Traditional Enforcement Research Articles

Legal Reforms in the Aftermath of the Financial Crisis: Opportunities and Challenges for Emerging Market Economies

The financial crises together with the globalization have reinforced the role of international financial standard-setters especially in the rule-making process. The standards and principles issued by these organizations are essentially soft law which is not legally binding, but is implemented voluntarily. Up until now, market mechanisms, however, have performed as enforcement and sanctions for the implementation of these soft law instruments, effects of which go well beyond the traditional enforcement mechanisms. After the recent financial crisis, there have been significant regulatory efforts in some major economies as well as in the EU and at the international level to change the rules of the game in the financial markets. These regulatory reforms may present some opportunities and challenges for emerging market economies. This article analyzes regulatory reforms conducted after the recent financial crisis and their effects on the emerging market economies.

A Short Treatise on Amateurism and Antitrust Law: Why the NCAA's 'No Pay' Rules Violate Section One of the Sherman Act

The National Collegiate Athletic Association (“NCAA”) oversees nearly every aspect of the $11 billion college sports industry. Its powers include scheduling championship events, determining eligibility rules, entering into commercial contracts, and punishing members that refuse to follow its authority. In recent years, some NCAA members have become increasingly wealthy – grossing annual revenues upwards of $100 million per year. However, the NCAA’s rules still deprive these members of the opportunity to share their wealth with student-athletes. This article explains why the NCAA’s “no pay” rules violate Section One of the Sherman Act. Part I of this article introduces the NCAA, its Principle of Amateurism, and its traditional enforcement mechanisms. Part II provides a brief overview of Section One of the Sherman Act – the “comprehensive charter of economic liberty” in American trade. Part III provides a detailed explanation about why the NCAA ‘no pay’ rules constitute both an illegal form of wage fixing and an illegal group boycott. Part IV then explores eight lower-court decisions that incorrectly find the NCAA eligibility rules to be non-commercial and thus exempt from antitrust scrutiny. Meanwhile, Part V analyzes four additional lower-court decisions that misconstrue the NCAA eligibility rules to be pro-competitive under a Rule of Reason review. Finally, Part VI concludes that even if a court were to find that competitive balance is a reasonable basis for upholding certain “no pay” rules, such rules still should not come from the NCAA, but rather from the individual conference level.

Do Carrots Work? Examining the Effectiveness ofEPA's Compliance Assistance Program

AbstractThe role of compliance assistance in theU.S. EnvironmentalProtectionAgency's overall enforcement strategy has been quite variable over the past decade and a half, increasing in prominence under theBush administration and now slated for significantly reduced funding under theObama administration. While theoretical models and anecdotal evidence suggest that compliance assistance should play some role in a comprehensive enforcement strategy, to date there has been relatively little empirical evidence on the actual effectiveness of existing compliance assistance programs. To help inform the debate over the appropriate use of compliance assistance, this paper uses data on hazardous waste generators nationwide to assess the effect of federal compliance assistance programs in improving compliance with hazardous waste regulations. The paper also conducts a direct empirical analysis of the relationship between traditional enforcement tools and compliance assistance. The results show that federal compliance assistance efforts do increase compliance, but the evidence does not suggest any consistent relationship between traditional enforcement and compliance assistance. Also, while states do not appear to substitute federal compliance assistance for traditional enforcement, state compliance assistance programs do appear to decrease the likelihood of inspections among the smallest hazardous waste generators.

Beyond Regulation: A Comparative Look at State-Centric Corporate Social Responsibility and the Law in China

Corporate social responsibility (CSR) is often understood as voluntary actions firms take beyond legal compliance. However, in recent years, governments around the world have also begun to actively promote CSR, reflecting broader governance trends that embrace “soft law,” voluntary standards, and other novel incentive structures to move companies toward and beyond minimum regulatory goals. Comparative legal scholarship has only recently begun to consider the intersections of such mechanisms with positive law, formal institutions, and traditional regulatory enforcement structures. The adoption of these policies in historically weak regulatory environments raises particularly puzzling questions about their motivation, scope, and potential. As a leader among emerging markets, China offers an important context to consider state CSR policies and the role of alternative regulatory tools in legal implementation. This article adopts a comparative perspective to examine how national and subnational governments in China advance CSR. Based on primary interview data, it develops a state-centric model of corporate social responsibility that contrasts with both the market-based model adopted by U.S. governments and the relational model advanced by European Union member states. This article concludes by considering the implications of state-centric corporate social responsibility initiatives for norm creation and legal implementation. It contributes to the growing comparative literature on the role of governments in advancing CSR and to the regulatory literature examining the intersections of law and alternative accountability mechanisms in shaping corporate behavior.

