such as Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (2008). Serious legal issues have arisen around the legal rights and protections of those imprisoned, including the right to habeas corpus and the right to be tried under the U.S. legal system (as opposed to U.S. military tribunals). Attorneys for those imprisoned at Guantánamo Bay military prison have been subjected to surveillance and interference by the U.S. government, and the U.S. government tightly controls the release of information about the military prison and those imprisoned there.
Topic:
Human Rights, Law, Guantanamo Bay, and Habeas Corpus
Political Geography:
Cuba, United States of America, and Guantanamo

23. Big Tech Acquisitions and the Potential Competition Doctrine: The Case of Facebook

Author:
Catherine Ruetschli and Mark Glick
Publication Date:
10-2019
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
The Big Tech companies, including Google, Facebook, Amazon, Microsoft and Apple, have individually and collectively engaged in an unprecedented number of acquisitions.When a dominant firm purchases a start-up that could be a future entrant and thereby increase competitive rivalry, it raises a potential competition issue. Unfortunately, the antitrust law of potential competition mergers is ill-equipped to address tech mergers. We contend that the Chicago School’s assumptions and policy prescriptions hobbled antitrust law and policy on potential competition mergers. We illustrate this problem with the example of Facebook. Facebook has engaged in 90 completed acquisitions in its short history (documented in the Appendix to this paper). Many antitrust commentators have focused on the Instagram and WhatsApp acquisitions as cases of mergers that have reduced potential competition. We show the impotence of the potential competition doctrine applied to these two acquisitions. We suggest that the remedy for Chicago School damage to the potential competition doctrine is a return to an empirically tractable structural approach to potential competition mergers.
Topic:
Economics, Science and Technology, Communications, Law, Digital Economy, Macroeconomics, Monopoly, and Antitrust Law
Political Geography:
United States

24. American Gothic: How Chicago Economics Distorts “Consumer Welfare” in Antitrust

Author:
Mark Glick
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
Since the publication of Robert Bork’s The Antitrust Paradox, lawyers, judges, and many economists have defended “Consumer welfare” (CW) as a standard for decisions about antitrust goals and enforcement priorities. This paper argues that the CW is actually an empty concept and is an inappropriate goal for antitrust. Welfare economists concede that there is no credible measurable link between price and output and human well-being. This means that the concept of CW does not legitimate limited antitrust enforcement, nor does it justify the exclusion of other antitrust goals that require more active enforcement practices. This paper contends that antitrust policy is not welfare based at all, and that if it were, antitrust policy and enforcement would differ significantly from the Chicago School vision. Without the fiction that economists can establish that in the short run lower price and higher output measurably increases welfare more than other goals, recent defenses of the CW standard resolve down to arguments based on unsupported assumptions.
Topic:
Economics, Law, Legal Theory, Economic Theory, Macroeconomics, Antitrust Law, and Microeconomics
Political Geography:
United States

25. The Evolution and Current Status of De Facto Stare Decisis in International Trade and Investment Tribunals: How to Understand the Present by Looking into the Past

Author:
Chanya Punyakumpol
Publication Date:
02-2019
Content Type:
Working Paper
Institution:
Centre for Trade and Economic Integration, The Graduate Institute (IHEID)
Abstract:
Is there a doctrine of 'stare decisis' in international trade and international investment law? From a positive law perspective, the answer is a definite no. However, as many scholars have observed, in practice, there has been a strong level of deference from the Appellate Body to its previous rulings, but less so from investment tribunals. Using social network analysis to assess actual citations from the Appellate Body Reports and investment arbitrations from the inception to the current time, this paper examines the evolution and 'status quo' of citation networks in international trade and international investment arbitrations. It asks, not only whether there is a 'de facto' rule of precedent in the two regimes, but also when it occurs and how the development links with the institutional design of dispute settlement. The results show how the doctrine of 'stare decisis' diverges in international trade and international investment, as well as the importance of institutional design in shaping and constraining the behaviors of tribunals.
Topic:
Economics, Globalization, International Trade and Finance, Law, Finance, and Global Political Economy
Political Geography:
Global Focus

