Enforcement Power Research Articles

Governing a giant: the limits of judicial activism on hunger in India

Despite concerted efforts by civil society organizations and judicial activism on the right to food, India remains home to the largest number of undernourished people in the world. This article critically examines two sets of public interest litigation cases where the Indian courts have actively intervened to address the problem of food insecurity. What has been the nature and extent of judicial activism on hunger in India? And what have been the political and administrative responses to such interventions by the courts? I argue that although judicial activism has usefully established the right to food in India, and clarified the corresponding duties of the government at both state and central levels, the court orders have been issued with no real enforcement power behind them. The institutions of government must be better geared towards addressing chronic undernutrition and vulnerability to starvation. The emphasis should be to correctly diagnose the problem of hunger as early on in the process as possible and thereafter undertake a rapid response rather than simply reacting to sensational and visible crises.

Extending the enforcement power of truncation monitors using static analysis

Runtime monitors are a widely used approach to enforcing security policies. Truncation monitors are based on the idea of truncating an execution before a violation occurs. Thus, the range of security policies they can enforce is limited to safety properties. The use of an a priori static analysis of the target program is a possible way of extending the range of monitorable properties. This paper presents an approach to producing an in-lined truncation monitor, which draws upon the above intuition. Based on an a priori knowledge of the program behavior, this approach allows, in some cases, to enforce more than safety properties and is more powerful than a classical truncation mechanism. We provide and prove a theorem stating that a truncation enforcement mechanism considering only the set of possible executions of a specific program is strictly more powerful than a mechanism considering all the executions over an alphabet of actions.

Is Trafficking Slavery? Anti-Slavery International in the Twenty-first Century

Why was Anti-Slavery International (ASI) so effective at changing norms slavery and even mobilizing the support that ended the transatlantic slave trade at the end of the nineteenth century, and why has that success not continued on into subsequent eras? This article claims that ASI's organizational structure is the key to understanding why its accomplishments in earlier eras have yet to be replicated, and why today it struggles to make modern forms of slavery, such as human trafficking, salient political issues. Organizational structure is defined by how an NGO distributes power over agenda-setting (proposal and enforcement power) and its implementation. Those NGOs that centralize agenda-setting and decentralize the implementation of that agenda will be most effective at changing international norms. This paper demonstrates the tractability of that claim with a comparative analysis of ASI past and present to show that changes in organizational structure have led to differences in their effect on international norms, in spite of the fact that slavery in its modern forms persists as a political and social problem.

Tax Enforcement as a Corporate Governance Mechanism: Empirical Evidence from China

Manuscript Type: Empirical Research Question/Issue: This study first measures tax enforcement efforts for 35 tax regions within China, then analyzes the role of tax enforcement as a corporate governance mechanism by examining whether regional tax enforcement efforts reduce two types of agency costs in Chinese listed firms. Research Findings/Insights: Using archival data from a pooled sample of 917 listed firms with total 3,668 observations from 2003 to 2006 in China, we find the following results: (1) regional tax enforcement efforts reduce corporate agency costs between shareholders and managers and agency costs between blockholders and minority shareholders; (2) by reducing two kinds of agency costs, tax enforcement efforts improve a firm's market performance; and (3) the governance role of tax enforcement efforts is more significant for state-controlled firms than for entrepreneur-controlled firms. Theoretical/Academic Implications: This study suggests that tax enforcement can act as a corporate governance mechanism. Tax authorities not only have the ability to increase national tax revenue, but also play a positive role in decreasing agency costs, including agency costs between shareholders and managers and those between block shareholders and minority shareholders. Practitioner/Policy Implications: This study offers a new insight to policy makers interested in transforming economies that corporate governance build-up should be multidimensional. Besides the traditionally internal governance mechanisms represented by boards of directors and external governance mechanisms represented by takeover markets, tax enforcement is also an important corporate governance mechanism. The enforcement power of tax authorities could be better utilized to supervise firm operations in emerging markets.

