Private Rule-making Research Articles

Overseeing Private Rulemaking: Evidence from SEC Review of SRO Rules

Overseeing Private Rulemaking: Evidence from SEC Review of SRO Rules

Standardising policy in a nonstandard way: a public/private standardisation process in Norway

Abstract Standards developed by standard-setting organisations (SSOs) – sometimes labelled private rulemaking – are part of larger practices of governance in most societies yet are underinvestigated from a policy process perspective. Utilising and developing the multiple streams approach (MSA), this article investigates a policy process moving between government and the SSO Standards Norway (SN). The study finds standardisation by SSOs to be an ambiguous institutional arrangement. Strong institutional barriers in theory did not work as such in the case investigated. This article argues that the differentiation between responsibility for process (SN) and content (committee) makes the standardisation process vulnerable. The concept of “institutional deficit” is introduced to describe a potential mismatch between SSOs producing policy in a government-like institution, but where the SSOs are not capable of taking responsibility for policies in a government-like way. This article finds the adjusted MSA useful in this potentially least likely case.

Transnational economic activism and private regulatory power

ABSTRACT Private bodies involved in global regulatory governance shape and monitor economic behaviour. Their regulatory power has greatly increased over the last several decades. Thanks to an impressive apparatus of standard-setting, they have transformed economic activity. The dominance of private bodies in standard-setting has continued despite crises to which they themselves have contributed. Existing literature suggests that the State ‘orchestrates’ private regulatory activity, thereby retaining a high level of control. Yet, this article shows that the opposite has occurred: crises, broadly defined as disruptive events, make private bodies more resilient or generate new transnational ones. The lack of State control has ushered in a new era of private authority. Private bodies use crises as opportunities to reorganize and become more assertive in norm-creation, overriding and substituting State powers. Free from organizational hierarchies, formal accountability structures, scrutiny, pressure, and obligations, private bodies expand their regulatory domain, enhance their collective memory and identity, and grow stronger through crises. Future empirical work on the interaction between public regulatory and supervisory authorities and private rule-makers can make a difference in ensuring that private rule-making serves the public interest.

Public-Private Drift and the Shattering Polity

Abstract This paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks. The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift. Drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project, anxieties that drive powerful actors toward manufacturing imaginary commonalities that they press with confounding certitude. The powerful exploit and manipulate areas of law that properly pertain to the public and private domains, repurposing them for new uses, because their regular use is ineffective in achieving their political objectives. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves.

Private authority in tackling cross-border issues. The hidden path of integrating European energy markets

ABSTRACTWe investigate private authority in European Union (EU) energy governance in order to address two research questions: First, how has authority been conferred on, and acquired by private actors? Second, to what extent has this lateral shift of authority been contested and on which grounds? The paper links the literatures on regulatory governance and private authority. This allows us to shed light on an issue that tends to be neglected in the discussion about the transfer of competencies in the energy field: the horizontal transfer of authority. In our case study about the role of transmission system operators (TSOs) in the creation of an internal electricity market, we identify three distinct settings where both the level of sovereignty-based contestation and the shift towards private authority vary. We find that private rulemaking has gained in importance due to functional expertise requirements, but also because it provides an escape route in a context of political contestation.

POWER AND POLITICAL CHANGE WITHIN GLOBAL FOREST GOVERNANCE: THE EU FLEGTACTION PLAN AS RECENTRALISATION

Abstract This article is about policy change in the global governance of forests, focussing on EU regulatory interventions regarding illegal logging and the related world trade. In 2003, the European Union approved the Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan in order to counter illegal logging and related trade. This EU legislation may appear as profoundly disruptive of the global governance of forests because it challenges private rulemaking. Private rule-making is no longer recognised as proof of legality but becomes legal only after evaluation and negotiations with the EU and timber-exporting countries. Despite appearances to the contrary, this legislation reflects an even deeper opposition to private rulemaking. Indeed, the EU FLEGT Regulation constitutes a recentralisation of power towards public authorities within the polycentric global governance of forests. This research finding was reached by drawing upon international relations and public policy literature to propose an analytical framework for future research on power displacement and competition within the global governance of forests. From this perspective, I have followed the participation of actors across scales of governance and grounded my work in qualitative methodology, using material drawn from the scientific and expert literature and interviews with stakeholders and EU institution representatives. Keywords: Global governance, European Union, forest policy, multiscalarity, authority, policy change ----- Bibliography: Montouroy, Yves: Power and political change within global forest governance: The EU flagtataion plan as recentralisation, ERIS, 2-2016, pp. 58-76. https://doi.org/10.3224/eris.v3i2.04

