Issues Arising on the Interface of MPAs and Fisheries Management

One of 6 background papers presented at The Expert Workshop on Marine Protected Areas and Fisheries Management: Review of Issues and Considerations held in Rome from June 12-14, 2006. The workshop was a response to the FAO Committee on Fisheries' call for technical guidelines for marine protected areas (MPAs) to assist Members to establish representative networks of MPAs by 2012, as agreed at the World Summit on Sustainable Development. This paper focuses on three key themes. First, it highlights the commonalities between discussions of marine protected areas and of fisheries management, with emphasis on their mutual use of spatial measures and ecosystem approaches. Second, the paper draws on the other Background Papers prepared for the Workshop, as well as a range of additional literature, to produce a substantial compilation of issues and considerations relating to the development and implementation of MPAs, within a fisheries management context. The third key theme of the paper is a focus on the 'preliminary steps' of decision-making, in which scoping of needs, gaps and feasibility takes place from the dual perspectives of MPAs and fisheries management. A relative paucity of information and analysis on this topic is noted, along with a consequent need for additional work on the subject. An initial effort is undertaken to explore the key decision-making elements in this 'preliminary stage'

The sub prime crisis : implications for emerging markets

This paper discusses some of the key characteristics of the U.S. subprime mortgage boom and bust, contrasts them with characteristics of emerging mortgage markets, and makes recommendations for emerging market policy makers. The crisis has raised questions in the minds of many as to the wisdom of extending mortgage lending to low and moderate income households. It is important to note, however,that prior to the growth of subprime lending in the 1990s, U.S. mortgage markets already reached low and moderate-income households without taking large risks or suffering large losses. In contrast, in most emerging markets, mortgage finance is a luxury good, restricted to upper income households. As policy makers in emerging market seek to move lenders down market, they should adopt policies that include a variety of financing methods and should allow for rental or purchase as a function of the financial capacity of the household. Securitization remains a useful tool when developed in the context of well-aligned incentives and oversight. It is possible to extend mortgage lending down market without repeating the mistakes of the subprime boom and bust.Debt Markets,,Access to Finance,Bankruptcy and Resolution of Financial Distress,Emerging Markets

Multiemployer Bargaining and Monopoly: Labor-Management Collusion and a Partial Solution

Multiemployer collective bargaining relationships between un- ions and employer associations easily devolve into legalized cartels. Once unions establish themselves as the bargaining representative for employers\u27 employees, the employers have much to gain from banding together as an association, raising their prices and eliminating non-union competition, with unions happily serving as enforcement agents in the scheme. In return, unions receive a share of the increased oligopolistic profits in the form of higher wages and benefits. A threat to such a cartel is an employer who wants to bargain with the union but does not want to accept the terms the associ- ation has bargained for. This Article examines the status of such an employer. It outlines how unions and (especially) as- sociations work to thwart such an employer from bargaining di- rectly with a union despite the federal labor policy ofprotecting an employer\u27s freedom in selecting its bargaining representa- tive. This anticompetitive behavior not only hurts individual non-association employers but also non-association employers\u27 union employees, as the union will refuse to realistically bar- gain with their employer unless it agrees to the terms in the as- sociation agreement. This leads to the employer either being forced to accept the association\u27s terms, which it cannot afford, or, if it survives a strike and picket, becoming non-union. A middle ground of real bargaining that serves the non- association employer\u27s union employees\u27 interests is not avail- able. In enforcing this scheme a cartel\u27s primary tactic is the use of most- favored-nations clauses in multiemployer collec-tive bargaining agreements. Another is the design and use of multiemployer ERISA plans. The Article also discusses the labor antitrust exemptions and how, notwithstanding the suggestions of other scholars, anti- trust law is an ineffective tool to remedy union-association car- tel behavior. Instead, the Article advocates changes that can be made to the labor laws and to ERISA that would allow individ- ual employers to escape the terms of association collective bar- gaining agreements and encourage unions to nevertheless bar- gain with them. This does not mean that multiemployer bar- gaining itselfshould be banned. Multiemployer bargaining has always been with us and is not going away, but its anticompeti- tive effects can be tempered