26. Multiple Violations of Labor Market Regulations: Patterns in the Peruvian Labor Market and the Impact of Enforcement

Author:
Mariana Viollaz
Publication Date:
04-2019
Content Type:
Working Paper
Institution:
Center for Distributive, Labor and Social Studies (CEDLAS)
Abstract:
This paper quantifies labor law violations and how the enforcement efforts impact on the compliance level by considering the possibility of different labor regulations being violated simultaneously. The findings for the Peruvian labor markets over the period 2004-2013 indicate that: (i) multiple violations of labor regulations are an important feature of Peruvian labor markets; (ii) young workers, workers with low level of education, indigenous workers, workers in micro firms and workers employed in the agricultural sector have higher chances of being deprived of several labor benefits simultaneously; (iii) the enforcement of labor regulations, captured through the number of labor inspections at the region level, is effective in detecting and penalizing extreme situations of multiple violations of the labor law, but the evidence also suggests that firms adjust only partially as an attempt to reduce the amount of a potential fine if discovered, and that laid off workers during the adjustment process moved to the informal sector where firms are not inspected. These findings are useful from a policy perspective indicating that there is space to improve firms’ incentives when facing an increase in the enforcement effort.
Topic:
Economics, Labor Issues, Law Enforcement, Law, Regulation, Labor Policies, and Economic Policy
Political Geography:
Latin America and Peru

27. Stakeholders’ Interest Relations in Korea’s Services Trade Liberalization: A Political Economy Analysis

Author:
June Dong Kim
Publication Date:
11-2019
Content Type:
Working Paper
Institution:
Korea Institute for International Economic Policy (KIEP)
Abstract:
This paper seeks to analyze the major factors behind why each stakeholders in the legal, health, educational and audio-visual service sectors in Korea op-pose liberalization in a qualitative political economy context as well as to pro-vide alternative strategies for further liberalization in these four service sectors. In legal services, the foreign equity ceiling of 49 per cent for joint venture law firms may be lifted as long as the present regulation against the number of FLCs in a joint venture law firm exceeding the number of Korean lawyers is maintained. In health services, as a step-by-step approach, we can first con-sider a system where incorporated hospitals can be established and liquidated more freely by deregulating current limitations placed on the disposal of re-maining properties, while an overly distribution of dividends is restrained. In educational services, in order to deregulate limitations regarding the disposal of remaining properties, it will be necessary to enhance the transparency of management and operation of private schools. In this regard, allowing school foundations to take the form of a limited liability company could be considered, since they would then become subject to external financial audit. In audio-visual services, it will be necessary to improve monitoring and im-plementation of intellectual property rights as well as competition policy when considering further liberalization. The major factors compelling each stakeholder in the legal, health, educational and audio-visual services to oppose further liberalization can be summarized as a general mindset towards uniform equity and control, cultural factors pre-venting discussion on rational alternatives, insufficient government budget for universal services, lack of administrative capacity in policy implementation and monitoring, absence of a proper system to evaluate the quality of ser-vices, asymmetry of information, and persistence of acquired rents. In order to correctly identify and understand the nature of problems, the highest priority should be placed on reducing the mistrust among the con-stituents. This is because mistrust among the constituents acts as the most important impediment when attempting value-creating negotiation strategies among each of the stakeholders. Meanwhile, to build trust among all constit-uents, free flow of information works as an important factor. Therefore, the problems of mistrust and lack of free flow of information are the most important impediments to improve those constraints that were analyzed in the selected service sectors. In addition, they are interlinked with each other, so that dealing with these problems simultaneously is a rational solution. In order to accomplish this, it is utmost important to develop the capability of each constituent to allow them to interpret specific pieces of information without distortion. In this regard, upgrading research and educa-tion of economics also becomes imperative.
Topic:
Political Economy, Law, Economic Policy, and Trade Liberalization
Political Geography:
Asia and South Korea