The enforcement–exploitation trade-off in international cooperation between weak and powerful states

According to the imperative of enforcement, states must threaten defectors with sanctions or reciprocal suspension of international cooperation. I show that in international cooperation between the weak and the powerful, states should nevertheless limit the supply of collective enforcement power. Strong sanctions allow exploitative international agreements, so weak states refuse to engage in negotiations with powerful states in the first place. For powerful states, toothless international agreements are a credible commitment to limit power politics. The result holds even if sanctions can be used only to enforce international agreements and not for coercion. It implies that under power asymmetry, states must accept constraints on the use of power, as opposed to simply maximizing the supply of collective enforcement power. The theory offers a new perspective to international cooperation and a synthesis of the enforcement and managerial schools of international cooperation. It produces precise analytical boundary conditions and generates falsifiable empirical hypotheses.

Enforcing international environmental cooperation: Technological standards can help

Market instruments, such as emissions trading or pollution taxes, are less costly than “command and control” regulation. Yet technological standards are common in international environmental agreements and now figure prominently among proposals to mitigate global warming. I show that technological standards can be combined with market instruments to create collective enforcement power. They allow states to internationally enforce technology installation, so the payoff to free riding decreases. A notable feature of the argument is that technological standards and market instruments are complements, while previous research has treated them as substitutes. Empirically, technological standards are most valuable if international cooperation is difficult to enforce and the rate of technological change in concerned industries is slow.

From Substance to Shadows: An Essay on Salazar v. Buono and Establishment Clause Remedies

Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the Court from reaching the substantive finding that a Latin cross on federal property violated the Establishment Clause. Second, because the district court had declared invalid a federal statute transfering the land to a private party, and--unable to address the substantive ruling--the Court was forced to address the law of remedies in an *290 atypical posture. Reversing the lower courts, in Buono a plurality of the Court held that the district court erred when it invalidated the land transfer. This Essay critically analyzes Buono and argues that the plurality failed to appreciate the remedial significance of the challenge to the land transfer. The plurality, it seems, attempted to re-litigate the substantive Establishment Clause violation despite the res judicata bar. In so doing, I argue, the Court put form over substance and ignored the essential command of the Establishment Clause--government neutrality. To make my case, I draw on political theory to clarify the concept of neutrality, and propose a novel way of thinking about Establishment Clause remedies by drawing on decisions considering the extent of Congress's Section 5 Enforcement Power under the Fourteenth Amendment. I conclude by trying to blur the sharp distinction the plurality draws between public and private space. Buono is a significant case, but not because it contributes to or clarifies the law regarding the Establishment Clause. Instead, Buono is significant because it demonstrates how important remedial flexibility is to ensuring rights, while at the same time exemplifying the perils of remedial formalism.

Griff Carver, Hallway Patrol (review)

Reviewed by: Griff Carver, Hallway Patrol Kate Quealy-Gainer, Assistant Editor Krieg, Jim. Griff Carver, Hallway Patrol. Razorbill, 2010. [240p]. ISBN 978-1-59514-276-4 $15.99 Reviewed from galleys R Gr. 4-7. A disgraced and hardened cop relocates to a new town, promising himself and his old lady that this time will be different, this time he won't let the job consume his life, this time he won't fall prey to the shiny lure of the badge and lose himself to the seductive power of law enforcement. Soon, however, Mr. Straight-and-Narrow finds himself back on the mean streets again, getting high off the adrenaline rush that only comes with putting bad guys in their place. It's a tale as old as cops and robbers, but here the cops happen to be school safety patrolmen and the streets are the rough-and-tumble hallways of Rampart Middle School (the loyal little woman is the protagonist's mother). Griff Carver, fabled hallway monitor and loose cannon, has gotten a whiff of something rotten and suspects a counterfeit-hall-pass [End Page 442] ring led by none other than Marcus "The Smile" Volger. In a clever nod to classic noir detective stories, first-time author Krieg pulls out all the stops, including the fresh-faced Boy Scout who's Griff's rookie partner and a prickly but charming dame with an ulterior motive as the possible romantic interest. Griff himself is a bit over the top with his impenetrable bravado and constant cop lingo, but kids in on the joke will surely appreciate his scathing critique of middle-school politics and his deliciously biting one-liners ("A hero's just a sandwich the cafeteria served us every Wednesday"). With an action packed ending that leaves plenty of room for a sequel, this one is sure to garner plenty of fans and may inspire a few budding officers. Copyright © 2010 The Board of Trustees of the University of Illinois