Conceptions of War and Paradigms of Compliance: The 'New War' Challenge to International Humanitarian Law

The article argues that the so-called 'new wars' pose a fundamental challenge to international humanitarian law (IHL). Although not historically new, this type of war differs in crucial respects from the conception of war that underlies the traditional paradigm of compliance of IHL. At the heart of this paradigm lie certain assumptions: that IHL embodies a compromise between the interests of the warring parties and humanitarian concerns, and that the warring parties face a number of incentives to comply with the law. The article argues that these assumptions lose their plausibility under the circumstances of the 'new wars'. As a result, the traditional enforcement mechanisms of IHL invariably fail in these conflicts. The second part of the article discusses the international legal response to the 'new wars'. In particular, it considers international criminal prosecutions, the activities of the International Committee of the Red Cross and measures by the United Nations Security Council. In the common elements of these measures the article identifies the contours of a new paradigm of compliance in IHL that shifts the emphasis from voluntary compliance to external enforcement. © Oxford University Press 2011; all rights reserved.

Exploring Internal Child Sex Trafficking Networks Using Social Network Analysis

This article explores the potential of social network analysis as a tool in supporting the investigation of internal child sex trafficking in the UK. In doing so, it uses only data, software, and training already available to UK police. Data from two major operations are analysed using in-built centrality metrics, designed to measure a network’s overarching structural properties and identify particularly powerful individuals. This work addresses victim networks alongside offender networks. The insights generated by SNA inform ideas for targeted interventions based on the principles of Situational Crime Prevention. These harm-reduction initiatives go beyond traditional enforcement to cover prevention, disruption, prosecution, etc. This article ends by discussing how SNA can be applied and further developed by frontline policing, strategic policing, prosecution, and policy and research.

The Value of Crime Scripting: Deconstructing Internal Child Sex Trafficking

This article demonstrates how Crime Scripting is a viable and cost-effective tool in supporting strategic policing without requiring additional data, software, or training. This study shows how a script can deconstruct a complex crime into its component parts and create a set of outcome-focused recommendations informed by the principles of Situational Crime Prevention. Scripting offers an effective framework for collating and condensing voluminous data in order to establish a clear sequence of actions and decisions crucial to a given crime. This practical introduction to Scripting uses the example of Internal Child Sex Trafficking (ICST), a little-understood crime which has increasingly attracted police and government attention. Key findings from the offender-focused script highlight areas for harm-reduction interventions which go beyond traditional enforcement to include detection, disruption, and awareness. This article concludes by exploring the results’ application to diverse areas including policing, legal strategies, policy and research, and youth work and education.

Screens for the Detection of Manipulative Intent

Surrounding the passage of Dodd-Frank, a noted author argues that existing market manipulation statutes cannot effectively prosecute manipulation cases because the statutes prohibit fraud, not market power. This is incorrect. While traditional economic theory can explain the incentives underlying manipulation, it is not readily adaptable to untangling the counterintuitive logic of manipulative intent. Consequently, no unifying economic paradigm exists for evaluating manipulative behavior across applications, agencies, or statutes. This void necessitates the use of opaque techniques to detect and prove (or disprove) manipulation. Compliance suffers because lack of uniformity across cases inhibits the establishment of precedent and complicates the analysis required in subsequent proceedings. To overcome this problem, I propose five tests designed to transparently identify the uneconomic behavior associated with manipulation, as supported by a paradigm developed across three progressively rigorous economic constructs. These tests could be useful in litigation contexts beyond the scope of traditional anti-manipulation enforcement actions.

Trust in M2M communication

Machine-to-machine (M2M) communication is viewed as one of the next frontiers in wireless communications. M2M communication applications and scenarios are growing and lead the way to new business cases. Because of the nature of M2M scenarios, involving unguarded, distributed devices, new security threats emerge. The use case scenarios for M2M communication also address the new requirement on flexibility, because of deployment scenarios of the M2ME in the field. We believe that these new requirements require a paradigm shift. One important pillar of such a shift will be a new, more balanced mix of device-centric trust and traditional enforcement of security properties.

Policing Gun Crime Without Guns

Despite the recent and welcome decline in United States crime, crime remains a persistent concern among many Americans. Solutions to the gun problem, however, diverge considerably, fueled by ideological, constitutional, and moral debates. Our prior work details the potential of a unique intervention effort that polices offenders with a hybrid mix of traditional enforcement and models of normative change. Using an individual growth curve models and propensity scores to adjust for non-random group assignment, our findings suggest that several PSN interventions are associated with greater declines of homicide in the treatment neighborhoods as compared to the control neighborhoods. The largest effect is associated with offender notification meetings that stress individual deterrence, normative change in offender behavior, and increasing views on legitimacy and procedural justice. Here we extend the prior work by examining and evaluating how the ex-offenders who attend the offender notification meetings - and those who don't - view the legitimacy of key actors in the criminal justice system and the law itself.