28. Future Space Controls and the Invisible Hand

Author:
Nonproliferation Policy Education Center and American Bar Association Standing Committee on Law and National Security
Publication Date:
09-2019
Content Type:
Working Paper
Institution:
Nonproliferation Policy Education Center
Abstract:
The Nonproliferation Policy Education Center (NPEC) and the American Bar Association Standing Committee on Law and National Security (SCOLNS) held a law and policy workshop on Thursday, June 20, 2019. The workshop was the second collaboration between NPEC and SCOLNS, and it concerned the legal and policy issues that are emergin as space becomes increasingly commercialized and accesible. As the emerging space domain presents new challenges and opportunities, it is the hope of SCOLNS and NPEC that this report will guide future legal and policy decisions. The workshop sought to address a series of questions regarding national security challenges in space: Commercial Space: What will be profitable and when? Future Undesirable Space Conjunctions: Who is and should be liable? Insuring Against Unwanted Space Conjunctions: What new norms, regulations, laws, and understanding might be desirable? The workshop was comprised of experts from NPEC, SCOLNS, the U.S. Air Force, the Defense Intelligence Agency, the Department of Commece, the Department of States, nonprofits, think tanks, academia, and private companies and individuals. The discussion was governed under Chatham House rules, and therefore ideas and group affiliations from the workshop were not attributed to specific individuals.
Topic:
Science and Technology, Law, Space, Public Sector, Norms, and Private Sector
Political Geography:
Global Focus

29. Guiding and Protecting Prosecutors: Comparative Overview of Policies Guiding Decisions to Prosecute

Author:
Howard Varney, Shenali De Silva, and Alexandra Raleigh
Publication Date:
10-2019
Content Type:
Working Paper
Institution:
The International Center for Transitional Justice (ICTJ)
Abstract:
Prosecution guidelines provide benchmarks for decision making and act as a shield for prosecutors in the face of undue influence, pressure, or interference. Prosecutors pursuing sensitive cases, such as those involving mass atrocities, ought to do so by applying binding, objective, fair and publicly known criteria. This report presents a comparative overview of prosecution guidelines from around the world in "ordinary" times and in the context of post-conflict transitions.
Topic:
Law, Transitional Justice, Criminal Justice, and Justice
Political Geography:
Global Focus

30. Identifying and Responding to Criminal Threats from Venezuela

Author:
Moises Rendon and Arianna Kohan
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Center for Strategic and International Studies
Abstract:
Nicolás Maduro, following former president Hugo Chavez’s legacy, fostered the creation of a criminalized state in Venezuela that uses transnational organized crime as an instrument of state power.1 According to a research report published after five years of fieldwork, the Venezuelan state is part of a consortium of criminalized actors working in concert with other states and nonstate actors with shared objectives. This brief is meant to describe the ongoing criminal activities in Venezuela, including global money laundering, corruption, narcotrafficking, illegal mining, and the role of foreign nations and non-state actors in Venezuela. The breadth of these criminal activities helps demonstrate why the Maduro regime remains in power despite stiff international and domestic pressure. This brief provides specific policy recommendations for Venezuela’s interim government led by Juan Guaidó, as well as for the United States and other like-minded countries. These policy recommendations include prosecutions, sanctions, and the use of other tools that can help increase pressure on the Maduro regime more efficiently.
Topic:
Law, Illegal Trade, and Criminology
Political Geography:
South America and Venezuela

31. Gender, Law, and Security (volume II)

Author:
Beth English
Publication Date:
12-2019
Content Type:
Working Paper
Institution:
Liechtenstein Institute on Self-Determination, Princeton University
Abstract:
This volume is a sampling of research conducted by student fellows in the Project on Gender in the Global Community (GGC) at the Liechtenstein Institute on Self-Determination at Princeton University. Over the course of the 2018-19 academic year, GGC fellows pursued independent, academically rigorous research around a topic of their choosing. The papers in this volume represent a variety of disciplines and methodologies, and the range of work undertaken by students throughout the year—some in connection to course work, junior policy seminars and senior theses, others as stand-alone research papers, and still others as short framing essays intended to serve as starting points for larger long-term research projects. The volume is divided into three sections focusing on 1) gender and domestic political contexts, 2) violence against women and women in conflict, and 3) policy and political leadership.
Topic:
Gender Issues, Law, Leadership, Gender Based Violence, and Conflict
Political Geography:
Global Focus

32. Russian Meddling in the United States: The Historical Context of the Mueller Report

Author:
Seth G. Jones
Publication Date:
03-2019
Content Type:
Working Paper
Institution:
Center for Strategic and International Studies
Abstract:
One of the most significant—and most disturbing—aspects of the Mueller report is the confirmation that Russia attempted to influence the 2016 election, based on the Special Counsel’s exhaustive collection and review of intelligence. This campaign by a foreign adversary represents a serious threat to U.S. national security and is reminiscent of Moscow’s actions during the Cold War. As this CSIS Brief highlights, Moscow has long conducted an “active measures” campaign against the United States, including trying to manipulate U.S. domestic politics. U.S. policymakers now need a forceful response to Russia’s intelligence campaign.
Topic:
Intelligence, Law, Elections, Election Interference, and Rigged Elections
Political Geography:
Russia, Europe, North America, and United States of America

