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Journal Article

Modes of Regulatory Enforcement and the Problem of Administrative Discretion

01 Jan 1999-Hastings Law Journal-Vol. 50, Iss: 5, pp 1275
TL;DR: In this paper, the authors identify specific factors relevant to evaluating the wisdom of granting ex ante enforcement authority to an agency, and then apply to the resulting framework to evaluate a number of existing regulatory regimes.
Abstract: In addition to regulating different substantive areas, administrative agencies differ in the enforcement systems they use to implement regulatory regimes. Professor Bhagwat identifies a crucial distinction between ex ante enforcement regimes, which authorize agencies to review approve or disapprove of regulated conduct before it occurs, and ex post regimes, which limit agencies to prosecuting and penalizing regulatory violations after they have occurred. The nature of an agency's enforcement power can have an enormous impact on the practical scope of its substantive lawmaking power and its discretionary authority. Ex ante authority appears in a variety of guises, including licensing schemes, preclearance or preapproval requirements, certification requirements. Their common feature is that ex ante enforcement regimes place the burden of inertia, delay, and inaction on regulated entities, by prohibiting them from engaging in desired activity until after agency approval is obtained, or agency disapproval is successfully challenged in the courts (ex post regimes, by contrast, leave the burden of inertia on agencies). The practical consequence of this is that ex ante enforcement powers greatly increase the substantive lawmaking power, as well as the discretionary authority of both agencies as a whole and individual agency personnel, by shielding regulatory decisions from both internal agency and judicial supervision. Because of this, Professor Bhagwat argues, Congress should be extremely cautious about granting agencies ex ante authority, especially in substantive areas where agency discretion can threaten important social interests. On the other hand, there are also potential benefits from ex ante regulatory authority, primarily in terms of preventing irremediable social harms, and reducing investigatory and remedial burdens on agencies. In light of these considerations, the balance of the article identifies specific factors relevant to evaluating the wisdom of granting ex ante enforcement authority to an agency, and then applies to resulting framework to evaluate a number of existing regulatory regimes.

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Citations
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Journal ArticleDOI
TL;DR: In this article, the authors conduct an empirical study of an organ that has attracted little attention: the Director of Courts in Israel, an administrative entity that "manages" the judiciary.
Abstract: To shed a realist light on court administration and the regulation of judges in liberal-democratic countries, we conduct an empirical study of an organ that has attracted little attention: the Director of Courts in Israel – an administrative entity that “manages” the judiciary. In important respects, the Director may be regarded as a regulator of judges, thus assessment of judicial independence in Israel is incomplete without recognizing its presence. The institution of the Director has undergone agencification, which entailed augmentation of its capacities and an evolution in mindset regarding the implementation of these capacities. As a result, its powers, mode of operation, and organization have fundamentally transformed over time, as has the regulatory terrain within which judges conduct their business. By introducing novel indicators for assessment and applying them in an unfamiliar context, this paper offers important theoretical contributions to studies of the regulation and administration of courts and judges, and agencification.

11 citations

Book
19 May 2011
TL;DR: The Prospectus Disclosure in a Wider Institutional Context and Regulatory Competition and the Prospectus Directive: the issuer choice policy dispute are presented.
Abstract: Introduction Part I. Prospectus Disclosure in a Wider Institutional Context: 1. Actors and institutions Part II. Prospectus Disclosure Regulation: 2. Introduction 3. (Maximum) harmonisation 4. Equivalence-based regulation Part III. Prospectus Disclosure Enforcement: 5. Introduction 6. Prospectus disclosure enforcement - strategy and arrangements 7. Prospectus disclosure enforcement - national implementation Part IV. Prospectus Disclosure and Regulatory Competition: 8. Introduction 9. Regulatory competition and EU decision-making 10. Regulatory competition and the Prospectus Directive: the issuer choice policy dispute 11. Conclusions and suggestions for the future.

10 citations

Posted Content
TL;DR: In this article, the authors argue that the combination of cumbersome notice-and-comment rulemaking procedures, the proliferation of unofficial forms of fraud guidance, and the growing use of fraud litigation as a regulatory strategy have created an increasingly untenable situation for the health care industry.
Abstract: As the numbers of health care fraud prosecutions - and the magnitude of health care fraud settlements - continue to grow, health care providers have sought advice from federal regulators on how to assure that their business relationships comply with the increasingly complex fraud laws. This governmental advice has taken the form not only of traditional efforts to regulate health care activities that may give rise to fraud, but also more creative attempts to guide industry behavior and to enforce the fraud prosecutions. This Article argues that the combination of cumbersome notice-and-comment rulemaking procedures, the proliferation of unofficial forms of fraud guidance, and the growing use of fraud litigation as a regulatory strategy have created an increasingly untenable situation for the health care industry. Alleviating these problems requires a focus on regulatory clarity as a necessary precondition for a legitimate enforcement framework: demanding clear rules to govern the conduct of health care providers, backed by substantial penalties for clear violations.

8 citations

Journal ArticleDOI
TL;DR: In this article, the authors propose an ex ante enforcement system for the prior approval of a prospectus for an offer of securities to the public, or admission of a securities to trading on a regulated market, subject to the competent authority of the issuer's home Member State.
Abstract: Under the provisions of the Prospectus Directive, the publication of a prospectus for an offer of securities to the public, or an admission of securities to trading on a regulated market, is subject to the prior approval of the prospectus by the competent authority of the issuer's home Member State. This article examines the approval system as envisaged under the Directive. The aim is two-fold. First, the article conceptualises the approval system as a regulatory instrument. By studying the provisions relating to the prior approval in the Prospectus Directive, and by drawing on the literature on regulation, the approval system will be conceptualised as an ex ante enforcement system. Second, the article examines the approval system critically as an investor protection measure and as a risk reduction strategy for issuers. Proceeding on the premise that in order to justify the prior approval, the approval system must not only improve upon the quality of disclosure but that this improvement must matter if considered from the perspective of the recipient of the approved prospectus, the benefits and costs of the prior approval will be assessed for investors and issuers. These two points will be developed hereunder by examining in turn the regulatory nature and the purpose of the approval system.

5 citations