Coercion, voluntary compliance and protest: the role of trust and legitimacy in combating local opposition to protected areas

SUMMARYProtected areas (PAs) have long struggled to successfully enforce compliance with their regulations. Even some of the best-funded PAs in the world face shortcomings in using enforcement as an effective deterrent to PA opposition. This suggests that traditional enforcement on its own may be insufficient for effective resource protection. Research was undertaken to understand why some would-be offenders refrain from harmful actions toward neighbouring national parks while others do not. Perceptions of the trustworthiness of PA managers were the most consistent predictors of exercised restraint on behalf of those living within the immediate vicinities of the Great Smoky Mountains National Park, Virgin Islands National Park and Podocarpus National Park. These trust assessments were most commonly based upon respondents' perceptions of positive personal interactions between PA managers and the public, of PA managers' receptiveness to local input, of the benefits and disadvantages associated with PA presence, and of PA officials' effective performance of their duties and equitable treatment of different groups. The study reveals trust and legitimacy as key factors related to voluntary compliance in situations where general agreement with PA regulations does not necessarily exist and provides insight into how trust and legitimacy can be developed or eroded.

Punishing Pharmaceutical Companies for Unlawful Promotion of Approved Drugs: Why the False Claims Act is the Wrong Rx

This article criticizes the shift in focus from correction and compliance to punishment of pharmaceutical companies allegedly violating the Food, Drug, & Cosmetic Act (FD&C Act) prohibitions on unlawful drug promotion. Traditionally, the Food and Drug Administration (FDA) has addressed unlawful promotional activities under the misbranding and new drug provisions of the FD&C Act. Recently though, the Justice Department (DOJ) has expanded the purview of the False Claims Act to include the same allegedly unlawful behavior on the theory that unlawful promotion induces physicians to prescribe drugs that result in the filing of false claims for reimbursement. Unchecked and unchallenged, the DOJ has negotiated criminal and civil settlements with individual pharmaceutical companies ranging from just under ten to hundreds of millions of dollars. In part, companies settle these cases to avoid the potential loss of revenue associated with the exclusion regime administered by the U.S. Department of Health and Human Services, under which companies risk losing the right to participate in federal health care programs. Even more disturbing, these settlements allow DOJ to circumvent judicial review of its enforcement approach, preventing any type of accountability for its legal theories or procedures. This article discusses the traditional enforcement methods employed by the FDA as well as the more recent DOJ prosecutions under the False Claims Act. Although it concludes that the FD&C Act should provide the sole means for prosecuting unlawful drug promotion, it also suggests that when prosecuting pharmaceutical companies under either Act, the government must avoid the temptation to mine companies for large settlements in lieu of developing a more coherent and responsible enforcement strategy.

Has Devolution Injured American Workers? State and Federal Enforcement of Construction Safety

Although the issue of regulatory devolution has received much scholarly scrutiny, rigorous empirical studies of its effects on important policy outcomes are scarce. This article explores the effects of partial regulatory devolution in the occupational safety arena by exploiting a unique historical anomaly whereby some US states enforce protective labor regulations that are enforced elsewhere by the federal Occupational Safety and Health Administration. Analyzing data from the construction industry, this article contains several important findings. First, state inspectors use traditional enforcement tools more sparingly than their federal counterparts, typically citing fewer violations and collecting lower fines per violation. Second, although federal enforcement significantly lowers the estimated frequency of nonfatal construction injuries, it also predicts a significant increase in occupational fatalities. I suggest that although higher underreporting of nonfatal injuries in federally regulated states could explain this puzzling finding, it is equally possible that different regulatory styles have different “comparative advantages” in deterring nonfatal injuries on one hand and occupational fatalities on the other. (JEL D73, D78, H73, I18, J08, J28, J88, K00, K23, K31, K32, L51, and L74)