POWER AND POLITICAL CHANGE WITHINGLOBAL FOREST GOVERNANCE: THE EU FLEGTACTION PLAN AS RECENTRALISATION

Abstract This article is about policy change in the global governance of forests, focussing on EU regulatory interventions regarding illegal logging and the related world trade. In 2003, the European Union approved the Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan in order to counter illegal logging and related trade. This EU legislation may appear as profoundly disruptive of the global governance of forests because it challenges private rulemaking. Private rule-making is no longer recognised as proof of legality but becomes legal only after evaluation and negotiations with the EU and timber-exporting countries. Despite appearances to the contrary, this legislation reflects an even deeper opposition to private rulemaking. Indeed, the EU FLEGT Regulation constitutes a recentralisation of power towards public authorities within the polycentric global governance of forests. This research finding was reached by drawing upon international relations and public policy literature to propose an analytical framework for future research on power displacement and competition within the global governance of forests. From this perspective, I have followed the participation of actors across scales of governance and grounded my work in qualitative methodology, using material drawn from the scientific and expert literature and interviews with stakeholders and EU institution representatives. Keywords: Global governance, European Union, forest policy, multiscalarity, authority, policy change ----- Bibliography: Montouroy, Yves: Power and political change within global forest governance: The EU flagtataion plan as recentralisation, ERIS, 2-2016, pp. 58-76. https://doi.org/10.3224/eris.v3i2.04

The Many Features of Transnational Private Rule-Making: Unexlored Relationships between Custom, Jura Mercatorum and Global Private Regulation

Every-day life of businesses and consumers is pervaded by the references to global private standards: from the cars we drive to the computers we use, from the food we eat to the movies we watch. Private rule-making at the transnational level is increasingly gaining scope and traction, quickly expanding in both old and new territories. This is partly the result of weaknesses in conventional international public law and partly the result of the emergence of new modes of governance. Stimulated by the actions of states and private actors, these new modes of governance include public, private, and hybrid instruments.Private actors engage in transnational rulemaking in different forms depending on their objectives, the geographical and functional scope, and the effects of the regimes on the entities being regulated. The fields of application go well beyond those traditionally occupied by ‘jura mercatorum,’ including agriculture, human rights, social and labor regulation, environment, and the more conventional areas, such as finance, banking, professions, and trade, including e-commerce.These private regimes are sector specific but not self-contained. They presuppose the existence of international and domestic institutions that can support their functioning. They interact by both giving rise to conflicts or by mutually reinforcing one another. The premise of the analysis that follows is that of institutional complementarity rather than that of separate and autonomous private orderings. The conceptual puzzle concerns the definition of different types of complementarity between private and public actors. Is the expansion of transnational private rule making simply an evolution of more conventional forms of custom and jus mercatorum or does it depart from these forms of private rule-making? In the latter case is there a common denominator of current forms of transnational private rule-making? How does private rule making correlate with international and domestic public legal orders? Do they constitute separate private orderings? Do they complement, supplement or replace public legal orders? What is the combination between legal and non-legal norms? Not only these questions have theoretical relevance but they also shape important regulatory policy choices at the international level concerning legitimacy, compliance and enforcement of global private standards? Transnational private regulatory regimes – it is contended – do not represent an alternative to jus mercatorum since their functional focus is regulation driven by market failures rather than a set of prescriptions related to individual transactions between market participants. They integrate current public market regulation or contribute to the creation of new markets through market design. The multifarious forms of transnational private rule-making pose daunting questions concerning their origins, functions and scope. This article addresses the different forms of transnational private rule-making; it tries to examine their differences and the consequences for their normative foundations and policy objectives. After a brief historical overview, section I analyses transnational private regulation (TPR), and section II examines usages, customs and jura mercatorum. Section III presents a comparative assessment between TPR and custom. Section IV defines an agenda for future research and it is followed by the conclusion.

Theatrical names and reference

AbstractThe relationship between “character” and an “actor” appears to be quite straightforward: an actor acts as/plays character [x]. But let us be more specific and reword this formulation: actor [y] acts as/plays Hamlet. Or – for the time of the play – actor [y] is Hamlet. And it is this last statement that is paradoxically utterly true and utterly false. It is in the name of a theatrical character that the tension between actor and character arises. Asking, for example, who is Hamlet? yields an answer where both actor and character have legitimate exclusive rights to being “Hamlet.” In short, to whom/what does the name of a theatrical character refer? By first arguing that theatre works as a reverse-“beetle” language-game, whereby I posit that theatre allows for private rule-making, I am able to turn to the idea of reference. It is by examining the name of theatrical characters and what these names refer to that I suggest that – following Hegel – theatrical names refer dialectically. Understanding theatrical characters as such, interpretation hinges not only on the output of theatre (i.e., the meaning), but also the input (i.e., the truth value).