The New Judicial Federalism Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline

The coming of the New Deal may have spelled the end of the Lochner era in the federal courts, but in the state courts Lochner\u27s doctrine of economic substantive due process lives on. Since the New Deal, courts in almost every state have rebuffed the United States Supreme Court and have interpreted their own state constitutions\u27 due process clauses to provide substantive protections to economic liberties. This Article presents a comprehensive survey of state court use of economic substantive due process since the New Deal. It includes an enumeration of every instance since 1940 of a state court of highest review protecting economic liberties through state constitutional economic substantive due process. Previous work on the subject has examined this post-New Deal rejection of the United States Supreme Court\u27s jurisprudence, but this is the first study to comprehensively analyze the trends of that rejection. This comprehensive analysis reveals an intriguing, and potentially controversial, discovery. The discovery is that although state courts still to some degree apply state constitutional economic substantive due process in protecting economic liberties, the rate of that application declined dramatically in the 1970s and 1980s. The decline is surprising considering that through the 1940s, 1950s, and even 1960s, a full thirty years after the New Deal, state courts did not shy from invoking the long-past ghost of Lochner. This Article argues that the reason for this relatively sudden decline is that many state judges were comfortable applying economic substantive due process until the coming of Roe v. Wade and its related right to privacy cases. Because the right to privacy cases utilized substantive due process, but of the non-economic variety, a continued use of economic substantive due process provided legitimacy to their holdings. Faced with either legitimizing opinions legalizing abortion and other privacy rights, or rejecting substantive due process altogether, conservative state jurists chose the latter. These conservatives joined with progressive jurists who were already hostile toward the protection of economic liberties. Thus, with these strange bedfellows aligned, the use of economic substantive due process under state constitutional law quickly withered into the rare, but not quite extinct, doctrine that it is today

Perceptions of efficacy of minority and non-minority school-based decision-making council members in Kentucky\u27s region 1 and region 2 school systems.

Shortly after the implementation of Kentucky\u27s school-based decision-making councils, it became obvious that minorities were severely underrepresented on these councils. As a result, the Kentucky legislature enacted Section 160.352(3)(f) by which schools having 8% or more minority student population had to increase the school-based council membership to include a minority parent and/or teacher, elected by the parents or the teachers respectively, if no minority member was elected in the initial voting. Though the law required minority representation on these councils, very little research has been conducted regarding minority participation. This study investigated the perceptions of school council members regarding their efficacy of experiences and impact of their contributions to school policies, operations, and student achievement. Furthermore, differences between minority and non-minority school council members were explored. Data were collected by the researcher-designed SBDM Perceptions Survey Instrument (which also included the opportunity for respondents\u27 comments) to address the following three overarching research questions: (1) Do council members perceive that actions of the council impact the school and its students? These opinions were identified based on responses to a series of efficacy-related items on the survey instrument. (2) Do council members perceive their participation on the council to be a positive experience as they interact with each other during deliberations and decision-making? These attitudes were obtained from responses provided on the series of experience-related items on the survey instrument. (3) Do minority council members sense that they are empowered and efficacious and do their perceptions differ significantly from the perceptions of non-minority council members? Differences between these two groups of respondents were examined statistically for all items on the survey instrument. Generally, council members agreed that school-based decision-making was advantageous for schools and students. Additionally, respondents generally indicated that their experiences as council members were positive. Statistically significant differences were found between minority and non-minority respondents in both the efficacy- and experience-related survey items. Recommendations for further study and policy implications were offered