Evaluation of Intersection Safety Camera Program in Edmonton, Canada

Enforcing traffic signal compliance in urban areas can be a difficult task, as the process is often limited by police resources and by traditional enforcement methods. Therefore, conventional traffic enforcement should be supplemented with advanced technologies, such as intersection safety cameras. Intersection safety cameras, often referred to as red light cameras (RLCs), are being used increasingly to help communities enforce against deliberate red light running. Since the 1970s, Europe, Australia, and North America have been using photo enforcement technology to improve safety at intersections. The City of Edmonton, Canada, has used automated photo enforcement as part of the overall traffic enforcement activity. The Intersection Safety Camera Program started as a pilot project in 1998, which quickly expanded into a comprehensive program for the entire city. Because a significant period had elapsed since the inception of the program, the Edmonton Police Commission wanted a study to determine the overall safety effect of the photo enforcement program. This paper describes the evaluation of Edmonton's Intersection Safety Camera (ISC) program. The paper describes the methodology used in the evaluation, the data collection–compilation effort required for the evaluation, and, finally, the results of the program measured in relation to reducing the number of collisions at the intersections that were treated with photo enforcement cameras. Also included is a summary of the literature associated with the deployment of RLCs.

Legitimacy, local participation, and compliance in the Galápagos Marine Reserve

We analyze the compliance behavior of artisanal fishermen in the Galápagos Marine Reserve. Our empirical analysis explores the role of the reserve's participatory management system as a determinant factor in decisions to violate regulations. The results indicate that, along with traditional enforcement tools (detection and penalties), the perception of legitimacy that regulations and local organizations have among the boat-owners, their individual sense of belonging, as well as their participation levels in their related organizations are also relevant to the compliance/violation behavior. Policy implications to improve compliance with fisheries regulations in the reserve are discussed.

Understanding and Preventing Gang Violence: Problem Analysis and Response Development in Lowell, Massachusetts

Gang violence presents a major challenge to police departments in the United States. Problem-oriented policing has been suggested as a promising way to understand and prevent complex gang violence problems. Unfortunately, problem analysis, as currently practiced, is generally weak and the resulting responses usually consist of mostly traditional enforcement tactics. Academic-police partnerships can be very productive in understanding and responding to serious crime problems. Unfortunately, such collaborations are rare. The U.S. Department of Justice-sponsored Project Safe Neighborhoods initiative provides an important opportunity to facilitate academicpolice partnerships. In Lowell, Massachusetts, academics and practitioners collaborated on a problem analysis that shed important light on the nature of gang violence and led to the implementation of problem-oriented responses that have been promising in preventing gang violence.

Internet and Computer Crime: System Architecture as Crime Control

New technologies provide new opportunities and new potentials. Technological developments, however, do not determine human fates; rather, they change the constraints within which people act. The global reach of the Internet, the low marginal cost of online activity, and the relative anonymity of users have changed the balance of forces that have previously served to keep in check certain undesirable behaviors in the physical world. These characteristics of cyberspace have lowered the cost of perpetrating undesirable behavior by eliminating certain barriers to entry, lowering transaction costs and reducing the probability of getting caught. In addition, these characteristics make traditional enforcement strategies, particularly identifying and apprehending perpetrators after they commit online crime, both less effective and more expensive. At the same time, however, other characteristics of cyberspace provide new opportunities to control illegal acts. Unlike in the physical world, in cyberspace certain readily identifiable third parties - Internet service providers (ISPs) - have exclusive technical control over the infrastructure through which most illegal online behavior is carried out. Thus, one strategy for controlling online behavior is to impose some responsibility on such third parties in order to control user misconduct before illegal acts are committed or to help identify and apprehend criminals after the fact. In other cases, the same logic can be applied to second parties - that is, victims of online crime who control the systems on which crime is committed - and legal responsibility to encourage optimal victim behavior can also be employed. The purpose of this paper is to briefly examine the rationale and opportunity for online crime control through system architecture by imposing certain technical responsibilities on victims and implicated third parties. In particular, we examine affirmative obligations for ISPs to report criminal activity and retain data, and for victims to employ some minimal level of technical protective measures. In addition, we briefly discuss tort-based mechanisms to encourage both victims and third parties to adopt reasonable technical measures to prevent illegal behavior.

A New Approach to Water Quality Trading: Applying Lessons from the Acid Rain Program to the Lower Boise River Watershed

Water quality trading is receiving great interest as a potential tool for achieving a watershed's water quality goals at less cost. It appeals to both regulators and watershed stakeholders as a voluntary, businesslike approach attracting a category of sources to the table that regulators have been unable to control using traditional enforcement tools—nonpoint sources. Non-point source pollution is a major source of the water quality problems still needing to be addressed in watersheds throughout the United States. Following the remarkable success of the Acid Rain Program's sulfur dioxide emissions trading system, however, expectations have been raised for all pollution trading systems. To date, water quality trading projects across the US have failed to deliver on those expectations because of the predominance of the “offset” trading model in their program design, which is characterized by significant costs in both time and resources to support trades. In this article, we argue that, although critical differences exist between water quality trading and the “cap and trade” model of the Acid Rain Program, water quality trading programs should consider incorporating certain key design elements that have contributed to the Acid Rain Program's success. We describe Idaho's Lower Boise River water quality trading framework as an example of how this can be done.