An Institutional Analysis of the Enforcement Problems in Merger Control

The literature identifies a significant drop in merger control enforcement activity on both sides of the Atlantic during the last decade. Furthermore, this drop in enforcement activity is convincingly connected to enforcement problems on the sides of the competition agencies. This paper goes beyond the identification of under-enforcement and proceeds to the analysis of causes for the enforcement problems and the discussion of possible solutions. It argues that modern institutional economics suggest that a lack of ‘fit’ between the ‘new’ economic approach to merger control and the ‘old’ institutional environment of the legal enforcement procedures explains the drop of enforcement effectiveness on both sides of the Atlantic by implicitly raising the standard of proof, leading to unattainable standards, virtually eroding merger control enforcement power. As a consequence, the effects-based approach to merger control fails due to its failure to acknowledge its institutional implications. Reconciling industrial and institutional economics – promoting a comprehensive competition economics approach – however offers avenues towards an effective use of sophisticated industrial economic theories and methods. Firstly, incorporating economics into enforceable rules like strong rebuttable presumptions would adjust substantive merger control policy to the procedural institutional environment. Secondly, a reform of the standards of proof provisions would adjust the procedural framework to the characteristics of modern economic evidence and concepts. In summary, the enforcement problems in merger control require even more economic thinking, complementing industrial economic thought with institutional economic thought.

Trade skirmishes safeguards: A theory of the WTO dispute settlement process

I propose a framework within which to interpret and evaluate the major reforms introduced to the GATT system in its transition to the WTO. In particular, I examine the WTO Agreement on Safeguards that has amended the GATT escape clause (Article XIX), and the Dispute Settlement Body (DSB) that resembles a court of law under the WTO. Using this framework, I interpret the weakening of the reciprocity principle under the Agreement on Safeguards as an attempt to reduce efficiency-reducing trade skirmishes. The DSB is interpreted as an impartial arbitrator that announces its opinion about the state of the world when a dispute arises among member countries. I demonstrate that the reforms in the GATT escape clause should be bundled with the introduction of the DSB, in order to maintain the incentive compatibility of trade agreements. The model implies that trade agreements under the WTO lead to fewer trade skirmishes but this effect does not necessarily result in higher payoffs to the governments. The model also implies that the introduction of the WTO court, which has no enforcement power, can improve the self-enforceability of trade agreements.

Fishing for Prawn Larvae in Bangladesh: An Important Coastal Livelihood Causing Negative Effects on the Environment

Freshwater prawn (Macrobrachium rosenbergii) farming in Bangladesh has, to a large extent, been dependent on the supply of wild larvae. Although there are 81 freshwater prawn hatcheries in the country, a lack of technical knowledge, inadequate skilled manpower, and an insufficient supply of wild broods have limited hatchery production. Many thousands of coastal poor people, including women, are engaged in fishing for wild prawn larvae along the coastline during a few months each year. On average, 40% of the total yearly income for these people comes from prawn larvae fishing activity. However, indiscriminate fishing of wild larvae, with high levels of bycatch of juvenile fish and crustaceans, may impact negatively on production and biodiversity in coastal ecosystems. This concern has provoked the imposition of restrictions on larvae collection. The ban has, however, not been firmly enforced because of the limited availability of hatchery-raised larvae, the lack of an alternative livelihood for people involved in larvae fishing, and weak enforcement power. This article discusses the environmental and social consequences of prawn larvae fishing and concludes that, by increasing awareness among fry fishers, improving fishing techniques (reducing bycatch mortality), and improving the survival of fry in the market chain, a temporal ban may be a prudent measure when considering the potential negative impacts of bycatch. However, it also suggests that more research is needed to find out about the impact of larvae fishing on nontarget organisms and on the populations of targeted species.

Simulating a Sequential Coalition Formation Process for the Climate Change Problem: First Come, But Second Served?

