State Regulatory Power Research Articles

Limits of state regulatory power in investment law and under national legislation: search for common denominator

Recent years have seen a considerable increase in the amount of investment cases against both developing and developed countries. In many of those cases, investors attempted to challenge a number of sensitive and political decisions of States. This trend provoked a discussion of whether it is legitimate to limit a State’s regulatory power, even if the measures taken impact on investors’ rights and legal expectations. This paper highlights the importance of finding a reasonable and just balance in the protection of a State’s sovereign power to regulate and an investor’s legitimate expectations and rights against the unreasonable, unexpected, and discriminatory decisions of States. It is argued that the possibility and necessity of finding a common dominator in national legislation and International investment law exists. The aim of this article is to identify the main rules applicable to the limits of a State’s regulatory changes impacting on investors’ rights and legitimate expectations in investment law and under national legislation. Further, the article analyses whether it is possible to find a just and reasonable balance between the investors’ legal expectations and the State’s right to regulate by comparing the main differences and similarities between national and investment law and by answering the question of whether it would be possible to harmonise State liability rules on the issue, at least at the conceptual level.

Regulatory-Disrupting but Infrastructure-Freeing: Entrepreneurial Financing During the Arab Spring (WITHDRAWN)

How do revolutions affect entrepreneurial financing? Prior studies argue that revolutions generate political uncertainty that decrease financing and that a more absent state breeds greater informality. However, the Arab Spring saw an increase in state financing actually, and these state institutions, rather than their absence, directly allocated such funding to informal firms. Using a novel dataset collected as the Arab Spring was occurring in Tunisia and Egypt, our study argues that prior work has predominantly focused on how revolutions erode state regulatory power (i.e., the degree to which the state can issue rules without consulting its citizenry). However, we argue that revolutions may also free state infrastructural power (i.e., the degree to which citizenry rely on state institutions for goods and services). More specifically, we find that firms founded during the revolution paid less in bribery payments (“regulatory-disrupting”), and informal firms received more of the state funding made available amidst the Arab Spring (“infrastructure-freeing”). In paying greater attention to state infrastructural power, this study brings greater nuance to how we understand the role of revolutions on entrepreneurial activity. More generally, this study heightens engagement of work in entrepreneurship with insights from political sociology.

Ativismo alimentar e consumo político – Duas gerações de ativismo alimentar no Brasil

O artigo aborda o ativismo alimentar, propondo caracterizá-lo, no contexto brasileiro, em duas gerações. A primeira estaria relacionada à politização da alimentação e teria como característica principal as ações na esfera institucional e o predomínio de críticas éticas. A segunda se relacionaria à politização da comida e do comer, trazendo novos temas, atores e estratégias políticas, com tendência à convergência entre temas éticos e estéticos. Em seguida, o artigo discute a relação entre ativismo alimentar e consumo político, e aponta algumas limitações das pesquisas sobre o tema, além de apresentar dados de pesquisa que indicam uma especificidade da forma como o consumo político vem sendo incorporado pelos ativismos alimentares da América Latina. Embora presente em seus repertórios de ação, o consumo político não parece ser a principal estratégia dos ativismos alimentares da região. Estes movimentos concentram suas ações no fortalecimento do poder regulatório do Estado e na implementação de políticas públicas, além de esforçarem-se para não secundarizar o aspecto ético. Ao final, o artigo aponta uma linha de pesquisa mais promissora para abordar o consumo político alimentar.

Reconstituting the Federalism Battle in Energy Transportation

This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that many of the recent efforts by states and federal agencies to re-draw these jurisdictional battle lines in the context of particular projects have been counterproductive. They have they encouraged interest groups to entrench their respective positions in favor of state or federal regulatory power. They also have thwarted comprehensive and efficient energy planning, and have stood in the way of greater integration of new technologies and more diverse energy resources. Ultimately, we conclude that federal regulators — which have historically been much more attuned to federal and national energy needs in making project siting decisions — must be more proactive in addressing state interests and concerns associated with multi-state energy transport projects in cases where federal siting authority trumps that of the states. Likewise, for projects where the states possess primary regulatory authority that acts as a potential veto point over projects that promote federal and regional energy needs, a more significant federal role in evaluating those federal and regional needs is warranted.

Falling into the TRAP: The Ineffectiveness of ‘Undue Burden’ Analysis in Protecting Women’s Right to Choose

This Comment will first examine existing Supreme Court abortion and reproductive autonomy jurisprudence before seguing into an exploration of the limits of the ‘undue burden’ analysis through the Jackson Women’s Health Organization v. Currier temporary and preliminary injunction decisions. The final section of this Comment explores potential solutions from other areas of constitutional law, and proposes that some techniques for limiting the reach of state regulatory power might be imported from environmental law, which frequently must deal with interactions amongst complex regulatory regimes.