Theory and Practice of Competition Advocacy at the FTC

This article was prepared as part of a recent symposium celebrating the Ninetieth Anniversary of the founding of the Federal Trade Commission. In addition, Fall 2004 marks the Thirtieth Anniversary of a pivotal moment in the establishment of the modern advocacy program at the FTC, Chairman Lewis Engman's speech on the economic burden that inefficient transportation regulation policies were imposing on the American economy. Although the FTC has been involved in advocacy activities since its founding, Engman's speech symbolized a new aggressiveness on the part of the FTC in using its expertise to work with other governmental actors at all levels of the political system and in all branches of government to design policies that further competition and consumer choice. Notwithstanding the beneficial impact that advocacy activities have had on the economy, the fortunes of the advocacy program have waxed and waned over time. In part, these mixed fortunes may reflect a lack of fundamental grounding of advocacy within the core mission of the FTC. The advocacy program, moreover, often has been politically controversial, exposing the Commission to criticism from special interests, Congress, and other governmental actors. This article explores the theory and practice of competition advocacy, with the goal of explaining why the advocacy program should be recognized as a core element of the Commission's mission. Advocacy can be used in conjunction with many of the FTC's other tools, and in many situations the judicious use of advocacy can provide a low-cost and effective alternative to other enforcement options. The advocacy program is a unique and cost-effective tool for carrying out this mission. Because consumers are disadvantaged in the political arena vis-a-vis industry, they are likely to be unable to stop anticompetitive regulation on their own. Antitrust immunities, moreover, sometimes put anticompetitive regulation beyond the reach of traditional enforcement. By providing a means for the FTC to represent consumers' interests directly in the policy-production mechanism, the advocacy program can overcome these two hurdles and provide protection for consumers at relatively low cost.

Ethics and Epidemics

More than 90 people attended a March 25–27, 2004, conference on Ethics and Epidemics. This conference was sponsored by the Albany Medical College–Graduate College of Union University Masters in Bioethics Program, the University at Albany School of Public Health, the New York State Department of Health, and the Wadsworth Laboratories. Attendees came from Australia, Africa, Asia, Europe, Canada, and the United States. Among the 24 papers and panels, presentations were made by George Annas, professor and chair of Health Law at the Boston University School of Public Health; Ezekiel Emanuel, chair of the Department of Clinical Bioethics of the Magnuson Center of the National Institutes of Health; Thomas R. Freiden, commissioner, New York City Department of Health; Matthew Wynia, director of the Institute of Ethics of the American Medical Association; Kenyan bioethicist Angela Wassuna associate for International Affairs of the Hastings Center; and 19 other bioethicists and health professionals. Presentations ranged from case studies to health policy debates. Many reviewed the history of epidemics, emphasizing their global nature and the imperative of global strategies for epidemic control. Several papers examined recent epidemics and explored new strategies for dealing with epidemic control while respecting human rights. The consensus was that the old policeman model of public health needs updating. Discussion focused on how best to balance public safety, professional responsibility, personal liberty, and human rights, while effectively containing epidemics. Emanuel and Wynia reaffirmed the responsibility of physicians and first responders to put their health and lives at risk in combating epidemics. Yet, noting the vulnerability of first responders (in the Toronto severe acute respiratory syndrome [SARS] outbreak and elsewhere), they distinguished between bravery and foolhardiness, arguing that just as professionals have a responsibility to protect the public from disease, the public, in turn, has a responsibility to provide the training, equipment, and resources to minimize the need to take risks. Virtually all conferees observed that the public health infrastructure needs substantial rebuilding to cope effectively with epidemics. Annas, however, noted that in bioterrorist assaults the control of biologic agents is a public health problem to be dealt with by public health officials, not by the U.S. Department of Defense or the U.S. Department of Homeland Security. He further stated that policies on epidemic control that involve consistent, open, and truthful communication with the public—like those used in New York and Toronto during the recent SARS outbreak—create cooperative environments that minimize conflicts between freedom and safety and limit the effects of isolation and quarantine. However, Emanuel et al. asserted that the traditional enforcement authority of public health law was essential and needed as a fallback. The result of the debate was that 21st century methods need to be developed to control infectious disease epidemics that reconcile the need to protect public health and respect human rights. The conference program is available on http://www.bioethics.union.edu under News. For further information contact bioethics@union.edu or 518-388-8045.