33. The evolution of the EU law against criminal finance: the "hardening" of FATF standards within the EU

Author:
Leonardo Borlinia and Francesco Montanaro
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Centre for Trade and Economic Integration, The Graduate Institute (IHEID)
Abstract:
This article examines the recent evolution of the EU anti-money-laundering (AML) and counter-terrorist financing (CTF) legislative framework, focusing on the relationship between the main international standards in the field and the newest EU legislation. It suggests that international soft law norms—in particular, the Financial Action Task Force (FATF) Recommendations—have had a decisive influence on the latest development of legislation at the EU level and within its member states. It further argues that mainly the preventive component of the AML/CTF legislation will be strengthened by the EU instruments adopted in mid-2015. However, this Article concludes that the adoption of global soft standards has posed significant challenges to the EU legislative framework. The arguments are developed in four parts. The Article first highlights the main regulatory prescriptions that stem from the study of the phenomenology and the economics of AML/CTF regulation and underpin the current international regulatory paradigm. Second, it explores the evolution of the main international instruments in the field with a special focus on the role played by the FATF Recommendations. It also illustrates the relation between these instruments and the adoption of the new EU AML/CTF legislation from two different, but complementary, angles: (1) noting that the current international AML/CTF framework has a multidisciplinary approach, the Article focuses on the framework's repressive component and assessing the limits of the EU criminal approach against money laundering and terrorist financing; and (2) examining the recent EU preventive legislation and addressing the main challenges posed to the EU legislative framework when attempting to accommodate global standards, especially regarding tensions with fundamental freedoms and human rights protected within the EU.
Topic:
Corruption, Crime, Economics, International Trade and Finance, Law, Finance, and Global Political Economy
Political Geography:
Global Focus

34. Costs and Benefits of Investment Treaties: Practical Considerations for States

Author:
Lisa Sachs, Lise Johnson, Brooke Güven, and Jesse Coleman
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.
Topic:
Treaties and Agreements, Law, Legal Theory, and Investment
Political Geography:
Global Focus

35. Transitional Justice in Tunisia: Tension Between the Need for Accountability and Due Process Rights

Author:
Howard Varney and Katarzyna Zdunczky
Publication Date:
05-2018
Content Type:
Working Paper
Institution:
The International Center for Transitional Justice (ICTJ)
Abstract:
Pursuing justice in a transitional context may take the form of multiple measures and goes beyond the pursuit of criminal prosecutions. Tunisia’s Basic Law on Transitional Law, adopted in December 2013, is a case in point. Despite its flaws, the the law introduced a fairly comprehensive framework to redress past abuses and to hold perpetrators to account.
Topic:
International Law, Law, and Transitional Justice
Political Geography:
Africa and Tunisia

36. Lebanon’s 2017 Parliamentary Election Law

Author:
International Foundation for Electoral Systems
Publication Date:
05-2018
Content Type:
Working Paper
Institution:
International Foundation for Electoral Systems
Abstract:
A new Lebanese government was established in December 2016 and enacted a new election law in 2017. The new law will be in force for parliamentary elections scheduled to be held on May 6, 2018, the first since June 2009. The law’s passage is a significant achievement when considering the fragmented, complex and shifting nature of Lebanon’s politics, which is dominated by two major political and electoral alliances and overlaid by regional rivalries. The new law, however, is not likely to change the political landscape or bring an end to confessionalism in politics, which remains the overall goal in the country’s Constitution. To help you understand this important electoral law, the International Foundation for Electoral Systems (IFES) provides a briefing paper on Lebanon’s 2017 Parliamentary Election Law. The paper provides an analysis of the new election law in comparison to the 2008 election law.
Topic:
Law, Elections, Democracy, and Political Parties
Political Geography:
Middle East and Lebanon