No right to the street: Motorcycle taxis, discourse production and the regulation of unruly mobility

This article investigates the state regulation of motorcycle taxis in Guangzhou, China. Motorcycle taxis play an important role in sustaining the livelihood of a subgroup of urban migrants. However, this urban informality has become the object of strict state regulation after the use of motorcycle was outlawed by the Guangzhou Municipal Government. This article examines how dominant representations and discourses of motorcycle mobility are implicated in the right to urban streets. On the one hand it argues that both motorcycle mobility and the motorcycle taxi are socially-produced categories made visible and intelligible through the state-led programmes to ground them in a terrain of constructed knowledge. On the other hand, it is contended that the production of ideologically charged representations and knowledge catalyzes and constitutes the spatialisation of state regulatory power. In particular, this article examines the street-level regulatory practices and how these practices restructure both social relations and state power. It indicates that the local police’s regulation of motorcycle taxis cannot be sufficiently explained merely in terms of state domination and oppression. Instead, it is anchored in the highly moralised imperative of defending the ‘good’, the ‘ordered’ and the ‘respectable’.

Commercial Free Speech Trumps the Politics of Food Labeling: The Legacy of rbST-Free Milk Mandate and Prohibition Cases for Genetic Engineering Disclosure Laws

Commercial speech rights have expanded under federal court decisions dating back to the 1970s. This paper examines application of commercial free speech precedents to two contemporary dairy labeling cases, where states required or prevented labeling of products derived from cows treated with genetically-modified hormones. Decisions in both cases strengthened commercial speech freedom regarding food products and processes and limited state regulatory power, though the outcomes for anti-genetic engineering interest groups were divergent. The courts struck down Vermont’s labeling mandate as unconstitutional compulsory speech and found consumer “right to know” an inadequate state interest. In striking down Ohio’s labeling prohibition, the courts protected voluntary speech to label dairy products as “rbST-free” as long as labels were not false or misleading. The author projects the likely negative impact of these court rulings on the constitutionality of genetically-modified food labeling mandates proposed in many states and considers future directions of genetically-engineered food labeling regulation in competitive and politically-contested environments.

Homeschooling as a Constitutional Right: A Close Look at Meyer and Pierce and the Lochner-Based Assumptions They Made About State Regulatory Power

Homeschooling as a Constitutional Right: A Close Look at Meyer and Pierce and the Lochner-Based Assumptions They Made About State Regulatory Power

Enforcing Federal Supremacy: Relief against Federal-State Regulatory Conflicts

fornia claims as its own notwithstanding some thirty miles of Pacific Ocean separating the two. One may reach Catalina by boat or by plane, the latter operated by United Air Lines, an air carrier in interstate and intrastate commerce. This Catalina air service had been under the unchallenged jurisdiction of the Civil Aeronautics Board for twelve years when, in September, 1951, United received a letter from the California Public Utilities Commission instructing it to file its Catalina tariffs with the Commission. Then followed a series of conferences between United and the Commission in which United claimed, and the Commission denied, that the CAB had exclusive jurisdiction over the Catalina operation. These conferences proved inconclusive and in June, 1952, United brought suit in the federal district court for declaratory relief against the Commission's attempt to interfere with the CAB's jurisdiction, United Air Lines, Inc., et al. v. Public Utilities Commission of California.' United's problem was one that has become increasingly common with the steady expansion of administrative regulation by the states. Federal regulation having been extended to its constitutional limits in many fields, the system of federalism is now being put to the test with unpiecedented frequency as state regulatory power is being pushed to its constitutional limits.2 The problems of federalism in action in such fields as labor relations, taxation and public utilities are before the public eye constantly.3 The United case sheds no light on the distribution of regulatory powers between state and federal governments. It is no less of interest, however, because it focuses on the practical problem of the litigant who is the object of regulation and is caught between the massive powers of governments in

Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem

Among the various branches of the dormant Commerce Clause doctrine (“DCCD”) — the judge-made rules grounded in the Constitution’s grant of power over interstate commerce to Congress — is that which prohibits so-called “extraterritorial” state legislation. As recently as 1989, the Supreme Court held that the DCCD “precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State...” That broad articulation of the principle, however, represented extraterritoriality’s high tide. The Court has since retreated; in 2003 it seemed to limit the extraterritoriality principle dramatically, rejecting arguments that a Maine prescription drug subsidy program actually attempted to fix prices outside the state. At this point, the extraterritoriality principle looks to be quite moribund. This essay, then, is an autopsy of sorts. Assuming, as I do, that extraterritoriality — at least the strong form articulated by the Court in the 1980s — is dead, and unlikely to be revived by the current Court, its passing offers an opportunity to examine the lifecycle of constitutional doctrine, from birth to death. In Part I, I describe extraterritoriality’s early emergence. In its early form, it was not exclusively yoked to the DCCD. The Due Process Clause of the Fourteenth Amendment was also cited as a source, as were less clause-bound structural principles. Beginning in the early twentieth century, however, the doctrine became closely linked with the DCCD; it emerged as a robust branch of that doctrine in the 1980s. This association is described in Part II. Its decline is detailed in Part III; in Part IV, I return to the question of what “killed” extraterritoriality. I conclude that extraterritoriality’s demise was likely overdetermined. Factors contributing to its demise include what Kermit Roosevelt calls a “loss of fit” between the doctrine and the purposes of the DCCD generally, as well as the doctrine’s calcification; the lack of a limiting principle that would prevent it from curtailing legitimate state regulatory power; the Court’s decision to locate limits on punitive damage awards in the Due Process Clause after flirting with the notion that those limits grew out of DCCD extraterritoriality; and shift in attitude on the Court itself from robust enforcement of the DCCD to a desire to limit the doctrine. In Part V, I consider the impact of extraterritoriality’s demise on a related doctrine: the Court’s periodic invalidation of state laws that presented the problem of “inconsistent state regulations.” A brief conclusion follows.

Reflections on Dual Regulation of Securities: A Case for Reallocation of Regulatory Responsibilities

When Congress passed the National Securities Markets Improvement Act of 1996 (NSMIA), it unilaterally withdrew the preexisting power of the states to require pre-sale registration disclosures by issuers, including the power to conduct pre-sale disclosure review, merit review, or any other kind of fairness review in connection with most public and private offerings of securities conducted within the various states’ respective jurisdictions. It simply rewrote the 1933 Act’s savings clause to preempt most state laws requiring registration of, or imposing conditions on, a broadly-defined and open-ended group of securities and securities transactions. The passage of NSMIA inflicted a severe, if not fatal, wound on the dual system of securities regulation that had protected investors and their marketplace since the end of the Great Depression. This essay suggests an alternative approach that might contribute to the development of a more rational reallocation of state regulatory power than presently exists in NSMIA’s aftermath. First, the author addresses the remaining scope of state regulatory power given NSMIA’s dictates and prerogatives. Then, the author suggests for consideration significant alterations to the regulatory role traditionally performed by the states. These alterations include state withdrawal from the registration process, with the consequential demise of merit review, and, in its place, the development of a notification procedure accompanied by state criminalization of violations of both federal registration and state notification requirements. The author also suggests the adoption of corollary civil remedies to ensure supportive private reinforcement of the new regime. Finally, the author concludes that this reallocation of regulatory responsibility will realign the dual system of securities regulation to better achieve NSMIA’s elusive goal of regulatory uniformity. This suggested reallocation should serve the statutory policy of the Uniform Securities Act, that its interpretation be coordinated with the federal securities laws.

New hope for dedicated genetically engineered bioenergy feedstocks?

AbstractThe unique regulatory requirements and costs of genetic engineering (GE) are likely to inhibit commercialization of dedicated bioenergy crops due to the relatively small current market. Two recent regulatory approvals for GE plants, however, may signal a shift in policy and an opening of a door to a streamlined federal regulatory pathway for commercialization for non‐food plants. The change, however, may shift regulatory battles from the federal to the state and local level, as each state has independent authority to regulate plants under respective noxious weed/plant protection statutes. This previously dormant state regulatory power could result in even more complex barriers to commercialization of GE bioenergy crops‐‐replacing the regulatory delays embedded in the federal system with regulatory chaos at the state and local level.

Culture Versus Women’s Rights Conflicts and Multicultural Policies

This paper is the first chapter of a book project focusing on the outcomes of multicultural policies. In this first chapter, I theorize a causal framework that explains the positive and negative outcomes of multicultural policies. I begin by explaining positive outcomes. I argue that the types of justice multicultural policies deliver, to what extent, for whom, and why, vary according to a causal chain composed of three factors: social movements, political will, and state capacity. I argue that social movements pressure elite policy makers to implement the policy. When social movements succeed, policymakers then pressure the bureaucracy. That pressure, coupled with state capacity, shapes variations in positive outcomes. I also offer a framework for analyzing several negative outcomes likely to be associated with multicultural policies. I argue that a decline in collective action, increased group reification, state regulatory power, and group inequality will occur when intense collective action is necessary for the passage of a multicultural policy, when the policy targets a specific group, and when it ignores inequalities within the group. If these outcomes are pervasive, increased intergroup tensions and violence against women will also occur. The chapter concludes with an overview of the book project and my preliminary findings.

