Introduction Daniel Carpenter and David Moss Part I. Failures of Capture Scholarship: 1. A revisionist history of regulatory capture William Novak 2. The concept of regulatory capture: a short, inglorious history Richard Posner 3. Detecting and measuring capture Daniel Carpenter Part II. New Conceptions of Capture - Mechanisms and Outcomes: 4. Cultural capture and the financial crisis James Kwak 5. Complexity, capacity, and capture Nolan McCarty 6. Preventing economists' capture Luigi Zingales 7. Corrosive capture? The dueling forces of autonomy and industry influence in FDA pharmaceutical regulation Daniel Carpenter Part III. Misdiagnosing Capture and Case Studies of Regulatory Success: 8. Capturing history: the case of the Federal Radio Commission in 1927 David Moss and Jonathan Lackow 9. Conditional forbearance as an alternative to capture: evidence from coal mine safety regulation Sanford Gordon and Catherine Hafer 10. Captured by disaster? Reinterpreting regulatory behavior in the shadow of the Gulf oil spill Christopher Carrigan 11. Reconsidering agency capture during regulatory policymaking Susan Webb Yackee 12. Coalitions, autonomy, and regulatory bargains in public health law Mariano-Florentino Cuellar Part IV. The Possibility of Preventing Capture: 13. Preventing capture through consumer empowerment programs: some evidence from insurance regulation Daniel Schwarcz 14. Courts and regulatory capture M. Elizabeth Magill 15. Can executive review help prevent capture? Richard Revesz and Michael Livermore Conclusion David Moss and Daniel Carpenter Afterword Sheldon Whitehouse and Jim Leach.

/pdf/preventing-regulatory-capture-special-interest-influence-and-4hy96dv1ii.pdf

Preventing Regulatory Capture: Special Interest Influence and How to Limit It

We find connections CEOs develop with top executives and directors through their appointment decisions heighten the risk of corporate fraud. Appointment-based CEO connectedness in executive suites and boardrooms increases the likelihood of committing fraud and decreases the likelihood of detection. Additionally, it decreases expected costs of fraud by helping to conceal frauds, making CEO dismissal less likely upon fraud discovery, and lowering the coordination costs of carrying out illegal activities. Connections based on network ties through past employment, education, or social organization memberships have insignificant effects on frauds. Appointment-based CEO connectedness warrants attention from regulators, investors, and corporate governance specialists.

/pdf/ceo-connectedness-and-corporate-frauds-20lq4gzpug.pdf

CEO Connectedness and Corporate Frauds

The proliferation of international standards has triggered heated debates in recent years. From human rights to environmental protection, from the Internet to financial derivatives, from antitrust to missile technology, international standards govern some of the most important issues of our day. These standards are not legally binding, but scores of governments around the world have incorporated them wholesale in their national legal orders. The drafters of these standards are not political leaders, formal government representatives, or international organizations, but rather informal committees of ministry officials, regulators, or private experts. Labeled transnational regulatory networks, these informal bodies have puzzled legal scholars and international relations theorists. Why do states adopt these standards instead of producing their own laws? How do these new global standard setters come about, and what are their goals? Addressing these questions has been the source of both “euphoria” and “anxiety,” as a leading commentator has recognized.

Three Pathways to Global Standards: Private, Regulator, and Ministry Networks

Research on the political economy of immigration overlooks the specificity of human capital in skilled occupations and its implications for immigration preferences and policymaking. Conclusions that skilled Americans are unconcerned about labor market competition from skilled migrants build on a simple dichotomy between high and low skill migrants. In this article we show that natives turn to occupational licensing regulations as occupation-specific protectionist barriers to skilled migrant labor competition. In practice, high skill natives face labor market competition only from those high-skill migrants who share their occupation-specific skills. Licensure regulations ostensibly serve the public interest by certifying competence, but they can simultaneously be formidable barriers to entry by skilled migrants. From a collective action perspective, skilled natives can more easily secure sub-national, occupation-specific policies than influence national immigration policy. We exploit the unique structure of the American medical profession that allows us to distinguish between public interest and protectionist motives for migrant physician licensure regulations. We show that over the 1973–2010 period states with greater physician control over licensure requirements imposed more stringent requirements for migrant physician licensure and, as a consequence, received fewer new migrant physicians. By our estimates over a third of all US states could reduce their physician shortages by at least 10 percent within 5 years just by equalizing migrant and native licensure requirements. This article advances research on the political economy of immigration and highlights an overlooked dimension of international economic integration: regulatory rent-seeking as a barrier to the cross-national mobility of human capital, and the public policy implications of such barriers.