37. Elections on Trial: The Effective Management of Election Disputes and Violations

Author:
Katherine Ellena, Chad Vickery, and Lisa Reppell
Publication Date:
06-2018
Content Type:
Working Paper
Institution:
International Foundation for Electoral Systems
Abstract:
Mechanisms for election dispute resolution (EDR) must increasingly withstand new forms of sophisticated political and electoral manipulation, most recently illustrated by the Cambridge Analytica whistleblower claims, but previously highlighted by the International Foundation for Electoral Systems (IFES) as a growing concern around the globe. Hence, the right to receive an effective remedy in the elections context, through the efficient and transparent administration of justice, has become even more fundamental. This involves both the protection of procedural justice (for individuals involved in an election dispute or accused of a violation) and the advancement of open justice (for the public at large, which has a stake in the legitimacy of the election process and outcome). This new IFES research paper, Elections on Trial: The Effective Management of Election Disputes and Violations, outlines the fundamental principles for procedural justice and open justice in election cases. Significant attention is often paid to the independence and impartiality of judges or arbiters making decisions on election cases, while the mechanisms through which these cases are managed and publicized are often overlooked. To address this knowledge gap, IFES conducted preliminary comparative desk research on the case management of election dispute resolution in six countries: Mexico, Tunisia, Kenya, Macedonia, Kosovo, and the Philippines, to better understand how case management processes and platforms can help translate established procedure into actual practice. This research was made possible by the generous support of the American people through the United States Agency for International Development under the Global Elections and Political Transitions Program. Institutions dealing with election disputes and violations face enormous challenges as election litigation increases, and as political actors find new ways to undermine the process or to simply ignore laws and rules in place. It can be an extremely difficult task to balance all the different components of procedural justice and open justice in a way that ultimately ensures a just and transparent process for all litigants. The paper presents comparative information illustrating these principles in practice, discusses case management tools and techniques, and provides recommendations for election management and EDR bodies seeking to strengthen the processes and platforms through which elections disputes and violations are resolved.
Topic:
Law, Elections, Election Interference, and Election Dispute
Political Geography:
Kenya, Philippines, Mexico, and Tunisia

38. The Integrity of Elections in Asia: Policy Lessons Applied

Author:
Kyle Lemargie and Silja Paasilinna
Publication Date:
11-2018
Content Type:
Working Paper
Institution:
International Foundation for Electoral Systems
Abstract:
In response to a recent study by Max Grömping entitled The Integrity of Elections in Asia: Policy Lessons from Expert Evaluations, the International Foundation for Electoral Systems (IFES) produced a briefing paper with some examples of policy lessons applied in practice across Asia. IFES has worked in Asia for the past three decades supporting election management bodies, civil society and other electoral stakeholders in their efforts to promote electoral integrity.
Topic:
Law, Elections, Transparency, and Campaign Finance
Political Geography:
Asia

39. Dynamics of Deterrence: A Macroeconomic Perspective on Punitive Justice Policy

Author:
Bulent Guler and Amanda Michaud
Publication Date:
09-2018
Content Type:
Working Paper
Institution:
Centre for Human Capital and Productivity (CHCP), Western University
Abstract:
We argue that transitional dynamics play a critical role in the evaluation of punitive incarceration reform on crime, inequality and the macroeconomy. Individuals’ past choices related to crime and employment under old policies have persistent consequences that limit their future responses to policy changes. Novel cohort evidence is provided in support of this mechanism. A quantitative model of this theory calibrated using restricted administrative data predicts nuanced, non-monotone dynamics of crime and incarceration similar to the U.S. experience following a single permanent increase in punitive incarceration in the 1980s. Increased inequality and declining employment accompany these changes and are borne unequally across generations.
Topic:
Economics, Law, Human Capital, Macroeconomics, Mass Incarceration, Productivity, and Legal Sector
Political Geography:
United States

40. The Demand for Sovereignty over Judea and Samaria is a Waste of Zionist Energy

Author:
Efraim Inbar
Publication Date:
02-2018
Content Type:
Working Paper
Institution:
Jerusalem Institute for Strategy and Security (JISS)
Abstract:
The longing for Jewish sovereignty over the historic homeland of the Jewish people is understandable. Nevertheless, the recent attempt to pass a law declaring Israeli sovereignty over the settlements in Judea and Samaria is useless.
Topic:
Sovereignty, Territorial Disputes, Law, and Zionism
Political Geography:
Middle East, Israel, and Palestine