Decoding Urban Land Governance: State Reconstruction in Contemporary Chinese Cities

In the rapidly growing literature on urban development in China, many authors have emphasised the salient features of economic decentralisation and the increasingly significant role of the local state. However, such arguments neglect a counter-trend in which the central state has deterritorialised and rehierarchised some key functions. Using the case of land governance, this paper argues that facing the complication of changing urban conditions, there is a resurgence of the state's regulatory power. The decentralisation of economic governance is now counter-balanced by the rise of state strategies to control the articulation of scales through which a more centrally consolidated power can be achieved. The central government still serves as an important level of economic regulation. In this sense, new interpretations of commoditised urban transformation, especially commoditised production of the built environment, should be understood by underscoring the interplay between trends of decentralisation and territorialisation and counter-trends of recentralisation and hierarchisation.

What is the Proper Role of the States in Financial Regulation?

The U.S. system of dividing regulatory authority between the states and the federal government takes on a very different cast for three important financial firms, banking, securities and insurance. According to the Federal Reserve, at the end of 2005, total assets held by these three types of firms were $11.82 trillion, $10.5 trillion and $5.6 trillion, respectively. In banking, federal regulatory power preempts state authority over nationally chartered banks, while state power is primary for state-chartered banks, subject to significant federal constraints on risk. In insurance, state regulatory power preempts federal authority (reverse preemption) for all insurance firms. In between these federalist poles are securities offerings and securities firms that are concurrently subject to state and federal regulation. However, there has been a recent trend of increasing federal preemption in the securities field. It seems odd that we have three different approaches to preemption for three different activities that are increasingly offered in integrated financial service firms. This paper advocates that insurance adopt the dual chartering approach of banking, with complete federal preemption for nationally chartered insurance firms, and that federal preemption be further extended for securities offerings and firms.

Intersections of State and Federal Power: State Judges, Federal Law and the Reliance Principle

Over the same time span that the Rehnquist Court established, albeit inconsistently, substantive limitations on state and local regulatory power, this article argues that it wavered far less often in marking clear jurisdictional boundaries for state courts in civil cases to decide questions of federal law. Although they tend to be less dramatic and less well known than decisions by the United States Supreme Court setting restrictions on legislative power, cases affecting the allocation of judicial jurisdiction often are found at the front line of battles over state and federal authority. Yet, despite their importance, little account has been given of the Rehnquist Court's more recent efforts to allocate judicial jurisdiction among the state and federal courts. The author offers both descriptive and normative claims, both of which collide in several key respects with conventional accounts regarding the Court's decisions over the last decade or so apportioning judicial decision-making authority in civil cases when questions of federal law or matters of federal interest are at stake. The author argues that it is possible to identify in the Court's doctrinal treatment of the scope of federal judicial power a prominent thematic principle of reliance on state judges. Where it applies, the Reliance Principle presumes congressional and, derivatively, judicial recognition of the competence of state court judges to adjudicate questions of federal law or matters deemed to be of federal importance. Recognition of the Rehnquist Court's firm insistence on the reliance principle suggests avenues of normative thinking about the allocation of judicial jurisdiction. Focusing on the Court's corresponding failure to adequately insist on a presumption against federal superintendence of state court authority in the class action context, the author exposes as excessive some of the arguments that have frequently been given voice in support of federal intrusion into state proceedings. This article thus frames an essential problem in the allocation of judicial jurisdiction: if the Court has insisted in other contexts on a presumptive reliance on state courts to interpret and apply federal law, would a similarly high but rebuttable presumption of state court competence be as effective - both in and outside of the class action context - in vindicating federal interests, while minimizing the occasions when excessive arguments for federal oversight of state proceedings are carelessly accepted?

Brief of Amicus Curiae Multistate Tax Commission In Support of Respondent in General Motors Corp. v. Tracy

Amicus Curiae is the Multistate Tax Commission (MTC) in support of respondent, Roger W. Tracy, the Tax Commissioner of Ohio. The MTC argues that an Ohio statute exempting natural gas purchased from utilities from the state’s sales and use tax does not violate the Commerce Clause because: (1) the Ohio taxing system does not discriminate on its face against interstate commerce; (2) General Motors has not established that the Ohio legislature harbored a discriminatory intent; and (3) General Motors has not established that the Ohio taxing system has discriminatory impact. The MTC further argues that a ruling in favor of General Motors would drastically affect current Commerce Clause jurisprudence and prejudice state tax and regulatory power.

Third Parties in Litigation: A Systemic View of the Judicial Function

Third Parties in Litigation: A Systemic View of the Judicial Function