We analyze stability of self-enforcing climate agreements based on a data set generated by the CLIMNEG world simulation model (CWSM), version 1.2. We consider two new aspects which appear important in actual treaty-making. First, we consider a sequential coalition formation process where players can make proposals which are either accepted or countered by other proposals. Second, we analyze whether a moderator, like an international organization, even without enforcement power, can improve upon globally suboptimal outcomes through coordinating actions by making recommendations that must be Pareto-improving to all parties. We discuss the conceptual difficulties of implementing our algorithm.

The Scope of Congress’s Thirteenth Amendment Enforcement Power after <i>City of Boerne v. Flores</i>

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual orientation. Jones, however, is in serious tension with City of Boerne v. Flores, which held that the Fourteenth Amendment’s virtually identical enforcement language permits only prophylactic legislation that is congruent and proportional to violations of judicially-determined rights. Even more critically, Jones’s grant to Congress of substantive interpretive power runs afoul of the principles of separation of powers, judicial supremacy, and federalism that drove the Court in City of Boerne. Thus, the time is ripe to reconsider Jones and the proper scope of Congress’s Thirteenth Amendment enforcement power. This Article does precisely that, delving into the text, history, and structural implications of Section Two. Ultimately, this Article considers three ways to approach Section Two: as a limited power to prevent and remedy coerced labor; as a broad power to define the badges and incidents of slavery and protect a wide array of civil rights; and as a prophylactic power to prevent the de facto reemergence of slavery by addressing the historical incidents and badges of the slave system. This article concludes that the prophylactic reading of Section Two best comports with both the original meaning of the provision and the structural principles of separation of powers, judicial supremacy, and federalism.

Global regime and national change

This article sheds light on the design of the global climate change regime by drawing lessons from the literature produced by international cooperation, international institutions and other international regimes in diverse issue areas. It is argued that sound policy implications for the design of a global climate change regime require a solid understanding of how (in what ways and under what conditions) international instruments influence national governments and domestic policies. While scholars and policy-makers alike often look towards strong and powerful international institutions such as the International Monetary Fund, the World Bank, and the World Trade Organization for design inspiration, the majority of international institutions are those that in fact lack enforcement power. Despite these shortcomings, many of these international institutions often influence national policies in a variety of indirect but effective ways. At the heart of these indirect mechanisms is the mobilization of domestic action. Utilizing and further empowering stakeholders (decentralized and spreading over various levels) is thus the key. The indirect channels of institutional influence are particularly relevant to climate change and provide policy implications for the design of the global climate change regime.

Trade Skirmishes and Safeguards: A Theory of the WTO Dispute Settlement Process

I propose a framework within which to interpret and evaluate the major reforms introduced to the GATT system in its transition to the WTO. In particular, I examine the WTO Agreement on Safeguards that has replaced the GATT escape clause (Article XIX), and the Dispute Settlement Process (DSP) that resembles a court of law under the WTO. Using this framework, I interpret the weakening of the reciprocity principle under the Agreement on Safeguards as an attempt to reduce efficiency-reducing trade skirmishes. The DSP is interpreted as an impartial arbitrator that announces its opinion about the state of the world when a dispute arises among member countries. I demonstrate that the reforms in the GATT escape clause should be bundled with the introduction of the DSP, in order to maintain the incentive-compatibility of trade agreements. The model implies that trade agreements under the WTO lead to fewer trade skirmishes but this effect does not necessarily result in higher payoffs to the governments. The model also implies that the introduction of the WTO court, which has no enforcement power, can in fact improve the self-enforceability of trade agreements.

Enforcement and Compliance in an Uncertain World: An Experimental Investigation

Governments are charged with monitoring citizens’ compliance with prescribed behavioral standards and punishing noncompliance. Flaws in information available to enforcing agents, however, may lead to subsequent enforcement errors, eroding government authority and undermining incentives for compliance. We explore these concepts in a laboratory experiment. A “monitor” player makes punishment decisions after receiving noisy signals about other players’ choices to contribute to a public good. We find that the possibility of wrongly accusatory signals has a more deleterious effect on contribution levels than the possibility of wrongly exculpatory signals. We trace this across-treatment difference to a “false positives trap”: when members of a largely compliant population are sometimes incorrectly accused, some will be unjustly punished if enforcement power is employed, but non-compliant individuals will escape punishment if that power is abdicated. Either kind of error discourages compliance. An additional treatment demonstrates that the functioning of a given enforcement institution may vary, depending on its origins. We consider implications of our findings for theories of deterrence, fairness, and institutional legitimacy.

The Current State of Protection of European Trademark Rights in China

With the enlargement of the European Union (EU) and the economic expansion of China, bilateral trade between the EU Member States and China has experienced noticeable growth. With the increasing number of EU small and medium enterprises entering the Chinese market, their inexperience in trademark protection may hamper their business development in China. Despite China's effort to strengthen its legal framework and enforcement power for trademark protection, its record remains less than fully satisfactory in the opinion of much of the international community. In this article, we present some common forms of trademark infringement in China and discuss some of the complexities of legal and institutional conditions and linguistic factors. We also provide recommendations to tackle these issues.

The Enforcement Power of International Agents

Even IR scholars who believe international institutions can have independent effects upon state behavior generally dismiss the possibility that international organizations (IOs) possess independent enforcement power because they do not trade, cannot tax, and are unable to conscript militaries. I argue an IO can contribute to enforcing compliance with international norms and rules if it has some autonomy from its state masters and the capacity to punish noncompliance or reward compliance on their behalf. A study of enforcement of the nuclear nonproliferation regime against North Korea by the international community is used to illustrate that the International Atomic Energy Agency independently contributed to international enforcement when it was authorized to do so. This finding has clear policy implications for states seeking to strengthen international cooperation in areas experiencing problems with compliance.

Why do states have territorial rights?

What gives a particular state the right to exercise jurisdiction and enforcement power over a particular territory? Why does the state of Denmark have rights over the territory of Denmark, and not over the territory of Sweden, and vice versa? This paper first considers a popular argument that purports to ground state territorial rights in citizens’ rights of land ownership. On this view, the state has jurisdiction over territory insofar as its peopleownsthe territory, and delegates jurisdictional powers over their land to the state. It is argued that we should reject this approach, because it is unable to explain: (a) how the state can establish a continuous territory; (b) why later generations consent to the state’s jurisdiction; and (c) why non-consenting property owners cannot secede.Rather than considering state jurisdiction to bederivedfrom the people’s prior property rights, this paper claims that we should consider state jurisdictional rights over territory to be primitive. It defends an alternative Kantian account of territorial rights. On this view, a state’s claim to jurisdiction over territory is justified if that state imposes a system of property law that meets certain basic conditions of legitimacy. This Kantian approach, it is argued, allows us to make better sense of state territorial rights.

Institutional design and conflict: an introduction

Among the prevalent objectives that we should set for our society, reduction of conflicts of all kinds is probably one of the easiest to agree upon. Any social contract that establishes peaceful ways to resolve disputes can Pareto-dominate, for some appropriate transfers or side payments, any social contract that instead lets individuals or groups resolve disputes through costly conflict. Given that the international order is a highly incomplete social contract and given that no authority has enforcement power over sovereign States, renegotiation is unavoidable when considering the international order. Moreover, such negotiations are more likely to become conflictual when the relevant players lack commitment power needed for side payments and/or lack precise information about the strength of the opponents. Since all these critical elements for peaceful negotiations to succeed, namely enforcement power, commitment power, and completeness of information, are most unlikely to exist in the international arena, international relations are the type of relations in which anarchy is most often the reality and conflict is the hardest to avoid. Yet, even in the most pessimistic world of anarchy, the quest for self enforcing institutions that may help conflict resolution or the reduction of negotiation and renegotiation costs is an important one, and a lot more work can be done by economists and political scientists to identify self-enforcing institutional mechanisms that work better than others and that therefore the relevant players could coordinate on. This issue contains some important contributions in this direction, and it can be viewed as divided in two parts: The first three papers deal with the difficult issues of alliance formation and alliance behavior in negotiations and contests, which is an important