41. Global Social Fascism: Violence, Law and Twenty-First Century Plunder

Author:
Lara Montesinos Coleman
Publication Date:
05-2018
Content Type:
Working Paper
Institution:
Centre for Global Political Economy, University of Sussex
Abstract:
The intellectual authors of neoliberalism were aware of the lethal implications of what they advocated. For ‘the market’ to work, the state was to refuse protection to those unable to secure their subsistence, while dissidents were to be repressed. What has received less attention is how deadly neoliberal reforms increasing come wrapped in social, legal and humanistic rhetoric. We see this not only in ‘social’ and ‘legal’ rationales for tearing away safety nets in Europe’s former social democratic heartlands, but also in the ‘pro-poor’ emphasis of contemporary development discourse. This includes contexts where colonial legacies have facilitated extreme armed violence in service of corporate plunder. To expose these dynamics, I juxtapose the everyday violence of austerity in Britain with neoliberal restructuring in Colombia. The latter is instructive precisely because, in tandem with widespread state-backed terror, Colombia has held fast to the language and institutions of liberal democracy. It has, as a result, prefigured the subtle authoritarian tendencies now increasingly prominent in European states. The reconceptualization of law, rights and social policy that has accompanied neoliberal globalization is deeply fascistic. Authoritarian state power is harnessed to the power of transnational capital, often accompanied by nationalistic and racist ideologies that legitimize refusal of protection and repression, enabling spiraling inequality. Nevertheless, extending Boaventura de Sousa Santos’s discussion of ‘social fascism’, I suggest that widespread appeal to the ‘social’ benefits and ‘legal necessity’ of lethal economic policies marks a significant and Orwellian shift. Not only are democratic forces suppressed: the very meanings of democracy, rights, law and ethics are being reshaped, drastically inhibiting means of challenging corporate power.
Topic:
Human Rights, Social Stratification, Law, Fascism, and Neoliberalism
Political Geography:
Britain and Colombia

42. The Legal Aspects of the MH17 Disaster: What Next?

Author:
Emma Bakkum
Publication Date:
06-2017
Content Type:
Working Paper
Institution:
Public International Law Policy Group
Abstract:
The most often discussed legal avenue is criminal law, under which individual perpetrators can be held accountable for the crimes they committed. Not only those directly responsible but also those who ordered, conspired to or aided and abetted the shooting down of MH17 can be held responsible. These individuals can be prosecuted both at the national level in domestic courts or at the international level, at the International Criminal Court (ICC) or a specially established tribunal. Criminal law, however, requires a high burden of proof. Not only needs to be proven that an individual has committed a criminal act but also that the individual did so with the required knowledge and intent, making it difficult to prosecute individuals. Under the circumstances of the MH17 situation, investigations are strenuous. Jeroen Akkermans, who was one of the first investigative journalists present at the crash site, underlined the problems with gathering evidence.
Topic:
Crime, Law, Legal Theory, and International Criminal Court (ICC)
Political Geography:
Europe, Malaysia, Ukraine, and Asia

43. Corporate Scandals and Regulation

Author:
Luzi Hail, Ahmed Tahoun, and Clare Wang
Publication Date:
12-2017
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
Are regulatory interventions delayed reactions to market failures or can regulators proactively pre-empt corporate misbehavior? From a public interest view, we would expect “effective” regulation to ex ante mitigate agency conflicts between corporate insiders and outsiders, and prevent corporate misbehavior from occurring or quickly rectify transgressions. However, regulators are also self-interested and may be captured, uninformed, or ideological, and become less effective as a result. In this registered report, we develop a historical time series of corporate (accounting) scandals and (accounting) regulations for a panel of 26 countries from 1800 to 2015. An analysis of the lead-lag relations at both the global and individual country level yields the following insights: (i) Corporate scandals are an antecedent to regulation over long stretches of time, suggesting that regulators are typically less flexible and informed than firms. (ii) Regulation is positively related to the incidence of future scandals, suggesting that regulators are not fully effective, that explicit rules are required to identify scandalous corporate actions, or that new regulations have unintended consequences. (iii) There exist systematic differences in these lead-lag relations across countries and over time suggesting that the effectiveness of regulation is shaped by fundamental country characteristics like market development and legal tradition.
Topic:
Economics, Law, Regulation, Finance, Capital, and Fraud
Political Geography:
Global Focus