Of All Things Made in America Why are We Exporting the Penn Central Test

Developing countries enter into bilateral investment treaties ( BITs ) in order to increase foreign direct investment ( FDI ). Ignoring this straightforward fact has led to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court\u27s Penn Central test and the test\u27s incorporation into the post-NAFTA round of U.S. BITs. Then, the article examines whether an uncertain and flexible test such as Penn Central is suitable for treaties that seek to provide foreign investors with incentives to invest in developing counties. The article argues that Penn Central is not appropriate for BITs because it does not provide a clear rule of law that will induce a foreign investor to send its capital overseas to a developing country. This is partly due to the greater need for clarity in public law than in private law. For this distinction the article employs the work of F.A. Hayek and rules of just conduct versus rules of organization of government. The article also addresses criticisms of the incentives BITs provide to foreign investors and to host governments and how those incentives counsel for clear regulatory takings rules. Whatever the merits there may be for a flexible regulatory takings rule when interpreting the Fifth Amendment\u27s Takings Clause, those reasons do not apply to BITs. The article acknowledges that BITs may not actually succeed in increasing FDI, as the empirical evidence on the question is mixed. However, if they do, then BITs with clear regulatory takings standards will be more successful than those with vague standards, such as Penn Central. Drafters of BITs can still take into account other objectives such as environmental protection, but should do so with clear rules of law so foreign investors can plan their investments accordingly

Of All Things Made in America Why are We Exporting the Penn Central Test

Developing countries enter into bilateral investment treaties ( BITs ) in order to increase foreign direct investment ( FDI ). Ignoring this straightforward fact has led to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court\u27s Penn Central test and the test\u27s incorporation into the post-NAFTA round of U.S. BITs. Then, the article examines whether an uncertain and flexible test such as Penn Central is suitable for treaties that seek to provide foreign investors with incentives to invest in developing counties. The article argues that Penn Central is not appropriate for BITs because it does not provide a clear rule of law that will induce a foreign investor to send its capital overseas to a developing country. This is partly due to the greater need for clarity in public law than in private law. For this distinction the article employs the work of F.A. Hayek and rules of just conduct versus rules of organization of government. The article also addresses criticisms of the incentives BITs provide to foreign investors and to host governments and how those incentives counsel for clear regulatory takings rules. Whatever the merits there may be for a flexible regulatory takings rule when interpreting the Fifth Amendment\u27s Takings Clause, those reasons do not apply to BITs. The article acknowledges that BITs may not actually succeed in increasing FDI, as the empirical evidence on the question is mixed. However, if they do, then BITs with clear regulatory takings standards will be more successful than those with vague standards, such as Penn Central. Drafters of BITs can still take into account other objectives such as environmental protection, but should do so with clear rules of law so foreign investors can plan their investments accordingly

The New Judicial Federalism Before its Time: A Comprehensive Review of Economic Substantive Due Process Under State Constitutional Law Since 1940 and the Reasons for its Recent Decline

The coming of the New Deal may have spelled the end of the Lochner era in the federal courts, but in the state courts Lochner\u27s doctrine of economic substantive due process lives on. Since the New Deal, courts in almost every state have rebuffed the United States Supreme Court and have interpreted their own state constitutions\u27 due process clauses to provide substantive protections to economic liberties. This Article presents a comprehensive survey of state court use of economic substantive due process since the New Deal. It includes an enumeration of every instance since 1940 of a state court of highest review protecting economic liberties through state constitutional economic substantive due process. Previous work on the subject has examined this post-New Deal rejection of the United States Supreme Court\u27s jurisprudence, but this is the first study to comprehensively analyze the trends of that rejection. This comprehensive analysis reveals an intriguing, and potentially controversial, discovery. The discovery is that although state courts still to some degree apply state constitutional economic substantive due process in protecting economic liberties, the rate of that application declined dramatically in the 1970s and 1980s. The decline is surprising considering that through the 1940s, 1950s, and even 1960s, a full thirty years after the New Deal, state courts did not shy from invoking the long-past ghost of Lochner. This Article argues that the reason for this relatively sudden decline is that many state judges were comfortable applying economic substantive due process until the coming of Roe v. Wade and its related right to privacy cases. Because the right to privacy cases utilized substantive due process, but of the non-economic variety, a continued use of economic substantive due process provided legitimacy to their holdings. Faced with either legitimizing opinions legalizing abortion and other privacy rights, or rejecting substantive due process altogether, conservative state jurists chose the latter. These conservatives joined with progressive jurists who were already hostile toward the protection of economic liberties. Thus, with these strange bedfellows aligned, the use of economic substantive due process under state constitutional law quickly withered into the rare, but not quite extinct, doctrine that it is today