Doctors with borders: occupational licensing as an implicit barrier to high skill migration

In recent years foreign investors have used a rapidly expanding network of bilateral and multilateral investment treaties to directly sue states before international tribunals for violations of international law. There have now been hundreds of such lawsuits, with tribunals occasionally granting investors massive damage awards. In the process of resolving these disputes, tribunals announce and apply new rules of law. This brave new world of international investment law (IIL) has emerged as one of the most dynamic and controversial areas of international law today. In this Article I argue that the IIL system can be usefully analogized to a domestic-law administrative agency, where significant regulatory power is transferred to expert decision-makers acting on behalf of political principals. Viewing IIL as an agency highlights the IIL system’s major weakness: the lack of sufficient mechanisms of political control by states. Drawing on domestic administrative practice, I suggest reforms designed to enhance control by adapting domestic-law systems of notice-and-comment and the legislative veto. Doing so promises to ensure states an adequate degree of control over IIL outputs.

Controlling the International Investment Law Agency

So-called independent agencies are created for a reason, and often that reason is a concern with agency capture Agency designers hope that a more insulated agency will better protect the general public interest against interest group pressure But the conventional approach to independent agencies in administrative law largely ignores why agencies are insulated Instead, discussions about independent agencies in administrative law have focused on three features that have defined independent agencies: heads who are removable for cause by the President, an exemption from having to submit regulations to the President’s Office of Information and Regulatory Affairs for cost-benefit analysis, and a multimember structure But these traditional characteristics of an independent agency are not the only, or necessarily even the most effective, ways in which insulation from interest groups and partisan pressure can be achieved In fact, under modern conditions of political oversight, other design elements and mechanisms are often just as important if the goal is to create an agency that is best suited to achieve a long-term public-interest mission free from capture This is particularly true of agencies tasked with protecting the general public in the face of one-sided and intense political pressure This kind of lopsided pressure can be seen in a range of areas, from criminal justice to consumer protection The goal of this Article is to move the conversation about insulation beyond the traditional hallmarks of independence and identify overlooked elements of agency design, deemed equalizing factors, that are particularly well-suited to addressing the problem of capture in the context of asymmetrical political pressure The Article identifies five such equalizing factors that have received little or no attention in the legal literature on independent agencies but that are critically important for insulation against one-sided interest group dominance The Article then compares the effectiveness of traditional and equalizing factors in the context of consumer protection, an area with the kind of one-sided interest group pressure that is a breeding ground for capture The Article explores the relationship between the institutional design of the Consumer Product Safety Commission and its effectiveness and uses those lessons to analyze the Bureau of Consumer Financial Protection, the most significant new federal agency created in decades This analysis of consumer protection regulatory agencies show-cases both the continuing danger of capture and the critical importance of institutional design in policing it

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1719169_code419245.pdf?abstractid=1717037&mirid=1&type=2