Governance for Cloud Computing: The Role of Public and Private Rulemaking in Promoting the Growth of a New Industry

As cloud computing becomes ubiquitous, the need to fashion better and more finely targeted rules for the cloud takes on increasing urgency. Governance at its best is not an abstraction; rather, it is a set of institutional structures that help people to achieve better outcomes than would occur in a world of unconstrained, self-interested decision making. The rules in contracts, through associations, and by governments can each play a role in creating beneficial governance, provided they are crafted to effectively meet the challenges and characteristics of the activity in question. This paper - still a work in process - explores a number of factors that rule makers should take into account in crafting such a suite of laws and customs. These factors include the structure and history of cloud computing, the ways in which it creates, captures and allocates values, the fundamental challenges of trust for the industry, and the toolkit of private and public rule making that can create structures to help cloud computing reach is potential for providing and distributing benefits. As recent revelations of government surveillance underline, policy-making efforts for cloud computing are rendered particularly complicated by the shifting pattern of convergence and divergence of interests among users, providers, and governments.

A Global Law Perspective of the WTO

This note attempts to map the relevance of global law advocacy for the WTO. In this regard, it understands global law as an attempt to describe a growing decrease of the regulatory State and an ensuing increase of private rule-making. Global law intends to generate new thinking about global governance and its patterns of influence and power. Few instances of creeping global law are identified, whereas the note concludes with some thoughts on much-needed future research on a range of topics ranging from the role of NGOs to the struggle against intrinsic inequalities of the multilateral trading system.

Stakeholder governance of organ transplantation: A desirable model for inducing evidence-based medicine?

Medical governance should secure and apply appropriate expertise, accommodate stakeholder interests, and promote social values. The most common form of governance, public (agency) rulemaking by government agencies, usually involves supplementing in-house expertise through advisory committees. An alternative, private (stakeholder) rulemaking, involves delegating the authority for developing rules directly to stakeholders, who often command relevant expertise, including that arising out of tacit knowledge. The possible advantages and disadvantages of agency and stakeholder rulemaking in medical governance can be assessed both from what we know about these forms in general and from experience with a prominent example of stakeholder rulemaking; that is, governance of the US organ transplantation system. It appears that this governance has been exceptionally successful in promoting evidence-based medicine. The stakeholder role in the governance of transplantation could be replicated in other areas by creating meaningful stakes to engage stakeholders and by increasing isolation from legislative politics through an independent funding source and circumscribed oversight.

Private Rule-Making and the Politics of Accountability: Analyzing Global Forest Governance

Private rule-making features prominently on the research agenda of International Relations scholars today. The field of forest politics in particular has proven to be a lively arena for experimenting with novel policies (for example, third party certification and labeling) and procedures (for example, power-sharing in stakeholder bodies). This article focuses on the Forest Stewardship Council (FSC), one of the earliest and most institutionalized private certification schemes, in order to assess the role and relevance of accountability politics for global forest governance. Specifically, we ask three related questions: first, what role did a deepening accountability crisis and the resulting reconstruction of accountability play in the formation of the FSC? Second, how is accountability organized within the FSC? And finally, what accountability outcomes emerge as a result of the FSC's policies and operations? The article closes with some reflections about the limitations of private-based accountability in global environmental politics.

The State's Private Law and the Economy—Commercial Law as an Amalgam of Public and Private Rule-Making

The law of business relations has been created and applied outside state or seignorial courts for centuries before the growing terri torial states started to incorporate this body of law into their own state law from the seventeenth century onwards. But even the commercial codes of the nineteenth century left the door open for private regula tion. After an outline of this development the article argues that pri vate regulation and state law are difficult to separate in the field of business relations. Instead, one can ascertain a wide range of different forms of mixed privatelpublic regulation. This range extends from spontaneous custom through privately generated custom, state-avoid ing custom, state-supported custom all the way to dispositive law, property rights law, market protection law and market failure com pensation law. While state legislation by necessity is required for the latter forms, private regulation has a comparative advantage in many other areas. While the author renounces the assumption of an overall theoretical foundation, he tries to identify factors which favor the emergence of private rule-making, in particular the transnational character of legal relations, the speed or specific expertise required for decision-making and the impact of corporatism.

