The horizontal mechanism initiative in the WTO: the proceduralist turn and its discontents

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The "Regulatory Compact" and Implicit Contracts: Should Stranded Costs Be Recoverable?

Progress toward electricity market deregulation has brought controversy over whether or not utilities are entitled to compensation for "stranded costs," i.e., costs utilities will not be able to recover due to the advent of competition in their markets. This paper uses a legal and economic analysis of contracts to address the desirability of utility cost recovery. First, underlying principles of law are reviewed to determine whether or not there is a legal presumption of recovery. Then, the analysis considers whether or not an implicit "regulatory compact" between utilities and regulators follows from principles in the economic analysis of law, particularly theories of efficient breach and implicit contracts. The paper concludes that recovery should occur in only a proscribed set of circumstances and that, when called for, compensation should be partial, rather than full.

Originalism: A Critical Introduction

The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics

Knowledge Cartography for Controversies: The Iraq Debate

In analysing controversies and debates—which would include reviewing a literature in order to plan research, or assessing intelligence to formulate policy—there is no one worldview which can be mapped, for instance as a single, coherent concept map. The cartographic challenge is to show which facts are agreed and contested, and the different kinds of narrative links that use facts as evidence to define the nature of the problem, what to do about it, and why. We will use the debate around the invasion of Iraq to demonstrate the methodology of using a knowledge mapping tool to extract key ideas from source materials, in order to classify and connect them within and across a set of perspectives of interest to the analyst. We reflect on the value that this approach adds, and how it relates to other argument mapping approaches

Metatheory and Friendly Competition in Theory Growth: The Case of Power Processes in Bargaining

[Excerpt] This paper analyzes the theoretical development taking place in a program of research on power processes in bargaining (see Bacharach and Lawler 1976, 1980, 1981a, 1981b; Lawler and Bacharach 1976, 1979, 1987; Lawler, Ford, and Blegen 1988; Lawler and Yoon 1990; Lawler 1986, 1992). The theoretical program takes as its starting point a situation where individuals, groups, organizations, or even societies with conflicting interests voluntarily enter into explicit bargaining. Explicit (as opposed to tacit) bargaining assumes the mutual acknowledgment of negotiations, conflicting issues along which compromise is possible, and open lines of communication through which parties can exchange offers and counteroffers in an attempt to resolve the issues that divide them (Schelling 1960; Bacharach and Lawler 1980; Boyle and Lawler 1991). The scope of this theoretical research program assumes further that the parties have a power capability, that they use this power tactically in an effort to achieve desired outcomes, and that they strive for a favorable position during the bargaining process

Origins and Resolution of Financial Crises; Lessons from the Current and Northern European Crises

Since July 2007 the world economy has experienced a severe financial crisis originating in the U.S. housing market. The crisis has subsequently spread to the financial sectors in European and Asian economies and led to a severe worldwide recession. The existing literature on financial crises rarely distinguish between factors that create the original strain on the financial sector and factors that explain why these strains lead to system-wide contagion and a possible credit crunch. Most of the literature on financial crises refers to factors that cause an original disruption in the financial system. We argue that a financial crisis with its contagion within the system is caused by failures of legal, regulatory and political institutions. One policy implication of our view is that the need for various forms of rescues of financial firms in times of crises would be reduced if appropriate institutions could be put in place Lacking appropriate institutions to avoid contagion within the financial system and a potential credit crunch, ad hoc financial crisis management is required. We draw on experiences from the financial crises in the Nordic countries at the end of the 1980s and the beginning of the 1990s. In particular, the Swedish model for crisis resolution, which has received attention during the current crisis, is discussed in order to illustrate the problems policy makers face in a financial crisis without appropriate institutions. Current European Union approaches to the crisis are discussed before turning to policy implications from an emerging market perspective in the current crisis.Financial Crisis; Institutional Failure; Insolvency Procedures; Contagion; Systemic Effects; Macroeconomic Shock; Financial Crisis Management; Swedish Model

Discovery From Non-Parties (Third-Party Discovery) in International Arbitration

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel that was initiated on request from Advanced Micro Devices (AMD). Early in that investigation, AMD filed a s.1782 request in the US District Court to obtain evidence from US sources for submission to the DG-Competition of the European Commission (EC). This request ultimately led to the Supreme Court’s decision in Intel Corp v Advanced Micro Devices Inc2 which appeared to significantly expand the scope of s.1782. Ironically, after AMD won on key legal issues in the Supreme Court, the District Court on remand exercised its discretion and denied the request for judicial assistance. This paper first describes the FAA non-party discovery rules and the split among the federal appellate courts concerning the authority of arbitrators to order prehearing discovery from non-parties. Next, it provides an analysis of the meaning of the terms “interested party” and “tribunal”—terms that were controversially interpreted by the Supreme Court in Intel and are essential to the application of s.1782. Finally, it discusses the “discretionary” factors used by the federal courts in deciding whether to grant a s.1782 request even when the statutory criteria are met. The opportunity to exercise this discretion seems to rebut the argument that the Supreme Court’s interpretation of s.1782 gives participants before foreign tribunals more discovery rights in the United States than are available to the parties in arbitrations covered by the FAA

Implicit Bias Reflects the Personal and the Social

This issue’s target article by Payne, Vuletich, and Lundberg (PV&L) does exactly what one should, presenting an argument that is thought-provoking and that challenges current orthodoxy. It also addresses an issue that has increasingly confounded attitudes researchers in recent years. The construct of “implicit bias” was initially conceptualized as a latent construct that exists within persons, relatively resistant to situational influences. A plethora of theoretical models converge on the notion that implicit biases, including intergroup biases, are representations that are stored in memory (e.g., Devine,1989; Fazio, Jackson, Dunton, & Williams, 1995; Gawronski & Bodenhausen, 2006; Greenwald et al., 2002; Wilson, Lindsay, & Schooler, 2000). Although some perspectives emphasize the role of culture in contributing to implicit measures of bias, even these perspectives rely on the learning and storage of mental representations (Olson & Fazio, 2004)