44. The First and Last Word in Debates: Plaintive Plaintiffs

Author:
Elena D'Agostino and Daniel J. Seidmann
Publication Date:
05-2017
Content Type:
Working Paper
Institution:
Nottingham Interdisciplinary Centre for Economic and Political Research (NICEP)
Abstract:
Is it better to have the first or the last word in debates? The answer, in two-round debates like common law trials, depends on whether litigants share the available evidence. If so, then litigants never prefer to present first, but may prefer to present second. However, litigants may otherwise prefer to present first because doing so replicates the follower's ex ante optimal commitment.
Topic:
Law, Courts, Debates, and Litigation
Political Geography:
Global Focus

45. Follow-the-Leader? Measuring the Internalisation of Law

Author:
Shaun Larcom, Luca Panzone, and Tim Swanson
Publication Date:
01-2017
Content Type:
Working Paper
Institution:
Centre for International Environmental Studies, The Graduate Institute (IHEID)
Abstract:
Expressive law is said to induce compliance with stated principles without a price on noncompliance. We empirically assess this proposition, by attempting to dis-entangle the impacts of a legal change (a 5p charge on use of plastic bags), on individual choices. We do so by measuring both behaviours and attitudes across the first two months of the legal change, and by comparing the impacts across neighboring jurisdictions both with and without the change. Using mediation analysis, we find that the self-reported change in internal motivation explains only about 10% of the change in behaviour. Interestingly, we find that the scale of the sanction (charge) is both irrelevant (because jurisdictions without sanctions still exhibit changed behaviour) and important (because the size of the sanction signals the reasonableness of the law).
Topic:
Law, Behavior, and Internalization of Law
Political Geography:
Global Focus

46. Illegal Markets: Boundaries and Interfaces between Legality and Illegality.

Author:
Renate Mayntz
Publication Date:
03-2016
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
In sociology generally, the infringement of legal norms is not treated as a special kind of norm violation, the sociology of law being an obvious exception. The study of illegal markets therefore faces the challenge of distinguishing illegality from legality, and relating both to legitimacy. There is no conceptual ambiguity about the distinction between legal and illegal if legality is formally defined. In practice, (formal) legality and (social) legitimacy can diverge: there is both legitimate illegal action and illegitimate legal action. Illegal markets are a special kind of illegal social system, constituted by market transactions. Illegal markets are empirically related to organized crime, mafia and even terrorist organizations, and they interact both with legal markets and the forces of state order. Where legal and illegal action systems are not separated by clear social boundaries, they are connected by what has come to be called “interfaces”: actors moving between a legal and an illegal world, actions that are illegal but perceived as legitimate or the other way around, and a gray zone of actions that are neither clearly legal nor illegal, and neither clearly legitimate nor illegitimate. Interfaces facilitate interaction between legal and illegal action systems, but they are also sources of tension and can lead to institutional change.
Topic:
Crime, Markets, Sociology, and Law
Political Geography:
Global Focus

47. Empowered or Disempowered? The Role of National Parliaments during the Reform of European Economic Governance.

Author:
Aleksandra Maatsch
Publication Date:
01-2016
Content Type:
Working Paper
Institution:
Max Planck Institute for the Study of Societies
Abstract:
This paper investigates how the intergovernmental reform process of European economic governance affected national parliaments’ oversight of this policy area. Which parliaments became disempowered and which managed to secure their formal powers – and why? The dependent variable of the study is operationalized as the presence or absence of “emergency legislation” allowing governments to accelerate the legislative process and minimize the risk of a default by constraining national parliaments’ powers. The paper examines how national parliaments in all eurozone states were involved in approving the following measures: the EFSF (establishment and increase of budgetary capacity), the ESM, and the Fiscal Compact. The findings demonstrate that whereas northern European parliaments’ powers were secured (or in some cases even fostered), southern European parliaments were disempowered due to the following factors: (i) domestic constitutional set-up permitting emergency legislation, (ii) national supreme or constitutional courts’ consent to extensive application of emergency legislation, and (iii) international economic and political pressure on governments to prevent default of the legislative process. Due to significant power asymmetries, national parliaments remained de jure but not de facto equal in the exercise of their control powers at the EU level. As a consequence, both the disempowerment of particular parliaments and the asymmetry of powers among them has had a negative effect on the legitimacy of European economic governance.
Topic:
Politics, Governance, Law, and Reform
Political Geography:
Europe

