Legal Transparency Research Articles

Knowing markets: would less be more?

Regulators attempt to understand financial markets and their risks in terms of categories of knowledge and datasets that are defined and produced by the markets. However, regulators cannot adequately interpret or utilize such knowledge, for reasons including their social distance from the sites of knowledge production, the diversity of financial firms’ proprietary risk models, firms’ abilities to game the rules thus rendering the ‘metrics’ meaningless and several backfiring aspects of global regulatory networking and reform. Calls for yet more information about trading, posed in terms of the merits of transparency, result in information swamping of regulators. Meanwhile, while policy-makers tinker with regulatory structures (‘architecture’), political reaction to the crisis de-legitimizes public regulation as a project. Yet there is one positive aspect of the reforms – enhancing powers for ‘resolution’ of financial firms in ways that impact upon investors while minimizing wider destabilization – upon which the regulatory information requirement can and should be refocused. To protect the public interest, legal transparency is required, trading transparency is not. This paper introduces these issues by drawing on critical work on transparency and markets.

Actuarial Sentencing: An “Unsettled” Proposition

This paper discusses the concerns associated with the introduction of, and increased reliance on, actuarial risk tools in sentencing in order to: (1) stimulate cross-disciplinary dialog and research about the impact of incorporating actuarial risk logic into sentencing processes and (2) identify questions requiring further empirical examination. In this article, I recognize that actuarial risk logic offers managerial and organizational benefits, but I also demonstrate that the application of actuarial risk when sentencing offenders is not without important consequences. First, I provide a brief outline of the emergence, logic, and entrenchment of probabilistic reasoning within criminal justice decision-making, and the more recent extension and application of actuarial risk logic to sentencing. Then, I use the following themes to define the limits of using risk sciences in sentencing: (1) the logical structure of risk; (2) the slippage between risk prediction and individual causation; (3) current methodological limits of risk science; (4) the potential for gender and race discrimination; (5) the legal relevance and transparency of risk-based sentencing; and (6) the jurisprudential and organizational impact of various risk technologies. Importantly, the nature and severity of these complications will vary by, and within, the jurisdiction (or sentencing regime) because current sentencing practices are influenced by local jurisdictional needs and sentencing laws.

THE TRANSPARENCY FIX: ADVOCATING LEGAL RIGHTS AND THEIR ALTERNATIVES IN THE PURSUIT OF A VISIBLE STATE

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal transparency regimes. This Article is the first effort to survey and analyze transparency advocacy campaigns and the “fix” that each proposes to the problems created by the state’s asymmetrical information advantage over the public. It sketches the history of four campaigns: the FOI movement in the U.S., the global anti-corruption movement (spearheaded by Transparency International), the digital transparency movement, and WikiLeaks. The Article offers two insights. First, although these movements share a basic set of assumptions and tell a similar policy story—secrecy is a pressing administrative problem that can be fixed with the right policies and institutional arrangements—they diverge significantly in how they understand not only the problem’s causes but the state itself. Second, and as a result, the Article unveils transparency as a contested political issue which masquerades as an administrative tool. Rooted in contested claims about the state’s legitimacy and performance, the transparency fix leads to tendentious prescriptions about law, policy, and the state. † Professor and Samuel T. Dell Research Scholar, Levin College of Law, University of Florida.

The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal transparency regimes. This Article surveys and analyzes transparency advocacy campaigns and the “fix” that each proposes to the problems created by the state’s asymmetrical information advantage over the public. It sketches the history of four campaigns: the FOI movement in the U.S., the global anti-corruption movement (spearheaded by Transparency International), the digital transparency movement, and WikiLeaks. The Article offers two insights. First, although these movements share a basic set of assumptions and tell a similar policy story — secrecy is a pressing administrative problem that can be fixed with the right policies and institutional arrangements — they diverge significantly in how they understand not only the problem’s causes but the state itself. Second, and as a result, the Article unveils transparency as a contested political issue which masquerades as an administrative tool. Rooted in contestable claims about the state’s legitimacy and performance, the transparency fix leads to tendentious prescriptions about law, policy, and the state.

Legal risk, accountability and transparency in social work

Legal risk, accountability and transparency in social work

Improving the Financial Setting for FDI Inflows into Czech Republic and Slovakia: Innovative Methodology Bolsters Outcomes

As the Czech and Slovak Republics move toward free societies and market economies, some policy points to consider include: transparency of markets, economies, social and political organizations; an increase in commerce and investment, which makes reversals of reforms less likely (see the reversals in Russia just now); and the condition or quality of financial factors that contribute as useful tools of analysis and forecast to increased investment and transparency. Roland (2002), Wade (2005), and Kyrkilis and Pantelidi (2006) all discuss FDI relative to political risk and social and legal transparency issues.At this time, these economies in transition have many of the resources needed for development, such as educated labor forces, an entrepreneurial orientation among the people, and land. Yet, another key resource, capital, is in short supply in the region. An important concept in obtaining capital is to demonstrate economic and political stability. By improving transparency of the legal, banking, and capital markets sectors, the Czech and Slovak Republics can accelerate progress toward free and democratic societies.The value of this research effort is to examine whether relationships among country risk ratings, financial market variables, and expected returns in this region exist and can be useful in improving the capital markets systems and so attract more capital to the region.

IN THE SHADOW OF THE CHINA‐AUSTRALIA FTA NEGOTIATIONS: WHAT AUSTRALIAN BUSINESS THINKS ABOUT IP

This study collated responses from a survey of over 2,100 businesses across Australia to assess the extent of both their business dealings with China and their commercial interest in Intellectual Property (IP). We found that 9% of firms had business dealings with China but since these are disproportionately large firms, they accounted for 40% of business sales in Australia. Among these businesses, IP issues (registration, examination and enforcement) are of less concern than Chinese regulations and legal transparency. Among the IP issues covered in the survey, IP enforcement poses the greatest problem for Australian businesses.

Published White House Internal Memos: Legal Transparency or Subtle Electoral Canvassing?1

Dans quelle mesure la manipulation du « genre » est-elle une strategie utile a des fins pragmatiques ? Les rapports internes de la Maison Blanche et les decrets officiels presentent un interet d’analyse stimulant : celui de « l’affiliation generique ». D’un cote, ce sont des exemples de discours officiels, d’ou leur vocabulaire legal. D’autre part, le fait qu’ils sont publies et non tenus secrets signifie que le bureau de presse de la Maison Blanche y voit une utilite politique certaine en les rendant public, d’ou la presence d’une coloration propagandiste subtile des messages. Afin d’illustrer ce « jeu generique », l’etude des rapports internes de G.W. Bush sur la politique des Indiens d’Amerique est au cœur de notre reflexion. Il est interessant de noter que la periode de publications de ces ecrits coincide curieusement avec des evenements politiques de grande importance, servant ainsi des ambitions plus ou moins voilees.

Transparent space: Law, technology and deliberative democracy in the information society

The resuscitation of deliberative democracy in the Information Age requires the construction of transparent public spaces ‐ public arenas where power relationships between speakers are discernible and debate ensues according to the rules of civility and reason (conversational transparency). The metaphor of transparency, in the sense of legal accountability, also connects the role of communications regulation to the development of democratic political culture (legal transparency). Finally, transparency suggests the power of technology to obscure and hinder as well as help the progress of deliberative democracy (technological transparency).