The Puzzle of Private Rulemaking: Expertise, Flexibility, and Blame Avoidance in U.S. Regulation

The standard federal regulatory process in the United States involves notice and comment by government bureaus. This traditional agency model of public rulemaking faces difficulties in taking full advantage of the expertise of stakeholders, and it has been criticized as being slow and inflexible; therefore, it is not surprising that alternative institutional forms involving the delegation of rulemaking to stakeholders have appeared. Yet it is surprising that private rulemaking has been used to allocate valuable goods such as transplant organs. Why is private rulemaking used as an allocative institution of governance? The answer recognizes the advantages it offers in certain rapidly changing circumstances in which essential expertise inheres in the stakeholders, as well as the asymmetric political rewards involved in the allocation of highly valued goods, which create incentives for politicians to avoid blame by delegating substantive rulemaking authority to nongovernmental organizations.

Self-Regulation as Policy Process: The Multiple and Criss-Crossing Stages of Private Rule-Making

While there are many studies of self-regulation, they have not yet systematically analyzed the very process by which rules are developed and implemented. This article treats self-regulation as a process with sufficient autonomy and functional coherence to display identifiable stages, each of which deserves independent attention in turn. It draws from the literature on the stages of public policy processes and uses this as a template to identify and analyze the unique properties of private rule-making, while acknowledging the criticisms that have been made of excessive determinism and simplicity in some applications of the general idea of stages. The article shows that our understanding of self-regulation is significantly advanced by examining it as a process with stages but it emphasizes that the different stages of the self-regulatory policy process (agenda-setting, problem identification, decision, implementation and evaluation) are criss-crossed in numerous and interesting ways. It also shows that private rule-making often seeks to solve societal problems in domestic and international settings and is an important alternative to public regulation but self-regulation is rarely completely de-coupled from public authority. Instead, public authority is activated to solidify self-regulatory arrangements across the different stages of the policy process.

Accountability in Accounting? The Politics of Private Rule-Making in the Public Interest

Over recent decades governments have increasingly delegated domestic and international regulatory functions to private-sector agents. This article examines the reasons for such delegation and how private agents differ from public ones, and then analyzes the politics of regulation post delegation. It argues that the key difference between delegation to a public agent and delegation to a private one is that in the latter case a multiple-principals problem emerges that is qualitatively different from the one usually considered in the literature. An agent's action will be determined by the relative tightness of competing principal–agent relationships. This tightness is a function of the relative importance of each principal for the agent's financial and operational viability as well as its effectiveness in rule making. Further, the article posits that exogenous changes in the macro-political climate can deeply affect the nature of principal–agent relationships. The authors test their hypotheses about the politics of regulation in the postdelegation period through the study of accounting standards setting in the United States, a case of delegation of regulatory authority to a private agent that goes back to the New Deal era and has received renewed public attention in the wake of recent corporate financial scandals.

What Role for Private Rule-Making in Global Environmental Governance? Analysing the Forest Stewardship Council (FSC)

This article assesses the recent trend of rule-making by private multi-stakeholder initiatives – a hitherto largely unnoticed phenomenon in global environmental governance – by analysing the multiple functions and impacts of the Forest Stewardship Council (FSC), one of the best-known private institutions in global environmental politics. After clarifying the general context of private governance, I turn to the specific function of private rule-making institutions. I argue that rule-making can be understood as the act of agreeing on both constitutive and regulative rules that prescribe the behaviour of a specific group of actors, whether individuals or organisations. Further, I argue that the FSC, as one example of private rule-making in world politics, performs three additional functions that shape the contours of global governance: (1) facilitating a solution to complex multi-interest problems, (2) brokering knowledge and norms among a wide range of stakeholders, and (3) constituting a learning network in environmental governance.

Cartelization of the California-Arizona Orange Industry, 1934-1981

Previous articleNext article No AccessCartelization of the California-Arizona Orange Industry, 1934-1981Lawrence ShepardLawrence Shepard Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Law and Economics Volume 29, Number 1Apr., 1986 Sponsored by The University of Chicago Booth School of Business and The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467110 Views: 5Total views on this site Citations: 24Citations are reported from Crossref Copyright 1986 The University of ChicagoPDF download Crossref reports the following articles citing this article:John M. Crespi, James M. 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Takeover Bids in the United Kingdom

The recently accelerating pace of corporate combinations has precipitated a transnational interest in takeover bids, known in Belgium and France as offres publiques d'achat (o.p.a.), and in the United States as “tender offers.“ These have been the subject of recent legislation in the United Statesa of stock exchange regulation in Franceb and of admonitory attention by the Banking Commission in Belgiumc Much greater regulative experience in this area exists in England, where takeover bids have been the subject of statutory control since 1929,d and have been subjected to a complex of public and private rule-making which intrigues observers from other lands. Professor Pennington of the University of Birmingham, author of a leading textbook on the law of English companiese has responded to an invitation to elucidate the various laws, Board of Trade regulations, and trade association rules which constitute the web of compulsory norms for takeover bids in England. The Editors.