48. Mapping Dilutions in a Central Law

Author:
Kanchi Kohli and Debayan Gupta
Publication Date:
08-2016
Content Type:
Working Paper
Institution:
Centre for Policy Research, India
Abstract:
For the last two years, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has been in the eye of debate and discussed for the controversial changes the National Democratic Alliance (NDA) government had sought to bring about through ordinances. Even though fate of the amendments rests currently with the Joint Parliamentary Committee report, several states have already brought about changes through Rules under Section 109 of the Act. An examination of these state specific Rules reveals they are headed towards: Adopting the changes proposed in the ordinances amending the central law; Diluting the applicability of the progressive clauses like consent or SIA; Clarifying procedures for implementation at the state level. The United Progressive Alliance (UPA) government had replaced the Land Acquisition Act, 1894 with the newly enacted RFCLARR Act, 2013. Though critiqued for expanding the definition of public purpose to include the private sector, the new legislations had been welcomed by social movements, farmers groups and NGOs. This is primarily for the need for a Social Impact Assessment (SIA), the requirement for prior consent, food security provisions and clear compensation related provisions. What was also central to this discussion were the clauses which allow for unused land to be returned to original owners. The Rules framed by the States aim to make the process of land acquisition much simpler for investors. While certain States reduce the time period for the conducting of the SIA process or do away with it in its entirety, there are others who make reductions in the compensation award or modify the applicability of the retrospective clause. There are also States which directly adopt the provisions in the ordinance that aim to remove the requirement for consent from the land acquisition procedure. This working paper paper attempts to trace and analyse how the state governments have modified and built upon the central Act. It also looks briefly at litigation that has emerged especially around the applicability of the retrospective clause of the law, ie. which requires the return of unused land to original owners or reinitiating processes under the 2013 law.
Topic:
Development, Government, Law, Food Security, Land Law, and Social Policy
Political Geography:
South Asia, India, and Asia

49. Penalising Environmental Violations: An Analysis of The Ministry’s Proposal

Author:
Shibani Ghosh
Publication Date:
01-2016
Content Type:
Working Paper
Institution:
Centre for Policy Research, India
Abstract:
In October 2015, the Ministry of Environment, Forest and Climate Change released a Draft Environment Laws (Amendment) Bill 2015 proposing amendments to the Environment (Protection) Act 1986 and the National Green Tribunal Act 2010. The stated objective of the Bill is to provide ‘effective deterrent penal provisions’ and to introduce the concept of monetary penalty. It also aims ‘to minimise the exercise of discretion and make an unambiguous framework’. This paper summarises the text of the Bill and analyses whether it will complement the environmental objectives the parent laws espouse. It discusses some of the major concerns relating to the proposed amendments under three broad themes: environmental damage and penalties, adjudicating authorities and rule making powers. It concludes that although penalties that effectively deter violators are certainly the need of the hour, the proposed amendments are unlikely to achieve this objective.
Topic:
Climate Change, Environment, Law Enforcement, Law, Legislation, and Deterrence
Political Geography:
South Asia, India, and Asia

50. Breakfast Talk by Thuli Madonsela (former Public Protector of South Africa)

Author:
Rosalie Dieleman and David Lando
Publication Date:
11-2016
Content Type:
Working Paper
Institution:
Public International Law Policy Group
Abstract:
Ms. Madonsela is the former Public Protector of South Africa, Chairperson of the African Ombudsman Research Center in South Africa, and one of the drafters of the South African post-Apartheid constitution. She has been in the spotlight during the last year for a report she filed before leaving the Office of the Protector regarding the connection between South African President Zuma and Indian-South African lucrative businessmen Ajay, Atul, and Rajesh Gupta. The report “details a disturbing web of influence exerted over parts of the South African state by a powerful family of Mr. Zuma’s chums”,[1] the Gupta family. The report indicates that the Gupta family was involved in political appointment, including that of the South African finance minister.
Topic:
Apartheid, Corruption, Law, and Legal Theory
Political Geography:
Africa, South Africa, and Southern Africa