Insulating Agencies: Avoiding Capture Through Institutional Design

So-called independent agencies are created for a reason, and often that reason is a concern with agency capture. Agency designers hope that a more insulated agency will better protect the general public interest against interest group pressure. But the conventional approach to independent agencies in administrative law largely ignores why agencies are insulated. Instead, discussions about independent agencies in administrative law have focused on three features that have defined independent agencies: heads who are removable for cause by the President, an exemption from having to submit regulations to the President's Office of Information and Regulatory Affairs for cost-benefit analysis, and a multimember structure. But these traditional characteristics of an independent agency are not the only, or necessarily even the most effective, ways in which insulation from interest groups and partisan pressure can be achieved. In fact, under modern conditions of political oversight, other design elements and mechanisms are often just as important if the goal is to create an agency that is best suited to achieve a long-term public-interest mission free from capture. This is particularly true of agencies tasked with protecting the general public in the face of one-sided and intense political pressure. This kind of lopsided pressure can be seen in a range of areas, from criminal justice to consumer protection. The goal of this Article is to move the conversation about insulation beyond the traditional hallmarks of independence and identify overlooked elements of agency design, deemed "equalizing factors," that are particularly well-suited to addressing the problem of capture in the context of asymmetrical political pressure. The Article identifies five such equalizing factors that have received little or no attention in the legal literature on independent agencies but that are critically important for insulation against one-sided interest group dominance. The Article then compares the effectiveness of traditional and equalizing factors in the context of consumer protection, an area with the kind of one-sided interest group pressure that is a breeding ground for capture. The Article explores the relationship between the institutional design of the Consumer Product Safety Commission and its effectiveness and uses those lessons to analyze the Bureau of Consumer Financial Protection, the most significant new federal agency created in decades. This analysis of consumer protection regulatory agencies showcases both the continuing danger of capture and the critical importance of institutional design in policing it. Introduction According to the existing legal literature and case law, the defining hallmark of an independent agency is that it is headed by someone who cannot be removed at will by the President but instead can be removed only for good cause.1 This one design feature has spawned countless law review articles about the meaning of separation of powers, the nature of the unitary executive, and the constitutional pedigree of the New Deal and the explosion of agencies with this attribute.2 The Supreme Court and lower courts have considered the removal question at length, with the latest chapter coming last Term when the Court held that it was unconstitutional for Congress to place "dual for-cause limitations on the removal" of members of the Public Company Accounting Oversight Board (PCAOB) by vesting the removal power in the Securities and Exchange Commission (SEC), whose members themselves cannot be removed by the President except for cause.3 The Court divided five to four and produced more than 100 pages on the subject.4 The obsessive focus on removal as the touchstone of independence is curious because insulation from the President is often not the dominant reason why policy makers seek to create independent agencies in the first place. Rather, the goal of insulation is frequently to allow an agency to protect the diffuse interest of the general public or a vulnerable segment of the public that, because of collective action problems or resource limitations, is often outgunned in the political process by well-financed and politically influential special interests. …

The Supreme Court takes two very different approaches to sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist of any these requirements in noncapital cases. This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution's text, history, or structure, and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided. It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If death were no longer different as a matter of constitutional law, our criminal justice system would be * and almost certainly for the better.

The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance is within the states themselves to see how they handle the issue of law enforcement allocation. States have the option of vesting authority in a state-level actor – typically, the Attorney General – or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority because states are weighing the same issues. This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state- or federal-level). A comprehensive empirical survey of criminal law enforcement responsibility in the states – including a review of state codes and case law and interviews with state prosecutors – reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. This contrasts with the federal government’s increasing interference with local crime. The Article explains the source of this difference: In the states, questions of procedure and sentencing are irrelevant to the allocation of power decision because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal involvement in crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government’s decision to get involved with question of local crime.

/pdf/federalism-and-criminal-law-what-the-feds-can-learn-from-the-42x6v6vp2c.pdf

Federalism and Criminal Law: What the Feds Can Learn from the States

Acknowledgments Introduction Anthony S. Barkow and Rachel E. Barkow 1 The Causes of Corporate Crime: An Economic Perspective Cindy R. Alexander and Mark A. Cohen 2 Deferred Prosecution Agreements on Trial: Lessons from the Law of Unconstitutional Conditions Richard A. Epstein 3 Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms Jennifer Arlen 4 Potentially Perverse Effects of Corporate Civil Liability Samuel W. Buell 5 Inside-Out Enforcement Lisa Kern Griffin 6 The Institutional Logic of Preventive Crime Mariano-Florentino Cuellar 7 Collaborative Organizational Prosecution Brandon L. Garrett 8 The Prosecutor as Regulatory Agency Rachel E. Barkow 9 What Are the Rules If Everybody Wants to Play? Multiple Federal and State Prosecutors (Acting) as Regulators Sara Sun Beale 10 Reforming the Corporate Monitor? Vikramaditya Khanna Conclusion Anthony S. Barkow and Rachel E. Barkow Contributors Index

/pdf/prosecutors-in-the-boardroom-using-criminal-law-to-regulate-zuqt3oa31q.pdf

Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

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Insulating Agencies: Avoiding Capture Through Institutional Design

Insulating Agencies: Avoiding Capture Through Institutional Design

The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity

Federalism and Criminal Law: What the Feds Can Learn from the States

Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct